With the FAA’s new rules on Small Unmanned Aircraft Systems (sUAS), “drones” for short, that will become effective in August of this year (about the time you will be reading this), it’s not too early to discuss some of the issues these new regulations bring up. Let’s hope it’s not too late. These regulations apply to unmanned aircraft weighing less than 55 pounds, including any payload the drone may be carrying, such as cameras or any other tools that someone using the drone may need to have on board.

The common law rule thus conforms to the familiar legal maxim cujus est solum, ejus est usque ad coelum et ad inferos—“[w]hoever owns the soil owns everything up to the sky and down to the depths.”1

This quote comes from the Iowa Supreme Court case we discussed in my May column of this year, when the issue was riparian rights in a non-navigable man-made lake. Nevertheless, this “familiar maxim” of property law is no longer true, especially with regard to the rights to the airspace above private property. This was noted in the dissenting opinion in that case given by Justice Cady.

The “logical extension” of this rule leads one to conclude an owner is entitled to exclusive dominion over his land, including the areas above and below its surface. … But such an extension is not justified because it is based on the anachronistic rule that our property rights “extend from heaven to hell.” The march of time, the evolution of society, and the inherent differences between land, water, and air clearly demonstrate they do not. The majority’s adoption of what is called the “common law rule” only furthers this antiquated abstraction.2

We already know that air rights above one’s land will not extend to the heavens. Sometime in the future when technology allows for tapping the Earth’s core for energy needs or other valuable resources, we will no doubt learn that they do not extend to hell either.

Air Rights Generally

I’m not as familiar with air rights as I am riparian rights that attach to the ownership of the banks or shores of water bodies, both navigable and non-navigable, but I do see similarities in how the law addresses them both. Riparian rights, in many cases, extend beyond the terrestrial limits of the property boundaries. So do air rights.

Riparian rights are not unfettered rights. As a general rule they will be subject to the over-riding Commerce Clause and the navigational servitudes of the federal government (enforced by the U.S. Army Corps of Engineers and the U.S. EPA), and similar jurisdictional rights afforded to the state. The same is true with air rights in the airspace above surface property enforced by the FAA.

Under current FAA regulations, “an existing object, including a mobile object, is, and a future object would be an obstruction to air navigation if it is of greater height than … [a] height of 499 feet, AGL,”3 (above ground level). This is a blanket easement, or jurisdictional servitude, over the entire face of what we call the United States of America. This is generally quoted as a 500-foot ceiling above surface property.

There are other varying ceilings to unfettered air rights of surface property depending on the property’s proximity to airports and other aviation interests. But as a general proposition, according to the FAA, you will have to get their permission to exercise dominion and control over anything above 500 feet over your property. As with navigation on water, this would seem to be a federal navigational servitude of airspace.

I find the litigation over air-rights to be relatively sparse as it relates to other boundary and property rights issues. I’m sure that this will change drastically in the coming years as the number of people with small drones increases along with their increasing contact with landowners, and associated personal and private property rights. Most of the litigation that currently exists on the subject has to do with surveillance issues and warrantless searches over private property looking for illegal activity, such as growing marijuana. These issues implicate the Fourth Amendment to the United States Constitution (search and siezure).

In a New Mexico Supreme Court opinion4 decided in 2015, the court considered a search and seizure case implicating the Fourth Amendment and the airspace above private property from which marijuana plants were observed and then subsequently confiscated. In that opinion the Court gave an analysis of two similar Supreme Court of the United States (SCOTUS) cases, involving search and seizure, and the airspace above which marijuana plants were observed. The issues in those two cases eventually turned on; at what height above the property the landowner had a reasonable expectation of privacy which would require a warrant before a search could be conducted. In other words (although it wasn’t put in these terms), what is the extent of the air rights above the surface of the private property, below which a warrant would have been required.

In the first SCOTUS case, California v. Ciraolo,5 a 1986 case, a fixed-wing aircraft flew over Ciraolo’s residential property at an altitude of 1,000 feet AGL and took pictures of the plants. In the second case, Florida v. Riley,6 a 1989 case, the police utilized a helicopter to look in a residential backyard at an altitude of 400 feet AGL. In the Ciraolo case, 1,000 feet was clearly navigational airspace, and in essence, did not violate Ciraolo’s air rights. In the second case, there was no clear majority; but a plurality of the Court agreed that 400 feet was sufficient because FAA regulations allow for helicopters to fly at that height. In explaining the SCOTUS decision, the New Mexico Supreme Court7 offered the following:

The plurality determined that the helicopter, like the airplane in Ciraolo, was hovering within the prescribed navigable airspace. In making that determination, the plurality relied on Federal Aviation Administration regulations that permit helicopters to operate at less than the minimum altitude for fixed-wing aircraft, as long as the “operation is conducted without hazard to persons or property on the surface.” … Significantly for our case, the plurality emphasized that the helicopter was not violating the law, and there was no indication in the record that “the helicopter interfered with respondent’s normal use of the greenhouse or of other parts of the curtilage,” or caused undue noise, wind, dust, or threat of injury. The plurality thus found that the police did no more than any member of the public could do flying in navigable airspace, and the Court held that the surveillance did not violate the Fourth Amendment.8

The twin SCOTUS rulings would seem to indicate that the FAA’s navigational servitude of the airspace above private property is actually 400 feet, not 500 feet. But again, it was a plurality vote of four justices not a majority vote of at least five.

