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Chapter 5. Three-D Deeds: The Rise of Air Rights in New York

We will probably be judged not by the monuments we build but by those we have destroyed.

Singer Tower was once the tallest skyscraper in the world. Over six hundred feet of red brick and steel lavished with pediments, balconies, cartouches, and consoles and capped by a huge mansard roof with decorative lantern—this futuristic gem was completed in 1908 for the famous sewing machine company. Its lobby resembled a cathedral, replete with sixteen exquisite piers of Italian marble, intricately detailed bronze railings, and a vaulted ceiling with glass domes. It boasted its own little generating plant for producing power and heat; special vacuum tubes set into the walls to make office cleanup easy; even a network of pipes made especially for cleaning silk hats. Not a detail was overlooked, right down to a system for distributing ice water—cooled in a basement refrigeration plant—to tenants. Singer Tower was truly a modern building, a structure ahead of its time. Perhaps that is why Ernest Flagg, who designed th tower, believed it to be "as solid and lasting as the Pyramids." 1

Flagg died in 1947. Two decades later, Singer Tower lay in a steaming pile of plaster and dust—courtesy of the Lipsett demolition company. Superintendent Harry Glick, whose crew leveled the tower, laughed when he was reminded by some reporters that back in 1908 Singer Tower held the height record before being overshadowed the following year by the seven-hundred-foot Metropolitan Life Insurance Tower. "History moves fast," Glick remarked. "I've been in demolition work for nearly forty years—on jobs ranging from chicken coops to skyscrapers. My father was a demolition man. He and his partner in the Louis J. Cohen Wrecking Company took down the old riding academy at Fifty-ninth Street and Fifth Avenue to make room for the Savoy-Plaza, and now we've taken down the Savoy-Plaza to make room for General Motors. History moves fast." 2

An inexorable economic logic drove Lipsett's wrecking ball. For all its beauty and elegance, the tower simply did not maximize the value of the site's air rights. It contained only a little more than four hundred thousand square feet of office space at a time when buildings four or five times that size were going up. Airspace had become a valuable commodity by the twentieth century, and only faint hearts would shy away from bulldozing the past to realize the future. No such hearts existed at U.S. Steel; the company built a fifty-four-story structure with 1.8 million square feet of office space atop Singer Tower's corpse. So eager was the company to capitalize on the new building's economic potential that it secured control over a plot of land south of the site and landscaped it into a plaza; that move earned U.S. Steel a zoning bonus that allowed the plaza's unused air rights to be transferred to the site of the imposing steel behemoth. Today the building looks like the work of a steel company. Finished in 1974, the structure amounts to a monumental advertisement for its product, featuring exposed steel girders evenly stacked one on top of the other. Thus did Singer Tower become the U.S. Steel Building, which became One Liberty Plaza when the company chose not to make its headquarters there. It was evidently more lucrative to stick with its current lease and rent out the new space on lower Broadway. 3 Welcome to New York.

In the modern world, Karl Marx once observed, "everything seems pregnant with its contrary." 4 Elsewhere, he explained why in a famous passage: "The bourgeoisie cannot exist without constantly revolutionising the instruments of production, and thereby the relations of production, and with them the whole relations of society.... Constant revolutionising of production, uninterrupted disturbance of all social conditions, everlasting uncertainty and agitation distinguish the bourgeois epoch from all earlier ones." "All that is solid," he concluded, "melts into air." 5 But what would happen when all that was left was air? Answer: It too would melt. In the modern world, there is modern property, of which airspace is the quintessential example. Cut off from the land below, airspace has little, if any, territorial allegiance. In the century after Marx's death in 1883, New York City's air was distilled into a set of exchange values. Airspace became real estate, the better to own and trade it.

In a culture in which everything must have an owner, even something as diffuse as airspace could become property. How did this come to pass? What did the transformation of airspace into a commodity that could be owned and traded mean for New York and those who lived there? We must search for the answers to such questions to better understand the dilemmas of modern living, to make sense of ourselves, our cities, and the world we have made—and destroyed.

