Cuius Est Solum Eius Est Usque Ad Coelum Et Ad Inferos - Modern History

Modern History

The ad coelum doctrine began to fall into disfavor with the advent of air travel:

After the first hot-air balloon flight in 1783, people began to realize that ad coelum could lead to absurd results. Jurists occasionally invoked aerial-balloon trespass as an example of a trivial injury for which the law wouldn't provide redress, and it appears that no one ever sued a balloonist just for flying over. . . . ven if the balloonists' flights were technically illegal, "the law was out of step with the expectations of the parties, in that neither landowners nor balloonists thought there was anything wrong with overflights"

Although everyone tolerated balloons, the invention of the airplane forced the legal world to seriously rethink the aerial-trespass problem. Most everyone found the old rule undesirable, but people disagreed on how it could be discarded. Adherents of the common-law view that judges "found" the law (in the people's customs or through reason) had to argue either that earlier courts erred in adopting the principle from Roman law (i.e., they argued that this wasn't actually the Romans' rule), or that the earlier rule was narrower in scope than its wording suggested. Legal positivists had an easier argument: if judges just "make" law, then they could now make it one way instead of another. And legal realists could simply predict that judges would modify the law because the facts of cases would persuade them to do so.

In Lord Bernstein of Leigh v Skyviews & General Ltd QB 479, the Court noted that the phrase was 'colourful', but said that it was well settled in the common law that a land owner had rights in the air immediately above the land, extending in particular to signs overhanging from adjacent properties. The right did not extend though to more than was 'necessary for the ordinary use and enjoyment of the land and structures upon it'. Planes, hot air balloons, and the like, would not commit a tort of trespass by merely passing over a person's property.

In Star Energy Weald Basin Limited and another v Bocardo SA UKSC 35, the UK Supreme Court (having heard argument that the principle was no longer relevant to land ownership) held that the principle "... still has value in English law as encapsulating, in simple language, a proposition of law which has commanded general acceptance. It is an imperfect guide, as it has ceased to apply to the use of airspace above a height which may interfere with the ordinary user of land ..." and that "... the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of them by a conveyance, at common law or by statute to someone else".

The property right to air superincumbent to land was confirmed in Kelsen v. Imperial Tobacco Co. 2 QB 334, where a sign erected on a building that overhung the plaintiff's property committed the tort of trespass, even though no harm or nuisance was caused by it. An injunction was granted to the landowner causing the sign to be removed.

The "ultimate demise" of ad coelum in the United States came in the United States Supreme Court case United States v. Causby in 1946. In the Causby case:

low-flying military planes caused the plaintiffs' chickens to "jump up against the side of the chicken house and the walls and burst themselves open and die" . . . The plaintiffs sued the government, arguing that they were entitled to compensation under the takings clause of the Fifth Amendment.

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."