Herrin
v. Sutherland
Supreme Court of
74
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.