From Salon’s “Throwing Google at the book“:
Lawrence Lessig, a Stanford law professor and copyright scholar, likes to tell the story of Thomas Lee and Tinie Causby, two North Carolina farmers, who in 1945 cast themselves at the center of a case that would redefine how society thought of physical property rights. The immediate cause of the Causbys’ discomfort was the airplane; military aircraft would fly low over their land, terrifying their chickens, who flew to their death into the walls of the barn. As the Causbys saw it, the military aircraft were trespassing on their land. They claimed that American law held that property rights reached ‘an indefinite extent, upwards’; that is, they owned the land from the ground to the heavens. If the government wanted to fly planes over the Causbys’ land, it needed the Causby’s permission, they insisted.
The case, in time, came to the Supreme Court, where Justice William O. Douglas, writing for the Court, was not kind to the Causbys’ ancient interpretation of the law. Their doctrine, he said, “has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.”
… the airplane rendered the Causbys’ rights to the skies incompatible with the modern world …