Colorado Real Estate Journal - September 2, 2015
In 2014, the town of Deer Trail proposed to allow “hunting licenses” for unmanned aerial vehicles flying within town limits. On July 26, a Kentucky man named William Meredith made headlines after shooting down a drone hovering over his backyard, where his daughters sat by their pool. These stories exemplify the sensitivity people have about drones over their property. Utility companies, however, may see great benefits using drones to inspect utility lines along existing easements or rights of way. (The term easement is in many ways synonymous with the term right of way. But there are subtle differences that can be important at times. The term right of way, for purposes of this article, will be treated as synonymous with the term easement.) Since drones can carry thousands of dollars of sensitive equipment, companies cannot risk having a drone shot down any more than they can risk having operations shut down by a lawsuit. Even if a company receives an exemption under Section 333 of the Federal Aviation Administration Modernization and Reform Act of 2012 to operate a drone in controlled airspace, that exemption does not protect against landowner trespass and privacy claims in private, unregulated airspace or from claims relating to surveillance, so companies should know the law in those areas before using drones for survey and inspection purposes. (For exemptions, see https://www.faa.gov/uas/legislative_programs/section_333/.) Fortunately, existing easement rights may afford most or all of the legal protection needed. “Normal evolution” of the easement and the balancing of interests. Colorado law allows for the “normal evolution of an easement” and a balancing test between the rights of the easement holder and the rights of the landowner when resolving disputes. (See generally Wright v. Horse Creek Ranches, 697 P.2d 384 (Colo. 1985); Clinger v. Hartshorn, 89 P.3d 462 (Colo. Ct. App. 2003), cert. denied; see also Restatement (First) of Property § § 477-479 (1944); see also Hayes v. City of Loveland, 651 P.2d 466 (Colo. Ct. App. 1982) (Change in degree of use, as opposed to change in type of use, was permissible to allow upgrade to 115-volt power line as part of the normal and usual evolution of the easement.) This means an easement may evolve in the way it is used but not so much that the fundamental purpose of the easement changes. For example, an easement to maintain a ditch that was historically maintained by a workman with a horse might evolve to allow ditch maintenance using a motorized all-terrain vehicle, a GPS device and a trenching tool. The same easement could not, however, evolve into an access easement for recreational fishing in the reservoir from which the ditch runs. (See e.g. Bijou Irrigation Dist. v. Empire Club, 804 P.2d 175, 187 [Colo. 1991.]) Many jurisdictions, including those in Colorado, require a balancing of the interests of landowners against the interest of easement holders in order to reach an equitable resolution of disputes over easement rights. (See Restatement [First] of Property Sections 477, 478, and 479. For Section 477: Ct.Fed.Cl.; Cal. App.; Colo.; Colo.App.; Conn.; Del.Ch.; Idaho; Iowa; Me.; Md.Spec.App.; Mass.; Mass. App.; N.H.; N.M.App.; N.D.; Or.; Pa.; Pa.Super.; Tenn.App.; Utah; Vt.; Wash.App.; Wis.App. For § 478: Ct.Fed.Cl.; Alaska; Cal.App.; Colo.; Colo.App.; Conn.; Del.Ch.; Idaho; Iowa; Me.; Md.Spec.App.; Mont.; Or.; Pa.; Pa.Super.; Wash.; Wash. App. For § 479: C.A.D.C.; Cal. App.; Colo.; Colo.App.; Conn.; Conn.App.; Idaho; Ill.App.; Iowa; Me.; Md.; Md.Spec.App.; Mass.; Mass.App.; Mont.; Or.; Pa.; Pa.Super.) Whether the use of a drone is permissible on an existing utility easement could depend upon a number of factors, including the language of any easement agreement or condemnation decree, the specifics about how and when drones will be used and what data they will gather, and whether the use of the drone creates an additional burden on the property owner that did not exist previously. Owner’s rights to airspace? Owners may sue for aerial trespass in private airspace, but the rules about what constitutes “private” airspace are not particularly clear. To accommodate modern air travel, Congress passed laws and the Supreme Court made rulings that effectively made airspace above the “immediate reaches” of the ground public domain for aviation, subject to federal laws and regulations (Troy