Pilot Counsel

Small airports and the law

November 1, 2000

Here is a recent case that tells us something about the law as it relates to an important and typical airport situation. It is the situation of a small general aviation airport that has existed in a sparsely populated area and is now being threatened by nearby residential and commercial development. The situation pits the legal rights of the owners of the land next to the airport against the interests of the airport owners and users.

This legal decision was issued earlier this year by a federal court in Illinois. It involved a private airport that had been developed in a rural area. The airport is owned by an aero club and is used exclusively by the members of the club. The airport has two runways, one of which is paved. The paved runway's northern end abuts the southern boundary of an adjacent farm. Aircraft taking off to the north or landing to the south on the paved runway fly low over the southern boundary of the farm.

The airport is properly zoned by the local authorities for use as an airport. It is also protected by a provision in the Illinois Aeronautics Act that states: "No person may create or construct any airport hazard which obstructs a restricted landing area or residential airport."

In recent times, the area surrounding this farm has seen a good deal of development, both commercial and residential. The owner of the adjacent farm (really the executor of an estate that owns a one-half interest in the land) would like to develop the land. He claims that he is prevented from realizing the full value of his property because of the low-flying aircraft.

The landowner's claim raises some fundamental legal principles about the ownership of land and the airspace above the land. These principles have been developing over time. In early common law, when there was little practical use of the upper air over a person's land, the law considered that a landowner owned all of the airspace above his land. That doctrine quickly became obsolete when the airplane came on the scene, along with the realization that each property owner whose land was overflown could demand that aircraft keep out of the landowner's airspace, or exact a price for the use of the airspace. The law, drawing heavily on the law of the sea, then declared that the upper reaches of the airspace were free for the navigation of aircraft. In a landmark case, the U.S. Supreme Court declared the navigable airspace to be "a public highway" and within the public domain.

At the same time, the law, and the Supreme Court, recognized that a landowner had property rights in the lower reaches of the airspace above his property. The law, in balancing the public interest in using the airspace for air navigation against the landowner's rights, declared that a landowner owns only so much of the airspace above his property as he may reasonably use in connection with his enjoyment of the underlying land. In other words, a person's real property ownership includes a reasonable amount of the airspace above the property. A landowner can't arbitrarily try to prevent aircraft from overflying his land by erecting "spite poles," for example. But, a landowner may make any legitimate use of his property that he wants, even if it interferes with aircraft overflying the land.

The usual situation with larger, public-use airports is that they either own the land underlying the approach and departure paths to their runways, or the airports have acquired airspace easements from the landowners over whose property aircraft fly low, or both. Even then, many of these airports continue to have problems with their neighbors.

Smaller airports developed in sparsely populated areas are not ordinarily protected by such easements or buffer zones, because low-flying aircraft approaching or departing these airports have not bothered adjacent landowners. Not, that is, until development starts to reach the land around these airports. Then it becomes a problem like the one involved in this case.

There were actually two pieces of litigation involving the airport. In earlier litigation (not the recent decision we are reporting), the landowner sued the aero club, along with the Illinois Department of Transportation and others, challenging the Illinois law that said he couldn't construct anything that would obstruct the airport. In that litigation the landowner asked the court to declare that the law, quoted above, in effect was a "taking" of his property without any compensation to him. The owner argued that the law prevented him from realizing the full value of his property because it prevented him from building any structure near the southern boundary of the farm. The court never considered the merits of this argument. The court dismissed his lawsuit because the owner failed to show that he had actual plans to improve his land or construct a building that he was prevented from doing by the Illinois law. In other words, there was no "case or controversy" and therefore the court lacked subject matter jurisdiction over the matter.

Having failed in that litigation, the landowner took a different legal tack in the case we are reporting. He sued to enjoin the aero club and its members from using the northern end of the runway. Essentially, the landowner wanted the court to order the club and its members not to fly over his property at low altitude. He claimed that the injunction is necessary in order for him to obtain full enjoyment of his property. In this case, the airport owners and club members defended against the suit for an injunction on federal preemption grounds, and won.

The case involved some technical procedural issues not relevant to us here. The issue that is interesting to us is the one of federal preemption. The aero club claimed that by seeking an injunction against overflights by the aircraft using the airport, the owner is in effect seeking to regulate air traffic, an activity that is preempted by the federal government. The court agreed.

The court held that all of the navigable airspace in this country is within the sole domain of federal regulation. It quoted the Federal Aviation Act that provides: "The United States Government has exclusive sovereignty of airspace of the United States." The act defines navigable airspace as "airspace above the minimum altitudes of flight…including airspace needed to ensure the safety in the takeoff and landing of aircraft."

The court found that even though the landowner is seeking to prevent trespass in what he claims is his airspace, what he is ultimately seeking is to regulate the use of the airspace above his property. That regulation is preempted. This is an important principle of law that could be helpful to other airports similarly situated.

The court never decided what other legal rights and remedies the landowner has, including whether the landowner is entitled to monetary damages for the loss of his claimed property. Those questions were not raised by the landowner's pleadings in either case.

The case is not yet resolved. The landowner has appealed this recent decision. We may have more legal developments to report.