§ 159 Intrusions Upon, Beneath, and Above Surface of Earth
Comment on Subsection (1):
Reporter’s Notes
Case Citations - by Jurisdiction
(1) Except as stated in Subsection (2), a trespass may be committed on, beneath, or above the surface of the earth.
(2) Flight by aircraft in the air space above the land of another is a trespass if, but only if,
(a) it enters into the immediate reaches of the air space next to the land, and
(b) it interferes substantially with the other’s use and enjoyment of his land.
See Reporter’s Notes.
Caveat:
The Institute expresses no opinion as to whether the rule stated in Subsection (2) is to be applied to the flight of space rockets, satellites, missiles, and similar objects.
Comment on Subsection (1):
a. This Section has reference to a trespass actionable under the rule stated in
§ 158, to which reference should be made.
b. The phrase “surface of the earth” includes soil, water, trees, and other growths, and any structures on the land or affixed to it.
c. There may be a separation of possession or ownership of the surface of the earth and what is beneath or above the surface, or of some portion of it. This may result from a transfer or an agreement, or may be the effect of a special custom or rule of law in a particular jurisdiction, as where the owner of the apex of a vein of ore is the owner and entitled to possession of the vein, although below the surface it penetrates beneath the premises of another. The rules which determine under what circumstances there is such a separation of possession or ownership are not within the scope of this Restatement.
d. Trespass may be committed upon the vertical as well as the horizontal surface of another’s premises. Thus, if unprivileged, it is a trespass to pile dirt against a division wall or fence which stands wholly upon another’s land, or to paint a sign or trail a vine on the wall, or to attach an electric wire to another’s house.
e. Trespass beneath the surface may be committed by building a foundation wall in such a way as to encroach upon neighboring premises, or by tunneling beneath the surface of the land into adjoining land, or by any other unprivileged entry on land beneath the surface. Thus if there is a cave extending beneath the land of two persons, with an entrance on the land of each, an entry by one person into so much of the cave as is beneath the other’s land is a trespass. So too, it is a trespass if one puts such a weight on his land as to cause an upheaval of the surface of another’s land.
f. Except as stated in Subsection (2), an unprivileged intrusion into the space above the surface of the earth, at whatever height above the surface, is a trespass. See, however, the Caveat as to space rockets, satellites, missiles, and kindred objects, as to which there is as yet no decision law.
Illustrations:
1. A erects a house on the border of his land. The eaves of the roof overhang B’s land. A is a trespasser.
2. A strings a telephone wire across a corner of B’s land. Although no telephone poles are placed on B’s land, this is a trespass.
3. A extends his arm over the boundary fence between A’s land and B’s land. A is a trespasser.
4. A, while hunting birds on a public pond, fires shot across B’s land close to the surface. The shot do not come to rest on B’s land, but fall into another public body of water on the other side of it. A is a trespasser.
Comment on Subsection (2):
g. Sir Edward Coke once gave utterance to the statement that
“cujus est solum, ejus est usque ad coelum,” which, taken literally, means that he who owns the soil owns upward unto heaven. This has been repeated in many cases in which there has been no question of anything more than the immediate space above the ground. The advent of aviation has meant that it can no longer be regarded as law, if it ever was. There must, in the public interest, and to avoid impossible confusion and hindrances, be limits to the upward ownership of air space. It is only in cases involving the flight of aircraft that these have as yet been considered at all. No doubt similar questions will arise as to the flight of space rockets, satellites, missiles, and the like, with the likelihood of similar conclusions; but since there are as yet no decisions with respect to such matters, they are left open in the Caveat.
h. The earlier cases dealing with aviation made various attempts to state some limitation upon the height to which the ownership of the soil confers an exclusive right to the use of the air. Thus it was held that there was a trespass only if the aircraft flew within a zone of the landowner’s potential use or occupation of the space, as by the construction of a building or growing trees; or only if there was flight below the minimum altitudes prescribed by Federal regulation.
i. In 1946, in
United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, the Supreme Court declared that Federal statutes, together with administrative regulations adopted pursuant to them, had the effect of making the upper air, above the prescribed minimum altitudes of flight, a public highway. The decision has been held to supersede state law on the matter, so that liability for entry into the air space henceforth becomes a matter of Federal law. So far as aviation is concerned, private rights in the upper air no longer exist.
j. In the Causby Case the court went on to say 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,” and “invasions of it are in the same category as invasions of the surface.” The effect of this is clearly to preserve the action of trespass as a remedy where the “immediate reaches” are invaded by flight.
k. The actual holding in the Causby Case was that the rights of the landowner were invaded, and there was a wrongful “taking” of his property, when the flights into the “immediate reaches” of the air space substantially interfered with his use of the land. Subsequent Federal cases have limited the trespass liability to such cases, so that, even though there is a flight below the prescribed minimum altitude, there is no trespass unless there is such interference with actual, as distinguished from potential, use.
l. “Immediate reaches” of the land has not been defined as yet, except to mean that “the aircraft flights were at such altitudes as to interfere substantially with the landowner’s possession and use of the airspace above the surface.” No more definite line can be drawn than is suggested by the word “immediate.” In the ordinary case, flight at 500 feet or more above the surface is not within the “immediate reaches,” while flight within 50 feet, which interferes with actual use, clearly is, and flight within 150 feet, which also so interferes, may present a question of fact.
m. Even though the flight is not within the “immediate reaches” of the air space, it may still unreasonably interfere with the use and enjoyment of the land. In such a case the liability will rest upon the basis of nuisance rather than trespass. See Chapter 40.