Appeal, No. 64, Jan. T., 1952, from decree of Court of Common Pleas of Bucks County, April T., 1948, in Equity, No. 2, in case of Joseph DiGirolamo v. Philadelphia Gun Club. Decree affirmed; reargument refused June 26, 1952.
Lewis H. VanDusen, Jr., with him John A. Ballard, Charles J. Biddle, and Drinker, Biddle & Reath, for appellant.
Howard M. Kuehner, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
Plaintiff, Joseph DiGirolamo, the owner of a farm adjoining the property in Bucks County, of the Philadelphia Gun Club, defendant, sought an injunction in the court below to enjoin defendant from conducting shooting meets in such a manner as to cause shot, fired by the members of the gun club and their guests, to fall upon plaintiff's land. The court below granted the prayer of plaintiff's bill and entered a decree restraining defendant, its members, guests and employes from operating its shooting range in the direction of plaintiff's property unless such precautionary steps as were necessary were taken to prevent the shots fired from the gun club property from falling on plaintiff's farm. From this decree defendant has appealed.
Defendant is a duly incorporated social and recreational club and as such, since 1895, has owned and occupied a tract of land, containing approximately 15 acres, located immediately south of plaintiff's property. During the succeeding years defendant has conducted weekly shooting meets on this land every Saturday and holiday from October through May. The shooting facilities and traps of the club are so arranged that portions of the shot fired at birds released during a meet, carry beyond the limits of the club property and fall on plaintiff's land, some 280 feet from the shooting stand. Plaintiff operates a farm on this property and employs four or five men to raise green stuffs for market. As a result of the shooting by the members of defendant club and their guests, some of plaintiff's produce has been damaged and rendered less marketable and his employes have been forced to seek shelter while the shooting was in progress.
There was no evidence adduced as to whether plaintiff's predecessors in title objected or agreed to the shooting over their land. However, it does appear that when plaintiff purchased his farm in 1934, he did not
know that defendant's shooting would interfere with his activities. Upon learning of it he immediately registered his complaint and eventually entered into a yearly lease with defendant from 1937 to 1946, whereby plaintiff, for a specified sum, granted to defendant the right to shoot over his land. Defendant sought thereafter to renew that lease but plaintiff refused. In spite of that, defendant continued holding its matches until enjoined by the court below.
The ancient rule that the owner of the land owns all of the air space over that land has been modified slightly by the Aeronautical Code of May 25, 1933, P.L. 1001, § 401 so that it extends "... only so far as is necessary to the enjoyment of the use of the surface without interference..." That the passage of the shotgun pellets through the air over plaintiff's land does interfere with his enjoyment of his land cannot be questioned in view of the chancellor's findings which were approved by the court en banc and are amply supported by the evidence. It is equally apparent that defendant has acquired no right to shoot over and onto plaintiff's land since he has entered into possession. He has constantly complained of the trespasses except during the ten years when by lease he granted that privilege to defendant. It is defendant's contention, however, that because it has been so conducting shooting meets on this site uninterruptedly for over 21 years since 1895, it has granted as easement by prescription to shoot through the air onto plaintiff's land. Defendant has not called our attention to any cases which have decided that an easement of this ...