ABOVE AND UNDER EXPLORING THE EXTENT OF AIRSPACE AND SUBSOIL

RIGHTS TO PROPERTY
ABSTRACT
The concept of property rights extends beyond the surface of the land, encompassing both the
airspace above and the subsoil below. This paper explores the legal and practical
implications of airspace and subsoil rights, examining their historical development, current
legal frameworks, and the challenges posed by modern technological advancements. By
analysing case law, statutory provisions, and scholarly commentary, this paper aims to
provide a comprehensive understanding of the extent to which property owners can claim
rights to the airspace above and the subsoil beneath their land.
I. INTRODUCTION
Cuius est solum, eius est usque ad coelum et ad inferos.
Translation: Whoever owns land it is theirs up to the heavens and down to hell.
—Franciscus Accursius1
Whether it's constructing a basement beneath a luxury residence, Shah Rukh Khan planning
to add an extra floor to Mannat, or a hobbyist flying a drone over a neighbour's backyard,
shooting a bullet over another person’s property the vertical extent of land ownership has
become a crucial aspect in determining the scope of these rights. The Latin legal maxim
cuius est solum, eius est usque ad coelum et ad inferos asserts that a landowner holds rights
not only to the surface but also to the air above and the ground beneath. 2 Known as the ad
coelum doctrine, it has been remarked that few legal maxims have had such an uncertain
origin, arbitrary application, and ignominious decline as this principle.3
In this paper the author shall be looking into the extent of this Latin maxim and its current
application. The paper is structured into three distinct parts, each addressing a critical aspect
of airspace and subsoil rights. The first part traces the evolution of these rights, examining
their origins and foundational legal principles. It delves into the Roman legal maxim “cuius
est solum, eius est usque ad coelum et ad inferos” (whoever owns the soil, owns up to the
heavens and down to the depths), which has historically influenced property law. This section
also explores how societal changes and technological advancements, such as the rise of air
travel and mining, have challenged and reshaped traditional notions of property ownership,
leading to a more nuanced understanding of vertical property rights. Part II explored the
Current Legal Frameworks analysing the existing laws and regulations that govern airspace
and subsoil ownership. This section examines key legal cases, and discusses the legal
principles governing subsoil rights, including the ‘rule of capture’ for oil and gas extraction
and the ‘ad coelum’ principle for solid minerals. By exploring these frameworks, this section
highlights how modern legal systems balance private property rights with public interests,
1
D.E. Smith, The Origins of Trespass to Airspace and the Maxim “Cujus Est Solum Ejus Est Usque Ad Coelum,
TRENT LAW J 6 (1982) at 33, 36.
2
Aaron X. Fellmeth & Maurice Horwitz, Guide to Latin in International Law 1 OXFORD UNIVERSITY PRESS
(2009).
3
Herbert David Klein, Cujus Est Solum Ejus Est...Quousque Tandem, 26 J. AIR L. & COM. 237 (1959).
such as aviation safety and resource management. In Part III the Modern Challenges and
Technological Advancements are explored wherein contemporary issues arising from
technological innovations and their impact on property law are discussed. This section
addresses the growing use of drones and the legal disputes surrounding their operation in
private airspace, and also examines challenges posed by underground infrastructure, such as
fracking and geothermal energy extraction, which raise questions about the extent of subsoil
rights and their potential impact on neighbouring properties. By analysing these emerging
disputes, this section underscores the ongoing tension between property rights and
technological progress, highlighting the need for adaptive legal frameworks to address these
evolving challenges. Together, these three parts provide a comprehensive exploration of the
historical, legal, and contemporary dimensions of airspace and subsoil rights.
