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3 Birat, Michael, “Implications of Technological Construction Innovations on National Planning in the Coming Decades,”in Israel 2000, Israel Master Plan for the 21^st Century, Phase I Report (Jerusalem, the Ministry of the Interior, the Ministry of Construction and Housing, the Israel Land Administration and the Jewish Agency, 1993) 243, at 256Google Scholar [in Hebrew].

4 See, e.g. Wenzel, Michelle Andrea, “Comment: The Model Surface Use and Mineral Development Accommodation Act: Easy Easements for Mining Interests” (1993) 42 Am. U. L. Rev. 607, at 608Google Scholar.

5 Wright, Robert R., The Law of Airspace (Indianapolis, Bobbs-Merrill, 1968) 224–229Google Scholar; Powell, Richard R., Powell on Real Property (New York, Mathew Bender, Vol. 2, Release 82, 1998) 18A–5Google Scholar.

6 Rohan, Patrick J. and Reskin, Melvin A., Condominium Law and Practice (San Francisco, Mathew Bender, Vol. 1, Part 1, release 69, 1999) Ch. 5, at 8Google Scholar.

7 See, e.g. the Bloc, Shalom, “Peace Agreement (Draft)” Haaretz, 10 August 2001, at 7AGoogle Scholar [in Hebrew].

8 The population of Israel is expected to increase to nine million in 2020 and more than thirteen million in 2050. Forrai, Jossef and Kirschner, Gili, “Transition from Two-Dimensional Legal and Cadastral Reality to a Three-Dimensional One”, Registration of Properties in Strata – International Workshop on 3D Cadastre Proceedings (P.J.M. Van Oosterom, J.E. Stoter, E.M. Fendel, 2001), [Hereinafter: International Workshop] 9, at 10Google Scholar.

9 Government of Israel, Decision No. 144/1999, as cited, ibid., at 10.

10 As defined by Israeli Supreme Court President Aharon Barak in CA 119/01, Akunas v. State of Israel, 57(1) P.D. 817.

11 Baba Batra, 72: R. Dimi of Nahardea said: “If one sells a house with the intention of giving title to all its contents, although the deed of sale states from the bottom tothe top, title is not acquired in wells, etc. (if such there were), unless he writes: ‘You shall acquire title from the depth of the earth to the height ofthe sky’”. Some attribute the quote to Rabbi Akiva. Some see its sources in the Bible, Isaiah VII: 11: “Ask a sign from the Lord your God, go down to the depths or go high above”.

See Wright, supra n. 5, at 15, n. 14.

12 For the sources ofthe quote, see Wright, supra n. 5, at 13–17; Parisi, Francesco, “Entropy in Property” (2000) 50 Am. J. Comp. L. 595, at 606Google Scholar.

13 Wright, supra n. 5, at 15 ff.

14 Section 905 of the German Civil Code; Section 667 of the Swiss Civil Code; Section 552 of the French Civil Code; Section 840 of the Italian Civil Code; under European influence, Section 490 of the New Louisiana Code of 1998.

15 Article 11 of The Land Law 5729 – 1969, 23 L. S. I. at 285.

16 Wright, supra n. 5, at 12 (n. 7), 13,16. Parisi, supra n. 12, at 607.

17 Merrill and Smith suggest that the “formalistic or bright-line” nature of the doctrine is a result of the tendency of rules that protect in rem rights to communicate information about the scope of protected rights at acceptable costs. Merrill, Thomas W., Smith, Henry E., “The Property/Contract Interface” (2001) 101 Colum. L. Rev. 773, at 803CrossRefGoogle Scholar.

18 Ball, Stuart S., “The Vertical Extent of Ownership in Land” (1928) 76 U. Penn. L. Rev. 631, at 639Google Scholar.

19 Powell, supra n. 5, at 18A–15. For a historical review of the development of the institution see Van Der Merwe, C.G., “Apartment Ownership,” in Athanassios, N.Yiannopoulos, Ch., ed. International Encyclopedia of Comparative Law (Tubingen, Mohr, 1973) Vol. VI, Ch.5, at 6Google Scholar.