For centuries, land was a two-dimensional affair. When lawyers in Blackstone's day (1723-1780) spoke of owning real property in land, it was the earth's surface that they generally had in mind. Blackstone himself wrote that land comprehended in its "legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath." 6 It is, of course, true that Blackstone mimicked Lord Coke's famous ad coelum maxim (he who owns the soil owns upward to the sky). 7 But nevertheless, it was the surface of the earth that concerned those in a society based primarily on agriculture. One could walk the boundaries of such real estate, spell them out in metes and bounds, revel in the neat and ordered expanse of two-dimensionality that unfolded across the countryside. Landed elite and commoners alike had both feet planted firmly on the ground. 8

The same was largely true in America as well. Jurists like James Kent paid homage to the ad coelum maxim; but it is hard to believe, in a society based largely (through the nineteenth century at least) on the tilling of soil, that property owners thought of real estate as anything more than the earth's two-dimensional surface. 9 Certainly if possession is at the root of ownership—a commonplace in the law—it is hard to imagine that landowners really thought their "land" extended upward to the sky. As late as 1897, a treatise writer explained that "land means in law, as in the vernacular, the soil or portion of the earth's crust." 10

But in the twentieth century, all this began to change. With the rise of modern property, land took on a much broader meaning. The leading case of Butler v. Frontier Telephone Company illustrates the point. Butler sued the company when it stretched a wire over his land in Buffalo, New York. Neither the wire nor any supporting pole touched soil owned by him. Did Butler own the airspace over his land? Was he deprived of possession of that space by the telephone company's wire? In 1906, the New York Court of Appeals found for Butler. It reasoned that "space above land is real estate the same as the land itself." 11 Possession is founded on an understanding of the earth as a discrete set of ownable things (a point explored in chap. 1). By equating airspace with real estate, the court established the reality of this new form of property. "This case," wrote one legal scholar, "is an unequivocal commitment to the view that the land-space above the surface is subject to possession and ownership in the same complete sense that the surface is." 12

"Land," another legal writer observed in 1928, "has been the most corporeal of corporeal things. It is real estate. Can an abstract thing like space be bought and sold as land? The air as such obviously cannot." 13 But call what was above the ground airspace and property would plunge straight into the third dimension. Transformed into a thing, into real property, airspace was severed from the terra firma, cut adrift and catapulted into the world of property and trade.

In 1927, the Chicago Union Station Company sold the air rights needed for the Daily News Building. Meanwhile, Marshall Field bought air rights from a railway company and built the huge Merchandise Mart (finished in 1930), once the largest building in the world, with more than seven miles of hallways alone. 14 With the aid of three-dimensional deeds, financiers in New York, Philadelphia, Baltimore, and Boston all began capitalizing on the air in their respective cities. "Within the memory of the youngest of us," Theodore Schmidt told the American Bar Association in 1929, "millions of dollars' worth of usable space has been reclaimed from the wastes of a generation ago, to the gain of all concerned." Thus did real estate lose its attachment to the earth and become deterritorialized. "Conveyancers and lawyers," Schmidt explained, "are now for almost the first time required not only to think, but to speak, of land ownership in terms of three dimensions." 15

That was 1929. But by then New Yorkers had already been talking about air rights for almost thirty years. The city's first encounter with modern property began in 1903 with the decision by the New York Central Railroad to rebuild Grand Central Station. Until this time, the station (first erected in 1871) and its railroad yards occupied a stretch of land north of Forty-second Street on the city's east side. The plan called for electrifying the trains and relocating the terminal complex underground on a two-level platform. An engineer named William Wilgus proposed that with the terminal located belowground, buildings could go up on the "air rights" (a term he coined) above. "The keynote in this plan," he explained, "was the utilization of air rights that hitherto were unenjoyable with steam locomotives requiring the open air. . . . Thus from the air would be taken wealth with which to finance obligatory vast changes otherwise nonproductive. Obviously it was the thing to do." 16

Cashing in on that air first meant tearing down what existed above Forty-second Street, including about two hundred buildings. Demolition has been big business in New York ever since. With the land now cleared of its past, workers exploded one million pounds of dynamite and hauled almost three million cubic yards of rock and soil out of the earth to make way for the new terminal complex. The station alone took ten years to build. Completed in 1913, the building is a stunning Beaux Arts inspiration. The main facade on Forty-second Street features Corinthian columns and huge arched windows topped by Jules-Alexis Coutan's graceful Roman statuary. On the air rights nearby, seven new buildings were initially planned, including the Manhattan, Belmont, Vanderbilt, and Biltmore hotels. 17 The buildings were set on a steel and concrete roof that covered the tracks below; a special insulation system absorbed the vibrations caused by trains underneath. Eventually, air over some twenty-eight acres owned by the railroad was made available for similar ventures.