II. HISTORICAL DEVELOPMENT OF AIRSPACE AND SUBSOIL RIGHTS
The notion that property rights extend both above and below the land's surface is deeply
rooted in ancient legal traditions. Its origins can be traced back to Roman law, which adopted
a pragmatic approach, recognizing land not as a mere flat expanse but as an integrated entity
inherently connected to the space above. The classical ‘dominium’ of the Roman Law meant
full and free use of all above the land and freedom of interference with the air above. 4 The
Roman legal doctrine cuius est solum, eius est usque ad coelum et ad inferos (whoever owns
the land, owns it up to the sky and down to the depths) played a pivotal role in shaping
modern property law. As a result, no absolute upper boundary to ownership existed, with
regulations on building heights and overhanging trees emerging solely as practical restrictions
in the public interest rather than inherent limitations on ownership rights.5
Over time the original Latin maxim has been refined into the more widely recognized phrase
‘cuius est solum, eius est usque ad coelum. This principle has been interpreted in various
ways, including ‘He who owns the land owns everything above from heaven (to hell), 6’
‘Whose is the soil, his it is up to the sky, 7’ and ‘He who possesses the land possesses also that
which is above it.8 The essence of this doctrine suggests that landownership extends
indefinitely into the air above and the ground beneath, granting the owner exclusive rights
over both realms.9 The case of Bury v. Pope (1587) offers a practical application of this
principle. Here, a landowner constructed a building with a window so close to an existing
window on an adjoining property that it obstructed the latter’s light. Even though the affected
building and its window had existed for forty years prior, the court ruled that the landowner
had no legal claim against the obstruction. This decision reinforced the notion that ownership
of land does not inherently include a right to unobstructed light or airspace unless such rights
are specifically granted through easements or agreements.10

4
ROBY, Roman Private Law In Times Of Cicero And The Antonines 498 (1902).
5
BUCKLAND, The Main Institution Of Roman Private Law 103-4 (1931).
6
MANION, Law of the Air 1 (1950).
7
BLACK'S LAW DICTIONARY 453 (4th ed. 1951).
8
BROOM'S LEGAL MAXIMS 395 (8th ed. 1911).
9
PELOUBET, A Collection of Legal Maxims 44 (1880); ANDERSON, DICTIONARY OF LAW 959 (1889).
10
Bury v. Pope (1587) 78 Eng. Rep. 375.
In his First Institute of the Laws of England, the prominent jurist Sir Edward Coke solidified
this principle in relation to terra, “And lastly the hearth hath in law a great extent upward,
not only of water as hath been said, but of aire, and all other things even up to heaven, for
cujus est solum ejus est usque ad coelum, as it is holden.” 11 To support this reasoning, Coke
cited multiple cases that illustrated the extent of a landowner’s rights. In one instance, a
dispute arose between a landlord and a tenant over the ownership of six young goshawks,
where the court examined whether the lease in question extended property rights to the
birds.12 Another case involved the Bishop of London’s claim to herons and shovelers nesting
in trees on land he had leased. 13 The court ultimately held that land ownership encompassed
not only the soil and tree roots but also the branches extending into the airspace above.14
However, the wide ambit of this doctrine has caused extremities to arise, illustrating the
broad reach of traditional property rights. For instance, the court ruled that rainwater draining
from an overhanging building onto the plaintiff’s land constituted a nuisance, reaffirming the
principle that landowners have a right to exclusive control over their property and protection
from encroachments.15 The traditional broad interpretation of property rights has been
increasingly challenged as legal systems evolve to address modern realities. Developments
such as air travel, high-rise buildings, and underground infrastructure have necessitated a
more pragmatic approach to land ownership. As a result, the rigid application of cuius est
solum, eius est usque ad coelum has been gradually refined. Legal frameworks now
acknowledge the impracticality of granting landowners absolute control over both the
airspace above and the subsoil below their property. Instead, these adaptations strive to
balance individual ownership rights with broader public and regulatory interests. For
example, in the advent of airspace technology various problems about state right’s to fly over
one’s property against the individual’s right to freely own the property came up. 16 Specifically
talking about navigated aircraft Pollock acknowledged that “clearly it would be a trespass to
sail over another man’s land in a balloon (much more in a controllable air-craft) at a level
within the height of ordinary buildings, and it might be a nuisance to keep a balloon hovering
over the land even at a greater height.”17
Therefore, as legal systems continue to evolve, the absolute notion of land ownership
stretching indefinitely above and below the surface has been steadily replaced with a more
nuanced and balanced approach. Courts and lawmakers have recognized that strict adherence
to traditional doctrines - such as cuius est solum, eius est usque ad coelum - can no longer
accommodate the demands of modern infrastructure, urban expansion, and technological
advancements. Instead, contemporary property law seeks to strike a delicate balance between
individual ownership rights and broader public interests. The regulation of airspace for
aviation, restrictions on high-rise developments, and government control over subsoil

11
Edward Coke, Of Real Property, and First or Corporeal Hereditaments of Land, The First Part of the
Institutes of the Lawes of England, London, RAWLINS, ROYCROFT, AND SAWBRIDGE, (1684).