20 See Wright, supra n. 5; Powell, supra n. 5, at 18A.

21 Federal Aviation Act 49 U.S.C. § 40101; In Israel: Article 11 of the Land Law, stipulating that the range of ownership of surface space “does not prevent passage through elevated space. For a description of the extent of legal protection to air space, see Powell, Richard R., Powell on Real Property (New York, Mathew Bender, Vol. 9, Release 93, 12/2000) 64A–12 ffGoogle Scholar; Harper, Fowler V., James, Fleming Jr., and Gray, Oscar S., The Law of Torts (Boston, Little Brown, 3rd ed., 1996) Vol. 1, at § 1.5Google Scholar.

22 Powell, supra n. 5, at 18A–15–16;

23 Akunas, supra n. 10.

24 Sandberg, Haim, “Three-Dimensional Division and Registration of the Subsurface Land Space,”in Lerner, Shalom and Lewinson-Zamir, Daphna, eds. Essays in Honour of Joshua Weisman (Jerusalem, The Harry and Michael Sacher Institute, 2002) 281, at 285–286Google Scholar [in Hebrew].

25 Ibid., at 285.

26 Akunas, supra n. 10, Justice Na'or, para. 2–12.

27 Ibid., para. 30–32.

28 Ibid., para. 21.

29 Supra n. 15.

30 Akunas, supra n. 10, Judge Na'or, Par. 53. Another argument that was raised in the Akunas case, but that does not touch upon our subject, concerned the issue of whether the expropriation was consonant with the rule that a transaction cannot be made in a spatial part of a unit of property, as expressed in Article 13 of the Land Law. This provision is intended to prevent the subdivision of property without the prior approval of the planning and surveying authorities. The Court held that there is nothing to prevent such a division, due to the specific statutory provision that expressly permits expropriation or division of a specific part of a property: ibid.

31 Ibid., para. 52–53.

32 Ibid., para. 53.

33 Ibid., para. 58.

34 Ibid., para. 58.

35 Ibid., para. 58.

36 On the relationship between the recognition of private property and the recognition of the principle of freedom of contract, see Atiya, Patrick Selim, The Rise and Fall of Freedom of Contract (Oxford, Oxford University Press, 1979), at 330Google Scholar; see also Horowitz, Morton. J., “The Historical Foundations of Modern Contract Law” (1974) 87 Harv. L. Rev. 917CrossRefGoogle Scholar.

37 See Calabresi, Guido and Melamed, A. Douglas, “Property Rules, Liability Rules and Inalienability: One View of the Cathedral” (1972) 85 Harv. L. Rev. 1089CrossRefGoogle Scholar.

38 Ellickson, Robert C., “Property in Land” (1993) 102 Yale L. Rev. 1315, at 1327–1328Google Scholar; Powell, Richard R., Powell on Real Property (New York, Mathew Bender Vol. 9, Release 83, 6/1998) 68–7Google Scholar.

39 The question of whether the proprietary rights should be held by the State will be addressed in Section IV.

40 Among the more prominent supporters are Demsetz and Ellickson For a description of the approach and its supporters, see Dagan, Hanoch and Heller, Michael A., “The Liberal Commons” (2001) 110 Yale L. J. 549, at 559–563CrossRefGoogle Scholar.

41 Demsetz, Harold, “Toward a Theory of Property Rights” (1967) 57 Am. Econ. Rev. 347, at 354–356Google Scholar; Ellickson, supra n. 38, at 1327–1333

42 A “Collective Action”problem occurs when a group of individuals agree on both their collective purpose and the best means to promote it, but still face difficulties in achieving it. Dagan and Heller, supra n. 40, at 575, n. 107.

