This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
According to the theory of the common law, the ownership of the surface of land involves, if not the ownership, at least the control, of the space above it to an indefinite distance.1 Consequently, any infringement by another person of the freedom of such space, as by allowing the eaves or wall of a building,2 or the branches of a tree,3 to project thereon from adjoining land, is a tort. On the same principle, the owner of land has the right to object to the stretching of a telegraph or other wire in the space above his land.4 But though entitled to remove or enforce the removal of such thing or to recover for damage caused by its presence, he has no right of ownership therein if it is not attached to his land.5 Such an encroachment upon the space above one's land has been regarded as a nuisance,6 and occasionally as a trespass.7 There is even authority to the effect that ejectment will lie on account thereof.8
1. Co. Litt. 4a; 2 Blackst. Comm 18; 3 Kent, Comm. 401.
The subject of this section is considered, with a full citation of authorities, in a valuable note in 32 Harv. Law Rev. at p. 5C9.
2. Baten's Case, 9 Coke, 53b; Meyer v. Metzler, 51 Cal. 142; Copper v. Dolvin, 68 Iowa, 757, 56 Am. Rep. S72; Codman v. Evans, 89 Mass 431; Wilmarth v. Woodcock, 58 Mich. 482; Lewis v. Pingree Nat. Bank, 47 Utah 35, L. R. A. 1916C, 1260, 151 Pac. 558; Murphy v. Bolger, 60 .vt. 723, 1 L. R. A 309, 15 Atl. 365.
3. Hoffman v. Armstrong, 48
N. Y. 201; Grandona v. Lovdal, 70 Cal. 161. See post, Sec. 229.
4. See Boards of Works for Wandsworth Dist, v United Telephone Co., 13 Q. B. Div. 904; Butler v. Frontier Tel. Co., 186 N. Y. 486, 11 L R A. (N. S.) 92 9. 116 Am. St. Rep. 563, 79 N. E. 716.
5. Hoffman v. Armstrong, 48 N Y. 201; Skinner v. Wilder, 3S Vt 115; Lyman v. Hale, 11 Conn. 177.
6. Baten's Case, 9 Coke 53b; Fay v. Prentice; 1 C. B.; Myer v. Metzler, 51 Cal. 142; Wilmarth v. Weodcote, 58 Mich. 482, 25 N. W.
Whether the owner of the land, in the ordinary case, actually owns the air space above the land, and whether such air space is susceptible of division into strata for the purpose of separate ownership, is a question of difficulty. That it is so divisible appears to have been decided in one case.9
With the development of the science of aerial navigation, the question of the rights of a landowner as regards the passage of objects above the land has been the subject of considerable discussion. The tendency of such discussion is towards a modification of the common-law doctrine of the landowner's exclusive control of the air space above, by the recognition of a right of passage at such a distance above the land as to involve no interference with the fullest utilization of the land itself.10