12
22 Henry VI 59.
13
14 Henry VIII 12.
14
George B. Logan, Aviation and the Maxim Cujus Est Solum, ST. LOUIS LAW REVIEW 16 (1931): 303, 306.
15
Reports of Sir Edward Coke, vol. 3 (13) Penruddock’s Case, TRIN 40 ELIZ 101.
16
Smith v. New England Aircraft Co, 170 N.E. 385.
17
POLLOCK, The Law of Torts, 11th ed. (London: Stevens and Sons, 1920), p. 350.
resources all reflect this shift. Ultimately, the evolution of airspace and subsoil rights
demonstrates how property law is not static but rather an ever-adapting framework, ensuring
that legal principles remain relevant, functional, and fair in an increasingly complex and
interconnected world.
III. MODERN APPROACH TO SUBSOIL RIGHTS AND AIRSPACE RIGHTS
A. SUBSOIL RIGHTS
As underground development expands, legal questions surrounding subsurface rights become
increasingly complex. Whether building underground freight networks to ease congestion,
storing hydrogen for clean energy, or housing data centers for efficiency, a key issue arises:
To what extent can landowners authorize deep subsurface activities beyond their property,
and what limits can neighbouring owners impose?
As stated by Blackstone, “The word ‘land’ includes not only the face of the earth, but
everything under it, or over it.”18 So when the land was conveyed, everything else, namely,
air, water, houses, and mines below the surface got transferred. 19 The original legal position
on subsoil rights was rooted in the belief that a landowner's ownership extended indefinitely
downward, even to the depths of hell, with no restrictions imposed on their rights. However,
this absolute notion became increasingly contested, particularly in the mining and extraction
industries, where disputes over the ownership of minerals and other underground resources
led to legal debates and regulatory interventions.
As recognized by Pollock, “wrongful entry on land below the surface, as by mining” was
“prominent in our modern books.”20 But to what extent does this right confer upon was the
question of law that the court had to deal with in the advent of the modern technology of
mining and extraction is contentious. The body of law in this regard has been so fragmented
and disorganized that its principles, and the system of property rights and liabilities that
emanate from them, are obscure.21 Due to the lack of systematic view various doctrines have
been developed by courts in order to deal with the subsurface property rights. 22 The major
doctrine developed in regards to subsoil rights are that of ad coelum doctrine and rule of
capture which further is supplemented by the doctrines of correlative rights and subsurface
trespass.23 Under the ad coelum doctrine, the owner of land owns all of the rock and
substances underlying the land, extending even to the earth’s centre. The fluid and migratory
nature of oil and gas within reservoirs gave rise to the rule of capture. 24 Under the rule of
capture, a landowner may drill a well on their property and extract oil or gas from a shared
reservoir, even if it originates from beneath a neighbour's land.

18
WILLIAM BLACKSTONE, Commentaries on the Laws of England, vol. 2 (Philadelphia, J.B. Lippincott Col.,
1893), p. 18.
19
BLACKSTONE, Commentaries, vol. 2 (1893), p. 18.
20
POLLOCK, Law of Torts, 1st ed., p. 219.
21
Joseph A. Schremmer, A Unifying Doctrine of Subsurface Property Rights A Unifying Doctrine of Subsurface
Property Rights 46 (2022) HARVARD ENVTL LAW REVIEW at 528.
