You don't. Title 49 US Code 40103 says that the FAA an exclusive control of airspace. They define airspace as any space that aircraft can navigate in
section 40102 says "“navigable airspace” means airspace above the minimum altitudes of flight prescribed by regulations under this subpart and subpart III of this part, including airspace needed to ensure safety in the takeoff and landing of aircraft."
So not only do you not own the airspace above your house, neither does the state. From the moment the wheels leave the ground until they return you are immune to state laws and only bound by federal laws.
-Robert
Well – actually, you do own the airspace over your property - up to a "reasonable" level. One of the oldest principles of property law - Cuius est solum, eius est usque ad coelum et ad inferos was absolute until the advent of aviation. Modern property law has recognized the impraicality of allowing property owners to assert ownership to coelum (heaven) – and has developed a rule of reason in determining to what elevation a property owner “owns.” If you don’t own the space “above” your property – how do you build on it? Plant a tree? How can someone in NYC or San Francisco build a highrise building 1500 feet into the “air?”
Of course, you’re aware that California law recognizes your ownership of the airspace above your property – right? California Civil Code defines “Land” as:
§ 659. Land
Land is the material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance, and includes free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted, by law.
The question is where the line gets drawn. That’s why some airports obtain overflight (navigation) easements to provide them with certainty over space needed for takeoffs and landing. In fact – Humboldt County made the issuance of a building permit within the Airport Compatability Zone of Arcata/Eureka Airport contingent upon the granting of a navigation easement for aircraft over the property. If the landowner has no rights to the airspace – why mandate the navigation easement? That requirement was actually litigated this year and, oddly enough, held not to constitute a “taking” of property.
The Government says that Property owners have no rights above what is considered “minimum safe altitude” – which will differ with the circumstances. That prevents, for example, a police helicopter from circling 30 feet above your home. So - notwithstanding California’s recognition of the ownership of airspace – the law provides for and recognizes the reality of air traffic. In this regard, California Public Utilities Code provides:
§ 21403. Lawfulness of flight or landing; Rights of flight; Zones of approach
(a) Flight in aircraft over the land and waters of this state is lawful, unless at altitudes below those prescribed by federal authority, or unless conducted so as to be imminently dangerous to persons or property lawfully on the land or water beneath. The landing of an aircraft on the land or waters of another, without his or her consent, is unlawful except in the case of a forced landing or pursuant to Section 21662.1. The owner, lessee, or operator of the aircraft is liable, as provided by law, for damages caused by a forced landing.
(b) The landing, takeoff, or taxiing of an aircraft on a public freeway, highway, road, or street is unlawful except in the following cases:
(1) A forced landing.
(2) A landing during a natural disaster or other public emergency if the landing has received prior approval from the public agency having primary jurisdiction over traffic upon the freeway, highway, road, or street.
(3) When the landing, takeoff, or taxiing has received prior approval from the public agency having primary jurisdiction over traffic upon the freeway, highway, road or street.
The prosecution bears the burden of proving that none of the exceptions apply to the act which is alleged to be unlawful.
© The right of flight in aircraft includes the right of safe access to public airports, which includes the right of flight within the zone of approach of any public airport without restriction or hazard. The zone of approach of an airport shall conform to the specifications of Part 77 of the Federal Aviation Regulations of the Federal Aviation Administration, Department of Transportation.
Current “minimum safe altitude” is set by the FAA in 14 CFR 91.119:
§ 91.119 Minimum safe altitudes: General.
Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:
(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.
(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.
© Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.
(d) Helicopters, powered parachutes, and weight-shift-control aircraft. If the operation is conducted without hazard to persons or property on the surface--
(1) A helicopter may be operated at less than the minimums prescribed in paragraph (b) or © of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA; and
(2) A powered parachute or weight-shift-control aircraft may be operated at less than the minimums prescribed in paragraph © of this section.
The difference between a landowners right to the airspace (whatever distance that is) and impacts from aircraft "noise" on matters when determining whether an aircraft is trespassing on your property or whether it is simply a nuisance.
Anyhoot – I had hoped to not have to get into this type of detail with what I hoped was a simple post raising questions – but the suggestion that I was simply wrong merited further response. My apologies for the length . . . I
