"The plaintiff offered to prove that the eaves or jet of a barn, alleged to have been built and erected upon the plaintiff's close by the defendant, extended over on to the close from fifteen to eighteen inches, but the judge excluded the evidence.

"The judge also, against the plaintiff's objection, instructed the jury that an owner of land who is bound to maintain fence between his own land and an adjoining inclosure, may place half of a fence of reasonable dimensions on the land of the adjoining owner; . . . that it was a question of fact for the jury under the circumstances, whether this barn was a suitable structure and of reasonable dimensions for a fence; and that if in their judgment it was, it would not be a trespass upon the plaintiff's land if it came over on to the plaintiff's land no more than a fence of ordinary width. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions."

C. A. Holbrook, for the plaintiff.

T. G. Kent, for the defendant.

MORTON, J. This is an action of tort in the nature of trespass quare clausum fregit. The plaintiff in his declaration, among other acts of trespass, alleges that the defendant built a part of his barn upon the plaintiff's close, and thereby put and kept the plaintiff out of the possession and occupation of a part of the close. We think it was competent for the plaintiff to prove that the eaves of the defendant's barn projected over the plaintiff's close. Projecting his eaves over the plaintiff's land is a wrongful act on the part of the defendant which, if continued for twenty years, might give him a title to the land by adverse occupation. It is wrongful occupation of the plaintiff's land for which he may maintain an action of trespass. Codman v. Evans, 7 Allen, 431. Carbrey v. Willis, Ib. 364. .

We are of opinion that the instruction to the jury, that if the defendant's barn "came over on to the plaintiff's land no more than a fence of ordinary width" would, it would not be a trespass, was erroneous. It was not erected as a fence, and was not a fence. A man who erects a barn or other building partly upon the land of another, without any agreement that the wall shall be a division wall or fence, cannot defend an action of trespass by showing that it covered no more of the plaintiff's land than a fence would. Such an occupation is, in its nature and legal effect, entirely different from the occupation by a fence. It is an adverse occupation which, if continued for twenty years, will give a title to the soil by prescription. Exceptions sustained.

238. HANNABALSON v. SESSIONS

SUPREME COURT OF IOWA. 1902

116 Ia. 457, 90 N. W. 93

APPEAL from District Court, Pottawattamie County; N. W. Macy, Judge.

Action at law to recover damages for an alleged assault and battery.

There was a verdict and judgment for defendant, and plaintiff appeals. Affirmed.

Lindt & Mynster, for appellant.

Jacob Sims, for appellee.

WEAVER, J. Plaintiff and defendant live upon adjoining lots. There is frequent war between the families. The causus belli in the present instance is to be found in the following circumstances: Upon the boundary line between the lots is a tight board fence, a part of which was built by plaintiff's husband; but, unfortunately, this barrier, while all sufficient to prevent the passage of the dove of peace, is neither high enough nor tight enough to prevent the interchange of brick bats or the bandying of opprobrious epithets. On May 30, 1898, the defendant, while at work in his garden, claimed to have narrowly escaped a brick hurled in his direction by one of the plaintiff's children, and in his indignation at the unprovoked bombardment threatened the lad with arrest. Plaintiff and her husband, being at work near by, heard the threat, and took up the quarrel. About this time plaintiff's husband discovered that a ladder belonging to defendant was hanging upon a peg or block attached to the partition fence, and, conceiving this to be a cloud upon his title, he forthwith attempted to remove it, while defendant, seeing the peril in which his property was placed, rushed to its defence. Whether plaintiff herself laid violent hands on the ladder is a matter of grave dispute. She denies it, and says that the height and depth of her offending consisted in her leaning up against the fence with one arm quietly hanging over the top thereof, and in stimulating her husband's zeal by audible remarks about the crazy fool" who was bearing down upon them from the other side. She further avers that while occupying this position of strict neutrality the defendant assaulted her vi et armis, and with his clenched fist struck the arm which protruded over the fence top into his domain. Defendant denies the striking, and says that plaintiff, instead of being a peaceable and impartial observer of the skirmish, was herself a principal actor, and that in aid of her husband she climbed upon some convenient pedestal, and, hanging herself across the fence, reached down, and with malice aforethought seized the ladder and wrenched it from its resting place. Thereupon, actuated by a natural and lawful desire to protect his property from such ravishments, and being goaded on by statements from the other side of the fence reflecting upon his mother and casting doubt upon his proper rank in the animal kingdom, he gently, and without unreasonable force, laid his open hand upon plaintiff's arm, and mildly but firmly suggested the propriety of her "keeping on her own side of the fence."

