Comment by asynchronous13 | Hacker News Reader

Comment by asynchronous13 | Hacker News Reader

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> Why would it need to be tested in court?

Because the law is not clear as it is currently written. On one hand, the minimum safe altitude to operate an aircraft is 500ft. So it's pretty clear that anything above 500ft is considered a public thoroughfare.

The FAA claims to own and regulate all US airspace down to ground level. The FAA also says that drones must be operated below 400ft (clearly an effort to keep drones and manned aircraft safely separated). If we embrace this version of the law, then drones can operate from 0ft to 400ft with impunity over private land without any legal repercussions.

On the other hand, it is established law that a property owner is entitled to the full enjoyment of their property. In a famous case, United States vs Causby, military bombers were flying at an altitude of 83ft over Causby's house and chicken farm. The courts sided with Causby and established a precedent that a landowner does own some portion of the airspace over their land. However, it did not establish a specific altitude.

A bomber at 83ft was deemed to infringe on private property rights, but should a small drone at 83ft be judged in the same way? It's not clearly defined in law right now, that's why it needs to be tested in court. Or alternatively, the legislature needs to adjust the laws to make it clear.

That's really interesting. As the Wikipedia article notes[1] quoting the decision while the court didn't hold property rights at as specific altitude, in their language they referred to the height of buildings, trees etc.:

> "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" …“The fact that he does not occupy [space] in a physical sense -- by the erection of buildings and the like -- is not material. As we have said, the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it."

But it's not clear to me that this would apply to drones for a couple of reasons:

1. The question of whether something is considered an easement or not doesn't apply for the drone question. I.e. in the 1946 case bombers were flying by at 83 ft so "buildings could not be erected". Whereas today if if drones were flying past your house at 83 ft and you built a 100 ft building they'd just need to fly over or around it.

2. In the 1946 case the overflights themselves caused enough of a disruption to farming from noise etc. that the farmer went out of business, so the takings clause was invoked. It's unlikely that'll ever become an issue with drones, general noise regulation will handle those sorts of cases.

Also, surely there's lots of post-1946 cases on this matter due to the build-outs of airports and growing class B airspace, or has that been handled entirely by buying out property and zoning regulations?

1. https://en.wikipedia.org/wiki/United_States_v._Causby#Holdin...

You're right that there are aspects of the case that would not apply to a current-day situation. The takings clause can only apply to the US Government, for example. But the main takeaway that I believe would apply is that a property owner effectively owns the airspace up to some altitude X ft.

The way I see it is that the property owner should be entitled to exclusive use from 0ft to Xft. (Of course, the land owner can always give permission for lower flights if they so choose.) And drones should be able to legally traverse from Xft to 400ft.

It would be great if a law would establish what X is. Unfortunately, I think it's more likely that someone will fly a drone over private land at 150ft, the land owner will shoot it down, and the ensuing lawsuit will set a precedent.

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