Massachusetts courts have adopted the arbitrary theory that the landowner has title to the air space up to a height set by statute and any flights below this are at least technical trespasses.

—decree affirmed, upholding injunction against flying below height of 500 feet over residence 2,800 feet from city-controlled, but privately-operated, airport

—case the Court rejected the "nuisance" theory and based its decision on the ground that the passage of planes over plaintiffs' house at a height of less than five hundred feet may, and in this case did, constitute a trespass of a continuing character.

An award of nominal damages is not inherently inconsistent with an award of injunctive relief if such relief is otherwise appropriately awarded.

—the Court, in holding that adjacent landowners were entitled to an injunction against a private airport's operator, inferred that the Massachusetts Airport Zoning Act should be used to protect airport approaches it said: "It should be remembered, however, that the statute, in 40-A-40o now contains adequate provisions for securing and regulating the approach to public …

Without purporting to do more than touch upon the subject, we may note that there are several theories of airspace ownership.

In Massachusetts, for example, the view has been followed that airspace below the level specified by federal and state legislation as the minimum safe altitude of flight belongs to the landowner, so that flights by planes below that level would ordinarily constitute "at least a technical trespass

Where the residence and property of an individual is located adjacent to an airport, the flight of airplanes over such residence and property may not be enjoined as a nuisance where the flights have not been such as to affect the health, habits, or material comfort of a normal person.

Advance negotiations between B and C are out of the question, since the costs to B of identifying and negotiating with all possessors of land onto which he may 79

The necessity of choosing between nuisance, trespass, or other concepts often reflects a continuation of the absurdities of the common law forms of action.

[PDF] Restriction on Employee's Use of Confidential Information Gained During …