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Balloon Overhead

Hudson Law Firm Feb. 7, 2023

balloonAir rights in New Jersey are the legal ability to occupy the vertical air space above a plot of real estate. This right is encoded in the Latin phrase Cuius est solum, eius est usque ad coelum et ad inferos ("Whoever owns the soil, it is theirs up to Heaven and down to Hell."), which appears in medieval Roman law and was notably popularized in common law in Commentaries on the Laws of England (1766) by William Blackstone.

Air travel promoted the concept that airspace above private land could be subject to impairment and the Federal Aviation Administration (FAA) was established to regulate all "navigable airspace", exclusively determining the rules and requirements for its use. The Federal Aviation Act provides that "the United States Government has exclusive sovereignty of airspace of the United States" and "A citizen of the United States has a public right of transit through the navigable airspace."

Financial compensation is owed property owners when the use of their property is substantially impaired by the federal government, state government, or the aerial trespasser. Congress has provided authority for the FAA to provide funds to purchase property interests in airspace (navigation easements) near airports to accommodate planes taking off and landing.

The low cost of unmanned aerial vehicles (also called drones) in the 2000s re-raised legal questions regarding whose permission is required to fly at low altitudes: the landowner, the FAA, or both. There has never been a direct challenge to the federal governments vesting of the right for citizens to travel through navigable airspace. As such, the status quo is only permission from the FAA is required.