22
John G. Sprankling, Owning the Center of the Earth, 55 UCLA L. REV. 979, 981 n.1 (2008).
23
Joseph A. Schremmer, A Unifying Doctrine of Subsurface Property Rights A Unifying Doctrine of Subsurface
Property Rights 46 (2022) Harvard Environmental Law Review at 535. Supra note 21 at 535.
24
Westmoreland & Cambria Nat. Gas Co. v. De Witt, 18 A. 724 at 1889.
The issue becomes complicated when both doctrines are applied together, as illustrated by the
case of Coastal Oil & Gas Corp. v. Garza Energy Trust. In this case, an oil and gas company
used hydraulic fracturing to create fractures that spread into a neighbouring property,
extracting gas from below that land. The Texas Supreme Court ruled that such cross-
boundary fracking couldn't be challenged, but the justices disagreed on which legal principle
should take precedence. The majority supported the rule of capture, allowing the fracking to
continue, while the dissent argued that the subsurface trespass doctrine should apply, since
the fracking action drained oil in a way similar to a trespassing wellbore. 25 Unable to
reconcile these two legal approaches due to their fragmented nature, the justices ultimately
turned to policy considerations to make their decision. 26 The application of the same can be
seen in the case of Bocardo SA v Star Energy UK Onshore Ltd. The UK Supreme Court held
that, in the absence of specific statutory or contractual provisions to the contrary, a landowner
owns the strata and minerals beneath their land. In this case, an oil company drilled wells
between 800 to 2,900 feet below the surface without the landowner’s permission. The court
ruled that this constituted trespass and that compensation was required under the Mines
(Working Facilities and Support) Act 1966 Section 8(2). The judgment reinforced the
principle that subsoil ownership remains with the surface owner unless explicitly conveyed
otherwise, but also acknowledged the practical limits of such ownership, stating: “There must
obviously be some stopping point, as one reaches the point at which physical features such as
pressure and temperature render the concept of the strata belonging to anybody so absurd as
to be not worth arguing about.”27
Another source of inconsistency in subsurface property law is functionalism, which
emphasizes substantive reasoning over formal reasoning by applying highly contextual and
subjective functionalist standards.28 A recent example of this is Lightning Oil Co. v. Anadarko
E&P Onshore, LLC, where the court considered whether Lightning Oil, the owner of a
severed mineral estate, could prevent Anadarko, the neighbouring mineral estate owner, from
drilling horizontal wellbores through the subsurface of Lightning's land to access Anadarko's
minerals. Anadarko argued it had the right to do so based on a lease it had obtained from the
owner of the surface estate above Lightning Oil's minerals. Despite acknowledging that some
of Lightning’s oil and gas would be lost, the court ruled that no trespass occurred, reasoning
that the harm was minimal compared to the broader interests of promoting horizontal drilling
for the benefit of Anadarko and the public.29
In a similar vein, in Crawford v. Hrabe,30 the Kansas Supreme Court reviewed a case where
an oil and gas lessor accused their lessee of subsurface trespass for disposing of off-lease
water on the lessor's property. After examining prior cases, the court acknowledged that the
discussion on trespass was informative but not definitive. Instead, the court focused on the

25
Petro Pro, Ltd. v. Upland Res., INC. 279 S.W.3D 743, 751 (Tex 2007); Stone v. Chesapeake Appalachia, LLC,
WL 2097397 (2013).
26
Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008).
27
Bocardo SA v Star Energy UK Onshore Ltd UKSC 35 (2010).
28
Joseph A. Schremmer, A Unifying Doctrine of Subsurface Property Rights A Unifying Doctrine of Subsurface
Property Rights 46 (2022) Harvard Environmental Law Review at 538. Supra note 21 at 538.
29
Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39 (Tex. 2017).
