Schronk v. Gilliam

380 S.W.2d 743, 1964 Tex. App. LEXIS 2638

• Court: Court of Appeals of Texas
• Decided: March 26, 1964
• Docket: 4195
• Status: Published

Opinions

WILSON, Justice.

Appellees sued appellants for damage to their lands caused by poison dropped from an aircraft.

The only question in this case is whether it was necessary for plaintiffs to establish negligence as a basis for their recovery of damages to realty. There is no pleading of negligence. No question as to nuisance is presented. The case is not governed by statutes relating to aerial spraying. Texas has not adopted any uniform act governing aeronautics. Stated otherwise, the question is whether defendant is liable for trespass. No complaint was presented in the trial court, and no question is raised here as to sufficiency of plaintiffs’ pleading. The •only pertinent objections to the charge were that no issues as to negligence were submitted. The question thus narrows to whether the evidence shows an actionable trespass, the jury having made findings on elements of that independent ground of recovery.

All parties concede on argument, and the record reflects that appellants’ aircraft was flown over appellees’ land. The evidence establishes that the damage was caused when the aircraft deposited a desiccant, poison or other deleterious substance, intended to be used for the spraying of cotton on other lands, on plaintiffs’ crops and pasture while it was in flight in air superadjacent to their land. The record is silent as to the transvection altitude.

The history of the abandonment or modification of Coke’s ad coelum doctrine is traced in Hotchkiss, Law of Aviation, 2d ed., ch. 3; Fixel, Law of Aviation, 3d ed., ch. IV.; Jaffe, 9 Tex.L.Rev. 240; Anderson, Airspace Trespass, 27 Journal Air Law (1960) 341. Whether upon concepts of a public right of freedom of transit through the air, an exercise of national sovereignty to make airspace common domain, an appropriation, a privilege, an easement or some other notion, the early English doctrine that airspace was an appurtenance to land giving an absolute and exclusive proprietary right to the owner “to the highest heavens” has been repudiated. That exclusive dominion has been qualified to make airspace a public highway. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206.

The common right to that use of airspace is restricted, or the horizontal surface owner’s dominion is protected, however, at least to the extent that there is a limit to minimum altitude of flight. Absent legislation, the aeronaut’s rights generally terminate at, and the landowner’s exclusive dominion extends at least to the altitude of the owner’s existing and effective reasonable use of the land. Hotchkiss, Aviation Law, Sec. 22; American Law Inst, Restatement, Torts, Secs. 159, 194; United States v. Causby, above; 2 C.J.S. Aerial Navigation § 5, p. 903 ; 8 Am.Jur.2d Sec. 5, p. 621. See generally, 99 A.L.R. 176 and supp.; 3 Journal Air Law, 329, 531; Wherry & Condon, 6 Air Law Rev. 113; Anderson, Airspace Trespass, 27 Journal Air Law 341 (1960); Harper, Torts, Sec. 37, p. 74; Prosser, Torts (1955) Sec. 13, p. 60; Harper & James, Torts, Sec. 1.15; 78 Pa.L.Rev. 902 ; 6 Cornell L. Q. 271; Calkins, Landowner and Aircraft, 25 Journal Air Law 373 (1958).

Under this record it may not be said that there is a showing appellants’ mere initial entry into the superincumbent atmosphere over appellees’ land at an unknown altitude constituted in itself an actionable trespass. Invasion of an interest in the exclusive possession of appellees is not thus shown. If it be assumed that the aircraft, as such, was operated under an abstract privilege or other right to transverse the airspace over appellees’ land, that isolated circumstance does not require a holding that the manner in which the present flight was conducted is immune under trespass law.

Comment (f), Sec. 159, Restatement, Torts, as it existed before the Causby decision, read: “A temporary invasion of air space b\ aircraft, for the purpose of travel through it or other legitimate purpose, if done in a reasonable manner and at such height as * * * does not interfere unreasonably with the possessor’s enjoyment of the surface of the earth and the air space above it, is privileged.” Comment (e), however, is: “An unprivileged intrusion in the space above the surface of the earth, at whatever height above the surface, is a trespass.” Sec. 194 also stated similar conditions under which flight could be made without liability for unprivileged entry. Comment (f) thereunder is: “A flight, although for a legitimate purpose, at a proper height and in accordance with all applicable local regulations, in order to be privileged, must be conducted in a reasonable manner. Therefore, a flight at an otherwise permissible height above the surface conducted in such manner as to he dangerous to the land, or to persons or things thereon is not privileged.” Comment (h) under Sec. 158 relating to liability for intentional intrusion on land, concerns invasion by propelling or throwing a thing through the airspace above the land as constituting an actionable trespass.

In 1958, after the Causby decision, subd. 2 of section 159 of the Restatement was tentatively re-drafted to read: “Flight by aircraft in the air space above the land of another is a trespass, if, but only if, (a) it enters into the immediate reaches of the air space next to the land, and (b) it interferes unreasonably with the other’s use and enjoyment of his land.” Tent. Draft No. 9, April 26, 1963.

In our opinion, the flight conducted by appellants was not privileged under the existing or re-draft Restatement views; it was not conducted in a reasonable manner ; it did unreasonably interfere with appellees’ enjoyment of the surface. Under the Causby decision the flight was conducted in such manner as to at least invade the “immediate reaches” of the adjacent atmosphere enveloping plaintiffs’ land, in which appellants had no dominant estate or privilege. Whether the situation is viewed as a wrongful act after rightful entry, or as a trespass ab initio, is not important. The entry of the fuselage, at even a privileged altitude, was accompanied by active and continuous spraying of the poisonous substance which constituted as much a part of the flight as if appellants’ aircraft had been dragging a great scythe across the land below it. In our opinion an actionable trespass was established, and no allegation of negligence was required.

We distinguish such cases as Vrazel v. Bieri, Tex.Civ.App., 294 S.W.2d 148, writ ref. n. r. e., holding negligence must be shown, at least on the ground that in them the spray drifted great distances, being carried by air currents; the aircraft did not enter the air space over plaintiffs’ land; and the issue of trespass was not presented.

Affirmed.