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Do You Own The Space Above Your House?

Cuius est solum, eius est usque ad coelum et ad inferos means "whoever owns the soil, it is theirs up to Heaven and down to Hell." This property right principle asserts that a person who owns a particular piece of land owns everything directly above and below that piece of land, no matter the distance, and can prosecute trespassers who violate their border on the surface, underground and in the sky. But has that held up in court over the years?

Despite the Latin phrasing, the principle was not a part of classical Roman law, and is usually attributed to the 13th-century Italian scholar Accursius. It made its way to England and was first used in the English-speaking world by Sir Edward Coke, an Elizabethan-era lawyer/judge/politician. It gained wider popularity in Commentaries on the Laws of England (1766), a treatise by judge and jurist William Blackstone.

Commentaries was highly regarded as a leading work on the development of English law and was influential in the development of the American legal system. It was said that "no other book except the Bible has played so great a role" in shaping American institutions, and many of Blackstone's ideas, including Cuius est solum... were quickly adopted and repeated by American courts and legal scholars.

Beginning with the 1797 decision in State v. David (Mr. David was indicted in Delaware for stealing two barrels of herrings after the barrels were found buried on his land) and continuing for the next hundred years, the American legal system maintained that landowners' rights extend over a tract of space that stretches from the center of the earth out into the atmosphere. Sometimes this space is described as a straight column with dimensions that match the property's surface-level boundary lines. The column sometimes began at a theoretical point at the very center of the earth, continues through the surface of the earth and upward into the sky. Other times, it was described as being shaped like an inverted pyramid. The tip is at the center of the earth and the space widens to meet the property's surface boundary lines.

The 150 Most Important Dead Chickens in Legal History

The doctrine worked well enough in the U.S. for a little more than a century, but in 1903 the Wright brothers shook things up when they got their powered Wright Flyer I airborne. From there, air travel expanded quickly and by the late 1930s, commercial airlines were carrying mail and passengers across the country.

Those magnificent men in their flying machines, of course, were violating countless borders as they crisscrossed the U.S., and the property owners began to sue the trespassing airline companies. Having to get permission from, or pay a settlement out to, anyone whose house they wanted to fly over would have caused major headaches for the airlines, the courts and federal regulators, and the doctrine began to fall out of favor.

The courts turned on their beloved Blackstone’s idea and began to regularly reject the ad coelum approach to airspace rights. Instead, they interpreted the maxim as giving property owners rights to the sky “within the range of actual occupation,” and use of airspace “to such an extent as [they are] able.” Congress, meanwhile, passed the Air Commerce Act in 1926, and gave the government jurisdiction over “navigable air space,” or the sky above “minimum safe altitudes of flight” as determined by the federal government.

In 1946, the United States Supreme Court heard United States v. Causby. Their decision in the case proved to be the final nail in the ad coelum doctrine's coffin and established new common law to replace the generally-accepted-but-made-up rule.

Causby owned 2.8 acres of farmland near Greensboro, North Carolina. During World War II, the U.S. government started using a nearby airport for military aircraft and fighter planes began flying over Causby's property at altitudes low enough to blow the leaves off the tops of Causby's trees. The noise from the flyovers scared Causby's chickens so much that they would panic, run into walls and kill themselves. Some 150 chickens died like this in a small span of time and Causby was forced to give up chicken farming entirely. He sued the government, claiming that their trespassing left his property commercially worthless and that his land had, in effect, been taken from him.

The Supreme Court ruled the air was a "public highway" and rejected Causby's claim that his airspace had been taken from him. Justice William O. Douglas wrote, in his opinion for the majority, that the cuius est solum, eius est usque ad coelum et ad inferos doctrine and the idea that "ownership of the land extended to the periphery of the universe...has no place in the modern world. 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."

Douglas did, however, concede that "if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere." He concluded that "flights so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land" did constitute a taking of the land and left it to the lower court to figure out how Causby should be rewarded.

What Lies Beneath

While the ad coelum part of the doctrine fizzled pretty quickly with the birth of air travel, the ad inferos part soldiers on in some cases, if only because subsurface property rights are still being figured out. Without an underground equivalent to Causby, the courts have yet to establish law that addresses subsurface rights and the legislation that some states have adopted is vague enough that some courts will still uphold the ad inferos doctrine, while others regard it as nonsense.

