When my dad turned 50, he was shocked to learn that the business he had been in all his life—the candy business, was no longer interested in him.   He was way over the hill.   This was in the early 1970’s, when 50 was the new 60.   After a year of unemployment, my dad found his resiliency and became a real estate salesman.   As a salesman all his life (“a good salesman can sell anything”) he was very successful, eventually becoming a broker, opening several offices in the San Fernando Valley.  Later on, although he wasn’t a lawyer, he taught real estate law, which was what led me to ask him a question I had wondered about, but had no Google to ask.  If you own property, how deep down into the earth do you own and how much of the sky above do you own?   The latter part of the question was most compelling to me, especially because the earth revolving meant that the part of the sky one owns was constantly changing.

My dad didn’t hesitate to answer my question, because he knew this stuff like the back of his hand.  “All of it,” he said.   “There’s no limit.”

I imagined that answer could become problematic, another aspect of the question with which he was fully aware.   He didn’t quote me the actual case, but I have since learned it.

In 1946, the Supreme Court heard a case brought by Thomas Causby against the United States.   Causby was a chicken farmer who became quite upset about the planes from a nearby military airport passing low over his farms.   It threw his poor chickens into a frenzy, injuring some while others died of panic, endangering Causby’s livelihood.   In suing the government, he cited the same ancient common law that my dad cited: if you own the land you own whatever is under and above it.   Using the airspace over Causby’s farm without his permission amounted, in Causby’s view, to “unlawful taking.”

Writing for the majority, William O. Douglas agreed with Causby, although the Court imposed limits.   Douglas wrote poetically, “If a landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere.”   It was up to future courts or legislators to determine what “immediate reach” meant, and most agreed over the years that “immediate reach” extended to 3 or 400 feet or so above the land.

It turns out that this doctrine of “immediate reach” is one reason the FAA has the right to restrict recreational drone flying to under 400 feet, given that the immediate reach doctrine allows it to regulate what happens in the airspace over 400 feet.  The FAA doesn’t care if you fly your drone under 400 feet over your neighbor’s house, though, because it can’t regulate that space even if it wanted to.   I suppose the doctrine of immediate reach might therefore allow your neighbor to shoot down your drone or RC airplane if it flew directly over her land under the 400 foot limit.

I think that’s fair enough, because if I saw a camera-equipped neighbor’s drone flying above my back yard while sunbathing naked (which I don’t do, but that’s not the point), I would be pretty unhappy.    Rightfully, they should meet the same fate as the uninvited gophers tunneling beneath my rose garden.

A society that values freedom should also value the right to privacy.   The notion of privacy, however, is also intricately tied to the notion of ownership.   I have no right to privacy at my neighbor’s house or the park down the street.   But if own something, what I do with it should be up to me so long as no one is hurt in the process.

When I first started traveling to Armenia about 15 years ago, a tour guide told me that there was a lot of theft in Armenia because “in Soviet times everything belonged to everyone so there was no sense of personal ownership.”   As ridiculous as I thought that statement was (and still do), it is intriguing nevertheless.  Is the very concept of ownership merely a cultural phenomenon resulting from a capitalist ideology, or is it the other way around?

The same common law doctrine that states that if one owns property then one also owns everything above it also states that one owns everything below it as well.   In that case, I can proudly say that I am the owner of roughly 2.3 acres located somewhere in the South China Sea, I think.