Malden Air Rights Study

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It was relatively easy for the court to do so because nearly all of the cases involving overflight of aircraft were of situations in which the landowner possessed property adjacent to an airport. Thus eminent domain (inverse condemnation^ theory added another form of recovery in airspace cases. (Trespass and (17) Hinman v. Pacific Air Transport , 84 F. 2d. 755 (9th Cir 1936), cert, denied, 300 U.S. 654 (1937); and United Airport Co. v. Hinm an, 1940 U.S.Av.
Rep. 1 (S.D. Cal. 1939).
(18) 328 U.S
.... 255, 90 L. Ed. 1206, 66 S. Ct. 1062 (1946).
7 nuisance were the more traditional schemes). The eminent domain principle that "....the reasonable and ordinary use of airspace above land is a property right of the owner of the land which cannot be taken without the payment of just compensation " (19) is supported by Causby and a large number of more recent cases.
In conclusion, the Causby case established the rights of the landowner in airspace while at the same time protecting the public domain - i.e.


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