30
Crawford v. Hrabe, 44 P.3d 442 (Kan. 2002).
economic and practical aspects of saltwater disposal in secondary recovery operations. It
concluded that the increased economic benefits of such operations outweighed any
interference with the lessor’s property rights. In contrast, the Texas Supreme Court in FPL
Farming Ltd. v. Environmental Processing Systems, L.C. suggested that the social and
economic value of wastewater disposal could not justify allowing subsurface invasions. 31
However, the court also indicated that invasions resulting from the injection of substances for
enhanced oil and gas recovery could be justified if they supported economically valuable oil
and gas extraction. This suggests that whether saltwater injection is exempt from trespass
liability depends on a court's assessment of its social or economic benefits. These cases
illustrate the preference for substantive reasoning over formal legal doctrines. The decisions
are shaped by economic, political, and other practical considerations rather than strict
adherence to legal principles, creating an environment where there is no clear, universally
applicable rule for judgment in such cases.
In conclusion, the existing legal framework offers limited clarity for subsurface property
owners and developers, hindering their ability to avoid disputes or make informed
investments in such projects. The absence of a unified and clear legal structure results in a
fragmented system, creating uncertainty and potential challenges for stakeholders involved in
subsurface development.
B. AIRSPACE RIGHTS
As observed in Part I, historically the right to property extended to the entire vertical above it,
which thus protected owners from infringement of their rights, particularly from neighbors.
For instance, a common occurrence was the extension of branches and plants from a
neighbouring property entering the vertical space of the property. Common law courts have
observed that such an interference in the airspace vertically above the property to squarely
constitute nuisance or trespass. 32 The rationale for the same stemmed from annoyance and
inconvenience in the use, possession and enjoyment of such property.33 Therefore,
landowners were free to cut off their neighbor’s tree if it overhung their property, even
without obtaining prior permission or conveying notice of such intent.34
Advent of Air Travel and Limitation of Property
The invention of the airplane was a watershed moment in human development and
connectivity across the world. The collateral consequence of such an invention was also the
practical nullification of the historical notion of vertical airspace as an extension of property
rights.35 There were natural conflicting interests between property owners and aviators
warranting governmental intervention and regulation.36

31
FPL Farming Ltd. v. Environmental Processing Systems, L.C., 351 S.W.3d 306 (Tex. 2011).
32
For a minority view historically, see, Pickering v. Rudd, (1815) 4 Camp 219 wherein Lord Ellenborough
observed that classifying such minor interferences as trespass is akin to a claim that an aeronaut is also liable to
trespass against every occupier of the field over which his ballon passes in course of his voyage.
33
Fay v. Prentice and Anr., (1845) 1 CB 828, 838. [Colman J.]; Clifton v. Viscount Bury and Ors., (1888) 4 TLR
1
34
Lemmon v. Webb, [1895] AC 1.
35
Edward Harriman, Navigable Air Space and Property Rights, 1 J. AIR L. & COM. 346 (1930).
36
Fred D. Fagg Jr., Airspace Ownership and the Right of Flight, 3 J. AIR L. & COM. 400 (1932)
There were majorly theories that posited the resolution of such conflicting interests. Firstly,
the theory of unrestricted freedom was based on the historical doctrine that the right to
airspace was as much a right to property as the land in of itself. Secondly, the theory of
easement suggested that the right to airspace was subject to natural easementary right for
aerial navigation and passage. Thirdly, the zone theory highlighted ownership extends into
the superjacent airspace to a limited yet adaptable extent, defined by concepts such as actual
use, effective possession, and the lower stratum.
The preferred approach was a demarcation between a reasonable right to private property and
the larger public interest of aviation, thus airspaces above certain heights were detached from
property rights.37 The well-warranted governmental regulation as an adoption of the second
theory, however, only occurred post a period of uncertainty in aviation law. The first
challenge was whether the governments even had the right to curtail such rights in light of the
‘ad coleum’ principle.38 Even the judiciary sided with property owners during this period,
following the established common law doctrine.39
However, further evolution of the air travel and its importance for world commerce led to a
shift in this traditional approach. The development of an international framework surrounding
aviation law further catapulted such state regulation attempts. 40 The resultant codification
achieved an effective balance to secure the safe passage of aircraft while still maintaining a
certain degree of property rights. The same obtained judicial recognition as well, for instance
in Swetland v. Curtiss Airports Corporation,41 the Court was faced with the question whether
Ohio State Law establishing flying schools and regulating airspace was in reasonable exercise
of the State’s police power. The Court pertinently observed, “although aviation is still to
some extent in the experimental stage, it is of great utility in times of peace […]. In fact, it is
indispensable to the safety of the nation that airports and flying schools be encouraged in
every reasonable respect.”
