Bernstein (P) claimed that Skyviews (D) wrongfully entered P's airspace to take an aerial photo of his house. D admitted they took the photo, but said they did not go into P's airspace, they took it while over adjoining property. D also said that if they did fly over P's land, they had implied permission to do so.
Does flying over a person's property constitute trespass of airspace?
The rights of landowners in the airspace above their land is restricted to such a height necessary for the ordinary use and enjoyment of his land and the structures upon it – above that height he has not greater rights then the general public.
P relies on Latin maxim, translated as: whomsoever the soil belongs, he owns also to the sky and to the depths. English cases in which this has been used all concern structures attached to adjoining land that hang over to a plaintiff's property (e.g. in Gifford v Dent, 1926 – sign projected 4 ft – was trespass; in Kelsen v Imperial Tobacco 1957 – sign projected 8 inches – injunction granted).
Adjoining owners have no right to erect structures overhanging neighbour's land. Here, aircraft are at a height which in no way affect the use of the land – can that be trespass? Considered: Pickering v Rudd – not trespass to pass over a man’s property in a balloon.
There is no authority stating that a landowner’s right in the airspace over land extends to an unlimited height.
D's aircraft did not infringe any rights of P's airspace – thus no trespass.