| Book Review | The Journal of American History, 96.2

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| Book Review | The Journal of American History, 96.2 | The History Cooperative

Book Review

Who Owns the Sky? The Struggle to Control Airspace from the Wright Brothers On. By Stuart Banner. (Cambridge: Harvard University Press, 2008. vi, 353 pp. $29.95, ISBN 978-0-674-03082-4.)

This delightful history gives an account of legal regulation of airspace after motorized aircraft first began flying in 1903, when the Wright Brothers took their legendary flight at Kitty Hawk, North Carolina. Airplanes created property rights conflicts that the law had not before confronted. Lawyers looked first to state property law, which was poorly suited to the task. The common law had always followed the seventeenth-century pronouncement of Chief Justice Edward Coke that ownership of private property extended "up to heaven." Further, trespass law was a strict liability offense even if it caused no injury. But the cases decided before the invention of aircraft mainly involved buildings that overhung neighboring property lines, or leaning trees. As of 1910, someone who flew over private property violated the law even if the flight caused no harm. That fact led to some outlandish regulatory proposals: such suggestions that aircraft be required to follow the rights of way of public highways or that the government use its eminent domain power to condemn and pay for aircraft rights of way. These problems worsened as local governments began building airports and commercial flights commenced.

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