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US v. Causby (1946) and what altitude can you legally fly at over someone's property

iReviewFrozenDinners

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This sometimes comes up on the /r/drones subreddit that I help moderate and wanted to get your guys' thoughts and maybe even some clarification from people smarter and more knowledgeable than I.

Some people are claiming that people have ownership of airspace above their property, more specifically the 83 feet above their land quoting the Supreme Court United States v. Causby decision from 1946. Another user claims that "the owner's airspace...includes anything they can reasonably use or build upon, plus a buffer zone to enjoy it."
I'm not a lawyer, but it doesn't make much sense to me that a case from 75 years ago regarding airplanes flying over a farmer's property scaring his chickens to death much applies to modern drone operation and it seems to me that the FAA ultimately controls and regulates the airspace and aircrafts flying through it. Obviously common courtesy states that you shouldn't hover in someone's backyard and that might actually be against some privacy or harassment laws, but what is the actual law or consensus here?

You can check out the post that started it here if you're interested. Thanks in advance,
 

R Martin

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This sometimes comes up on the /r/drones subreddit that I help moderate and wanted to get your guys' thoughts and maybe even some clarification from people smarter and more knowledgeable than I.

Some people are claiming that people have ownership of airspace above their property, more specifically the 83 feet above their land quoting the Supreme Court United States v. Causby decision from 1946. Another user claims that "the owner's airspace...includes anything they can reasonably use or build upon, plus a buffer zone to enjoy it."
I'm not a lawyer, but it doesn't make much sense to me that a case from 75 years ago regarding airplanes flying over a farmer's property scaring his chickens to death much applies to modern drone operation and it seems to me that the FAA ultimately controls and regulates the airspace and aircrafts flying through it. Obviously common courtesy states that you shouldn't hover in someone's backyard and that might actually be against some privacy or harassment laws, but what is the actual law or consensus here?

You can check out the post that started it here if you're interested. Thanks in advance,
The FAA owns the airspace. There are state laws on the books which vary that cover privacy. Each state is different. An example from Texas is Texas Drone Privacy Laws
 

R.Perry

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For aircraft minimum altitude over a city is 1000 feet unless landing or taking off. Over unincorporated areas it is 500 feet. Exceptions are made though, for instance the 500 foot does not apply to crop dusters. For drones there is no minimum altitude but a max altitude of 400 feet. I believe the FAA altitude restrictions for drones is to keep them separated from other aircraft.

Now since the tabloid photographers has decided to use drones to invade peoples privacy many cities have enacted laws prohibiting flights in certain areas.

Martin is correct, no one owns the airspace above their property. However that doesn't mean you can fly wherever you want. You need authorization to fly in certain classes of airspace. There are restrictions to flying over prisons, military bases, sporting events, and of course flying over people.
 

MapMaker53

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The rule of thumb I use when/if flying over private properties and residences in rural/suburban areas is to keep it above the highest tree canopy in the area, or at least 100 ft altitude - and I try not to hover very long in one particular spot. That degree of common courtesy usually keeps the residents from calling the police. But no guarantees.
 

kshaw

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Senator Lee had proposed a new law to bar drone flights below 200 AGL without owner permission. That actually sounded like a good approach to me.
 

Ajkm

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I don’t think anyone is addressing the issue here. The question is about legal precedent, rather than air rights.

From a legal perspective, a Supreme Court decision (which sets a precedence within the legal system) is binding on all lower courts until it is reversed by a later decision of the Supreme Court, or the facts in any particular later case can be distinguished (in the legal definition of that term) from the original, such that the precedent is not binding.

Unless there has been a subsequent legal case, the precedent stands. Pragmatically, I suspect that a case from 1946 (which I admittedly haven’t actually read) could not have contemplated the complicated situation that exists in relation to the use of airspace some 75 years later. Thus I would opine that the 1946 case is unlikely to be formative, or even persuasive, to any situation arising in 2021. The only way to know for sure, as with many situations relating to drones and air rights, would be to bring a case based on the 1946 precedent and see what happens.
 

