That Cloud Is My Property! - A Probe Into Air Rights And Its Applicability

Akshara Nair, Institute of Law, Nirma University

ABSTRACT

Cujus est solum ejus usque ad coelum, states that the owner of a property has rights over it all the way up to heaven and down to hell. This paper aims to systematically comprehend this maxim, and some of the various aspects that might prove as an obstruction while trying to maintain this principle. If one really does own a property based on the heaven to hell doctrine, then how can aeroplanes fly overhead, without putting themselves in constant risk of being sued for trespass of private property? While the sky is also considered nothing but a public highway for flights and UAVs, the question to arise is whether that can also be construed as a breach of privacy.

Some of the most pertinent and famous landmark cases relating to the owner’s right in the airspace over and below their property has been cited and discussed for further elucidation and understanding of what exactly air space rights are, and what kinds of restrictions are imposed by the governments or law making bodies of different nations ensuring that day to day activities such as air transport, or the use of drones for multiple reasons, such as commercial use or high importance security needs, are not interfered with merely because owners of a certain plot claim to have right exceeding the limits and bounds of the sky, while at the same time protecting their right over their land to an apprehendable, and reasonable extent allowing the maximum enjoyment of one’s property without direct and inconveniencing entry into the space over their property. Such cases include the famous United States V. Thomas Lee Causby case, Threesiamma Jacob and Others V. Geologist, Department of Mining and Others and Boggs v Meredith. The paper also backs its arguments with rules such as the Mines and Minerals Development (Regulation) Act (MMDR Act) 1957, The Atomic Energy Act and the Oilfields (Regulation and Development) Act, 1948, Drone Rules 2021, Drone(Amendment) Rules, 2022 and the No Objection Certificate Application System used by the development authorities of states in India, providing a further analysis of how air rights are provided and restricted based on a variety of rules that come into play. The topics discussed not only gives land owners an insight into the various cases where the owner was able to secure his property from violations, but also the cases where the right to use such an area by the government for public interest based on agreements with the residents of that area.