So, we talked drones and privacy last week in a post and on the podcast. A NJ man used a shotgun to shoot down a privately owned drone that was hovering and taking photos of a new house that was under construction. The shooter was promptly arrested and his shotgun seized.
Needless to say, we a GOTR do not recommend shooting up into the air if you see something hovering over your yard. Deadly force should be reserved for deadly threats. Having your picture taken is not a “deadly threat” to you or your family.
The question did arise as to what are your legal rights to the airspace above your property. Well, SCOTUS laid that out in Unites States vs Causby 1946. Causby was suing the government for building a airstrip near his property, and noted his farm is in the glide path of landing planes. He said that pales flying over constituted the unlawful seizure of his property.
Causby cited an old Latin common law phrase, “Cuius est solum, eius est usque ad coelum et ad inferos” (Latin for ‘whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell’), as a principle of property law, stating that property holders have rights not only to the plot of land itself, but also to the air above and (in the broader formulation) the ground below.
But, in 1946, SCOTUS issued a decision that “us est usque ad coelum et ad inferos” has no legal authority in the United States when pertaining to the sky. A man does not have control and ownership over the airspace of their property except within reasonable limits to utilize their property. Airspace above a set minimum height is property of the Masses and no one man can accuse airplanes or other such craft within of trespassing on what they own.
Now, it was still not a total loss for Causby. Per Wiki:
The court noted in his specific case that Congress defined the “navigable airspace” in the public domain, as that above the “minimum safe altitude” which varies from 500 to 1000 feet depending on time of day, aircraft, and type of terrain. Since the aircraft passing over Causby’s property were at 83 feet, the court determined the flight path was an easement, a form of property right. Because the government had taken the easement through private property, Causby was owed compensation under the Takings Clause.
The court’s decision, authored by Justice William O. Douglas, could have resolved the case on a narrow ground by simply holding that there was a taking of land because the government’s flights affected the land. Justice Douglas did reach that conclusion, but then he went much further and opined on what airspace landowners do and do not own. He wrote that “if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run” . . . Thus, a landowner “owns at least as much of the space above the ground as he can occupy or use in connection with the land,” and invasions of that airspace “are in the same category as invasions of the surface.”
In the case of a drone flight, we do not have a SCOTUS opinion yet.
Since private drones typically fly below 500 ft, one could argue an intrusion… But that argument stands a better chance in court if you are not shooting up in the air. Remember, just because can, does not always mean you should.
We present this as a mere suggestion. A bit of case law that has come before. You have to make your own decision, and understand that the decision could have very negative consequences…