R.Perry

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I don’t think anyone is addressing the issue here. The question is about legal precedent, rather than air rights.

From a legal perspective, a Supreme Court decision (which sets a precedence within the legal system) is binding on all lower courts until it is reversed by a later decision of the Supreme Court, or the facts in any particular later case can be distinguished (in the legal definition of that term) from the original, such that the precedent is not binding.

Unless there has been a subsequent legal case, the precedent stands. Pragmatically, I suspect that a case from 1946 (which I admittedly haven’t actually read) could not have contemplated the complicated situation that exists in relation to the use of airspace some 75 years later. Thus I would opine that the 1946 case is unlikely to be formative, or even persuasive, to any situation arising in 2021. The only way to know for sure, as with many situations relating to drones and air rights, would be to bring a case based on the 1946 precedent and see what happens.

Sound just like my wife, another lawyer stirring the pot; just kidding. First of all how many people are going to know about that court decision unless some city ADA digs it up and wants to use it.

Also most prudent drone operations won't fly over occupier land be it people or animals below 100 feet.
 

Ajkm

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Sound just like my wife, another lawyer stirring the pot; just kidding. First of all how many people are going to know about that court decision unless some city ADA digs it up and wants to use it.

Also most prudent drone operations won't fly over occupier land be it people or animals below 100 feet.
I really hope I don't sound like your wife - who is, no doubt, absolutely lovely. Not sure I'm stirring the pot really, just presenting the legal side of the situation (since a legal case was cited as being used as some kind of legal authority by the OP).

You're absolutely right, you'd have to have a particularly twisted (and not very legally aware) personality to pull up a 1946 case and try to rely on it in relation to anything related to drone flight. It could be immediately distinguished from the point of view of precedent, by an argument a 10-year old could work out. And yes, no one who is flying a drone with even the minimum of prudent (or professional) understanding would ever put themselves in the position of Causby even being thought of as relevant to their drone operation.

We're I a law student at this point - or a prof looking to publish - I might well be tempted to write a case study around what relevance the 1946 decision might have on the FAA's airspace authority. Law students would, of course, be required to argue ("moot" in legal parlance) both sides of the case.
 

R.Perry

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No your not stirring the pot, all opinions are good here, and we are all here to learn from each other.
Wife's wisdom, "if you aren't suppose to fly below 83 ft over other peoples land don't do it." She totally agrees with your take on it, but isn't going to write a brief or whatever you call it, she is retired like I'm suppose to be.
 
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Ajkm

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And, at least from Law, I'm supposed to be retired too - though that happened some decades ago! What professional would even think about flying over someone else's property at 83ft? That's just asking for hassle.
 

R.Perry

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And, at least from Law, I'm supposed to be retired too - though that happened some decades ago! What professional would even think about flying over someone else's property at 83ft? That's just asking for hassle.

No, that is asking for a farmer or rancher with a 12 ga shotgun. Or a crop duster, us old crop dusters get lost above 150 feet; can't read the road signs, IFR, you know.
 
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Ajkm

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Actually, I've just started down the rabbit hole of that case... The judgment isn't quite as simple as it's being reported in this context. Plus there's the whole Court of Claims history and precedent issue now.
 

serra.one

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This sometimes comes up on the /r/drones subreddit that I help moderate and wanted to get your guys' thoughts and maybe even some clarification from people smarter and more knowledgeable than I.

Some people are claiming that people have ownership of airspace above their property, more specifically the 83 feet above their land quoting the Supreme Court United States v. Causby decision from 1946. Another user claims that "the owner's airspace...includes anything they can reasonably use or build upon, plus a buffer zone to enjoy it."
I'm not a lawyer, but it doesn't make much sense to me that a case from 75 years ago regarding airplanes flying over a farmer's property scaring his chickens to death much applies to modern drone operation and it seems to me that the FAA ultimately controls and regulates the airspace and aircrafts flying through it. Obviously common courtesy states that you shouldn't hover in someone's backyard and that might actually be against some privacy or harassment laws, but what is the actual law or consensus here?

