We all recognize that flight over private property must in some way be legalized. If the courts were to hold that any entrance into the air space constituted a violation of the legal rights of the owner of the soil, it would indeed be a great blow to the aeronautical industry In order to legalize flight it would be necessary to secure the permission of all landowners over whose property a flight was made. It is conceivable that this could be accomplished along regular airways. However, it is often necessary to deviate from the regular course by reason of weather conditions—and sometimes the deviation is involuntary The time may come when travel by air will be confined to specifically defined airways. However, in the present state of the industry, if flight over private property at all heights was made unlawful, the future of air transportation would be exceedingly dark. It is therefore necessary to legalize flight over private property if travel by air is to continue its growth and development. Clearly it is to the interest of our government and of the public that transportation by air be encouraged. To be balanced against these public and social interests are the interests of the private property owner. His right to use and enjoy his property must be protected. In defining the right of flight over private property we must recognize the public and social interest in freedom of flight, but at the same time we must give due emphasis to the interests of the property owner. [One of a series of lectures on air law given at the Law School of the University of Washington.]
William M. Allen,
The Right of Flight over Private Property,
7 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol7/iss2/2