A legal question that sometimes comes up for drone pilots is whether you can legally fly over private property and whether a property owner has any recourse against a drone pilot. It comes up on a daily basis for folks like DJAudits in the UK on his YouTube channel, where he educates property owners and security guards on this issue, whether they want to know or not.
I’m a recreational drone operator. I’ve advised other operators and have experience with investigations by Transport Canada related to RPV/UAV activities. I’ve been an invited speaker on this topic at various drone expos and to media lawyers. I would not call myself a drone lawyer, but I think I know more about this than most lawyers. I have another YouTube channel where I post my drone videos, mostly of Beautiful Nova Scotia. I’ll put a link below.
And I should note what I’m about to talk about is applicable to Canada only. The law may be similar in other places, but I only practice Canadian law.
Any legal claims like this would be governed by the common law, which is the body of law applied and interpreted by judges. There are no statutes passed by parliament or provincial legislatures that we can look to for the answer. And we really don’t have any reported cases in Canada that deal with trespass claims involving drones.
The one case that comes the closest is Reynolds v Deep Water Recovery Ltd from the Supreme Court of British Columbia. In that case a drone operator and environmental activist was sued by a ship breaking company for trespass and nuisance, among other claims. It started when she sued the company alleging that they stole her drone and returned it damaged. She also alleged assault and harassment. The company filed a counterclaim alleging trespass, nuisance, invasion of privacy and the illegal operation of a drone.
She then applied to have the company’s claims thrown out as a “strategic lawsuit against public participation.” The Court didn’t address whether flying the drone over her property was actually trespassing. Assuming this goes to trial, we’ll have to wait and see for this first of a kind decision.
But that doesn’t mean that the courts haven’t considered whether a property owner “owns” the airspace over the property. There’s a case called Didow v. Alberta Power Limited, which was between a property owner and a power company. The power company constructed a power line on the municipal road allowance along the side of the plaintiff’s land. The poles themselves were two feet outside the property line, but the cross-arms conductors and attaching wires at the top of each pole protruded six feet into the airspace above the plaintiff’s land. It went to the Alberta Court of Appeal, where the only question was whether that intrusion above the plaintiff’s property was a trespass.
If you’re interested in geeking out about this question, the court of appeal decision is FOR YOU! Justice Haddad had to go through all the old authorities and started with this really old “legal maxim”. I won’t try to pronounce the latin, but it means “whoever's is the soil, it is theirs all the way to Heaven and all the way to Hell”. Essentially, if you own the land, you own the skies above it and the dirt below it.
It has been traced back to the 13th century, long before there was any kind of aircraft. Since then, there has been much litigation that has ultimately scaled back the principle from the latin maxim.
The Alberta court of appeal favourably quoted from a 1977 English case called Bernstein v Skyviews. Though it’s from decades ago, it did deal with a case where the defendant flew over the plaintiff’s country house for the explicit purpose of taking photos of the property. In this case, the English Court of Queen's Bench said:
“… The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it, and declaring that above that height he has no greater rights in the air space than any other member of the public.”
So your exclusive rights to the airspace over your property only extend as high as is necessary for your usual enjoyment of your land and whatever’s built on it.
If you currently have bare land and then build a five storey structure and put up a windmill, then the airspace that you exclusively control goes up.
The Alberta Court of Appeal also quoted from a 1946 decision of the Supreme Court of the United States called United States v Causby. In this case, a farmer's farm was located close to an airport and the planes flying over the farm were hurting – even killing – his chickens. Here’s what the Supreme Court of the United States said:
“The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. … The fact that he does not occupy it in any physical sense-by the erection of buildings and the like - is not material. … While the owner does not in physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the purpose of light and air is used. The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface.”
The court concluded that if you permanently erect something above someone’s property at a height they might use the space, then that IS trespassing. “In any event, they serve to make clear that intrusion by an artificial or permanent structure into the airspace of another is forbidden as a trespass.”
The part that matters for drone operators is transient use of airspace at a height unlikely to affect the landowner is NOT a trespass. The door is still open for consideration of intrusions at lower altitudes. I think the cases would lead to the conclusion flying a drone above someone’s property at a low level – like below the roofline – would be a trespass.
But it can be something called a “nuisance”. A nuisance is interfering with someone’s enjoyment of their property. The interference has to be substantial, and I think it would have to be pretty outrageous or regularly repeated.
I can imagine a scenario in which someone has a backyard pool with a privacy fence around it. If someone hovered a drone over the pool while people are sunning themselves, the presence of the drone could interfere with the usual enjoyment of the pool.
And the nuisance can be more than just the mere presence there; a court could take into account the noise made by the drone. I’m pretty sure if I installed a dozen of these drone hangars in my back yard and ran drone sorties from them 24/7, my neighbour would have a case that I’ve created a nuisance.
It should also be noted that serious interference with someone’s lawful enjoyment of their property can also be a criminal code offence of mischief. I think it would have to be pretty serious and I can’t find any cases that have considered drones as causing the mischief.
