Page:The Green Bag (1889–1914), Volume 19.pdf/750

 A CLOSED CHAPTER IN AERITIME LAW books. It does not seem possible on the principles of the common law to assign any reason why an entry at any height above the surface should not also be a trespass. The improbability of actual damage may be an excellent practical reason for not suing a man who sails over one's land in a balloon; but this appears irrelevant to the pure legal theory. Trespasses clearly devoid of legal excuse are committed every day on the surface itself and yet are of so harmless a kind that no reasonable occupier would or does take any notice of them. Then one can hardly doubt that it might be a nuisance apart from any definite damage to keep a balloon hovering over another man's land, but if it is not a trespass in law to have the balloon there at all, one does not see how a continuing trespass is to be committed by keeping it there. Again it would be strange if we could object to shots fired across our land only in the event of actual injury being caused and the passage of the foreign body in the air above our soil being thus a mere incident in a distinct trespass to person or property.' We have examined the early cases cited by the learned author and find that in the case of Pickering v. Rudd, supra, Lord Ellenborough said: 'Would trespass lie for passing through the air in a balloon over the land of another?' This question was not answered and so the case is no authority. But in Kenyon v. Hart we find the question answered affirma tively by Lord Blackburn in this language: 'That case raised the old query of Lord Ellenborough as to a mere passing over the land of another in a balloon; he doubted whether an action of trespass could lie for it. I understand the good sense of the doubt though not the legal reason of it.' The last sentence has given rise to much discussion and has been, we believe, justly criticised, for if legal reason does not sup port the learned Lord's opinion how can good sense figure in it? Consequently, the dic tum of Lord Blackburn is a distinct authority for the maintenance of an action such as

the present one. From this examination of authorities it is apparent that an action of trespass should lie under the circum stances of this case. We believe we are concluded by the legal maxim cujus est solum ejus est usque ad coelum. The owner ship of the column of air is vested in the proprietor of the subsoil. And if this action be not allowed, what is to prevent the owner of an airship from permanently anchoring his machine on my land? If one machine, why not hundreds? And then eventually he may acquire ownership by adverse possession and I will no longer own usque ad coelum. It is necessary to sustain the plaintiff's right of action in order to retain that principle upon which all title to real property is founded. The trifling nature of the damage is of no im portance, for courts protect property rights no matter how insignificant and the maxim de minimis non curat lex has no application; see Butler v. Telephone Co., 109 N. Y. App. Div. 217, where the owner of land was allowed to recover six cents in damages in an action of ejectment for injury to his land by a wire stretched over it. Also Murphy v. Bodger, 60 Vt. 723. The court erred in sustaining the demurrer and the judgment is reversed." In the case of Dyer v. St. Louis & New York Rapid Transit Co., 528 N. Y. 30, the same court decided that it is a defense to the action to show that the airship was driven out of its route and across the plain tiff's land by a gale, since trespass necessarily meant a wilful act., The court found abundant authority for the decision in the early case of Smith v. Stone, decided by the King's Bench Michaelmas Term, reported in Style 67, as follows : "Smith brought an action of trespass against Stone, pedibus ambulando. The defendant pleads this special plea in justification, viz., that he was carried upon the land of the plaintiff by force and violence of others and was not there voluntarily, which is the same tres pass for which plaintiff brings action. The