Who owns the sky?" would on first impression seem to be one of those rhetorical questions, such as "What is the meaning of life?" The proverbial man or woman on the street might answer, after an emphatic shrug, "no one". After reading Stuart Banner's book, in which he poses and then tries to answer that question, I have whittled my responses down to three: first, "no one, although there are a lot of different entities who would like to"; secondly, "no one, although there are some people who exercise control over certain portions of it at certain times and under certain circumstances"; thirdly, "it depends" - which is probably the best of the lot.
Confused? Yes, but I am not blaming Banner. As an academic and practising aviation lawyer, I had explored the use of airspace around airports in the context of noise and nuisance to property owners. Cases such as City of Burbank v Lockheed Air Terminal, United States v Causby and its successor, Griggs v Allegheny County - the last two receive excellent treatment by Banner - had acquainted me with the law of the air, but only around airports. I also knew the meaning of the axiom cujus est solum ejus est usque ad coelum ("whoever owns the land owns the sky above it to an unlimited height").
But what had never occurred to me - even as a pilot and a frequent air traveller - was how I, and others, could fly almost wherever we wanted, regardless of who owned the land below. The question of how the legal axiom had given way to modern exigencies had never crossed my mind.
It has obviously crossed Banner's mind, and we are the better for it. I doubt there is any facet of this question that he has not addressed in its historical context, and he has presented a most thoroughly researched work on the history of the issue. Sometimes I wished he had not been so thorough, only because I wanted to move faster than the historical nuggets would allow me. Banner claims that with this work he has written an intellectual history of American aviation law in the first half of the 20th century. And he has done exactly that - very well.
The complex history of how the US (and the rest of the world) grappled first with the rights of balloonists and then those of the aeroplane pilots to operate in air that they did not own, and how trespass law eventually gave way to flight, is filled with anecdotes, analogies, nutty proposals and brilliant ideas. The confluence of so many disparate interests - government, industry, military, private landowners, private aviators and the flying public - could produce no less. In this context, this work is indeed a study of how technological change begets legal change.
This book is not only a great repository of the history of the question it poses, but is also a great yarn. Banner's friendly writing style gets one through the stickier details, and one simply feels better - not just better informed - for having read the book.
My only criticism is that I wish there had been more treatment of current history of the law in this field and projections on where this might go in the outer atmosphere and in space. But we don't ask a rose to sing, and we can be grateful for what has been done. Banner has generously left that story for someone else.
Who Owns The Sky? The Struggle to Control Airspace from the Wright Brothers On
By Stuart Banner Harvard University Press
Published 31 December 2008