You can check out the post that started it here if you're interested. Thanks in advance,
I think this link from an FAA press release from 2018 can answer your question, "Congress has provided the FAA with exclusive authority to regulate aviation safety, the efficiency of the navigable airspace, and air traffic control, among other things"

 

Ajkm

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I think this link from an FAA press release from 2018 can answer your question, "Congress has provided the FAA with exclusive authority to regulate aviation safety, the efficiency of the navigable airspace, and air traffic control, among other things"

Unfortunately, it's not quite that easy - things move sufficiently quickly that a Press Release from 2018 is unlikely still to be relevant, especially where it refers to the UAS IPP. The IPP finished last year, and its programme of continuing work is now called BEYOND Also this issue is, as I've suggested, more about the level of precedent from the 1946 case.
 

R.Perry

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Let's see, I do my panos at 200 feet, Mapping at 250 to 300 feet. Looking for stray cattle at 250 to 350 feet. Chasing the ducks off the lake, 25 feet.
 
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Danny T

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This sometimes comes up on the /r/drones subreddit that I help moderate and wanted to get your guys' thoughts and maybe even some clarification from people smarter and more knowledgeable than I.

Some people are claiming that people have ownership of airspace above their property, more specifically the 83 feet above their land quoting the Supreme Court United States v. Causby decision from 1946. Another user claims that "the owner's airspace...includes anything they can reasonably use or build upon, plus a buffer zone to enjoy it."
I'm not a lawyer, but it doesn't make much sense to me that a case from 75 years ago regarding airplanes flying over a farmer's property scaring his chickens to death much applies to modern drone operation and it seems to me that the FAA ultimately controls and regulates the airspace and aircrafts flying through it. Obviously common courtesy states that you shouldn't hover in someone's backyard and that might actually be against some privacy or harassment laws, but what is the actual law or consensus here?

You can check out the post that started it here if you're interested. Thanks in advance,
That case is Airplane… it doesn’t not apply to drones, however there are other cases in play that do. Basically, you cannot invade the reasonable privacy of anyone when they have an expectation of privacy.
Keep in mind that it is fully legal for helicopter to fly 500 feet above a structure. Since drones are not allowed to bust the 400 AGL rule, it should be safe to argue that between 75 to 100 feet above is fair game. Also keep in mind that bubba the one tooth wonder and his brother cop might not feel the same way and polite always goes a long long way.
 

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The expectation of privacy is tough because some folks expectations are higher than others. I have a second floor deck on my house. I can clearly see into my neighbor's back yard even with the six foot fence they have around it. I don't grab my binoculars to look but nothing happening in their backyard is truly private. I don't care if someone flies their drone above my yard at tree top level but there is a level at which it would become an annoyance and maybe a danger.
 

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The expectation of privacy is tough because some folks expectations are higher than others. I have a second floor deck on my house. I can clearly see into my neighbor's back yard even with the six foot fence they have around it. I don't grab my binoculars to look but nothing happening in their backyard is truly private. I don't care if someone flies their drone above my yard at tree top level but there is a level at which it would become an annoyance and maybe a danger.
Very well said and very true!!
 

MapMaker53

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Whenever someone I know is purchasing a drone, I advise that the unwritten rule of thumb when it comes to privacy is to not fly below tree top level (or 100' AGL) over private property. Also don't hover above the property very long. That will generally keep one out of trouble, but is no guarantee the cops won't be called anyway.
 

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Whenever someone I know is purchasing a drone, I advise that the unwritten rule of thumb when it comes to privacy is to not fly below tree top level (or 100' AGL) over private property. Also don't hover above the property very long. That will generally keep one out of trouble, but is no guarantee the cops won't be called anyway.
I won't name names but I have a friend who dabbles in DIY products and he has 2 Anti-Drone devices that I think are very viable...


A) A home made long range "t-shirt" cannon. He can shoot a rolled up t-shirt 75' into the air.
B) A home made tennis ball cannon. I've not heard him say distance but I've seen a tennis ball go fairly accurately over 100'.
 
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