This obviously leaves some doubt as to how hard and settled the ruling actually is; doubt voiced in Justice Brennan’s dissent. As explained by the New Mexico Supreme Court:

Justice Brennan’s dissent similarly took issue with tying an individual’s privacy interest to FAA flight safety regulations, stating that “[i]t is a curious notion that the reach of the Fourth Amendment can be so largely defined by administrative regulations issued for purposes of flight safety.” To Justice Brennan, the question was not whether the flights were in compliance with the FAA regulations, “but whether public observation of [the defendant]’s curtilage was so commonplace that [the defendant]’s expectation of privacy in his backyard could not be considered reasonable.”9 [Emphasis added.]

Airspace for Drones

The new FAA regulations allow for a maximum height of 400 feet AGL for the small drones. This means that all surveyors using these drones will be operating within what could be considered the air rights of surface property owners. This is going to pose some very interesting questions moving forward.

Does this now mean that the FAA has effectively confiscated the property rights of surface owners by allowing for drones to be operated in that space? The SCOTUS decisions seem to indicate that because the FAA allows helicopters to fly at 400 feet AGL, your Fourth Amendment right against warrantless searches and seizures are non-operable at that level. What about a drone at 300 feet, at 200 feet, or even 50 feet? What about your air rights above your surface property?

If these regulations do end up mirroring the Commerce Clause and navigational servitudes of the federal government over the waters of the United States, then all landowners could be seen as a type of riparian owner whose rights in the air immediately above their property are subject to the jurisdiction and restrictions imposed by the government. I think all we have to do is take a look at the Federal EPA to see how wrong things can go. Actually, we only have to look at the FAA’s own website to get an insight into its thinking.

On its website under, “FAA Home, Unmanned Systems, Where to Fly,” you find the following statement:

The United States has the safest and most complex airspace in the world. The FAA has authority over this airspace from the ground up, and is responsible for making sure air traffic flies smoothly and efficiently. Anyone operating a UAS is responsible for flying within FAA guidelines and regulations. Operators should be aware of where it is and is not safe to fly. [emphasis added.]

That’s right, they say from the “ground up.” And under “Airspace Restrictions,” there is a sampling of examples, including “restricted airspace,” “temporary flight restrictions,” “stadiums and sporting events,” “wildfires,” and “airports,” but nothing about private property airspace and the rights associated therewith. We are protecting the NFL, but what about you and your property rights?

At this point we don’t have the answers to these questions, and maybe my questions are unfounded. I mean the government is always looking out for our best interests; the government is constantly protecting private property rights; the government is loath to enforce new regulations—right? At least that has been my experience.

In the beginning, property rights were assigned by God, i.e. from the heavens to the depths. Then government stepped in and assigned us from 500 feet AGL to the depths. Based on FAA regulations that may currently be from 400 feet AGL to the depths. Now we have new FAA regulations assigning new rights “from the ground up,” to others but not to landowners.10

The one thing that is certain, the introduction of drones into our airspace is going to create significant change, not only in the way property surveyors do their business, but possibly even in our thinking about what property is and is not. The only thing we know for sure; property rights no longer extend “from heaven” but it could still be “to hell.” This is an issue we will continue to look into. Stay tuned.11


Endnotes

  1. Orr v. Mortvedt, 735 N.W.2d, 610, 616 (Iowa2007).
  2. Id. at 618.
  3. 14 CFR § 77.17 (a)(1).
  4. New Mexico v. Davis, 360 P.3d 1161 (N.M.2015).
  5. California v. Ciraolo, 476 U.S. 207 (1986).
  6. Florida v. Riley, 488 U.S. 445 (1989).
  7. I would prefer to utilize the New Mexico Supreme Court’s explanation of the SCOTUS decisions than my own.
  8. New Mexico v. Davis at 1168.
  9. Id. at 1177.
  10. Unless I have missed something in the “most complex” regulation that is the FAA.
  11. For those of you that have not noticed, I am currently doing a regular, but bi-monthly column. An ambiguous term for sure. In this instance it means every other even-numbered month. I only mention this because I am continually asked: Where did your column go?
     

Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.