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The air ship was not owned by the Federal Government, nor under its control, so that we are not concerned with the question of the right of the Federal Government to navigate the air over any portion of the territory within its domain. The fact that the defendant was engaged in carrying the mails has, in our opinion, no bearing upon the case; nor do we regard as important the fact, as claimed by the defendant, that the air ship was driven to its position 100 feet above the surface of plaintiff's land by the air currents. The proof is undisputed that the defendant in. tended to pass over the plaintiff's property, and if in doing so it was necessary for him to lower his ship to a point so near the surface, that fact does not excuse him, because he placed himself in a position where such a fact might be pos. sible. There was some evidence introduced at the trial that the passing of the ship over the plaintiff's property caused actual damage to him, but this evidence was disputed by the defendant. As a verdict of nominal damages only was directed by the Court, and as plaintiff is satisfied with that verdict and has not appealed from the judgment entered upon it, we will regard the proof as shewing that the passing of the air ship did not cause any actual pecuniary loss to the plaintiff. The question is, therefore, whether the passing of an air ship over the plaintiff's property at a height of 100 feet above the surface is such an invasion of the plaintiff's right that he may maintain an action of tres. pass therefor.
It was an old maxim of the common law that he who owns the soil owns it to the sky and to the centre of the earth. 8 Am. Eng. Enc. Law, 2d ed. 458.
As Blackstone expresses it: “The owner of real property owns downward to the centre of the earth and upwards to infinity.” We think that under the authorities, the passing of the defendant’s air ship over the plaintiff's property at the height mentioned was a trespass upon the plaintiff's rights, irrespective of the question of actual damage. Our attention has not been called to any statute of New York State, or of the United States, permitting the navigation of the air over land held in private ownership, nor are we able to find any such statute. Therefore, the rule of the common law applies. If modern necessity requires that air ships should have the right to navigate the air, that is a matter of legislative enactment. We cannot make the law; we apply it as we find it. We do not mean to intimate that any statute purporting to relieve from liability the owner or operator of an air ship passing through the air or space over land held in private ownership, at a height of 100 feet above the surface, would be constitutional, but that question is not before us for decision.
On the oral argument counsel called our attention to a statute in France which, in effect, purports to license the navigator to sail through the air, and to relieve him from liability therefor, provided he causes no actual damage to the landowner over whose property he passes. While the common law was not part of the law of France, it appears that the legislative body of that country recognizes the necessity of the statute in order to relieve the navigator from trespass.
Our attention has been called to several cases where the facts were held not to constitute trespass. We have examined them with care and think that they are not applicable to the case before us. In Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623, it was held that where one places a steam boiler upon his premises and operates the same with care and skill, so that it is no nuisance, he is not liable for damages to his neighbour caused by the explosion of the boiler, in the absence of proof of fault or negligence on his part. In referring to this case, the Court of Appeals in Sullivan v. Dunham, 161 N. Y. 290, at 294, 76 Am. St. Rep. 274, 55 N. E. 923, 47 L. R. A. 715, said: “That was was not a case of intentional, but of accidental explosion.” Here the defendant voluntarily placed himself and his air ship in a position over the plaintiff's property, and if his air ship was driven to a lower level than he intended it to be, nevertheless he must take the consequences of his voluntary act. It follows that the judgment should be affirmed with costs.
The thesis that Right is essentially a positive conception, is not held, as might be thought, by positivist philosoph. ers alone. These, indeed, start from the principle that legal knowledge is legitimate only when it keeps within the limits of experience; now experience, as Vanni for example says, “only shews us Right as a fact of human society, as a his. torical phenomenon.” It would on this hypothesis be absurd to speak of any kind of ideal Right, rational or absolute, which has no adequate correspondence in the realm of facts, but transcends them. The only Right really existing is that in civitate positum, that is, which is in vigour in a politically constituted society, at a certain historical moment, by the effect of determined forces. Such arguments are often repeated by the positivist writers, and repeated with an air of peremptory demonstration; whereas, if carefully examined, they are reduced to an argument in a circle, or to a petitio principii, being based on the premise which is afterwards presented as conclusion. The impossibility of a Right not positive is deduced simply from the fact that it is supposed a priori that Right is only a phenomenon, and cannot have any other existence than what is empirical. The demonstra. tion of this presupposed dogma seems superfluous to the positivists, who however have no hesitation in discarding, without a true critical analysis, the notion of natural Right in all its forms both ancient and modern. Admitting then that a Right not positive is not a Right, this adjective applied to a Right would be evidently void of meaning; and it is declared in so many words “a pleonasm" by Bergbohm, who however, cannot exempt himself from using it, so vigorous and diffused (to his own infinite scandal) is the belief in a Right superior to this.
