It is one of the most difficult tasks of government to adapt existing laws to those incessant changes in the relationships of nations and individuals which are brought about by the invention of new arts and industries. The railroad, the telegraph, the telephone, and wireless signalling have each given the legislatures of the world no little concern in developing codes which would enable the new inventions to take their place in our daily lives without too greatly disturbing vested rights.
Englishmen and Americans are fortunate in having a common law, which, although based upon custom and precedent, is nevertheless so flexible that it is able to adapt itself to the new conditions which the flying-machine will create. To supplement whatever shortcomings the common law may have, there can be no doubt that special statutes will be passed in this country and England to define the relations of the airmen to people on the earth below. European nations develop their laws more consciously. They even anticipate conditions that may arise by the introduction of a new invention. Thus we find that continental jurists have given consideration to questions of such detail as the nationality to be ascribed to persons born on board voyaging air-craft, rights in respect of salvage, and other doctrines drawn from maritime law. Twenty years hence it will be interesting to compare Anglo-Saxon air-laws evolved from custom and actual experience, with the air-laws of the continent, many of them enacted before aerial navigation was really established. The mere fact that aeroplanes and airships plough the air above us is in itself a circumstance that gives rise to a new legal situation. As Professor Meli of Zurich has put it, a careful man must now look not simply in front of him and on either side, but above him as well.
Has the airman any inherent right to navigate the air at all? That is the first question that must be decided by civilised countries, whether they be Anglo-Saxon, European, or Asiatic. The question of an inherent right must be considered both from the standpoint of the private property owner and from the standpoint of international law.
Even among lawyers the old saying that to the owner of a piece of land belongs not only the earth beneath his feet to the very centre of the globe, but the air above his property to an infinite height, is regarded as a basic principle of the English common law. Yet, to use the words of Brett, Master of the Rolls, in the case of Wandsworth Board of Works v. United Telephone Company, (1884) 13 Q. B. D. 904, this old maxim is at best a " fanciful phrase." The maxim can be traced to Coke upon Littleton and to Blackstone. In all the vast body of decisions on which the English common law is based, there can be found none in which the ownership of the air to a height above that at which a property owner could make reasonable use of it, is the point at issue. It is true that Coke's old saw and its reiteration by Blackstone have been approved in many a dictum; but dicta are not decisions. If the doctrine were really good common law, every man who sailed over the land of another would be a trespasser. Suppose that an action were brought to collect damages for trespass. It is hardly likely that even nominal damages could be recovered, for the simple reason that no injury has been worked to the landowner's estate and no nuisance has been created. Decisions enough can be found to justify the action of trespass in all cases of encroaching signs, buildings, trees, overhanging telegraph and telephone wires; but in all these cases the defendant's possession and the use of the land have been interfered with. It may well be concluded that rights in the air must be strictly appurtenant to the soil beneath, and that unless a reasonable use of the land is interfered with, no action for trespass will lie.
The actual interference with the enjoyment of the land as the sole justification for legal action is fully recognised in Europe. Even before the advent of the flying-machine and the airship the code of the Canton of Grisons provided that " property in land extends to the air space (above) and the earth beneath, so far as these may be of productive value to the owner." In the German Civil Code the rights of the airman are recognised in a clause in which the property holder " cannot prohibit such interferences undertaken at such a height or depth that he has no interest in the prevention".
It is probable that one of the first of the future laws of the air will fix the height at which air-craft must travel. In all likelihood the aeronaut will be compelled to sail at a height not less than fifteen hundred feet over inhabited districts and navigable inland waters, leaving him free to fly at any height he pleases over wildernesses and the high seas. A man who sails over a city not only takes his own life into his hands, but also endangers the lives of others, because he cannot readily alight should his motor fail him. The French advocate, Fau-chille, has therefore proposed a law which will forbid flying over communities without the permission of the authorities.
That an action can be brought against an aviator who alights upon a piece of land without the owner's permission, even though he be compelled to do so against his will, is even now well established. In a New York case (Guille v. Swann, 19 Johns. 381; 10 Amer. Dec. 234) decided in 1822, an aeronaut was held responsible not only for the direct damage caused by the descent of his balloon into a garden, but even for the remote damage caused by the crowding of strangers upon the property to satisfy their curiosity. Such unpremeditated descents will be frequent in coming years. The obvious necessity of sometimes alighting against one's will demands some law which will enable the airman to land without necessarily incurring a suit for damages or imprisonment. Judge Simeon Baldwin questions whether it will not be advisable to prescribe a mode of indicating where a landing is prohibited and where it is permitted. If, for instance, a red flag were made the sign of prohibition, it may fairly be provided, in his opinion, that to land in the face of such a warning the aviator subjects himself to an action for double damages, enforcible by his arrest. The Berlin Conference relating to wireless telegraphy imposed on all coast and shipping stations the duty of exchanging wireless messages, regardless of the system employed. A similar arrangement would probably apply to the right of air-craft to use local areas set apart for alighting, mooring, and embarkation. It would seem that a distinction should be made between an accidental landing, which is due to negligence and which causes damage, and a landing which is made with all due care in order to save the airman from death. In the one case a penalty of some kind should be imposed, but in the other the airman should be allowed to escape by simply paying the amount of the actual damage which he has inflicted. Judge Baldwin has even raised the question whether the law of self-preservation cannot be invoked by an airman who is compelled to make an immediate landing to save his own life and by so doing accidentally causes the death of another.