Private airspace rights still evolving in age of drones

Q. We are debating if we own the airspace above our homes, and, if we do, how high does it reach? I know that we do not own the mineral rights below ground, but we just read about William Merideth in Hillview, Ky., shooting down an $1,800 drone in his backyard airspace because he claimed it was spying on his sunbathing daughter. Can we as homeowners protect the airspace in our own backyards from drones?

A. When I was growing up, our family lived along a busy Belleville thoroughfare (South Belt West), so, in the back of our minds, we always wondered when a semi would plow through our front yard and into our living room. Fortunately, a strategically planted tree saved us from a wayward car a time or two.

Now, those almost seem like the good ol’ days. Not only do we have to worry about out-of-control vehicles, but we also have to watch the skies so we don’t find ourselves on the latest viral YouTube video taken by one of the rapidly growing number of drones. But are they trespassing in your airspace? Depending on their altitude, maybe — and maybe not. Currently, this seems to be a legal question that rivals “How many angels can dance on the head of a pin” when it comes to agreeing on a consistent standard. So fasten your seat belt and get ready for a long and somewhat bumpy flight as I take you on a brief evolution of the law.

Hundreds of years ago, of course, such a problem wasn’t even contemplated. When only birds flew, the Romans developed the legal concept of “Cuius est solum, eius est usque ad caelum et ad inferos.” Simply put, if you own a piece of ground, you own everything over it up to the heavens and everything under it down to Hell. It remained that way for centuries, popularized further in 1766 when William Blackstone included it in his “Commentaries on the Laws of England.” So when things like unpruned trees and leaning towers of Pisa invaded your property’s airspace, judges had an easy time making their decisions.

Then came those newfangled hot-air balloons and flying Jennies, and life has never been the same. Some

homeowners were unhappy about these early airplanes roaring around since they obviously didn’t cruise at 35,000 feet back then. For years, all sorts of solutions were proposed, Stuart Banner, a UCLA law professor, said during a 2014 interview on National Public Radio. As ludicrous as it sounds, one idea was to make planes fly only above roads and streets, since the airspace above them was presumably owned by the government.

Finally in 1926, the precursor to the Federal Aviation Administration was created, and it quickly handed down a workable solution: Since most landowners are not going to erect a 100-story skyscraper, they have rights to only a limited amount of airspace above their property. As a result, the government declared that anything up to 500 feet was yours; anything above 500 feet was public domain. No longer did pilots have to worry about being sued for trespassing through everyone’s airspace.

This seemed to work just fine until 1946 when North Carolina chicken farmer Thomas Lee Causby raised a squawk. In World War II, the U.S. Army took over a small airport near Causby’s farm, and soon noisy military aircraft were flying over Causby’s birds at all hours. All of his birds died, so Causby cried foul in a landmark case that eventually landed at the U.S. Supreme Court. Causby won, but it left us with one of those torturously complicated rulings that remains at the heart of your question to this day.

“The court ruled landowners might not own the sky to the heavens, but they do still own it up to at least 83 feet,” according to NPR technology correspondent Steve Henn. “But this decision left a gap. It created unclaimed territory in the air. And it is that territory that pilots of tiny little unmanned aircraft — little drones — have their eyes on.”

So as you can see, the answer to your question can be crystal clear or as murky as pea-soup fog depending on the situation. For example, in congested areas, airplanes must stay 1,000 feet higher than any obstacle within a 2,000-foot radius of the aircraft. In more sparsely populated areas or water, the limit dips to 500 feet over people, vehicles, vessels or buildings.

But drones? A workable law has yet to be written. Take the case of Cy Braun, of Louisiana, as told by Henn. The man is a bit of a character, luring alligators onto his boat dock by using his toes as bait. But when he went to attack another problem — feral wild pigs — he went strictly high-tech.

Those pigs, you see, are a major problem where he lives. They destroy crops, but are hard to hunt in the waist-high rice fields. So Braun began sending up heat-seeking drones at night, and when they showed glowing pigs on his video screen, he would guide hunters to the location to turn the animals into bacon.

Sounds like a perfect solution, right? He’s providing a valuable service, he’s doing it at night and nobody’s complaining. Well, you guessed it. According to Brown’s lawyer, Brown became one of the commercial drone pilots throughout the country who have received cease-and-desist letters from the FAA, threatening huge fines if they didn’t keep their drones grounded.

“The FAA says for safety reasons that unclaimed airspace (83 to 500 feet) is still regulated by them,” Henn said. “But this is still an unsettled legal question. Drone pilots are fighting back in federal court, and guys like Cy are waiting for somebody to tell them if or when they can fly.”

Regardless, it seems clear (and prudent) that you cannot shoot down one of those annoying little buggers if they come hovering over your house, especially in the city. It’s no different than firing a gun at midnight on New Year’s Eve. You never know where that bullet’s going to land if you miss. If you injure or kill someone and they trace it back to you, you’re going to have far worse problems than a buzzing drone. And if you do disable the drone, it could fall and injure someone or damage property. Plus I suppose you could be sued for destroying someone’s private property until the legal altitude issue is settled.

So the best you can do is report them to the authorities, but since most drones don’t have identifiable markings or send out an identification signal, I’m not sure how much good that will do. In fact, as a result of all this, a lawmaker in Southern California, where rogue drones have hindered firefighting efforts, has proposed a law that would allow law enforcement to shoot drones out of the sky.

But those are subjects for a whole ’nother column.

Today’s trivia

Who introduced roller skates — and why were they an immediate smash?

Answer to Thursday’s trivia: Johnny Carson had his Doc Severinsen and David Letterman made Paul Shaffer a household name, but fans of “The Muppet Show” will likely never forget its house band, Dr. Teeth and Electric Mayhem. A takeoff on blues-zydeco legend Dr. John, Dr. Teeth was the keyboard player and gravelly voiced leader of the band, making him one of the most difficult characters Muppet creator Jim Henson ever brought to life. He was joined by wild-man drummer Animal, bass player Dr. Floyd Pepper, lead guitar Janice, saxophonist Zoot, and Lips, naturally a trumpeter. The Walt Disney Co. reportedly once proposed a “survive” tour with audio-animatronic puppets, but the idea was ultimately dropped.

This story was originally published August 14, 2015 at 7:33 AM with the headline "Private airspace rights still evolving in age of drones."