Sunday, August 27, 2017

John Roska: Law developing about drones over property

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. Send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.


Q: In a recent column, you said a property owner controls the airspace directly above their land. What can a property owner do about drones? If they're directly over my property, can I shoot them down?

A: There's no clear answer. The law is developing, and in its early stages. Even where it's not an illegal discharge of a firearm, shooting down a drone would be testing the limits.

The recent column said a property owner can cut branches that hang over onto their property, from a tree whose trunk is completely on a neighbor's property.

That right to "self-help" traces back to a basic principle of Roman law, that the property owner's legal rights extend "ad coelum et ad inferos." While commonly translated as "to the heavens and to hell," some picky classicists say "hell" embellishes it — "inferos" just means "below."

The Federal Aviation Administration regulates "navigable airspace," which is generally 400 feet and above. Arguably, then, that lets the property owner control up to 400 feet above their ground.

Unlike overhanging branches, which neighbors have been arguing over for ages, suits over drones — and the legal rules developed by court cases — are pretty new. Nothing's clear yet. In some ways, it's the Wild West.

Drones are unmanned aircraft. They can be commercial or purely recreational. If they're recreational, and under 55 pounds, they're "model aircraft," and very lightly regulated.

If they stay under 400 feet, within the line of sight of an operator who isn't reckless and gets permission to fly within 5 miles of any airport, model aircraft are OK with the FAA.

A federal regulation that required even recreational drones to register with the FAA was struck down in May. The federal court of appeals said federal law clearly prohibits the FAA from regulating model aircraft.

But what's beyond the reach of the FAA could still get a drone operator in legal trouble. That trouble wouldn't be prosecution by the government, but civil liability, from a lawsuit between private citizens.

Tort law provides several possibilities. Tort liability requires a breach of legal duty that causes damages. Some examples are liability for car accidents, defective products and defamation.

Possible torts are nuisance, invasion of privacy and trespass. Like with a car accident, you could sue for money damages. Unlike car accidents, if it's a continuing problem, you could also sue for an order to make it stop.

Trespass would require invasion of your airspace, but nuisance and invasion of privacy could result just from noise and spying from off your property.

What about self-help? If a property owner can eliminate encroachments by trimming branches, why can't they shoot down drones?

Maybe they can. It's uncharted territory. The costs may exceed the benefits, and if you want to be a test case, don't rely on a newspaper column. Talk to a lawyer.

The Kentucky "drone slayer" got the criminal weapon charges against him dismissed — and then got sued for damages in federal court by the drone operator. That suit got dismissed, in part because the right to shoot down a drone isn't clear enough to enforce in federal court.

Original article can be found here ➤ http://www.news-gazette.com

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