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Property rights: the rocks and the trees and the drones in the sky? p2

Gregory A. Lang

The U.S. Supreme Court occasionally weighs in on property rights, and a 1946 decision is particularly on point as we continue our discussion from our Feb. 1, 2016, post. The court was addressing a chicken farmer's complaint that military planes flying over his property resulted in business losses.

While common law holds that a property owners rights go from the center of the earth to the heavens above, the court suggested the heavens might be too broad of a limit. Instead, the court said the farmer owned "at least as much space above the ground as he can occupy or use in connection with the land."

The idea may be tested more often now that recreational drones have become so popular. One case that has certainly added to the conversation concerns a man from Kentucky who shot down his neighbor's drone when it passed over his yard. He claims it was trespassing and violating his right to privacy (the drone was equipped with a camera).

The drone's owner argues that he had no intention of invading anyone's privacy. He just wanted to take pictures of the scenery. He also says that his neighbor does not control the airspace over his land, the federal government does.

The Federal Aviation Administration backs that claim up. The agency, according to a spokesperson, "is responsible for the safety and management of U.S. airspace from the ground up." The Supreme Court might disagree.

Regardless, the airspace is now crowded with an additional 700,000 largely unregulated aircraft. The FAA is finalizing rules for the use of commercial drones, but rules for recreational drones are still in the early stages. And, the proposed rules do not address property and privacy rights -- the FAA's main concern has been keeping drones from interfering with other aircraft. Commercial pilots have complained that drones have flown dangerously close.

State and local governments are working on their own civil and criminal codes. Minnesota requires registration, but drone operators are not forbidden from straying into someone else's airspace. Rather, they are "encouraged" not to trespass or to be a nuisance.

As for the man who shot down his neighbor's drone, he maintains that the drone made a few passes before he got "fed up." In his opinion, his neighbor may as well have been standing in his yard with a video camera.


Washington Post, "You may be powerless to stop a drone from hovering over your own yard," Andrea Peterson and Matt Mcfarland, Jan. 13, 2016

ABA Journal, "Does property owner have the right to shoot down hobbyist's hovering drone?" Debra Cassens Weiss, Jan. 14, 2016

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