But if this simple solution of the problem can be under. stood as far as regards the positivist school, more grave and significant is the fact that philosophers of other schools also approximate, in a way, to the same solution. Some, inspired especially by Hegel and also by Vico, recognize that the idea of Right is absolute and inexhaustible, and transcends there. fore in its essence all of its particular manifestations in the historical field, but on the other hand affirm that only in history is Right a reality. The traditional antithesis between the Right of nature (or of reason) and positive Right is resolved in this sense, for instance, by Lasson and Filomusi Guelfi; who in like manner deny the existence of all Right other than that which is positive, recognizing nevertheless in this same contingent and changeable Right the impress of an eternal idea, which unfolds itself in the concrete through the series of actual institutes. The ideal element of Right—that which Vico called the “true (verum) *—is thus, according to this conception, imperfect standing alone, and should be integrated with the “certain (certum),” that is with the historical “position,” before Right can properly arise. Not without justice, observing such tendencies in modern idealistic philosophy of law, could an adversary of it, such as was Vanni, experience gratification from it, as with a partial agreement with the doctrines professed by him. “It is not then the positivists alone”— he exclaimed—“who affirm as the only true Right, positive Right!” And he adduced this argument in opposition to Petrone, who a little earlier, approximating much more closely to classical tradition, had vindicated the theoretical legitimacy of natural Right.
But very soon Petrone himself, resuming the discussion, declared that by natural Right should be understood “ not a concrete and perfect right,” but only “a principium cognoscendi of just laws of conduct in the order of social life"; and afterwards came to abandon the antithesis between natural and positive Right, reducing it to that between justice and Right, and conceding to positivism that “the simple ideal concept of justice cannot count as Right in the rigorous sense of the word, independently of its objectification and of social sanction.” “Right,” he explained, “requires to have for its character objectivity, determined, formulated, and limited consistence, that is, exterior and positive determination. The essential pivot of the existence of Right is in the Thesis, in the “Satzung,”—is, that is, in its placing, in its “position ”; without which, mere justice is the result, and justice not objectified;—amorphous and disarticulated justice, ideologic, subjective justice, and not Right properly so-called.” In such manner, and still without substantially changing his speculative attitude towards the problem, Petrome, in the particular question which now engages us, came to accept a solution analogous to that proposed by his adversaries.
It is right however, at this point, to say that in all these philosophical controversies the positivity of Right is always understood in a much more extensive sense than that used by practical lawyers who are not philosophers. For the lawyer, “ positive Right” often means only the system in vigour in the State to which he belongs; whence, it follows, that the rules observed by other peoples and at other times would not be called positive, and much less still those which are peculiar to peoples and times very remote. Such restrictive use of the term is without doubt connected with that mental habit which Bacon has already well defined, when, to the faults characteristic of philosophers, he opposed those not less characteristic of jurists: “Philosophi propomunt multa dictu pulchra, sed ab usu remota. Jurisconsulti autem suse quisque patria legum, vel etiam Romanarum aut pontificiarum, placitis obnorii et addicti, judicio sincero mon utuntur, sed tamguam e vinculis sermocinantur.” Indeed, nothing is more deeply opposed to a scientific comprehension of the phenomena of Right, than a one-sided attention to the institutions peculiar to a particular community at a certain moment in history; as if the same institutions were not subject to that law of relativity which governs equally all phenomena, and were capable of being considered as the exclusive source of authority. But with such an illusion we need not occupy ourselves; as it is here simply a question of a mere subjective illusion which dissolves in the very act of being presented; and not of a theoretically elaborated criterion, more or less capable of argumentative defence. On this point, all the schools of legal philosophy are and should be in agreement: that Right has everywhere a phenomenal or positive reality, inasmuch as it is produced and placed his. torically in every human society; whether or no it may have, besides that, another reality metempirical or purely ideal. To resolve this latter, which is the real question, it is, however, necessary to pause for a short while to consider this point, which is commonly taken for granted, and is not always cleared up with exactness; it is necessary to ask oneself: When is Right really “positive”? How is it made complete, and in what does its “position’ essentially consist? The answer to such questions would be simple, if the rule of Right always grew up in an uniform manner, and if
* Bacon, De, dign, et augm. scientiarum, L. VIII, De justitia universali sire de fontibus juris. Proemium,