Master Montana Supreme Court held that firing a shotgun so that projectiles pass through the airspace immediately above another's land constitutes trespass. with this comprehensive case brief.
Herrin v. Sutherland is a seminal property law case that crystallizes a foundational but evolving principle: a landowner's possessory interest includes not just the surface of the land but also the immediate reaches of the airspace above it. Against the backdrop of changing technology and the decline of the absolute ad coelum maxim, the Montana Supreme Court articulated a pragmatic boundary—protecting airspace only to the extent the landowner can reasonably use it. This orientation preserves meaningful possession while accommodating modern realities like aviation.
For law students, Herrin is a classic bridge between strict common law trespass and contemporary constraints on property rights in the sky. It demonstrates that trespass does not require a defendant's footfall on the soil; a physical invasion of the protected air column suffices. The case foreshadows later federal constitutional and regulatory developments, including the United States Supreme Court's recognition of protected low-altitude airspace in United States v. Causby, and provides a durable analytical framework for modern questions about drones and overflight.
74 Mont. 587, 241 P. 328 (Mont. 1925)
Herrin owned and was in possession of private land used in part for hunting. While positioned off Herrin's land, Sutherland intentionally discharged a shotgun at game birds flying over Herrin's property such that the muzzle blast and pellets traveled through the column of air directly above Herrin's land. No person physically set foot on Herrin's soil, and there was no allegation of substantial physical damage to the land itself. Herrin sued in trespass, alleging that Sutherland's firing over the property was an unauthorized physical invasion of the airspace that interfered with Herrin's exclusive possessory rights. The trial court found for Herrin, and Sutherland appealed, arguing that, absent an entry onto the surface, his conduct could not constitute trespass.
Does intentionally firing a gun so that shot and discharge pass through the airspace immediately above another's land constitute trespass even if the defendant never sets foot on the land and causes no physical harm to the surface?
A landowner's possessory rights extend to the immediate reaches of the airspace above the land to the extent necessary for the use and enjoyment of the property. An intentional, unauthorized physical invasion of that protected airspace constitutes trespass, even in the absence of direct contact with the soil or proof of actual damages.
Yes. Discharging a shotgun so that its projectiles and blast pass through the immediate airspace above another's land is a trespass because it is a direct, tangible invasion of the landowner's protected possessory interest in the superadjacent air.
The court began with the common-law maxim that ownership of land includes the space above and below it. Recognizing the impracticality of absolute, infinite airspace ownership in the modern era, the court adopted a tempered approach: a landowner owns so much of the airspace as he can occupy or use in connection with the land. Within that protected stratum—the immediate reaches necessary for ordinary use and enjoyment—unauthorized physical intrusions are trespasses. Applying that principle, the court found that Sutherland's gunfire created a physical, not merely intangible, invasion. Unlike odors, sound, or light—which typically sound in nuisance—pellets and the discharge itself are tangible objects traversing the landowner's airspace. Because the essence of trespass is the violation of the right to exclusive possession, it is enough that the defendant intentionally caused a physical thing to enter the protected space. It was immaterial that Sutherland's feet never touched the soil or that no lasting damage was shown; trespass protects possessory integrity, for which nominal damages may be awarded even absent actual loss. The court thus affirmed liability for trespass to land based on the invasion of the superadjacent airspace.
Herrin v. Sutherland is a cornerstone in clarifying that trespass extends above the ground into the immediate reaches of airspace. It operationalizes the ad coelum maxim by limiting it to the air a landowner can reasonably use, thereby supporting modern realities (like aviation) while safeguarding core possessory rights. The case is frequently paired with United States v. Causby, which constitutionalized similar concepts in the takings context, and it provides a ready-made analytical framework for contemporary disputes involving low-altitude aircraft and drones. For students, Herrin reinforces that trespass requires a physical invasion but not necessarily contact with the surface, and it illustrates the boundary between trespass (tangible invasions) and nuisance (intangible interferences).
No. Herrin rejects absolute, unlimited vertical ownership as impractical. The owner has exclusive rights only to the immediate reaches of airspace—roughly the vertical space the owner can reasonably use and occupy for ordinary enjoyment. Beyond that, public navigable airspace and other policy considerations limit exclusivity.
Trespass protects the right to exclusive possession and is triggered by a tangible, physical invasion of land (including protected airspace). Nuisance addresses substantial and unreasonable interferences with use and enjoyment, typically through intangibles like noise, odor, or light. Because gun pellets and the discharge physically traversed the airspace, the invasion fit trespass.
No. Trespass can occur without physical entry by the defendant's body. It is sufficient that the defendant intentionally caused a physical thing (here, shot and discharge) to enter the landowner's protected airspace without permission.
Generally no. Flights at lawful altitudes in navigable airspace are privileged and not trespasses. Herrin protects only the immediate reaches necessary for land use. Later authority, including United States v. Causby, recognizes that low and frequent flights that directly and substantially interfere with the use of land may constitute a taking or a trespass-like invasion, but typical high-altitude flights are not actionable.
Drones often operate in low-altitude airspace near or within a landowner's immediate reaches. Flights that cross into this space, especially at low heights and in ways that interfere with use and enjoyment, may constitute trespass or nuisance under Herrin's framework. Many jurisdictions are developing statutes and case law to define precise boundaries and remedies.
Even absent proof of actual harm, nominal damages are available to vindicate the possessory right. If the invasion is willful or malicious, some jurisdictions permit punitive damages. If provable, actual damages for physical harm or lost use may also be recovered.
Herrin v. Sutherland squarely situates trespass doctrine in three-dimensional space. By recognizing that a landowner's possessory interest includes the immediate reaches of the air above the surface, the court preserves meaningful control over land use while acknowledging that ownership cannot stretch infinitely skyward. A physical intrusion into that protected air column is enough to trigger trespass liability, regardless of whether anyone sets foot on the surface or inflicts measurable harm.
For modern practice, Herrin is more than a historical curiosity. It informs how courts assess low-altitude intrusions from projectiles, cranes, drones, and aircraft, and it helps demarcate the line between trespass and nuisance. Students should internalize Herrin's core teaching: trespass protects the integrity of possession in the tangible sphere—including the superadjacent airspace a landowner can reasonably use—and nominal damages vindicate that right even in the absence of quantifiable loss.
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