Further, the seminal decision in United States v. Causby highlights the trite law in this
regard.42 The Court recognised an unlimited right to vertical space had no relevance in the
modern world, affirming the right of transit through a navigable airspace. However, the Court
pertinently identified that flights in the instant case were traversing limits as low as 83 feet
that cannot be classified as navigable airspace and is in direct contravention of the use of the
property. Hence, despite the comparison of state regulating airspace akin to a public highway,

37
Cameron K. Murraya & Joshua C. Gordon, Land as Airspace: How Rezoning Privatizes Public Space, 34
HOUSING POLICY DEBATE 228 (2024).
38
See generally, William McCracken, Air Law, 57 AMERICAN L.R. 99 (1923); Edmund Trabue, The Law of
Aviation, 58 AMERICAN L.R. 65 (1924).
39
See for instance, Bank of Monongahela Valley v. Weston, 159 N.Y. 201 wherein an aviator navigating an
aircraft, more than 100 ft off the ground without causing any damage to any property was still held liable for
trespass.
40
See for instance, Convention Relating to the Regulation of Aerial Navigation, Oct. 13, 1919, 11 L.N.T.S. 173;
Convention on International Civil Aviation, Dec. 7, 1944, 15 U.N.T.S. 295 [Chicago Convention].
41
Swetland v. Curtiss Airports Corporation, 41 F.2d 929.
42
United States v. Causby, 328 U.S. 256 (1946). The context behind the dispute was the relatively low flight of
military aircraft which interfered with the Respondent’s productive use of the land since the resulting vibrations
prevented the usage of the property as a chicken farm.
the threshold of restriction is much higher in ensuring reasonable productivity of the land is
not affected since such would diminish the very right to property.
Extent of Airspace Rights
In the backdrop of the formal recognition of airspace rights being balanced against public
interests, legal frameworks in common and civil jurisdictions alike primarily envisage a
tripartite classification – lower airspace, navigable airspace and outer space. This
classification has functional purpose for safe operation of aircraft as well as a clear
delineating of legislative intent in formulating regulations.
The lower airspace is rooted in the historical doctrine wherein private property rights of
ownership extend since this space is a zone of actionable and immediate interest. 43 Therefore,
the landowner retains rights over the land above his property to the extent of incident use and
enjoyment of the given property. In Bernstein v. Skyviews,44 the Court held that an “owner’s
airspace rights extend only to the height necessary for the ordinary use and enjoyment of the
land” (emphasis supplied). The court ruled that aerial photography taken from a height that
did not interfere with the use of the land cannot amount to a trespass. Further, Hinman v.
Pacific Air Transport,45 delineated 500 feet as a threshold of reasonable use.
The navigable airspace refers to the space wherein safe and free passage by aircraft and allied
purposes by non-owners of the property is deemed permissible. Section 10 of the US Air
Space Act, 1926 prescribes: “Sec. 10. Navigable Airspace. As used in this Act, the term
‘navigable airspace’ means airspace above the minimum safe altitudes of flight prescribed by
the Secretary of Commerce and such navigable airspace shall be subject to a public right of
freedom of interstate and foreign air navigation in conformity with the requirements of this
Act.” (emphasis supplied). This airspace is governed by national and international aviation
laws, ensuring safe and efficient air traffic management. Regulating authorities such as the
Federal Aviation Administration in the United States and the Directorate General of Civil
Aviation in India have important roles in such airspaces.
The third zone ‘outer space’ refers to the space where national jurisdictions and application of
their aviation law concludes, leading to the application of international space law. The exact
boundary remains debated, though the Kármán line (approximately 100 km above sea level)
is widely accepted. The Outer Space Treaty governs the conduct of states and sovereignty
over aerial resources.
