74 Mont. 587, 241 P. 328 (Mont. 1925)
Herrin v. Sutherland is a seminal property law case that crystallizes a foundational but evolving principle: a landowner's possessory interest includes not just the surface of the land but also the immediate reaches of the airspace above it.
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.
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).