Sky the Limit?

In the reign of Edward I (1239-1307), disputes involving the ownership of birds in trees or the right to build a structure which jutted over the edge of a neighbor's land, were settled by the maxim: Cujus est solum, ejus est usque ad coelum (He who owns the soil, owns above it to the sky).

Although the maxim (credited to Accursius, 1182-1260) was coined in a day when man was earthbound, it has survived to provide endless argument on the question of what constitutes trespass by aircraft. Today virtually all jurists agree that a property owner has control of the space above only to the extent that he can actually make use of it, or for protecting the rights which he enjoys on the surface.* Thereby hangs a variety of interpretations which threaten to become more confusing with the increase of airports and aircraft.

Last week in Nassau County, N. Y. the district attorney threatened to proceed against Curtiss-Wright Airport and Roosevelt Field as public nuisances because residents complained that planes droning over their rooftops at all hours of the night made sleep impossible. The matter was settled by the field managers agreeing to a curfew of 11 p. m. in summer, 10 p. m. in other seasons. Night flying, they explained, is a Department of Commerce requisite for student flyers in qualifying for advanced ratings.

Of far greater import to airport operators is the decision in Swetland v. Ohio Air Terminals (Curtiss-Wright subsidiary) from which defendants were last week preparing an appeal. The Swetlands (Frederick and Raymond), who for 25 years have occupied a country estate near Richmond Heights, Ohio, asked an injunction against the airport, which was constructed across the road from them last year. Judge George P. Hahn upheld the right of the airport to operate, but enjoined its planes from flying lower than 500 ft. over the Swetland's property even in taking off or landing.

Should that principle be universally applied, the effect would be equivalent to creating a fence 500 ft. high around every airport. And as approved aircraft have a minimum gliding ratio of 7-to-1, airmen have computed that 3,500 ft. would have to be added to each dimension of the present average airport for planes to clear the edges at the prescribed altitude.

The same doctrine was applied in the similar Massachusetts case of Smith v. New England Aircraft Co. But there, injunction was denied, largely because the portion of the plaintiff's land in question was covered with dense brush and woods, and the occupants failed to prove material discomfort to themselves because of low flying.

Canadian Air-Rail

Among other things hinging on the outcome of Canada's national election (see p. 22) was the future ownership of Canada's principal airways. Both Sir Henry Worth Thornton and Edward Wentworth Beatty, presidents respectively of Canadian National Railways and Canadian Pacific Railway have intimated that their organizations may acquire part of Western Canada Airways and Canadian Airways. They have, in fact, reached "an agreement in principle." What they actually would do depended greatly upon the nature of Canada's next government.

Canadian National, which has thrived in the nine-year tenure of the Liberals, might well be satisfied with the retention of that party in power. Any expenditure of capital sums by Canadian National must have authority of an Order in Council or a vote of Parliament. On the other hand Bachelor Richard Bedford Bennett, Conservative leader, was onetime counsel for Canadian Pacific.

Direct utilization of the airways by the two rail companies might take two aspects: the speeding of travel along principal trunk lines by combined air-&-rail service, and the operation of air lines where it is not practicable to build branch roads.

Canadian Airways planes fly from Montreal to Toronto. Western Canada Airways operates from Calgary east to Winnipeg. Between Winnipeg and Cochrane, Ont. is a vast expanse favorable for flying, which might be made an extensive air link in an air-rail system, cutting nearly two days from the trans-Canada trip.

For the same reasons that air transportation is necessary to Canada (great area, scattered population) it is likely to be costly (long hauls, light passenger loads). Nevertheless the industry there has made tremendous strides since 1919 when a few military aircraft were released for civil works (TIME, Jan. 27). Of 88 companies engaged in commercial operations, ten are operating scheduled services over 6,984 mi. of airways. Last year Canada's air lines carried 86,242 paying passengers, 430,636 Ib. of mail, 3,903,908 Ib. of freight and express, flew 6,284,079 mi.

Flights & Flyers

Wales. Edward Albert Christian George Andrew Patrick David, Prince of Wales, made his first solo flights, in a Tom-Tit biplane, without a license (his father having requested that none be allowed him).

Rasche. At Tempelhof aerodrome. Berlin, famed Thea Rasche had a crash, was not badly hurt.

Derby. Twelve of the original 18 starters in the All-American Air Derby for planes powered by 100-h. p. American Cirrus engines, finished at Los Angeles the first half of a 7,000-mi. round-the-continent race, headed east to complete the circle in Detroit. In the lead was Lee Gehlbach of Little Rock, Ark. flying a low-wing Command-Aire.

*In 1921, however, the legal adviser to the chief of the U. S. Army Air Service opined that rights in property were so rigid that a constitutional amendment might be necessary to save aviation from becoming a deprivation of property without process of law.

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