Who Owns the Sky? The Struggle to Control Airspace from the Wright Brothers On (review)

This fine book is an imaginative study of a forgotten byway in American legal history. By an old common-law maxim, whoever owned a piece of land also had rights to whatever lay underneath the surface, plus rights all the way up to the heavens (“usque ad coelum”). In the nineteenth century, this guideline was not much of a problem, except for the occasional issue of overhanging branches, and the irruption of balloons once in a while. The airplane changed everything. Were these flying machines trespassing when they passed over somebody’s land? Legal scholars argued and argued the point. In the end, the answer was generally “no,” pilots were not trespassers. Clearly, this had to be the case, whatever the validity of the ancient maxim. Otherwise, the whole industry would have been strangled in infancy. Getting permission from every landowner would have imposed impossible costs on aviators and airline companies. To be sure, landowners did own and control their air space, but only up to a point, and certainly not as high as the sky. The situation on take-off and landing was more complicated; landowners unlucky enough to live near an airport or airstrip often suffered real damage. This issue is still, one might add, very much alive.

On the national level, the question of rights came out quite differently. After all, as early as World War I, airplanes had become war machines, which dropped bombs on targets from the sky. Nations clearly had to be able to control their sovereign air space. This claim was quickly conceded. But then came the invention of satellites, which orbited in outer space, high above the earth. At some point, national sovereignty had to end; outer space (wherever that can be said to begin), like the high seas, was free for all nations to use. Today, the air is “full of flying things . . . jumbo jets, news helicopters, small private planes, model rockets” (288). Each new kind of “flying thing,” as it developed, posed new difficulties for the legal system. Most, but not all, of these issues were resolved to general satisfaction.

This brief synopsis hardly does justice to a rich, witty, and informative text. The ways in which scholars and jurists wrestled with the question “Who owns the sky?” is fascinating in its own right. But Banner is after bigger game. He wants to explore how changes in technology impacted law, and, by the same token, how “legal change also influenced the world of aviation,” since the “arrow of causation . . . pointed in both directions at once” (203–294). The last chapter of the book is a brief but trenchant essay on these reciprocal relationships. There is also an imaginative chapter on the “rise and fall of air law,” which explores how “aviation law” developed as a field in the legal academy—only to disappear quickly; this chapter is a wise and original contribution to the history of legal education and legal scholarship. In general, Who Owns the Sky? is an excellent addition to the literature of American legal history and, one might add, to the literature on law and society in general.