Airspace in an Age of Drones (Research Paper)

The growing interest in domestic drones is drawing new attention to unresolved questions regarding the scope of landowners’ rights in the airspace above their land. Domestic drones are small, unmanned aircraft capable of delivering packages or capturing photos. Existing aerial trespass and takings laws, which were formulated prior to the advent of modern drone technologies, are ill-equipped to handle conflicts between domestic drone operators and landowners. To establish claims under these laws, landowners generally must prove that an aircraft flew within the nebulous “immediate reaches” of the airspace above their parcels and substantially interfered with their use and enjoyment of their land. The indefinite nature of landowner airspace rights under these rules is already generating confusion and controversy and hindering growth in the fledgling domestic drone industry. This Article applies basic principles of microeconomics and property theory to analyze the complex new property law issues presented by drone technologies. The Article ultimately advocates for legislation giving landowners strict rights to exclude aircraft from a clearly-defined column of low-altitude airspace directly above their parcels. Such legislation would clarify landowners’ entitlements in low-altitude airspace and thereby promote more efficient governance of this increasingly valuable resource as drones become ever more common in domestic skies.

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