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.