43 Ellickson, supra n. 38, at 1330.

44 Prominent supporters of this view are Dagan and Heller, supra n. 40, at 572–574.

45 Ibid., at 572.

46 Ibid.

47 Ibid., at 573.

48 Ibid., at 576–577.

49 Ibid., at 574.

50 Ibid., at 564, n. 56.

51 Heller, Michael A., “The Tragedy of the Anticommons: Property in the Transition from Marx to Markets” (1998) 111 Harv. L. Rev. 621, at 622CrossRefGoogle Scholar.

52 Ibid., at 653, n. 157.

53 Ibid., at 650.

54 Dagan and Heller, supra n. 40, at 561, n. 45.

55 A similar situation may arise in condominiums. Thus, Section 60 of the Israeli Land Law justifies the compulsory reconstruction of a condominium that was destroyed. This section was unsuccessfully challenged after the first Gulf War in connection with the reconstruction of a Tel-Aviv house that was destroyed by a missile. CA 7112/93, Tzudle. v. Yosef, 45(5) P.D. 550; For an economic analysis of the case see Dagan, Hanoch, “Interpretation of the Laws Concerning Property, Condominiums and the Problem of Common Action” (1996) 45 Tel-Aviv University Law Review 79–91Google Scholar [in Hebrew].

56 According to Ellickson, adjoining owners “are likely to be bound by norms that dictate cooperative behavior in routine interactions”. Ellickson, supra n. 38, at 1330, n.56.

57 Powell, Richard R., Powell on Real Property (New York, Mathew Bender Vol. 9, Release 86, 3/1999) 64–6Google Scholar.

58 See Powell, Richard R., Powell on Real Property (New York, Mathew Bender, Vol. 9, Release 95, 06/2001) Ch. 63Google Scholar.

59 See Powell, Richard R., Powell on Real Property (New York, Mathew Bender, Vol. 9, Release 93, 12/2000) Ch. 64AGoogle Scholar.

60 Equity law in England recognized the right of a landowner without egress to pass by virtue of necessity through the neighboring parcel. With respect to a landowner who sold part of his parcel and consequently the part he sold remains without egress. See Gaunt, Jonathan and Morgan, Paul, Gale on Easements (London, Sweet and Maxwell, 17 ed., 2002) at 149ffGoogle Scholar.

61 See, e.g. Sackman, Julius L. and Russell, D. Van Brunt, eds. Nichols on Eminent Domain (New York, Mathew Bender, 3rd ed., Vol. 2, Rel. 73–6/03) ch. 5.04[2][a],[b], 203–208Google Scholar.

62 On the laws of Party Walls in England, see Megarry, Robert and Wade, William R., The Law of Real Property (London, Stevens, 5th ed., 1984) 462–4Google Scholar; In the USA, see: Powell, Richard R., Powell on Real Property (New York, Mathew Bender, Vol. 9, Release 74, 3/1996) Ch. 61Google Scholar. In Israel, see Articles 49–51 of the Land Law, supra n. 15, at 291.

63 The Israeli legislature does not,prima facie, leave any alternative for horizontal absolute separation of ownership, except by registering a condominium (Article 54 of the Land Law, supra n. 15, at 292).

64 Wright, supra n. 5, at 224–225.

65 Powell, Richard R., Powell on Real Property (New York, Mathew Bender, Vol. 2, Release 85, 12/1998) 18A, at 12.1-14Google Scholar.

66 Powell, Richard R., Powell on Real Property (New York, Mathew Bender,, Vol. 2, Release 95, 6/2001) 18A, at 7Google Scholar.

67 Among the most prominent of them are the following projects: In Chicago – the Chicago Post Office, the Sun times Building; in Illinois – Marina City Apartments, Outer Drive Apartments over the Illinois Central right of way; in New York City – United Nations Plaza, Pan Am Building (over Grand Central Station), the housing complex over the approaches to George Washington Bridge; in Boston – a giant project above the Massachusetts Turnpike. For a review of the bibliography on these projects, see ibid., at 6 (fn. 4). For a detailed review of additional projects, see Wright, supra n. 5.

