The Lords of the Air

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THE 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 his 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 Co., 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 Co., and Hyde v. Continental Trust Co., 158 U. S. 601 ), 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 was just as necessary to be fed as to breathe, in order to travel; and yet, although food, unlike air, was actually produced from the ground, no one had 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 were also 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 gave a right to the free use of the cars.

It was urged that it was in violation of the right of the people peaceably to assemble as provided in Amendment I, United States Constitution. But, citing "The Commonwealth v. Davis" (Massachusetts Law Reports, June, 1897), the Court held 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 (Edge et al. v. Robertson Circuit Court E. D. N. Y. 1883), and such laws denied the use not only of the air, but even of access, without payment of the fee. It was further said, that the ordinances opening the streets in their turn, excluded such use, and that the principle of the ordinance was constitutional. (Dillon's Municipal Corporations, p. 250, 2d ed.)

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 everyone has a right to sue everyone else, served them upon every person who passed, at the rate of several hundred every day. Nearly every one failed to answer, and the costs brought him in a pretty fortune.

The new doctrine was followed, and injunctions obtained against certain strikers, who breathed the air upon roads belonging to the company, on the principle laid down in Mackall v. Ratchford, 82 F. 41. The Court justly said 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 those 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 was new, for we find in Blackstone, Book II, Chap, xxvi, Sec. 31: 'Ancient Lights. Thus, too, the benefit of the elements, the light, the air, and the water, can only be appropriated by occupancy. If I have an ancient window overlooking my neighbor'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 5th 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 Warren Bridge in Charles River Bridge v. Warren Bridge case, 7 Pick. 344, Mass.

Capital came to the rescue, and the Pneumatic Tube Company, to which a franchise was granted 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 supplied 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 the price of rent,—the people acquiesced, and were just as contented as they are now.

Bolton Hall.

New York.



  • Bolton Hall, “The Lords of the Air,” The Arena 21, no. 3 (March 1899): 293-295.