air rights

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Air Rights

The right to build on, occupy, and/or profit from the air above a piece of real estate. Supposedly, air rights have existed as long as the concept of private property, but it became important in the 20th century as air travel became more common. In the United States, air rights only extend to the amount of air that one may reasonably occupy. As with other aspects of real estate, air rights may be sold, leased, or otherwise acted upon either in conjunction with or separate from the property to which they are attached. See also: Mineral Rights.

air rights

Historically,property owners owned to the center of the earth and to the top of the heavens, which included the right to all the air above the property and the right to exclude trespassers from that air. Until the invention of aircraft, the matter typically arose only in disputes over the right to remove tree limbs extending over one's property. Today, aircraft constantly trespass into property owner's air space and violate their air rights.As an accommodation to modern technology, courts allow reasonable trespasses to air rights. Airports and governments frequently purchase air rights adjacent to an airport,called avigation easements,to provide glide paths for aircraft.(Because of the scarcity of prime real estate near city centers, many local governments are investigating and implementing plans to lease air rights above transit hubs to developers,for building hotels and other such projects.)

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(1) The term refers to the Latin principal of law "Cuius est solum, eius est usque ad coelum et ad infernos": loosely translated, the owner of the surface also owns everything below and above the land up to the sky, and below the earth to its core.
(96) The full maxim is cuius est solum eius usque ad coelum et ad inferos, which means "whoever owns the soil owns also to the sky and to the depths." 2 WILLIAM BLACKSTONE, COMMENTARIES *18; see also Brown v.
256, 260-61 (1946) ("It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe--Cujus est solum ejus est usque ad coelum. But that doctrine has no place in the modern world." (citation omitted)); Hinman v.
Justice Douglas, however, writing for the Court, stated that the ad coelum doctrine "has no place in the modern world.
"do with it as he pleases." (6) Under this ad coelum view,
ferae naturae view nor the ad coelum view--but adamant that extraction
Roberts has pointed out that through 'the inflated language of the dedication' of the Regii Sanguinis Clamor ad Coelum 'Salmasius becomes "thaumasious", full of miracles and wonders'.(3) Furthermore according to Roberts 'in a skilful play on words Milton uses "repeated crepitation" to mean both the dissonant crackling of the trumpet and the breaking of wind, and "cheeks" to mean parts of the face and buttocks'.(4) There has been no scholarly comment, however, until now about Milton's use of particular adjective [Greek Text Omitted], [Greek Text Omitted], [Greek Text Omitted] in this passage.
As counterpoint to the ferae naturae and commons property view of subsurface resource pools, the conventional ad coelum view suggests that the resources are private property.
If subsurface resource pools are the individuated private property of the surface owners, as the ad coelum view suggests, then it must be conceded that each individual surface owner loses ownership of water, oil, and gas once it migrates across the property line.
Part III applies the cognitive theory developed here to several puzzling issues of baselines in property, including the nemo dat principle ("one cannot give that which one does not have"), the ad coelum rule (that a landowner owns "to the heavens above and the depths below"), the notion of title, and the role of equity as a modification of the law.
In trespass to land, an unauthorized crossing of a boundary serves as a (very) rough proxy for harmful use; any voluntary entry into the space defined by the ad coelum rule counts as a trespass.
The Struggle to Control Airspace from the Wright Brothers On, UCLA law professor Stuart Banner examines how the united states moved from the ad coelum rule to the current regime, under which landowners have no right to the sky above them, anyone (with government permission) can fly most anywhere, and governments assume the right to limit access to the air however they see fit.