68 Powell, supra n. 676, at 6–7.

69 Ibid., at 7.

70 In Canada, air rights were generally not recognized. Explicit legislation recognizing the possibility of acquiring property in air rights was adopted only in New Brunswick. See Oosterhoff, A.H. and Rayner, W.B., Anger and Honsberger Law of Real Property (Ontario, Canada Law Book, 1985) Vol. 2, 1782Google Scholar.

71 On judgmental recognition of air rights in Australia, see Bradbrook, Adrian J., MacCallum, Susan V., and Moore, Anthony P., Australian Real Property Law (North Ryde, LBC Information Services, 2nd ed., 1997) Ch.15, at 14–19Google Scholar.

72 Committee of the Section of Real Property, Probate and Trust Law, “Model Airspace Act” (1973) 8 Real Property, Probate and Trust Journal 504Google Scholar.

73 Pedowitz, J.M., “Transfers of Air Rights and Development Rights” (1974) 9 Real Property, Probate and Trust Journal 183, at 183Google Scholar.

74 International Encyclopedia of Comparative Law, supra n. 19, Vol.6, Ch.5, p.3.

75 The Uniform Condominium Act 1977 (Hereinafter: UCA) defines “Unit” (Article 1–103–25) as “a physical portion of the condominium designated for separate ownership or occupancy…” Uniform Law Annotated (Vol.7, Part II, Master ed., 2002), at 468Google Scholar. See also Article 1–105 to UCA, at 477.

76 See e.g. UCA, Article 3, ibid., at 540ff.

77 UCA, Article 3–106 (“Bylaws”), ibid., at 555.

78 UCA defines (Article 1–103–4) Common Elements as “…all portions of a condominium other than units”, ibid., at 466. See also UCA, Article 2–102 (“Unit Boundaries”), ibid., at 491.

79 In British Columbia, Ontario and Manitoba, but not in Quebec or Newfoundland. See Oosterhoff and Rayner, supra n. 700, at 1869–1873; See also International Encyclopedia of Comparative Law, supra n. 19, Vol.6, Ch.5, p.31.

80 The expanding approach is customary in the U.S., Canada, Australia and New Zealand, but not in Western Europe or Latin America. International Encyclopedia of Comparative Law, ibid., at 45–49.

81 Alston, Andrew, Bennion, Tom, Slatter, Michele, Thomas, Rod, and Toomey, Elizabeth, Guide to New Zealand Land Law (Wellington, Brooker's, 1997) 604Google Scholar. See also in Victoria, Australia, ibid., at 602 and Bradbrook at al., supra n. 71 at 489, 491.

82 UCA, Article 1–103, Uniform Law Annotated, supra n. 75, at 467.

83 According to UCA, the unit owners may pass bylaws (Article 3–106) and have a statutory easement in the common element (Article 2–117). Ibid., at 555, 521.

84 See Powell, supra n. 5, at 18A–15. See also UCA, Article 2–110 “Exercise of Development Rights”, Uniform Law Annotated, supra n. 75, at 513.

85 Compare with Professor Parisi's contention that when only a few parties are involved “…the risks of horizontal forms of property fragmentation are limited”. Parisi, supra n. 12, at 608.

86 Article 2–117 of UCA Provides for an easement only through the common elements. Uniform Law Annotated, supra n. 75, at 521.

87 Such intervention is very common in regulating the mutual relationships between surface and mineral owners. See Wenzel, supra n. 4, at 640ff.

88 The information was given in a letter from the Director General of the Norwegian Ministry of the Environment dated May 2, 2000 to the Israeli Ministry of Justice.

89 Ibid. See also in Oslo: Tor Valstad, “The Oslo Method: A Practical Approach to Register 3D Properties,” International Workshop, supra n. 8, at 1, 5; Helge Onsrud, “Making Laws for 3D Cadastre in Norway,” International Workshop, supra n. 8, at 191, 195.

90 Wright, supra n. 5, 345–349.

91 Sackman, Julius L. and Russell, D.Van Brunt eds., Nichols on Eminent Domain (New York, Mathew Bender, 3rd ed., Vol.9, Rel.20–11/84) Appendix B–2(O), p.102Google Scholar. 557.

