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  • Who Owns the Sky? The Struggle to Control Airspace from the Wright Brothers On
  • Donald R. Baucom
Who Owns the Sky? The Struggle to Control Airspace from the Wright Brothers On. By Stuart Banner. Cambridge, Mass.: Harvard University Press, 2008. ISBN 978-0674-03082. Illustrations. Notes. Index. Pp. 353. $29.95.

Today, when our skies are routinely crosshatched by the contrails of jetliners, it is hard to believe that less than a century ago the law threatened to strangle aviation in its cradle. Since ancient times, a principle of the common law, cujus est solum, had held that he who owns the land owns the air above it "all the way to the sky." If interpreted literally, this meant that overflight of private land constituted trespass. The theme of Stuart Banner's volume is how this apparent barrier to the advancement of aviation and space fight dissolved between 1900 when the implications of cujus est solum were first recognized and a 1946 Supreme Court decision that finally resolved the overflight issue.

Although there were pre-1946 discussions in legal literature regarding the overflight problem, virtually no case law was generated, since a charge of trespass or nuisance offered plaintiffs little opportunity for monetary restitution. However, as aviation expanded it was virtually inevitable that some clash of interests would cause a landowner to seek redress through the courts.

In 1944, the Causby family sued the government for damages resulting from the operation of an airbase adjacent to its farm in North Carolina and won a modest settlement. Ordinarily, such a small award would have been satisfactory. However, the government operated hundreds of other bases that might also be sued if this settlement were allowed to stand. This threat prompted a government appeal that was heard by the Supreme Court. [End Page 969]

In United States v. Causby, the High Court found for the Causbys and definitively settled the aerial trespass issue. This decision proclaimed a public right to access the nation's airspace, ending the idea that mere overflight constituted trespass. Cujus est solum, the decision said, had "'no place in the modern world.'"

While it took fifty years to resolve the issue of aviation trespass, the critical issues associated with the beginning of space fight were resolved in about a decade. Here, the central issue was that space fight challenged precedents related to national sovereignty and security. These precedents had been established in the wake of World War I, when it became obvious that a nation must control its airspace in the interest of national security. Would satellite overflights violate these precedents?

In discussing this issue, Banner focuses on the legal perspective, avoiding the policy debates within the Eisenhower government that have been detailed by historians like Walter McDougall. As in the case of aviation, lawyers preferred to await the accumulation of practical experience that could guide them in establishing spaceflight law. As a result, satellite launches by the Soviet Union and the United States became precedents that were then formalized through international agreement. Specifically, the 1957 launch of Sputnik by the Soviets established the precedent for satellite overflight and made it impossible for the Soviet Union to protest against American satellites. It remained only for the United Nations to codify precedents set by the two original space powers. The Outer Space Treaty of 1967 did this, granting all nations equal access to space and banning weapons of mass destruction from outer space.

In treating the legal issues raised by air and space fight, Banner provides a wealth of information that turns Who Owns the Sky into a primer on such things as the common law and the interaction between technology and the law. Regarding this latter point, Banner's book is essentially a well-organized, well-written, and thoroughly documented case study of how the law accommodates changes associated with new technologies.

Donald R. Baucom
Taos, New Mexico
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