A look at decisions in subsurface ownership disputes reveals that the courts tend to side with the surface property owner if the case involves the near subsurface (disputes about tree roots or other intrusions within 100 feet or so of the surface), and hundreds of them have cited ad inferos in their decisions. Cases involving disputes a few hundred feet below the surface, though, are generally less likely to go in the landowner's favor or bring up the ad inferos doctrine.

Complicating matters are the number of federal, state, and local statues regarding particular uses of subsurface areas. In many cases, if oil, natural gas, hard rock minerals, objects embedded in the soil or waste disposal are involved, these statutes usually supersede traditional property rights.

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Big Questions
Why Does Santa Claus Give Coal to Bad Kids?
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The tradition of giving misbehaving children lumps of fossil fuel predates the Santa we know, and is also associated with St. Nicholas, Sinterklaas, and Italy’s La Befana. Though there doesn't seem to be one specific legend or history about any of these figures that gives a concrete reason for doling out coal specifically, the common thread between all of them seems to be convenience.

Santa and La Befana both get into people’s homes via the fireplace chimney and leave gifts in stockings hung from the mantel. Sinterklaas’s controversial assistant, Black Pete, also comes down the chimney and places gifts in shoes left out near the fireplace. St. Nick used to come in the window, and then switched to the chimney when they became common in Europe. Like Sinterklaas, his presents are traditionally slipped into shoes sitting by the fire.

So, let’s step into the speculation zone: All of these characters are tied to the fireplace. When filling the stockings or the shoes, the holiday gift givers sometimes run into a kid who doesn’t deserve a present. So to send a message and encourage better behavior next year, they leave something less desirable than the usual toys, money, or candy—and the fireplace would seem to make an easy and obvious source of non-presents. All the individual would need to do is reach down into the fireplace and grab a lump of coal. (While many people think of fireplaces burning wood logs, coal-fired ones were very common during the 19th and early 20th centuries, which is when the American Santa mythos was being established.)

That said, with the exception of Santa, none of these characters limits himself to coal when it comes to bad kids. They’ve also been said to leave bundles of twigs, bags of salt, garlic, and onions, which suggests that they’re less reluctant than Santa to haul their bad kid gifts around all night in addition to the good presents.

Have you got a Big Question you'd like us to answer? If so, let us know by emailing us at bigquestions@mentalfloss.com.

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Big Questions
Who Was Heisman and Why Does He Have a Trophy?
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On Saturday night, one of three finalists will be named this year's Heisman Trophy winner. But before anyone brings home the hardware, let’s answer a few questions about John Heisman and his famous award.

Who Exactly Was John Heisman?

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His name is mostly associated with the trophy now, but Heisman (right) was a player, coach, and hugely successful innovator in the early days of football. After playing for Brown and then Penn as a collegian from 1887 to 1891, Heisman became a coach at a series of schools that included Oberlin, Buchtel, Auburn, Clemson, Penn, Washington & Jefferson, Rice, and, most notably, Georgia Tech.

For What Football Innovations Does Heisman Get Credit?

Just some little trivial stuff like snapping the ball. Centers originally placed the ball on the ground and rolled it back to their quarterbacks, who would scoop it up and make plays. When Heisman was coaching at Buchtel (which later became the University of Akron), though, he had a 6’4” QB named Harry Clark. Clark was so tall that picking the ball up off the ground was wildly inefficient, so Heisman invented the center snap as an easy way to get the ball in Clark’s hands. Heisman also innovated the use of pulling guards for running plays and the infamous hidden-ball trick.

Any Other Shenanigans on Heisman’s Resume?

You bet. When Heisman found a way to gain an edge, he jumped on it no matter how ridiculous it seemed. When Heisman was coaching at Clemson in 1902, his team traveled to Atlanta for a game against Georgia Tech. Although Heisman was known for being a rather gruff disciplinarian, the Clemson team immediately started partying upon their arrival.

When Georgia Tech’s players and fans heard that the entire Clemson squad had spent the night before the game carousing, they prepared to coast to an easy win. When the game started, though, Clemson roared out of the gate en route to a 44-5 stomping.

