Category Archives: Property Law

Man vs. Drone: Lawsuit Could Clarify Rights of Drone Operators to Fly Over Private Land

By Daniel Horwitz:

Earlier this month, Nashville attorney and former U.S. Army helicopter pilot James Mackler filed a cutting-edge lawsuit in federal court that could be the first case to resolve the growing tension between homeowners’ private property rights and the rights of hobbyists to fly drones in U.S. airspace.  Mackler’s complaint – which is accessible here – asks the court to rule that drones constitute “aircraft” under federal law, and thus, that they can legally be flown above private property just like commercial airplanes.

The lawsuit pits Kentucky resident William Merideth – the self-described “Drone Slayer” – against his neighbor John Boggs, whose drone Mr. Merideth blasted out of the sky above his home with three rounds from his Benelli M1 shotgun.  In addition to seeking $1,500 in damages to replace his drone, Mr. Merideth has asked the court to declare as a matter of law that flying a drone in the “navigable airspace” controlled by the Federal Aviation Administration (FAA) is not illegal.  At present, according to the FAA, the federal government has exclusive jurisdiction over “the safety and management of U.S. airspace from the ground up,”[1] which generally includes the airspace over private property.

At common law, the rights of landowners extended ad coelum et ad infernos[2]—“all the way to heaven and all the way to hell.”  In the 1946 U.S. Supreme Court case United States v. Causby, however, the Court modified this common law rule for “air rights” by holding instead that landowners “own[] at least as much of the space above the ground as the[y] can occupy or use in connection with the land.”[3]  The Supreme Court’s decision in Causby represented a marked evolution in American understanding of airspace as “a public highway,”[4] and it has long been recognized as an essential ruling that permitted the commercial airline industry to develop and function.  With respect to airspace that a private landowner can use or is actually using, however, there is little doubt that such airspace still constitutes private property that cannot be crossed without the owner’s consent.

As Mackler’s lawsuit exemplifies, the growing popularity of drones throughout the United States is forcing society to grapple with our previously-settled understanding of private and public airspace once again.  Unlike commercial airplanes, drones operated by hobbyists present profound privacy and public safety concerns that federal law has yet to address.  Accordingly, states and municipalities have scrambled to enact a patchwork of laws aimed at balancing the interests of landowners against those of drone operators, which has resulted in significant confusion over where landowners’ rights end and drone owners’ rights begin.  If decided on its merits, the (un)neighborly dispute between Merideth and Boggs could represent the judiciary’s first attempt to resolve this balance under federal law.  As a result, until the FAA unveils precise rules governing private drone operation, the lawsuit could provide a measure of certainty to home owners and drone owners alike.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Andrea Peterson and Matt McFarland, You may be powerless to stop a drone from hovering over your own yard, The Washington Post (January 13, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/01/13/you-may-be-powerless-to-stop-a-drone-from-hovering-over-your-own-yard/.

[2] United States v. Causby, 328 U.S. 256, 274, 66 S. Ct. 1062, 1072, 90 L. Ed. 1206 (1946) (citing 1 Coke, Institutes, 19th Ed. 1832, ch. 1, s 1(4a); 2 Blackstone, Commentaries, Lewis Ed. 1902, p. 18; 3 Kent, Commentaries, Gould Ed. 1896, p. 621.).

[3] Causby, 328 U.S. at 264.

[4] Id. at 261.

Tennessee Supreme Court holds that family is entitled to keep its farm because it acquired “title by prescription.”

By Daniel A. Horwitz

Following a highly complex series of property conveyances, inheritances, tenancies, life estates, split tracts and quitclaims that would make even a bar exam drafter blush, the Tennessee Supreme Court has held that a family is entitled to keep its farm because it acquired title to the farm “by prescription.”

In 1918, property owners conveyed their farmland to a husband and wife.  Unfortunately, in 1918, Tennessee property law was in a highly complicated “hiatus period.”  In 1913, Tennessee enacted the Married Women’s Property Act,[1] which was designed, among other things, to recognize “the right[] of a married woman to . . . manage and control her own property.”[2]  In 1919, however, the General Assembly reinstated a portion of property law that had been eliminated in 1913.  Thus, “from the period between January 1, 1914, and April 15, 1919, a conveyance of real property to a husband and wife created a tenancy in common, with no right of survivorship; at all other times . . . however, such a conveyance created a tenancy by the entirety with a right of ownership in the surviving spouse.”[3]

Fast-forwarding approximately a hundred years through a series of conveyances, inheritances and tract splits involving multiple family members, a property dispute arose over who owned a portion of the farmland in question.  One family—the Baileys—had been living on the disputed property for decades.  However, if the property law that was in effect during 1918 had been understood and applied correctly during the previous century of property transactions, then another family—the Littletons—would have had a partial ownership stake in the land.  Thus, the Littletons sued the Baileys claiming partial ownership in their farm.

Fortunately, Tennessee law has a simple way to deal with disputes like this one that don’t require reaching back a hundred years and parsing through dozens of property conveyances and inheritances in an effort to retroactively fix earlier misunderstandings.  Under the doctrine of “title by prescription,” an individual can Continue reading Tennessee Supreme Court holds that family is entitled to keep its farm because it acquired “title by prescription.”