28.7 Overflight and Underground Trespass

JurisdictionArizona

28.7 Overflight and Underground Trespass. In certain circumstances, flight over a plaintiff’s land will be considered a trespass. There is no fixed altitude over a plaintiff’s land that constitutes a trespass.69 However, by statute, a pilot is prohibited from flying over land or water of another in a way in that “interferes with the existing use to which land, water or space over the land or water is put by the owner” or in a manner that is “imminently dangerous to persons or property lawfully on the land or water beneath the flight.”70 Furthermore, one may not land an airplane on the property of another without consent, except in the case of a forced landing.71 Even if the landing is a forced one, the owner or lessee of the aircraft, or the pilot, are liable for any damages caused by the landing.72

Arizona case law recognizes that trespass by overflight requires intrusion “in the space immediately above the land.”73 In other words, “an airplane pilot, landing or taking off, should not fly so low as to hurt, inconvenience, or cause damage to the owner of the soil over which he is flying.”74 The court has recognized that low flying has the potential to cause annoyance and can constitute “substantial interference with enjoyment of the property.”75

In Brandes, the court held that a plaintiff could maintain a nuisance suit against an airport that operated a flight school nearby, since low flights, takeoffs, and landings created significant dust...

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