The law of eminent domain may be taken advantage of only by corporations which are engaged in serving the public. It is based upon the principle that the advancement and improvement of a community is of more importance and carries with it more rights than the interests of the individual owner. But even in cases where the right of eminent domain is exercised there can be no confiscation of the individual's property.
Exercising the right of eminent domain is merely obtaining by public purchase what is held to be essential to the public good, and which cannot be secured by private purchase. When eminent domain proceedings are resorted to the court appoints appraisers who determine upon the value of the property wanted, and this value (in money) is paid to the owner.
How It Affects Aviation.
It should be kept in mind that this privilege of the "right of eminent domain" is accorded only to corporations which are engaged in serving the public. Individuals cannot take advantage of it. Thus far all aviation has been conducted by individuals; there are no flying machine or airship corporations regularly engaged in the transportation of passengers, mails or freight.
This leads up to the question "What would happen if realty owners generally, or in any considerable numbers, should prohibit the navigation of the air above their holdings?" It is idle to say such a possibility is ridiculous—it is already an actuality in a few individual instances.
One property owner in New Jersey, a justice of the peace, maintains a large sign on the roof of his house warning aviators that they must not trespass upon his domain. That he is acting well within his rights in doing this is conceded by legal authorities.
Hard to Catch Offenders.
But, suppose the alleged trespass is committed, what is the property owner going to do about it? He must first catch the trespasser and this would be a pretty hard job. He certainly could not overtake him, unless he kept a racing aeroplane for this special purpose. It would be equally difficult to identify the offender after the offense had been committed, even if he were located, as aeroplanes carry no license numbers.
Allowing that the offender should be caught the only recourse of the realty owner is an action for damages. He may prevent the commission of the offense by force if necessary, but after it is committed he can only sue for damages. And in doing this he would have a lot of trouble.
Points to Be Proven.