IV. CHALLENGES TO PROPERTY RIGHTS ABOVE AND BELOW THE SURFACE IN THE
AGE OF MODERN TECHNOLOGY
From blue skies to Gray areas the advent of modern technologies such as railways, metro
systems, drones, and airplanes has given rise to increasingly complex legal questions
regarding property rights. Traditional doctrines governing ownership which was once based
on the idea that property rights extended indefinitely above and below the land, have now
been tested in new ways. For instance, when Bangalore constructed its metro tunnel, concerns
43
DANIEL GATTY, A PRACTICAL GUIDE TO RIGHTS OVER AIRSPACE AND SUBSOIL (Law Brief Publishing, 2019).
44
Bernstein of Leigh v Skyviews & General Ltd. [1978] QB 479.
45
Hinman v. Pacific Air Transport, 84 F.2d 755.
arose about whether surface owners were entitled to compensation. Generally, if tunnelling
occurs deep underground and causes no surface damage, landowners have limited legal
recourse, reflecting a broader legal trend that considers extremely deep subsurface usage to
be beyond the effective ownership of surface proprietors.46
These complexities have created concurring doctrines, resulting in challenges for the courts.
Various aspects can be examined to understand both the technical and legal challenges in
defining the scope of property rights. For instance, to understand these complexities we oculd
understand the issues of unmanned aircraft a very new phenomenon. The key issue is drones,
unmanned vehicles that not only have the potential to infringe upon property rights but also
pose significant concerns regarding individual privacy. 47 The “drone slayer” case is a key
example that illustrates complex legal issues surrounding drones and privacy. In the case of
Boggs v. Merideth, a Kentucky federal court dealt with a situation in which Boggs sued his
neighbor, Merideth, after Merideth shot down Boggs' drone. Merideth argued that the drone
was flying dangerously low over his property, invading his privacy. However, Boggs
provided evidence showing that the drone was not flying over Merideth's land nor at such a
low altitude. The court dismissed the case, ruling that the dispute should be addressed in state
court since no federal law issues were involved and the case concerned Kentucky state law.
This decision meant that drone users could not file trespass claims in federal court, giving
states more flexibility to regulate drone use. 48 This stance of the court is perhaps a very
radical shift from the pre-aviation era the owner of the land owns all the airspace above it
without any limit.49
But this position provides us with a complex legal landscape which provides legal doctrines
in conflict which is aspiring to balance private rights and public interest. To understand the
complexity of the doctrine we may first look into the various conflicting doctrines in crisp
and then look into he ways to navigate this complex legal environment. The judicial
reasoning is majorly reasoned though four major doctrines namely, Ad Coelum Doctrine,
Rule of Capture, Subsurface Trespass, Correlative Rights Doctrine. In essence Ad Coelum
Doctrine, traditionally granted landowners’ rights from the sky to the earth’s core, but courts
have increasingly imposed limits, particularly in cases involving air travel, drone regulation,
and deep subsurface drilling.50 The Rule of Capture allows resource extraction from shared
underground reservoirs, even if it involves siphoning resources from beneath another’s land. 51
under matters of Subsurface Trespass while some courts recognize trespass claims for
unauthorized underground drilling, others prioritize economic and technological benefits over

46
Kurt Kohlstedt, From Heaven to hell: exploring the odd vertical limits of Land Ownership, available at
https://99percentinvisible.org/article/heaven-hell-exploring-odd-vertical-limits-land-ownership/.
47
Cheng-chi (Kirin) Chang, From Blue Skies to Gray Areas: Examining Privacy and Property Law in the Age of
Drone Technology, 30 Rich. J.L. & Tech 1 (2024).
48
Boggs v. Merideth, No. 3:16-CV-00006-TBR, 2017 U.S. Dist. LEXIS 40302, at *1–2 (W.D. Ky. Mar. 21,
2017).