How did Clemson crush Tech when by all rights they should have been ridiculously hungover? The “team” that everyone had seen partying the night before wasn’t really Heisman’s Clemson squad at all. He had sent his junior varsity players to Atlanta the night before to serve as drunken decoys, then quietly slipped his varsity team in on a morning train right before the game.

What Kind of Coach Was He?

Heisman worked as an actor in community stock theater during the summer – he consistently received rotten reviews – and allegedly spoke in a brusque, yet bizarrely ostentatious manner. Georgia Tech’s website relates a story of one of Heisman’s speeches he would break out on the first day of practice while describing a football: "What is this? It is a prolate spheroid, an elongated sphere - in which the outer leather casing is drawn tightly over a somewhat smaller rubber tubing. Better to have died as a small boy than to fumble this football."

How Did His Name Get on the Trophy?

After leaving his head-coaching job at Rice in 1927, Heisman became the athletic director at New York’s Downtown Athletic Club. In 1935 the club began awarding the Downtown Athletic Club Trophy to the nation’s top college football star. (Chicago’s Jay Berwanger won the first trophy.) Heisman died of pneumonia the following fall before the second trophy could be awarded, and the club voted to rename the prize the Heisman Memorial Trophy Award.

Did He Ever Really Throw that Iconic Stiff Arm?

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Possibly, but Heisman didn’t have the ball in his hands all that much. Even though he was a fairly small guy at just 5’8” and 158 pounds, he played as a lineman throughout his college career.

The famous “Heisman pose” is actually based on Ed Smith, a former NYU running back who modeled for the trophy’s sculptor in 1934. Interestingly, Smith went years without knowing that he’d modeled for the famous trophy. His sculptor buddy Frank Eliscu had just needed a football player to model for a project, and Smith volunteered.

Smith figured Eliscu was just doing some little personal sculpture and remained totally oblivious to his spot in football history for the next 48 years until a documentary filmmaker called Smith to interview him about the Heisman in 1982. Smith initially had no idea what the guy was talking about, but he eventually remembered his modeling days. In 1985, the Downtown Athletic Club gave Smith his own copy of the Heisman, and in 1986 he even received recognition on the televised ceremony. He looked at the four finalists – Vinny Testaverde won that year – and quipped, "Whoever wins the award, I feel sorry for you, because you're going to be looking at my ugly face for a long time." [Pictured Above: Auburn's Bo Jackson in 1985.]

What’s a Heisman Trophy Worth on the Open Market?

Quite a bit. A number of Heisman winners have eventually sold their hardware, and the trophies fetch quite a bit of loot. O.J. Simpson got $230,000 for his, and several others have gone for six-figure prices. The most expensive trophy that’s changed hands was Minnesota back Bruce Smith’s 1941 award; it fetched $395,240.

How Did Steve Spurrier Change the Process?

SEC fans are going to be floored by this one, but the Ol’ Ball Coach did something really classy when he won the Heisman in 1966. Instead of taking the trophy for himself, Spurrier gave it to the University of Florida so the school could display it and let the student body enjoy it. Florida’s student government thought Spurrier’s generosity was so classy that they paid for a replica for Spurrier so he’d get to have his own trophy, too. Since then both the school and the player have received copies of the trophy.

So Heisman Must Have Been the World’s Greatest Sportsman, Right?

Well, not really. Heisman was on the victorious side of possibly the most gratuitously run-up score in sports history. In 1916 tiny Cumberland College canceled its football program and disbanded its squad, but it had previously signed a contract to travel to Atlanta to play Heisman’s Georgia Tech team. If Cumberland didn’t show up, they had to pay Georgia Tech a $3,000 penalty, which was quite a bit of cash in 1916.

Rather than forfeiting the money, Cumberland scraped together a team of 16 scrubs and went to take their walloping from Heisman’s boys. For reasons that still aren’t totally clear – some say it was to avenge an earlier baseball loss to Cumberland, while others claim Heisman wanted to make a statement about the absurdity of the old system of using total points scored to determine the national champion – the legendary coach showed Cumberland’s ragtag band no mercy. Tech went up 63-0 in the first quarter, but Heisman kept attacking until the final score was 222-0. There are tons of hilarious stats from the game, but the funniest is Georgia Tech rushing for 1,620 yards while Cumberland only squeaked out negative-96 yards on 27 carries.

This article originally appeared in 2010.

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