Herrin v. Sutherland

Supreme Court of Montana, 1925.

74 Mont. 587, 241 P. 328

Prosser, p. 67-68


Facts: The defendant was standing on someone else’s land and shooting a shotgun at ducks over the plaintiff’s land.


Issue: If you physically invade the air above someone’s land, is it trespass?


Rule: The air space near the ground over your land is as much your property as the land itself.


Analysis: The court figures that since the defendant disturbed the plaintiff’s “quiet, undisturbed, peaceful enjoyment” of the land, it was technically trespass.  The court also says that there is a clear danger of having a shotgun fired over your land, and that even if there are no actual damages, the plaintiff should be protected from such conduct.


Conclusion: The court affirms the judgment of the lower court for the plaintiff.


Notes and Questions


1.     Insofar as you’ve got a dead cat on your property, I would think that your “quiet, undisturbed, peaceful enjoyment” would be affected.  The sound of the gun itself would also be disturbing.

2.     Based on a strict interpretation, an action for trespass would lie in both situations, although it might be very hard to get anything more than nominal damages.  It will depend on how near the ground “near the ground” is.

3.     This is not practical at all anymore.  There are many strata of human activity above and below one’s land, including underground pipes; electrical, telephone, and coaxial cables; and in some places subway tunnels.  Above one’s land, you’ll have all sorts of airplanes, overhead electrical wires, and even arguably radio signals of various sorts.

4.     This “immediate reaches” standard could stand some interpretation.  Does it mean it’s only trespass if you can reach up and touch the plane?

5.     If you sue for negligence or nuisance rather than trespass, you don’t have to prove a physical invasion of your property.

6.     The government has a special responsibility to preserve the habitability of private land based on the Fifth Amendment.  Private organizations might not be held to such a high standard.

7.     Airline crashes won’t necessarily fall under the trespass action.

8.     I wonder what political circumstances in the West would cause them to establish a different rule.  Maybe it has something to do with the type of mine (gold, iron, copper v. coal).

9.     Everything that’s directly under my place is also part of my place.


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