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eminent legal authorities such as Blackstone； Littleton
and Coke； the 〃fathers of the law；〃 the owner of realty
also holds title above and below the surface； and this
theory is generally accepted without question by the
courts。
Rights of Property Owners。
In other words the owner of realty also owns the sky
above it without limit as to distance。 He can dig as
deep into his land； or go as high into the air as he desires；
provided he does not trespass upon or injure similar
rights of others。
The owner of realty may resist by force； all other
means having failed； any trespass upon； or invasion of
his property。 Other people； for instance； may not enter
upon it； or over or under it； without his express permission
and consent。 There is only one exception； and
this is in the case of public utility corporations such as
railways which； under the law of eminent domain； may
condemn a right of way across the property of an obstinate owner
who declines to accept a fair price for the
privilege。
Privilege Sharply Confined。
The law of eminent domain may be taken advantage
of only by corporations which are engaged in serving
the public。 It is based upon the principle that the
advancement and improvement of a community is of more
importance and carries with it more rights than the
interests of the individual owner。 But even in cases where
the right of eminent domain is exercised there can be no
confiscation of the individual's property。
Exercising the right of eminent domain is merely
obtaining by public purchase what is held to be essential
to the public good； and which cannot be secured by private
purchase。 When eminent domain proceedings are
resorted to the court appoints appraisers who determine
upon the value of the property wanted； and this value
（in money） is paid to the owner。
How It Affects Aviation。
It should be kept in mind that this privilege of the
〃right of eminent domain〃 is accorded only to corporations
which are engaged in serving the public。 Individuals
cannot take advantage of it。 Thus far all aviation
has been conducted by individuals； there are no flying
machine or airship corporations regularly engaged in the
transportation of passengers； mails or freight。
This leads up to the question 〃What would happen if
realty owners generally； or in any considerable numbers。
should prohibit the navigation of the air above their
holdings？〃 It is idle to say such a possibility is ridiculous
it is already an actuality in a few individual instances。
One property owner in New Jersey； a justice of the
peace； maintains a large sign on the roof of his house
warning aviators that they must not trespass upon his
domain。 That he is acting well within his rights in doing
this is conceded by legal authorities。
Hard to Catch Offenders。
But； suppose the alleged trespass is committed； what
is the property owner going to do about it？ He must
first catch the trespasser and this would be a pretty hard
job。 He certainly could not overtake him； unless he
kept a racing aeroplane for this special purpose。 It
would be equally difficult to indentify the offender after
the offense had been committed； even if he were located；
as aeroplanes carry no license numbers。
Allowing that the offender should be caught the only
recourse of the realty owner is an action for damages。
He may prevent the commission of the offense by force
if necessary； but after it is committed he can only sue
for damages。 And in doing this he would have a lot of
trouble。
Points to Be Proven。
One of the first things the plaintiff would be called
upon to prove would be the elevation of the machine。
If it were reasonably close to the ground there would；
of course； be grave risk of damage to fences； shrubbery；
and other property； and the court would be justified in
holding it to be a nuisance that should be suppressed。
If； on the other hand； the machine was well up in the
air； but going slowly； or hovering over the plaintiff's
property； the court might be inclined to rule that it
could not possibly be a nuisance； but right here the court
would be in serious embarrassment。 By deciding that
it was not a nuisance he would virtually override the
law against invasion of a man's property without his
consent regardless of the nature of the invasion。 By
the same decision he would also say in effect that； if one
flying machine could do this a dozen or more would
have equal right to do the same thing。 While one machine
hovering over a certain piece of property may be
no actual nuisance a dozen or more in the same position
could hardly be excused。
Difficult to Fix Damages。
Such a condition would tend to greatly increase the
risk of accident； either through collision； or by the
carelessness
of the aviators in dropping articles which might
cause damages to the people or property below。 In
such a case it would undoubtedly be a nuisance； and
in addition to a fine； the offender would also be liable
for the damages。
Taking it for granted that no actual damage is done；
and the owner merely sues on account of the invasion
of his property； how is the amount of compensation to
be fixed upon？ The owner has lost nothing； no part of
his possessions has been taken away； nothing has been
injured or destroyed； everything is left in exactly the
same condition as before the invasion。 And yet； if the
law is strictly interpreted； the offender is liable。
Right of Way for Airships。
Somebody has suggested the organization of flying…
machine corporations as common carriers； which would
give them the right of eminent domain with power to
condemn a right of way。 But what would they condemn？
There is nothing tangible in the air。 Railways
in condemning a right of way specify tangible property
（realty） within certain limits。 How would an aviator
designate any particular right of way through the air
a certain number of feet in width； and a certain distance
from the ground？
And yet； should the higher courts hold to the letter
of the law and decide that aviators have no right to
navigate their craft over private property； something
will have to be done to get them out of the dilemma； as
aviation is too far advanced to be discarded。 Fortunately
there is little prospect of any widespread antagonism
among property owners so long as aviators refrain
from making nuisances of themselves。
Possible Solution Offered。
One possible solution is offered and that is to confine
the path of airships to the public highways so that nobody's
property rights would be invaded。 In addition；
as a matter of promoting safety for both operators and
those who may happen to be beneath the airships as
they pass over a course； adoption of the French rules
are suggested。 These are as follows：
Aeroplanes； when passing； must keep to the right； and
pass at a distance of at le