92 Gaunt and Morgan, supra n. 60, at 5.

93 Compare with Ellickson's explanation to rights of aviation in Ellickson, supra n. 38, at 1363, fn. 242.

94 Bernard Rudden, “Economic Theory v. Property Law: The Numerus Clausus Problem,” Oxford Essays in Jurisprudence (Oxford, Oxford University Press, 3^rd Series, 1987) 239; Dagan, Hanoch, “The Craft of Property” (2003) 91 Cal. L. Rev. 1517, at 1567CrossRefGoogle Scholar.

95 Akunas, supra n, 10 President Barak's judgment, para. 2. As compared with an Australian judgment that ruled that a right to build in airspace is simply a grant of the fee in the airspace and not an easement. Bursill Enterprises Pty Ltd v. Berger Bros Trading Co. Pty Ltd. (1971) 124 C.L.R. 73.

96 Ruoff, Theodore B.F., An Englishman Looks at the Torrens System (Sydney, Law Book Co., 1957) 8Google Scholar.

97 Bradbrook et al., supra n. 71, at 534; Clements, Robin and Hager, Rod, “Strata Subdivision of Commercial Premises”(1984) LIJ 931Google Scholar.

98 Ruapekapeka Sawmilling Co. Ltd. v. Yeatts [1958] NZLR 265 (sc), as quoted in Guide to New Zealand Land Law, supra n. 81, at 602.

99 Rule 54 of the Land Registration Rules, headed “Registration of a flat, tunnel, etc.”,

stipulates:

“On the registration of a proprietor of … a cellar or tunnel or other underground space apart from the surface, a plan shall be furnished of the surface under or over which the tenement to be registered lies, and such further verbal or other description as the Registrar may deem necessary, together with notes of any appurtenant rights of access, whether held in common with others or not, or obligations affecting other tenements for the benefit of the tenant the title to which is being registered: Provided that if the applicant leaves in the Registry a reference to the General Map showing with sufficient accuracy the land affected by his application, it shall not be necessary for him to leave, deposit or furnish any plan.” Ruoff, Theodore B.F., Roper, Robert B., Pryer, E. John, West, Christopher and Fearnley, Richard, The Law and Practice of Registered Conveyancing (London, Sweet and Maxwell, 1991), appendix B, at 24Google Scholar.

100 See letter from the Director General of the Norwegian Ministry of the Environment, supra n. 56.

101 Ibid. See also Onsrud supra n. 56, at 193 ff.

102 Ellickson, supra n. 38, at 1330.

103 In the U.S. three methods are recognized for indicating the third dimension (elevation): indicating spot elevations, by means of cross-sections, and by contouring, as is customary in topographical maps. For a description see Julius Sackman, L. and Russell, D. Van Brunt ed., Nichols on Eminent Domain (New York, Mathew Bender, 3rd ed., Vol. 9 Re141–9/95) Ch. 33.08[6], pp. 68–72Google Scholar.

104 Eldar, R., ed., “The Survey of Israel” (Jerusalem, State of Israel, 1999), 1Google Scholar.

105 The subject was discussed at an international conference organized by the International Federation of Surveyors (FIG) in Seoul, in May 2001. Furthermore, in November 2001, an International Workshop on the subject was held at the Delft Technical University, in Holland. The workshop was held under the auspices of the Bureau of the UN Economic Commission for Europe and its Working Party on Land Administration (WPLA). The workshop was attended by representatives from about thirty countries, including a prominent delegation from Israel. The studies presented at the workshop were published in Registration of Properties in Strata – International Workshop on 3D Cadastre Proceedings, supra n. 8.

106 The interest in the subject in Holland arose due to practical problems in Amsterdam. See Jantien Stoter and Martin Salzmann, “Towards a 3D Cadastre; Where do Cadastral Needs and Technical Possibilities Meet?,” International Workshop, ibid., at 115.