66

3. It is also said that the Court erred in instructing the jury that, if plaintiff leaned over the partition fence and attempted to interfere with the ladder, defendant had the right to use such force upon her as was reasonably necessary to cause her to desist, and to expel her from

his premises. . . . The general doctrine announced in the instruction is, in our judgment, correct. The mere fact that plaintiff did not step across the boundary line does not make her any less a trespasser if she reached her arm across the line, as she admits she did. It is one of the oldest rules of property known to the law that the title of the owner of the soil extends, not only downward to the centre of the earth, but upward usque ad coelum, although it is, perhaps, doubtful whether owners as quarrelsome as the parties in this case will ever enjoy the usufruct of their property in the latter direction. The maxim, “Ubi pars est ibi est totum,"- that where the greater part is there is the whole, does not apply to the person of a trespasser, and the Court and jury could therefore not to be expected to enter into any inquiry as to the side of the boundary line upon which plaintiff preponderated, as she reached over the fence top. It was enough that she thrust her hand or arm across the boundary to technically authorize the defendant to demand that she cease the intrusion, and to justify him in using reasonable and necessary force required for the expulsion of so much of her person as he found upon his side of the line, being careful to keep within the limits of the rule, "Molliter manus imposuit," so far as was consistent with his own safety. Under the instructions of the Court, the jury must have found that defendant kept within the scope of his legal rights in this respect, and that the alleged assault was not established by the evidence.

The judgment of the District Court is affirmed.

239. ARTHUR K. KUHN. "The Beginnings of an Aerial Law" (1910. American Journal of International Law, IV, 109, 122). Blackstone in his Commentaries1 says:

"Land hath also, in its legal signification, an indefinite extent upwards as well as downwards. Cuius est solum eius est usque ad coelum' is the maxim of the law." . . .

The advent of aerial navigation gives a new significance to the Latin maxim quoted in the foregoing passage and awakens interest in its origin and scope. . . . It will be observed that the sources of the maxim, both in the common and the civil law, do not indicate a right of property in the air or airspace as such, even if this were conceivable. The principle is, by reasonable interpretation, one for the better enjoyment of the land and refers to the airspace so far as it is appurtenant to the land. . . .

If the view favored by the writer be adopted, then the dictum of Lord Ellenborough is quite maintainable, though it may have led him to a wrong conclusion in the particular case. Each case must rest upon its own circumstances and special facts. If the passage of aircraft over a piece of land really interferes with its actual enjoyment, the Courts are able to grant a remedy for the wrong in fact. The mere passage through the airspace above the land should not in itself constitute the wrong. It is in this light that we interpret the language of Sir Frederick Pollock: 2

1 Cooley's Blackstone, 4th ed., Book II, p. 18.

2 Pollock on Torts, Sth ed., p. 348.

"Clearly it would be a trespass to sail over another man's land in a balloon (much more in a controllable airship) at a level within the height of ordinary buildings and it might be a nuisance to keep a balloon hovering over the land at even a greater height."

Sir Frederick is equally of the opinion that a trespass is not constituted by passage through the airspace at the great height reached by modern projectiles. He seems inclined to believe "that the scope of possible trespass is limited by that of effective possession," though unfortunately does not further pursue the thought. .

The maxim of the law already referred to should not be extended to conditions which did not exist and were not conceived of at the time of its origin. Its phraseology, usque ad coelum, had been referred to by an English judge as at best a "fanciful phrase." The view here favored, by which the landowner's rights in the airspace are regarded as strictly appurtenant to the soil and to be accorded only when essential to the enjoyment of the latter, will tend to reconcile the interests of the land-owner with the progress of the new art. The latter is deserving of every reasonable encouragement through law. On the other hand, it should not be over-favored at the expense of individual interests. There are extremists who declare indeed that the whole of the airspace is a highway free for all, or if not so already, it must be so declared by legislation, or by an exercise of eminent domain. Apart from the legality or practicability of such a procedure, the discussion of which would lead us too far afield, it is well to remember the primitive philosophy so naïvely expressed by Lord Coke, and which is true to-day as it was then:

"This element of the earth (the land) is preferred before the other elements; first and principally, because it is for the habitation and resting place of man: for man cannot rest in any of the other elements, neither in the water, air or fire." 2

The solution of the conflict of interests seems to have been accomplished very well on the continent of Europe. Even before the advent of progress in air navigation, the Code of the Canton of Grisons provided:3

"Property in land extends to the airspace (above) and the earth beneath, so far as these may be of productive value to the owner."

