I. Introduction
The year is 2033. It's thirty minutes past noon, and you just remembered that today is your aunt's birthday. Unfortunately, she lives about 100 miles away in a rural area. You quickly buy a gift from a nearby store and make your way to the local post office. At one of the kiosks, you choose "Same-Day Delivery." A few hours later, your aunt is pleasantly surprised by a drone that has deliv ered your package to her doorstep. Advanced drone delivery has saved the day.1
Of course, the future isn't now. Still, even in their relative infancy, drones have already impacted nearly every sector of our economy, ranging from healthcare to real estate, sports, news, among countless others. Since 2016, when the Federal Aviation Administration ("FAA") formally adopted regulations governing the use of small, unmanned aircraft systems, many have predicted that delivery drones will soon dominate the skies.2 The public and private sectors have responded with significant investments in drone delivery.3 And many private companies now hold FAA air carrier certificates.4
Despite its growing theoretical acceptance, advanced drone delivery continues to face legal headwinds in the United States.5 The legal process will surely be invoked when delivery companies try to find smooth air to resolve or avoid private landowners' airspace-rights claims, that is because an effective service will involve hundreds and probably thousands of private air spaces. Without permission from landowners, the entity operating the drone may be liable for trespass, nuisance, or violations of other jurisdiction-specific statutory or common law rights. Drone delivery companies may face an incalculable number of lawsuits spanning several jurisdictions, or worse, uncontrolled interdiction or disruptive acts by landowners. 6,7
Solutions to these issues must be as nimble and efficient as the immediate problem. A key element will inevitably require the clarification and, if necessary, modification of landowners' airspace rights for drone delivery to withstand the legal turbulence. To that end, this article first analyzes the current legal landscape for low airspace rights. Next, the article explores how courts may eventually modify landowners' private rights.8 Finally, this article explores legal "airways" for advanced drone delivery to take flight, change our economy and change our world.
II. Cleared for Take Off?: The Causby Decision and Landowners' Low Airspace Rights
To understand the current legal landscape regarding drone delivery, one must begin with the seminal United States Supreme Court decision, United States v. Causby.9 Mr. and Mrs. Causby owned a chicken farm in 1940s North Carolina.10 Beginning in 1942, the United States Military began using a nearby airport.11 Given the location of the runway, planes constantly passed over the Causbys' farm, with some flying as low as 18 feet above the highest tree.12 The noise from the planes killed many of the chickens, which eventually led to the farming operation shutting down.13 The Causbys brought suit, arguing that the Government's use of the airport and collateral destruction of their business amounted to a compensable taking under the Fifth Amendment.
In a landmark ruling, the Supreme Court disagreed, holding that landowners do not hold indefinite airspace rights in the sky above their land.14 Instead, those rights end where navigable airspace begins.15 After Causby, landowners' interests extend only to the "immediate reaches" of space directly above their land,16 including "at least as much of the space above...