107 In New Brunswick a theoretical model was designed for three-dimensional registration of strata on the coast and the continental shelf. See Sam Ng'ang'a, Michael Southerland, Sara Cockburn and Sue Nichols, “Toward a 3D Marine Cadastre in Support of Good Ocean Governance,” International Workshop, ibid., at 99.

108 In Greece, national cadastre projects were begun only in 1994. The need for the three-dimensional aspect was felt primarily due to the existence of separation of ownership between fixtures and land especially in regions of old construction. See Dimitris Rokos, “Conceptual Modeling of Real Property Objects for the Helenic Cadastre,” International Workshop, ibid., at 137, 139, 148.

109 Forrai, Jossef and Kirschner, Gili, “Preparation for Three-Dimensional Digital Cadastre in Israel” Geodesy and Survey 2000 – A Collection of Articles (Jerusalem, The Survey of Israel, 2001) 2Google Scholar.

110 This increased interest produced a number of publications:

Moshe Benhamu and Yerah Doytsher, “Research Toward a Multilayer 3D Cadastre: Interim Results,” International Workshop, supra n. 9, at 35; Jad Jarroush and Gilaad Even-Tzur, “Reinstating and Marking Spatial Parcel Boundaries as a Base for 3D Digital Cadastre by Means of Real Time Kinematics GPS,” International Workshop, ibid., at 211; Armi Grinstein, “Different Aspects of a 3D Cadastre in the New Town Modi'in, Israel,” International Workshop, ibid., at 25; Haim Sandberg, “Three-Dimensional Division and Registration of Title to Land: Legal Aspects,” International Workshop, ibid., at 201; A general report on four experimental projects had been recently presented during FIG Working Week 2004, Athens, Greece, May 22–27, 2004. See Shoshani, Uri, Goshen, Moshe Benhamu Eri, Denekamp, Saul and Bar, Roy “Registration of Cadastral Spatial Rights in Israel – A Research and Development Project” FIG Working Week 2004-Proceedings (International Federation of Surveyors, Athens, 2004) at http://www.fig.net/pub/athens/papers/ts25/TS25_2_Shoshani_et_al.pdf (Last visited 19/09/2004).Google Scholar

111 Benhamu and Doytsher, ibid., at 40–4.

112 Copyright on the use of the term “polyhedron”as a name for a three-dimensional property unit is reserved to New Zealand Justice O'Regan. See Guide to New Zealand Land Law, supra n. 81, at 605.

113 See, e.g., in the U.N. Plaza project, New York. See Powell, supra n. 68 and text accompanying it.

114 Section 50 of the Land Regulations (Administration and Registration) 5730–1969, Israel Subsidiary Legislation, 657 [in Hebrew].

115 This expression was used at the time by the Registry Director in England, when he expressed his surprise at the strange aspiration of the Torrens method for two-dimensional accuracy. See Ruoff, supra n. 96, at 52–53.

116 Guide to New Zealand Land Law, supra n. 81, at 606.

117 Supra, at text after n. 17.

118 Compare with Heller, supra n. 51, at 628, n.30.

119 Ruoff and Roper, supra n. 99, Ch.1 at 7.

120 Ball, supra n. 18, at 639.

121 For an overview of American authorities concerning subsurface trespass see: ibid., at 684–689; Powell, supra n. 21, at 64A–14, 15.

122 Nichols, supra n. 61, Ch. 5.04[1] at 259.

123 Paraphrase of Jeremy Waldron's definition of collective property and state property in Waldron, Jeremy, The Right To Private Property (Oxford, Clarendon Press, 1988) at 40 and n. 30Google Scholar.

124 Compare to Merryman, J.H., “Ownership and Estate” (1974) 48 Tulane L. Rev. 916, at 927Google Scholar.

125 Dagan, Hanoch, “Takings and Distributive Justice” (1999) 85 Va. L. Rev. 74, at 776CrossRefGoogle Scholar; Dagan, Hanoch, “Just Compensation, Incentives, and Social Meanings” (2000) 99 Mich. L. Rev. 134, at 136CrossRefGoogle Scholar.

