Lords Of The Air
IT was in 1903 that the Supreme Court of the United States found for the plaintiff in the great case of Simon Magus against the mayor, aldermen, etc., of Olathe, Kansas. The case was this: A part of Olathe was built on the lands owned by Magus, who acquired an enormous fortune by selling them. He laid out streets, granting rights of way, "but reserving to himself all other rights in the streets." Nevertheless, the people of Kansas, as the complaint set forth, "wrongfully and maliciously assumed to breathe the air in said streets, and committed other trespasses upon the rights of said Magus in said air." The court held, following the "single tax" case (Tawresey v. the Town of Dover, Superior Court of Kent County, Delaware), that the street was merely for passage.
This finding occasioned greater surprise than the income tax decision of some years past (Pollock v. Farmers' Loan and Trust Company and Hyde v. Continental Trust Company, 158 U. S. 60), and a rehearing was held.
It was urged that the use of the air was necessary to the right of way, and was therefore included in it. But the learned judges pointed out that it is just as necessary to be fed as to breathe, in order to travel; and yet, although food, unlike air, is actually produced from the ground, no one claimed the right to grow food product on the highway as an incident to its use.
The court urged with much force that the railroads also are highways, in which the people have special rights (Munn v. People of Illinois, 94 U. S. Supreme Court), and that cars were necessary to their use, but that it could not be claimed that the right to the use of the road-bed gives a right to the free use of the cars.
It was urged that the finding was in violation of the right of the people peaceably to assemble, as provided in Amendment , United States Constitution. But, citing The Commonwealth v. Davis (Massachusetts Law Reports, June, 1897), the court held that men might be prohibited from assembling, preaching, breathing, or doing anything else in the streets, and that, by taking the proper steps and paying the fee, any citizen could obtain license to breathe the air in public highways (same case, 140 Mass. 485).
Laws taxing immigration had been uniformly upheld (Edye et al. v. Robertson, Circuit Court, E. D. N. Y. 1883); though such laws deny the use, not only of the air, but even of access, except upon payment of the fee. It was further said that the ordinances opening the streets, in their form, exclude such use, and that the principle of the ordinance is constitutional (Dillon's Municipal Corporations, p. 250, 2d ed.).
The new doctrine was extended, and on the principle laid down in Mackall v. Ratchford, 8z F. 41, injunctions were obtained against strikers, that breathed the air upon roads belonging to the company. The Appellate Court justly said, in sustaining the injunctions, that common property in air worked very well in primitive times; but so did common property in land. The general experience of mankind, however, had improved upon such plans. "There is no force," said the learned court, "in the strenuous contention of counsel for the defendants that the doctrine of rights in air is new; for we find in Blackstone, Book II., chapter xxvi. , section 31: 'Ancient Lights.—Thus, too, the benefit of the elements, the light, the air, and the water, can be appropriated only by occupancy. If I have an ancient window overlooking my neighbour's ground, he may not erect any blind to obstruct the light.'" It follows that easements of wind, and even of light, were, and still are, allowed in England. Nor is the decision of the lower court in contravention of the Fifth Amendment to the Constitution of the United States, guaranteeing the right to life and liberty; for it is open to any one to become an air lord.
(See cases cited on behalf of defendant in Charles River Bridge v. Warren Bridge, 7 Pick. 344 Mass. )
The decision was quickly followed in the House of Lords, the Chamber of Deputies, and the high courts of other countries; and, as nearly all land-owners have rights in the streets, numerous suits were instituted.
In fact, one shyster attorney, the owner of a little plot which was mortgaged for all it was worth, had summonses printed, and, relying upon the principle that every one has a right to sue every one else, served them upon all that passed, at the rate of several hundred a day. Nearly every one failed to answer, and the costs brought him in a pretty fortune. Capital came to the rescue; the Pneumatic Tube Company, which got a franchise in 1897 to lay tubes under New York streets, supplied "penny-in-the-slot" flexible tubes, from which air might be inhaled, as pedestrians passed over land whose proprietors had reserved their rights in air. Boxes of condensed air, to be carried on the back, were also sold at a nominal charge.
Knowing that the poorest boy might become an air lord himself, just as he might become President, and that "competition among owners would keep prices down to a reasonable figure," just as it had kept down rents, the people acquiesced, and were quite as contented as they are now.