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I have 7.72 acres in the Southern California Desert. It's outside of Palm Springs Ca. My land was granted to My Grandfather in 1961 as a homestead. The patent states that I have ALL Rights, Privileges, and Immunities entitled by LAW (it also states these things are Forever). I intend to open a Droneport. I am hoping to restrict my airspace from commercial traffic, thus creating an unlimited height for Drones. My intent would be to have high altitude competitions and high altitude test flights. Of course the use would only be permitted within my land boundaries. Since any New law requires a "savings provision" that state, Any new law in no way infringes on any Patent right, Also known as a "Grandfather Clause" I believe that My Use would constitute ordinary use and enjoyment of the Land.

I would appreciate any thoughts or feedback.

Gerry
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Ztuz
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No. At common law (i.e., the law that existed before the existence of law statutes), there was a doctrine known as ad coelum, literally "to the skies"; it meant that anyone who owned the land controlled it from the skies to the depths.

But in the United States, Congress did away with this doctrine in the Civil Aeronautics Act of 1938. In this act, they declared that all navigable airspace above the United States was effectively a "public highway", i.e., was no longer private:

There is hereby recognized and declared to exist in behalf of any citizen of the United States public right of freedom of transit in air commerce through the navigable airspace of the United States.

The airspace to which this law applied was carved back a bit by the Supreme Court in United States v. Causby (1946). The ultimate effect of that decision was that the airspace below a certain level (365 feet) would be under the control of the landowner; in particular, if flights below this altitude impaired the usefulness of the property, the landowner would be due compensation. But the court decision explicitly affirmed that the old usque ad coelum doctrine no longer applied:

The common law doctrine that ownership of land extends to the periphery of the universe has no place in the modern world.

Michael Seifert
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  • Why 365ft? I couldn't see that in the judgement. I can see why the judgement might lead indirectly to 500ft, 1000ft or 2000ft but I can't find anything that would lead to 365ft. (I believe you, I'm just curious). – Dan Apr 10 '21 at 19:36
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    @DanSheppard: It appears that number was actually settled upon by a lower court, as the lower limit of what was considered "navigable airspace" at the time. There are some more details in the Wikipedia article on the case. (Edited to better reflect this subtlety.) – Michael Seifert Apr 10 '21 at 19:50
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    @DanSheppard Also, my link is to the "syllabus" of the case, which in SCOTUS-speak is effectively an executive summary. I wasn't able to quickly find the full opinion online, though I'm sure it must be out there somewhere, and it might have more details about the rules surrounding airspace at the time. – Michael Seifert Apr 10 '21 at 19:53
  • In the context of the original question, imagine if every land owner were to determine the navigability of the airspace above their property, or were to charge for passage. A nightmare situation. Property ownership does not carry all rights; one can have property, but no water rights, for example. Airspace overhead does come with stipulations, and minimum altitudes by aircraft, established by the FAA: https://www.ecfr.gov/cgi-bin/text-idx?SID=751bfc2eaf882e9acd0f052d3618e096&mc=true&node=se14.2.91_1119&rgn=div8 – Will Apr 15 '21 at 08:04