126 Akunas, supra n. 10, President Barak's judgment, Paragraph 3.

127 Akunas, ibid., Justice Na'or's judgment, Paragraph 3.

128 See Rohan, J. and Reskin, A, Condominium Law and Practice (New York, Mathew Bender, Vol.1, part 1, release 69, 1999) Ch.5 at 4Google Scholar.

129 Article 11 of the Land Law, supra n. 15..

130 Section 905 of the German Codex (B.G.B.) does not limit the extent of ownership but stipulates that: “…the owner may not, however, prohibit interferences which are performed at such height or depth that has no interest in their exclusion”, The German Civil Code (Forrester, I.S. tr.,) (New Jersey, Rothman, 1975) at 150Google Scholar.

131 Section 840 of the Italian Code stipulates that the extent of ownership in the subsurface does not enable owners to prevent third party activities when the owner “… has no interest in excluding them”. See The Italian Civil Code (Beltramo, M. tr.,) (New York, Oceana, 1969) at 228Google Scholar.

132 Section 667 of the Swiss Code stipulates that ownership extends under the surface line “…as far as the exercise of the ownership requires.” The Swiss Civil Code (Shick, R. R. tr.) (Westport, Ct., Hyperion Press, 1980) at 158Google Scholar.

133 Section 552 of the Code Civil describes positively the subsurface actions that the owner may perform: “The owner … may do below all the constructions and excavations which he judges proper…” The French Civil Code (Crabb, John H. tr.) (New Jersey, Rothman, 1977)Google Scholar.

134 Section 490 of the New Code of Louisiana as adopted at the end of 1997, stipulates that: “The owner may make works… below the land as he pleases, and draw all the advantages that accrue from them…” Yiannopoulos, A.N. ed., Louisiana Civil Code 1998 (St. Paul, West, 1998) at 96Google Scholar.

135 See supra n. 72; See also in Boehringer v. Montalto, 142 Misc. 560, 254 N.Y.S. 276 (1931): “Title of an owner of the soil will not be extended to a depth below ground beyond which the owner may not reasonably make use thereof” (emphasis added – H.S.).

136 As might be anticipated according to the ruling of United States v. Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206 (1946).

137 Compare Ellickson, supra n. 38, at 1364; Merrill, Thomas W. and Smith, Henry E., “What Happened to Property in Law and Economics?” (2001) 111 Yale L. J. 357, at 389CrossRefGoogle Scholar.

138 See opinion prepared following an expropriation carried out in 1979 by the New York City Transit Authority in order to excavate a tunnel for the new subway route between Queens Plaza and Manhattan. For this purpose a permanent subsurface easement was expropriated under a parking lot in the built-up vicinity of Queens Plaza. The fact that the property in question was an undeveloped parking lot affected the location of the route and the site designated for expropriation. Following the expropriation an appraisal firm assessed the damage, relying on opinions by an engineer, a construction expert and a town planner. The opinions were presented in full in Sackman, Julius L. and Russell, D.Van Brunt eds., Nichols on Eminent Domain (New York, Mathew Bender, 3rd ed., Vol. 9, Rel.20 11/84) Appendix B–2(O), pp. 102, 557Google Scholar. The opinions attached were by The Albert Appraisal Company Inc., the James Ruderman engineering firm, the Martin Gross partnership (builders). The opinion on the damage to the future planning possibilities was submitted by Appraisers and Planners Inc.

139 Akunas, supra n. 10, Justice Na'or's judgment, paragraph 43.

140 See CA 483/86, Birnbach v. Local Planning and Building Committee, 42(3) P.D. 228 [in Hebrew],per President Shamgar.

141 See historical review on the site http://www.insecula.com/musee/M0104.html (last visited 13/9/2004).

142 See, the example, supra n. 138: A permanent subsurface easement was expropriated under the parking lot in the built-up vicinity of Queens Plaza for the sake of a new subway route between Queens Plaza and Manhattan. The fact that the parking lot was undeveloped affected the location of the route and the site designated for expropriation.

143 See Internet site referred to in supra n. 2.