Airspace

How high?

Latin Maxim
Cujus est solum ejus est usque ad coelum et ad
inferos

Legal Method
Issue
Rule
Application
Conclusion

1
Legal Method
Issue
What is the legal issue or question that you
need to answer?

Legal Method
Issue
Rule
Analyze the law and determine the rule.

Legal Method
Issue
Rule
Application
Apply the rule to the scenario presented to you.

2
Legal Method
Issue
Rule
Application
Conclusion
Answer the question or provide advice.

Problem
Property Law Reader, p. 165
Question 4

Airspace
Kelsen v. Imperial Tobacco (1957)

3
Airspace
Kelsen v. Imperial Tobacco (1957)
“a trespass and not a mere nuisance was created by
the invasion of the plaintiff’s airspace by this
sign.”

Airspace
Bernstein (Lord of Leigh) v. Skyviews (1978)

Airspace
Bernstein (Lord of Leigh) v. Skyviews (1978)
“It may be a sound and practical rule to regard any
incursion into the air space at a height which may
interfere with the ordinary user of the land as a
trespass rather than a nuisance. Adjoining owners then
know where they stand …
But wholly different considerations arise when
considering the passage of aircraft at a height which in
no way affects the user of the land. .”

4
Airspace
Bernstein (Lord of Leigh) v. Skyviews (1978)

“The problem is to balance the rights of the owner to

enjoy the use of his land against the rights of the
general public to take advantage of all that science
now offers in the use of air space. This balance is in
my judgement best struck in our present society by
restricting the rights of an owner in the air space above
his land to such height as is necessary for the
ordinary use and enjoyment of his land and the
structures on it, and declaring that above that height
he has no greater rights in the air space than any other
member of the public.”

Airspace
Manitoba (Min. of Finance) v. Air Canada (1978)

Airspace
Manitoba (Min. of Finance) v. Air Canada (1978)

“… air and airspace are not the subject of ownership

by anyone, either State or individual, but fall into the
category of res onmuium communis.”

“So far as the power to impose taxation is concerned

… Manitoba has no property right or legislative
jurisdiction in relation to airspace over its territory.”

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Airspace
United Nations Convention on the Law of the Sea

Article 2(2)

1. The sovereignty of a coastal State extends, beyond

its land territory and internal waters and, in the
case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as the
territorial sea.

2. This sovereignty extends to the air space over the

territorial sea as well as to its bed and subsoil.

Airspace
Didow v. Alberta Power Ltd. (1988)
“The two concepts which become apparent are firstly,
that the courts will not give literal effect to the Latin
maxim and secondly, the property remedy for
interference with a landowner’s air space with a
permanent fixture is in trespass as opposed to
nuisance.”

Airspace
Didow v. Alberta Power Ltd. (1988)
“a landowner is entitled to freedom from permanent
structures which in any way impinge upon the
actual or potential use and enjoyment of his land.
The cross-arms constitute a low level intrusion which
interferes with the appellant’s potential, if not actual,
use and enjoyment. This amounts to trespass.”

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Airspace
Didow v. Alberta Power Ltd. (1988)
overhanging cranes?
“In light of the distinction now recognized in
encroachment cases between nuisance and trespass
my inclination would be to characterize the
overhanging crane as a nuisance.”

Airspace
Didow v. Alberta Power Ltd. (1988)
but…
“I agree with the opinion stated of Griffiths in Lord
Bernstein of Leigh v. Skyviews … that low flying
aircraft might very well constitute a trespass.”

Airspace Parcels
New York

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Land Title Act
138 In this Part:
"air space parcel" means a volumetric parcel,
whether or not occupied in whole or in part by a
building or other structure, shown as such in an air
space plan;
"air space plan" means a plan that
(a) is described in the title to it as an air space plan,
(b) shows on it one or more air space parcels
consisting of or including air space …

Land Title Act

139 Air space constitutes land and lies in grant.

Land Title Act

141 (1) An owner in fee simple whose title is registered
under this Act may, by the deposit of an air space
plan, create one or more air space parcels separated
by surfaces and obtain indefeasible titles for them.
(2) The air space parcel created by the plan devolves
and may be transferred, leased, mortgaged or
otherwise dealt with in the same manner and
form as other land the title to which is registered
under this Act.
(3) An air space parcel may be subdivided in
accordance with the Strata Property Act.

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Strata Property Act

Strata Property Act

239 (1) Land may be subdivided into 2 or more strata
lots by the deposit of a strata plan in a land title
office.

(2) The strata lots created by the deposit of a strata

plan may, subject to this Act, devolve or be
disposed of in the same manner and form as any
land the title to which is registered in a land title
office.