The flight of aircraft is lawful unless at such a low altitude as to interfere with the then existing use to which the land, or the space over the land, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land. Subject to that right of flight, ownership of the space above the land is declared to be vested in the various owners of the land beneath and a Constitutional taking may be found.
The lower court granted respondent landowners a judgment for the value of property destroyed, and damage to their property, resulting from the taking of an easement over their property by low-flying United States military aircraft.
Does the frequent and regular flights by the United States military at low altitudes directly over the landowner’s property amount to taking of property despite absence of actual physical invasion?
The court agreed with the finding that there had been a taking of respondents' property within the meaning of U.S. Const. amend. V. The court held that a physical invasion of the property was not necessary where there was an intrusion so immediate and direct as to subtract from respondents' full enjoyment and use of the property. Further, the damages were not merely consequential; they were the product of a direct invasion of respondents' domain. The United States Supreme Court reversed and remanded the action, however, on the basis that the record was not clear whether the easement taken was temporary or permanent. The court remanded the cause for a determination of the necessary findings regarding the nature of the easement.