UTILIZATION OF AIR RIGHTS OVER HIGHWAY RIGHT-OF-WAY

To understand the use of air rights it is first necessary to have an understanding of what air rights actually are and how they compare to normal property rights. Under the original doctrine of common law, ownership of land was defined as "Whose the soil is, his it is from the heavens to the depths of the earth. This common law doctrine has been changed due to the arrival of aviation. The airplane is a part of the modern environment of life, and the inconveniences that it causes are normally not compensable under the Fifth Amendment. This paper describes how airspace, apart from the immediate reaches above the land, is part of the public domain. Flights over private land are not a taking unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. To summarize, normal air rights include rights to airspace above the property. The economics associated with air rights development are quite complex and involve consideration of many factors which include land values, construction costs, tax abatement, and land use with respect to financial support of the ultimate air rights development.