A property owner owns only as much air space above his property as he can practicably use. And to constitute an actionable trespass, an intrusion has to be such as to subtract from the owner's use of the property.
Plaintiff is the owner of real estate located at 1448 North State Parkway in Chicago on which he is constructing a three-story residence. Defendant Brownstone Condominium Association is the owner of a high-rise condominium immediately south of plaintiff's property; defendant American Invesco Co. is manager of the condominium. The complaint asked that defendants be permanently enjoined from installing or operating any scaffolding upon the north wall of their building. Plaintiff also asked that he be awarded damages for the unlawful trespass and taking of property and air rights. Defendants filed a motion to dismiss the amended complaint. They argued that the complaint failed to state a cause of action, and that the court was without authority to enjoin future negligence. After considering the pleadings, memoranda, and arguments of counsel, the trial court dismissed the action.
Was the property owner's complaint insufficient to state a cause of action?
The fundamental principle to be gleaned from Causby and Hinman is that a property owner owns only as much air space above his property as he can practicably use. And to constitute an actionable trespass, an intrusion has to be such as to subtract from the owner's use of the property. In the present case, plaintiff's complaint does not even allege use of the air space above the residence under construction. Defendants' use of temporary scaffolding in the air and space above that residence cannot be deemed actionable. The trial court correctly dismissed the matter.
Thus, running through the complaint is the suggestion that plaintiff is attempting to enjoin future acts of negligence by defendants' employees. Plaintiff insists that his complaint addresses itself to a present trespass rather than future negligence. In any event, the elements of a negligence action are absent, and the complaint is insufficient to state a cause of action in negligence.