570 HARVARD LAW REVIEW for the mere entry into the air space resulting in no real injury is not so clear. In England there are, in addition to conflicting dicta on the exact case of a balloon,^ irreconcilable statements concerning the en- croachment cases.® In this country, however, actual damage from the encroachment does not seem to be requisite for a cause of action.^ The air space, at least near the ground, is almost as inviolable as the soil itself. On the reasoning of these cases, the aviator would be held a wrong- doer and, therefore, would be liable for all foreseeable damage to the land.^ This financial responsibility for all the natural consequences of the flight over the land, regardless of the care exercised, may prove so great a burden that it will retard considerably the flow of capital into the airplane service and hamper materially its development. Yet states adopting the doctrine of absolute liability in the conduct of dangerous undertakings might impose that burden at any rate on the aviator. Massachusetts, however, has already provided against such a diflSculty by enacting that there be liability only for failure to take every reasonable precaution;^ and the statute is probably constitutional.^" The consequences of the trespass, other than liability for actual (1903). Cf. Whittaker v. Stangvick, 100 Minn. 386, iii N. W. 295 (1907); Lamprey V. Danz, 86 Minn. 317, 90 N. W. 578 (1902). See also cases cited in note 2. ^ Pickering v. Rudd, 4 Camp. 219 (1815) (Lord Ellenborough refused to hold that an overhanging board was a trespass, for it would follow that an aeronaut would be liable to an action of trespass quare clausum f regit); Kenyon v. Hart, 6 B. & S. 249, 252 (1865) (Justice Blackburn saw no legal reason for doubting that it would be a trespass). See Hazeltine, The Law of the Air, 66; Valentine, 22 Juridical Rev. 94; 24 Juridical Rev. 321 (note on a French case); Kuhn, 4 AM. Jour, of Int. Law, 124; Blewett Lee, 7 Am. Jour, of Int. Law, 473; Meyer, 36 Law Mag. and Rev. 17; Clerk and Lindsell, Torts, 6 ed., 362; Pollock, Torts, 10 ed., 363; Salmond, Torts, 4 ed., 190; 12 Law Notes (Thompson Publishing Company), 108.
- Fay V. Prentice, i C. B. 828 (1845) (damage presumed); Smith v. Giddy, [1904]
2 K. B. 448, 451 (if no damage, the plaint&'s only right is to cut back trees). Cf. EUis V. Loftus Iron Co., 10 C. P. 10 (1874) (trespass for a horse thrusting his head over a fence); Clifton v. Bury, 4 T. L. R. 8 (1887) (firing buUets over land not a technical trespass). ^ Puorto V. Chieppa, 78 Conn. 401, 405, 62 Atl. 664 (1905); Ackerman v. Ellis, 8x N. J. L. I, 79 Atl. 883 (191 1); Smith v. Smith, no Mass. 302 (1872) (projecting eaves are "a wrongful occupation of the plaintiff's land for which he may maintain an action in trespass"); Harrington v. McCarthy, 169 Mass. 492, 494, 48 N. E. 278 (1897); McCourt V. Eckstein, 22 Wis. 153, 159 (1867); Beck v. Ashland Cigar and Tobacco Co., 146 Wis. 324, 327, 130 N. W. 464 (1911); Hannabalson v. Sessions, 1x6 Iowa, 457, 90 N. W. 93 (1902) (leaning on a fence so that an arm extends over is a trespass); Butler v. Frontier Telephone Co., 186 N. Y. 486, 491, 79 N. E. 716 (1906) (" the law regards the empty space as if it were a soUd inseparable from the soil and protects it from hostile occupation accordingly." The owner has "the right to the exclusive possession of that space which is not personal property but a part of the land"). Contra, Grandona v. Lovdal, 78 Cal. 611, 618, 21 Pac. 366 (1889); Coimtry- man v. Lighthill, 24 Hun (N. Y.) 405 (1881); Murphy v. Bolger, 60 Vt. 723, 727 (1888). See Cooley, Torts, 3 ed., 1177; 18 Case and Comment, 119.
- See Pollock, Torts, 10 ed., 30. Cf. GuiUe v. Swan, 19 Johns. (N. Y.) 381 (1822)
♦(descending balloonist hable for trespasses by a crowd that gathered to aid him); Canney v. Rochester, etc. Ass'n, 76 N. H. 60, 79 Atl. 517 (191 1); Scott's Trustees v. Moss, 17 Sess. (Scotland) 32 (1889). 9 Mass. Acts 1913, chap. 663. Cf. Conn. Public Acts, 1911, chap. 86 (which im- poses absolute liabihty). See also 146 L. T. 105 (December 14, 1918), for a sum- mary of the report of the Civil Aerial Transport Committee which recommends that Parliament establish absolute hability as the standard. " Sawyer v. Davis, 136 Mass. 239 (1884); Commonwealth v. Parks, 155 Mass. 531, 30 N. E. 174 (1892).