The German Civil Code' also recognizes the extension of property upwards and downwards, but in a clause' for which air navigation was largely responsible, it is declared:

"But the owner cannot prohibit such interferences undertaken at such a height or depth that he has no interest in the prevention."

4

The Swiss Code reaches the same result by an affirmative statement that property in land extends in the airspace and under the earth so far as there is any material interest in the exercise of ownership.

The opening of the airspace to the aerial navigator brings with it, on his

1 Brett, Master of the Rolls, in Wandsworth Board of Works v. United Telephone Company (1884), 13 Q. B. D. 904, at p. 915.

2 Coke upon Littleton, ut cit.

In effect 1862, § 185,

4 To take effect 1912; § 667.

"German Civil Code (in effect 1900), § 905

Meurer, op. cit., p. 14.

part, concomitant responsibility. The law of gravitation is constant and inevitable and he who seeks temporarily to overcome its effects must reckon with an extraordinary responsibility for injuries to person or property in the event of failure. . . . If the owner of land upon a highway is held to the duty of insuring safety as against objects falling and injuring the passer-by, how much more should the aerial navigator be held to a like degree of responsibility. Meili well points out that in the modern world we are supposed to look forwards, on both sides of us and behind us, and now we are called upon to look even above us.'

(2) Subjacent Space

240. GEORGE A. BLANCHARD AND EDWARD P. WEEKS. The Law of Mines, Minerals, and Mining Water Rights. (1877. p. 30) The text of Blackstone requires qualification, especially as regards the copyhold and customary lands of England, and in case of mines, custom has, in many places, made an exception to the general rule.

A title to mines may be shown distinct from the title to the surface, and the mines may form distinct possessions and different inheritances. Coals and minerals in place are land. It is no longer doubted that they are subject to conveyance as such. Nothing is more common, in Pennsylvania, than to find the surface right in one man, and the mineral right in another. It is not denied, in such a case, that both are land-owners, both holders of a corporeal hereditament. Our English ancestors found difficulty in conceiving of a corporeal interest in an unopened mine, separate from the ownership of the surface, because livery of seizin was, in their minds, inseparable from a conveyance of land, and livery could not be made of an unopened mine. The consequence was, that they were disposed to regard such rights as incorporeal, though they are not rights issuing out of land, but the substance itself. In modern times, however, livery of seizin is generally supplied by the deed and its registration, and there is nothing incongruous in considering a grant of the substratum a grant of land, as much as is a conveyance of the surface itself. It is often by far the most valuable, and sometimes embraces all for which the land is worth owning. Even in England, so long ago as the reign of James I, it was held that ejectment would lie for a coal mine. (Comyn v. Wheatley, Cro. Jac. 150.)

In the United States, unfettered as we are by the necessity of livery of seizin and abounding in mineral districts, it has not been seriously doubted that the ownership of a coal bed, or seam, is a corporeal interest in land. Cases not unfrequently occur in which the owner of lands sells merely the surface right, retaining the minerals which lie in place below the surface. Now, as his whole interest was corporeal before the sale, and as, by his deed, only the surface passed, that which remains ungranted must also be corporeal. . . .

The distinction between the ownership of the surface and the ownership of the mine is, perhaps, even more broadly drawn under the continental mining systems than in England or the United States. . . . (1) The laws of Spain and Mexico, like those of France and Belgium, recognize two distinct rights or interests in land: an agricultural or pastoral interest, and a mining interest.

1 Das Luftschiff und die Rechtswissenschaft, p. 14. In the event of collision between voyaging air craft, the determination as to who is the guilty party will be a fine point indeed for the solution of the sufferers beneath. Ibid. p. 15.