William and Mary Law School

On the Use and Abuse of Overflight Column Doctrine

Eric R. Claeys

In contemporary debates about property and intellectual property (“IP”), one often hears a tale that goes like this: Once upon a time, the common law declared air to be private property, in columns appurtenant to the land directly beneath the columns. This doctrine was an application of a maxim I call here the “ad coelum maxim.” “Ad coelum” is short for “cuius est solum, eius usque ad coelum et ad inferos”: “To him to whom the soil belongs belongs also to heaven and to the depths.” As Blackstone recounted, under this maxim “no man may erect any building, or the like, to overhang another’s land . . . . So that the word ‘land’ includes not only the face of the earth but everything under it, or over it.”

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2 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 61 (2013)

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