Be Aware of Legal Issues When You “Drone” On Someone Else’s Property

Recently, I read that the 2018 World Pipe Band Finals took place in Glascow.[1] For the uninitiated, a pipe band is a musical group comprised of bagpipes and drums. Frequently, the musicians are clad in kilts and other traditional Scottish apparel.

That got me thinking about bagpipes and their relationship to orchestra instruments. I was surprised to learn that the bagpipe is a member of the woodwind family and is a double reed instrument, like an oboe or bassoon. The bagpipe’s melody is produced by something called a chanter, which looks like a recorder but contains a double reed inside.

The bag holds air, which is released through pipes called drones, because they produce only a single, sustained pitch. Drone is a musical term which refers to a single note (or notes) which is played continuously throughout a piece of music. A drone note also can be used as a music education tool to help with intonation.

Another type of drone, which does not involve music, has also been in the news. From package delivery, to search and rescue operations[2], to real estate inspections[3], unmanned aerial vehicles or UAVs, also called drones, have become mainstream.

As drones became an affordable consumer item and are increasingly used by law enforcement, they have raised legal questions. The law has not always been quick to respond to privacy and other legal concerns. This article provides an outline of some of those concerns relating as they relate to real estate ownership.

Start with a Latin Maxim

Under English common law, there was a Latin maxim relating to air rights, cjus est solum, esus est usque ad coelum et ad infernos. For those who are rusty with their Latin, that roughly translates to “He who owns the soil, owns it all the way up to the heavens and down to hell.”

That may have made sense before humans developed aircraft, but more recently, the law does not view air rights as being infinite. In 1946, the U.S. Supreme Court discussed limitations on air rights in United States v. Causby.

Causby owned 2.8 acres of land near Greensboro, North Carolina, where he lived and raised chickens. Causby’s land was on the glide path to the airport’s runway, resulting in airplanes flying 67 feet above his house, 63 feet above his barn, and only 18 feet above the highest tree. When, in 1942, the military began flying bombers over Causby’s property, the noise was so startling that it scared his chickens.  One hundred fifty of Causby’s chicken’s died when they flew walls in the barn due to fear. This made it impractical for Causby to operate a chicken farm on his land.

Causby sued, claiming that the military’s use of the air space above his land constituted a “taking” under the Fifth Amendment of the U.S. Constitution. The U.S. Supreme Court agreed, stating that

While the owner does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the purpose of light and air is used. The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface.

The Court then concluded that “The airspace, apart from the immediate reaches above the land, is part of the public domain,” without stating where the owner’s rights end and the public domain begins.

In the years since Causby, laws have addressed use of airplanes and other piloted aircraft, but because drones have become consumer items and have been increasingly used by law enforcement, the issues seem more pervasive, and regulating them has been more problematic.

Trespass Concerns

The law of trespass arises out of the Latin maxim cjus est solum, esus est usque ad coelum et ad infernos. Because the owner has all rights to the land, anyone who intentionally enters onto real estate without a legal reason to be there has engaged in trespass.

In light of Causby, low-flying drones considered to be below the public air space likely are committing trespass. The owner of the land could file a lawsuit, assuming the drone operator were identifiable. However, unlike Causby, whose chickens died because of the low-flying aircraft, it may be difficult for most property owners to show they are injured by the drone.

Some property owners have taken matters into their own hands. More than one “welcomed” drones with one type of “hospitality” traditionally given to trespassers–a shotgun. The most notorious of such individuals is self-titled “Drone Slayer,” William Merideth, a Kentucky man who used his shotgun to shoot down a drone over his home.[4]

In Merideth’s case, a state court judge dismissed criminal charges against Merideth. The drone owner, John David Boggs, responded by filing a federal civil case against Merideth in federal court, claiming that a federal question was presented because his drone was flying in federally-regulated airspace.

However, the federal court dismissed the case due to lack of subject matter jurisdiction. The federal court held that any claim Boggs had would be under state law and leaving the question whether a property owner is entitled to shoot down a drone flying over his property. More importantly, the court left open the question whether an individual commits trespass when he flies his drone over another person’s property.

Privacy Concerns

Drone privacy concerns range from concerns about warrantless searches (which are beyond the scope of this article) to invasion of privacy claims involving commercial or recreational drones.

The Merideth case described above started with privacy concerns. The homeowner shot down a drone that he observed spying on his 16-year-old daughter who was sunbathing by the pool in his yard (the charges were later dismissed).

Use of drones raises new issues relating to use of air space. For instance, most people living in a high-rise apartment would not be worried about peeping-toms. In 2014, a Seattle woman reported she felt violated when she saw a drone hovering outside her 26th floor apartment window.[5]

Some would say these situations are no different than if someone in a neighboring building had watched these women with a telescope or a camera with a zoom lens. However, drone operators can gain vantage points which would not be possible from buildings. [6]  

More importantly, although it is possible to take steps to protect oneself from intrusion by a static observer, that is not possible with drones. Drones are mobile. It is not possible to predict where they will be or where they will go next. This makes it impossible to position oneself to avoid unwanted observation.

California is one of a few states which provides for a civil claim for this type of drone activity. In California Civil Code Section 1708.8, known as its “paparazzi law,” a person can be held liable for invasion of privacy by knowingly entering into the airspace of another person to capture a visual image of an individual engaging in a “private, personal, or familiar activity.” Section 1708.8 also requires that the invasion occur “in a manner that is offensive to a reasonable person.”

Several states have extended criminal trespass laws to cover drone activity over a property owner’s air space. Some states have utilized existing or expanded voyeurism, harassment, and reckless endangerment laws to criminally address drone intrusions. More states have laws protecting the public interest, such as critical infrastructure, prisons, airports, and fire, police, and rescue activities from drone surveillance or interference. A few states expressly prohibit use of drones as weapons

Despite these efforts, privacy laws generally have not caught up with the type of intrusion drones present to individual property rights.

The Future

The law does not always evolve quickly. Among the current concerns relating to individual real estate rights are:

+  whether to set a limit on the altitude at which drones may fly without trespassing on the land below

+  whether to impose noise limitations on drones

+  whether and when to prohibit use of drone photography

+  when and what type of damages owners must show to collect damages from drone operators who violate airspace rights.

Unlike drones in music, which involve a single musical note, drone aircraft present many legal issues. And, as drone use expands to package delivery, as proposed by Amazon, there will be more new legal issues to resolve.

© 2018 by Elizabeth A. Whitman

DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information contained in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless and until a written contract is signed by all parties and any conditions in such contract are fully satisfied.

[1] World Pipe Band Championships, BBC, August 18, 2018.

[2]Brian Hardwerk, 5 Surprising Drone Uses (Besides Amazon Delivery), National Geographic, November 2, 2013.

[3] Nick Madigan, Need a Quick Inspection of a 58-Story Tower? Send a Drone, New York Times, August 14, 2018.

[4] See David Z. Morris, A Drone, a Shotgun, and the Future of Airspace Rights, Fortune, September 25, 2016.

[5] Lindsey Bever, Seattle woman spots drone outside her 26th-floor apartment window, feels ‘violated’, The Washington Post, July 25, 2014.

[6] Nick Bilton, When Your Neighbor’s Drone Pays an Unwelcome Visit, The New York Times, January 27, 2016.