The Individual Right To Property - Not Flying In The Face Of Common Law

Decentralization Makes For A Freer Society

The world is better because of decentralized emergent systems rather than centralized control. It's better because free markets generate wealth through millions of unplanned interactions instead of heavy-handed economic planning. We should view the legal system through a similar lens.

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Imagine a world of legal drones flying across neighbourhoods with incentivized homeowners along those routes getting rents and parcels delivered. Flying cars with families inside, taking off from downtown lots, travelling from city to city in minutes instead of hours.

Yet whenever innovation emerges, the knee-jerk reaction is often: “We need new laws for this!” But do we really?

History and experience show our age-old common law can handle this perfectly, does not require millions of taxpayer dollars, is better and more flexible than any sprawling new regulatory code, and protects our freedoms.

Common law’s evolutionary approach outperforms bureaucratic mismanagement and an ever-thickening rulebook that chokes the future.

The New Frontier

Emerging technologies often provoke calls for brand-new legislation. Unmanned drones, for example, spurred a flurry of proposed drone-specific rules. Flying cars are inching closer to reality, and people are already scrambling to draft laws they think might be right. This impulse comes from a genuine concern as to how we prevent drones and flying cars from wreaking havoc or infringing on our rights? But what we need already exists in common law.

Take the humble legal doctrine of trespass. Under common law, if you intrude on someone’s property without permission, you’re liable. This applies to the air above someone’s land. In the United States, it’s “black-letter law” (a settled legal principle) that landowners own the airspace above their land. The Supreme Court recognized that property isn’t just a two-dimensional concept. If something like a noisy/nosy drone invades the usable air just above your yard, it’s your business, not the government’s.

In legal terms, drone overflights implicate trespass and even takings law​. A drone hovering 100 feet over your backyard without consent is as unlawful as your neighbour’s dog traipsing through your garden.

This means that even without a single new “Drone Regulation Act,” you as a property owner already have recourse. If a delivery drone buzzes low over your house, you could sue for trespass or seek an injunction under existing law. Conversely, if a drone company wants access through your airspace, it can pay you. Essentially, rent for a slice of sky.

Any government rule that simply grants drones free rein over private yards is the taking of property and requires just compensation. I don't see a line in any state or federal budget to pay all real estate owners for their air rights to subsidise commercial drone or flying car companies.

Imagine a system where drone operators automatically pay rents to air rights holders as they fly over private land. The mechanisms are technical, but the legal principle is already there.

Crucially, these solutions come from common law principles of property and tort, not legislative. The beauty is that they’re flexible and adaptive. If low flights truly don’t bother anyone and they want to permit them for free, disputes won’t arise, no case, no new rule needed. If they do cause harm, nuisance or trespass, and they don’t make it right, then a court can adjudicate that specific conflict and set a precedent for similar situations. We can innovate in this space, knowing that the law will adapt through practical experience, rather than waiting for clunky legislation that might ban, limit, infringe on our rights, or overly control the technology in one stroke.

Air Taxi Transit

Recently, Archer Aviation, a flying taxi company in partnership with United Airlines, demonstrated how it plans to use its machines across several airports in the New York area. Using the existing helicopter infrastructure and with a one-way flight estimated to be marketed at $200, this flying taxi could be considered a shinier chopper.

Think about these air taxis crisscrossing a city. Rather than having a bureaucracy carve up the sky in advance and taking private property, we lean on automatically negotiated air rights. If a flying car’s route crosses certain buildings at low altitudes, the operator can use a platform such as SkyTrade to contract for those air rights in a voluntary, market-driven approach or face lawsuits if they refuse.

Lawmakers could alternatively create a rigid “Air Traffic Code for Flying Cars.” This would limit the areas they could fly in, would likely require lawmakers to pay private citizens for taking property, and the entire industry would continue its sclerosis. How confident are we that they’ll get it right?