49
Colin Cahoon, Low Altitude Airspace: A Property Rights No-Man’s Land, 56 J. AIR L. & COM. 157, 160
(1990).
50
Hiedi Grovitiz Robertson, Get Out From Under My Land! Hydraulic Fracturing, Forced Pooling or
Unitization, and the Role of the Dissenting Landowner , 30:633 THE GEORGETOWN ENVTL. LAW REVIEW 634-
640.
51
Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d 1 (Tex. 2008).
strict property rights.52 Lastly the Correlative Rights Doctrine protects the rights of multiple
landowners to access shared underground resources, sometimes at the expense of individual
dissenting landowners, as observed in Ohio’s forced unitization laws.53
These longstanding legal doctrines shaped the judicial trajectory and opinion; however, to
effectively navigate this legal landscape, a structured approach is necessary to balance private
ownership rights with public and technological interests. First, clearer legislative frameworks
are essential to explicitly define the extent of aerial and subsurface rights. Establishing legal
boundaries on subsurface ownership and clarifying drone-related trespass laws will reduce
ambiguity and minimize prolonged disputes. Second, eminent domain for airspace and
subsurface corridors should be introduced, allowing governments to designate specific
corridors for drone operations and underground transit systems while ensuring fair
compensation for affected landowners.54 Third, structured compensation models should be
implemented, as exemplified in Bocardo SA v Star Energy UK Onshore Ltd, to provide
adequate relief when land is utilized for underground projects without direct consent. 55
Finally, public-private collaboration should be encouraged, fostering negotiations between
landowners, businesses, and policymakers to develop agreements that uphold property rights
while facilitating technological progress.
V. CONCLUSION
The legal framework surrounding airspace and subsoil rights has evolved significantly from
its historical roots in the ad coelum doctrine, which granted landowners absolute vertical
ownership. Over time, as technological advancements reshaped societal needs, this rigid
doctrine was gradually abandoned in favor of a more pragmatic approach. The development
of aviation, underground resource extraction, and modern infrastructure has necessitated a
balancing act between individual property rights and broader public interests. While legal
systems worldwide have attempted to address these challenges, fragmentation and
inconsistency persist. Courts have applied competing doctrines—such as the Rule of Capture,
Subsurface Trespass, and Correlative Rights Doctrine—often leading to conflicting
outcomes. Cases like United States v. Causby and Bocardo SA v. Star Energy UK Onshore
Ltd illustrate how modern legal interpretations have tried to limit unrestricted vertical
ownership while still acknowledging certain private property interests. However, no universal
standard has emerged, leaving significant uncertainty regarding the legal extent of ownership
both above and below the land.
Technological advancements continue to introduce new challenges. The rise of drones,
underground transportation networks, and hydraulic fracturing (fracking) has forced courts
and lawmakers to reconsider traditional property concepts. The Drone Slayer Case (Boggs v.
Merideth) exemplifies the unresolved tensions in airspace law, while disputes over subsurface
drilling demonstrate the lack of a coherent standard in determining whether underground
intrusions constitute trespass. Despite the recognition that absolute vertical ownership is no

52
Supra note 29.
53
Kelly v. Ohio Oil Co., 49 N.E. 399 (Ohio 1897).
54
Supra note 33.
55
Supra note 27.
longer tenable, there remains no structured and concrete legal solution. Laws governing
airspace and subsoil rights vary widely, often relying on case-by-case judicial reasoning
rather than well-defined statutory provisions. This lack of clarity fosters legal uncertainty for
property owners, businesses, and governments alike.
To address these gaps, a more structured legal approach is necessary. Potential solutions
include clearer legislative boundaries, eminent domain mechanisms for airspace and
underground corridors, and structured compensation models for affected landowners.
Additionally, public-private collaborations can help negotiate evolving property rights
frameworks while fostering technological innovation. Ultimately, the law governing airspace
and subsoil remains a gray area, marked by doctrinal inconsistencies and regulatory
ambiguity. While modern jurisprudence has made strides in refining property rights above
and below the land, the absence of a universally accepted framework continues to create legal
and practical challenges that demand urgent attention.