Tower Cranes – Why Should Contractors and Developers Pay for Neighbors’ Air Rights?

Over the past decade or so, although noticeably less so in the past few years, tower cranes have been a ubiquitous part of both Seattle and Bellevue’s skyline.   A visual barometer of the construction market’s health, the operation of crane booms poses an interesting legal question: when the crane’s jib (the horizontal boom or member) swings over neighboring properties, does this intrusion constitute a trespass or nuisance, entitling the neighbor to compensation or, even worse, an injunction halting the project?  Our short answer is:  No, not in the Pacific Northwest.

Historically, property owners have relied on the Latin legal maxim cujus est solum, which roughly translates to “for whoever owns the soil, it is theirs all the way up to Heaven and down to Hell,” for the proposition that their land ownership is vertically infinite.  In 1946, however, the United States Supreme Court rejected this concept, noting

[the] doctrine has no place in the modern world… Common sense revolts at the idea.  To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.

United States v. Causby.[1]

Rather, the Court held that the property owner owns “at least as much of the airspace above the ground as he can occupy or use in connection with the land.  Id. at 261.  Similarly, the Federal Court of Appeals Ninth Circuit[2] has stated that “[t]he owner of land owns as much of the space above him as he uses, but only so long as he uses it.”[3]

Despite Seattle and Bellevue’s numerous tower crane projects over the years, no Washington case directly addresses air rights with respect to tower cranes and the case law from other state and federal jurisdictions is sparse at best.  That said, there are two theories typically relied upon when asserting intrusions based on air rights: trespass and nuisance.

  • Trespass:  First, a trespass is defined as the “wrongful entry on another’s real property.” Black’s Law Dictionary 1642 (9th ed. 2009).  The majority of cases, however, require that the trespass be permanent to be actionable.  For example, although a Washington court has recognized a trespass cause of action where airborne pollutants are deposited onto neighboring property, the court made a distinction between permanent and temporary intrusions, holding a temporary intrusion does not constitute a trespass.  See Bradley v. Am. Smelting & Ref. Co.,[4] (“When, however, the particles or substance accumulates on the land and does not pass away, then a trespass has occurred.”) (emphasis added).   Similarly, two courts from other states have rejected a trespass claim for temporary scaffolding which allegedly was imposing on a neighbor’s air rights.  See Geller v. Brownstone Condo Ass’n,[5] (holding that “[d]efendants’ use of temporary scaffolding in the air and space above that residence cannot be deemed actionable”) (emphasis added) and Slotoroff v. Nassau Associates,[6] (holding that a “defendant’s temporary use of the air space for the purpose of resurfacing its neighbor’s wall is not a trespass and is not subject to restraints”) (emphasis added).  Thus, similar to scaffolding, by analogy, it is unlikely that Washington courts would find the minimal intrusion of the crane jib into a neighbor’s air space during a construction project (i.e., a temporary situation) a trespass, particularly when there is fleeting intrusion with no permanent “mark” (deposit left) on the property.
  • Nuisance:  Second, a “nuisance” is an unreasonable interference with another’s use and enjoyment of property.  Kitsap County v. Allstate Ins. Co.[7]  In addition to determining whether there has been an “unreasonable inference,” an inherently factual process which must be performed on a case-by-case basis, there must be an impact on the owner’s use and enjoyment of the property.  For example, in Washington, there is no common law right to a view.  Thus, a structure does not qualify as a nuisance if it merely obstructs the view of the neighboring property.  See e.g., Collinson v. John L. Scott, Inc.[8]  Therefore, if addressed by Washington courts, the occasional blocking of someone’s view or passing over of property through the air (i.e., property that is not being used) by the crane jib will also likely not constitute a nuisance as there is no actual interference with the property.

Though neighboring property owners do not have sound legal bases for demanding compensation or temporary “airspace use” agreements, contractors are routinely asked to enter into such agreements.  To prevent any delay to already tight construction schedules, contractors are sometimes tempted to accede to these baseless demands.  Doing so, however, creates a dangerous precedent that unnecessarily increases construction costs on projects.  Should contractors continue to “give-in” to these demands; the wily neighbor demands will only increase in both number and amount, despite the complete lack of damage caused by the crane occasionally swinging over the neighbor’s property.

We are currently drafting a more in-depth legal article in which we will address this issue in more detail.  Look for that article to be published this winter.  In the meantime, contractors, instead of giving in to these coercive demands should instead offer insurance coverage and indemnity in the event of an accident – causing injury to persons or property. Providing neighborly, incidental services (e.g., lifting a replacement HVAC unit to the roof, street improvements or other “favors” to smooth over feelings), often goes a long way to ease the neighbor’s desire to extract concessions from the contractor.

[1]  328 U.S. 256, 260-61, 66 S. Ct. 1062, 1065, 90 L.Ed. 1206 (1946).

[2]  Washington, Oregon and Alaska are part of the Ninth Circuit.

[3]  Hinman v. Pac. Air Lines Transp. Corp., 84 F.2d 755, 758 (9th Cir. 1936).

[4]  104 Wn.2d 677, 691, 709 P.2d 782, 785 (1985).

[5]  82 Ill. App. 3d 334, 402 N.E.2d 807 (1980).

[6]  178 N.J. Super. 292, 428 A.2d 956, (Ch. Div. 1980)

[7]  136 Wn.2d 567, 592, 964 P.2d 1173 (1998).

[8]  55 Wn. App. 481, 485, 778 P.2d 534 (1989).

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