Herrin v. Sutherland

Supreme Court of Montana, 1925.

74 Mont. 587, 241 P. 328.


Defendant shot at migratory fowl flying over the property of another.

Procedural History

Defendant raised a general demurrer for the plaintiff’s charges, stating that said action was not trespass. Plaintiff was recovered with damages of $1.


Is it trespass if one does not step on another’s land, but invades the airspace above another’s land?

Arguments for Both Parties

Plaintiff states that the repeated shots were an act of trespass on his land.


The court holds for the Plaintiff, recovering $10 in damages.

Reasoning behind Holding

The court reasons that although the defendant was not standing on the plaintiff’s land, the defendant disturbed the inviolability of the plaintiff’s rights to personal property, citing the plaintiff’s right to quiet, undisturbed, peaceful enjoyment of the land, committing a technical or constructive trespass.

They also state the Blackstone definition of land, in its legal significance has an indefinite extent, upwards as well as downwards; whoever owns the land possesses title to all that space.


The airspace, at least near the ground, is almost as inviolable as the land beneath it.

Policy Arguments

It would be crazy for shots to cross the land and not be considered trespass as they are in fact very dangerous and a reasonable person could see someone getting hurt quite easily by an errant shot.

Cujus est solem, ejus est usque ad coelum et ad inferos

Whose is the soil, his it also unto the sky and the depths.

In some jurisdictions aircraft travel is never trespass, but it may be nuisance or negligence. Aircraft crashes are strict liability or negligence.

In western states, miners are allowed to follow a vein of minerals as long as the vein is not broken, for as far as it goes.

Injection wells, fracking, plays by different rules. It is wild and up for capture deep beneath the land.


Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s