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).
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.