In the reign of Edward I (1239-1307), disputes involving the ownership of birds in trees or the right to build a structure which jutted over the edge of a neighbor's land, were settled by the maxim: Cujus est solum, ejus est usque ad coelum (He who owns the soil, owns above it to the sky).
Although the maxim (credited to Accursius, 1182-1260) was coined in a day when man was earthbound, it has survived to provide endless argument on the question of what constitutes trespass by aircraft. Today virtually all jurists agree that a property owner has control of the space above only to the extent that he can actually make use of it, or for protecting the rights which he enjoys on the surface.* Thereby hangs a variety of interpretations which threaten to become more confusing with the increase of airports and aircraft.
Last week in Nassau County, N. Y. the district attorney threatened to proceed against Curtiss-Wright Airport and Roosevelt Field as public nuisances because residents complained that planes droning over their rooftops at all hours of the night made sleep impossible. The matter was settled by the field managers agreeing to a curfew of 11 p. m. in summer, 10 p. m. in other seasons. Night flying, they explained, is a Department of Commerce requisite for student flyers in qualifying for advanced ratings.
Of far greater import to airport operators is the decision in Swetland v. Ohio Air Terminals (Curtiss-Wright subsidiary) from which defendants were last week preparing an appeal. The Swetlands (Frederick and Raymond), who for 25 years have occupied a country estate near Richmond Heights, Ohio, asked an injunction against the airport, which was constructed across the road from them last year. Judge George P. Hahn upheld the right of the airport to operate, but enjoined its planes from flying lower than 500 ft. over the Swetland's property even in taking off or landing.
Should that principle be universally applied, the effect would be equivalent to creating a fence 500 ft. high around every airport. And as approved aircraft have a minimum gliding ratio of 7-to-1, airmen have computed that 3,500 ft. would have to be added to each dimension of the present average airport for planes to clear the edges at the prescribed altitude.
The same doctrine was applied in the similar Massachusetts case of Smith v. New England Aircraft Co. But there, injunction was denied, largely because the portion of the plaintiff's land in question was covered with dense brush and woods, and the occupants failed to prove material discomfort to themselves because of low flying.
Canadian Air-Rail
Among other things hinging on the outcome of Canada's national election (see p. 22) was the future ownership of Canada's principal airways. Both Sir Henry Worth Thornton and Edward Wentworth Beatty, presidents respectively of Canadian National Railways and Canadian Pacific Railway have intimated that their organizations may acquire part of Western Canada Airways and Canadian Airways. They have, in fact, reached "an agreement in principle." What they actually would do depended greatly upon the nature of Canada's next government.