A. Rule, Airspace in an Age of Drones, 95 B.U. L. Rev. 155, 166 [2015]). The term “immediate reaches” remains difficult to define with precision. The lingering question for utility companies with easement rights is whether using the airspace within the “immediate reaches” of the surface of the easement is permitted as a natural evolution of that easement. A property owner has the right to use the land in any way that does not unreasonably interfere with the rights of the easement holder, and vice versa. (Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1238 [Colo. 1998], as modified on denial of reh'g [Oct. 19, 1998]["[u]nless the intentions of the parties are determined to require a different result, the owner of the servient estate may make any use of the burdened property that does not unreasonably interfere with the enjoyment of the easement by its owner for its intended purpose. … Conversely, the owner of the easement may make any use of the easement [including maintenance and improvement] that is reasonably necessary to the enjoyment of the easement, and which does not cause unreasonable damage to the servient estate or unreasonably interfere with the enjoyment of the servient estate.")[internal citations omitted]) So, a landowner with an established use of the airspace at the time the easement was created (for, say, crop dusting operations) may be in a better position to argue that a new use of a drone in that airspace is an added burden and interferes with the landowner's rights. Courts will balance this against the argument that drones undoubtedly present opportunities to improve safety and reduce costs of maintenance for utility companies, something which the FAA has recognized in some circumstances. (See Regulatory Docket No. FAA- 2015-0552, Exemption No. 12404, Aug. 10, 2015 approval letter, P. 2, Applicant: P.J. Helicopters, seeking use of Carbon Core Cortex Quadcopter [approving Section 333 Exemption for drone use to inspect utility tower inspections and stating that using unmanned aerial vehicles was safer than using larger, heavier aircraft that carried more fuel.] Incorporeal trespass by use of invasive data collection methods? Traditionally, trespass required an unauthorized physical intrusion upon the property of another (Pub. Serv. Co. of Colorado v. Van Wyk, 27 P.3d 377, 389-90 [Colo. 2001]). Yet, when the intrusion is made by something intangible, like a laser or electromagnetic wave, Colorado will only recognize a trespass claim if the intangible entry causes tangible damage to the property (Pub. Serv. Co. of Colorado v. Van Wyk, 27 P.3d 377, 389-90 [Colo. 2001]). In Colorado, the courts treat noise, radiation and electromagnetic fields as intangible intrusions, not as physical intrusions. Keep in mind, excessive noise (or even the pervasive presence of drones near, but not over a property) could give rise to a nuisance claim. Hence, non-damaging data collection by drones through LIDAR or electromagnetic waves should not give rise to a trespass claim. Privacy concerns. In Colorado, to prevail an invasion of privacy claim based upon intrusion upon someone else's seclusion, “a plaintiff must show that another has intentionally intruded, physically or otherwise, upon the plaintiff's seclusion or solitude, and that such intrusion would be considered offensive by a reasonable person” (Doe v. High–Tech Institute, Inc., 972 P.2d 1060, 1065 [Colo.App.1998]). Obviously, the law cannot precisely define what would be considered offensive by a reasonable person and given the varying attitudes about drones and privacy, this standard provides fertile ground for dispute and differing opinion. With this in mind, taking reasonable steps to give proper notice and protect privacy could significantly reduce the cost and time related to disputes over drone use in the future. Companies with existing easements and rights of inspection should be allowed to make use of drones in private airspace for that purpose without further compensation to owners, so long as that use is reasonable and not inconsistent with the purpose for which the easement was created. That said, drones present a “new take” on old legal issues and companies seeking to use drones in low-altitude airspace should be ready to address the property and privacy related issues that may arise. Special thanks to Christy Milliken of Stinson Leonard Street LLP’s Washington, D.C., office for research and editorial help.