2020 Georgia Code
Title 51 - Torts
Chapter 9 - Injuries to Real Estate
§ 51-9-2. Recovery of Possession of Lands; Damages
The bare right to possession of lands shall authorize their recovery by the owner of such right, as well as damages for the withholding of such right.
(Orig. Code 1863, § 2956; Code 1868, § 2963; Code 1873, § 3014; Code 1882, § 3014; Civil Code 1895, § 3875; Civil Code 1910, § 4471; Code 1933, § 105-1402.)
Law reviews.- For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For comment on Ivey v. Davis, 81 Ga. App. 598, 59 S.E.2d 256 (1950), see 13 Ga. B. J. 86 (1950).
JUDICIAL DECISIONS
Requirements for litigation.
- To maintain action for trespass or injury to realty it is essential that the plaintiff show either that the plaintiff was owner or was in possession at the time of the trespass. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936).
Possession is one degree of title, and implies a present right to deal with property at pleasure and to exclude other persons from meddling with it. Justice v. Aikin, 104 Ga. 714, 30 S.E. 941 (1898).
Person merely deriving support from land has no action.
- One entitled to a support from land has no estate therein and cannot recover damages by virtue of this section from one who enters thereon. Borum v. Gregory, 119 Ga. 766, 47 S.E. 192 (1904).
Prior lawful possession of land alone is sufficient to support action of ejectment against a mere intruder who takes possession by force and who shows no better title. Johnson v. Jones, 68 Ga. 825 (1882); Horton v. Murden, 117 Ga. 72, 43 S.E. 786 (1903).
No possession of public right of way.
- When a builder's trucks damaged grass near a curb in front of a landowner's house, and the grass was entirely within a public right of way owned by a county, the landowner did not have standing to sue the builder for trespass based on "possession" of the right of way under O.C.G.A. § 51-9-2; although the landowner could use the right of way in the same manner as other members of the public, the landowner's interest was not such that the landowner could assert that the landowner possessed the right of way to the exclusion of others. Moses v. Traton Corp., 286 Ga. App. 843, 650 S.E.2d 353 (2007), cert. denied, 2007 Ga. LEXIS 743 (Ga. 2007).
Petition alleging rightful possession of land and illegal interference therewith is good against general demurrer (now motion to dismiss). Mizell v. Byington, 73 Ga. App. 872, 38 S.E.2d 692 (1946).
Possession of land gave owners the right to sue telephone company for trespass.
- Landowners had the right to bring a trespass action against a utility company and the company's subcontractor for laying cable on the landowners' property without permission. Even if there was a deficiency in the landowners' title, their bare possession of the property was sufficient to support their claim pursuant to O.C.G.A. §§ 51-9-2 and51-9-3. Lee v. Southern Telecom Co., 303 Ga. App. 642, 694 S.E.2d 125 (2010).
Tenant's right of action for wrongful eviction.
- A malicious and forcible eviction of the tenant by the landlord, although under a warrant to dispossess regularly issued, when the tenant has not breached the contract of rental and is entitled to possession of the rented premises, and this is known to the landlord, and when the tenant does not arrest the proceedings by counter affidavit because of inability to give the required bond, and there had been no suit which terminated in favor of the tenant, constitutes a trespass against the tenant's right to possession for which the tenant has a cause of action sounding in tort against the landlord. Mizell v. Byington, 73 Ga. App. 872, 38 S.E.2d 692 (1946).
While the petition is a suit by a tenant against the landlord to recover damages for malicious and forcible eviction of the plaintiff by the defendant under a warrant to dispossess, which was not resisted by a counter affidavit, in which it is alleged that the plaintiff had not violated the contract of rental, but was entitled to remain in possession under the contract, and it may fail to allege a cause of action for malicious use of process in that it does not appear that the suit had terminated favorably to the plaintiff, nevertheless it alleges a cause of action for a trespass against the plaintiff's right of possession. Mizell v. Byington, 73 Ga. App. 872, 38 S.E.2d 692 (1946).
Repossession by true owner of lands held in trust from trustee gives no cause of action in tort.
- When the trust receipt executed by the plaintiff, to the defendant, recited the receipt by the plaintiff from the defendant of certain property, which was acknowledged to be the property of the defendant, which the plaintiff agreed to hold at the plaintiff's own risk and to return to the defendant or its order upon demand, the repossessing of the property by the defendant afforded to the plaintiff no right of action in tort against the defendant for an alleged unlawful repossession and conversion of the property, for breach of contract. Dunn Motors, Inc. v. General Motors Acceptance Corp., 46 Ga. App. 459, 167 S.E. 897 (1933).
Bare claim of title insufficient to support suit for trespass for cutting timber.
- When a plaintiff is not entitled to recover either on bare title or bare possession, and the suit is not one to recover possession of the land or damages for withholding possession but rather an action on trespass for the cutting of timber, a bare claim of title is not sufficient. Norman v. Chafin, 110 Ga. App. 234, 138 S.E.2d 279 (1964).
Cited in Bennett v. Rewis, 211 Ga. 507, 87 S.E.2d 52 (1955); Greenway v. Griffith, 225 Ga. 632, 170 S.E.2d 423 (1969); Standard Oil Co. v. Mount Bethel United Methodist Church, 230 Ga. 341, 196 S.E.2d 869 (1973).
RESEARCH REFERENCES
Am. Jur. 2d.
- 74 Am. Jur. 2d, Torts, § 40. 75 Am. Jur. 2d, Trespass, § 28 et seq.
C.J.S.- 87 C.J.S., Trespass, § 17 et seq.
ALR.
- Possession of real property as notice of divorce coexistent interests of possessor, 74 A.L.R. 355.
Dispossession without legal process by one entitled to possession of real property as ground for action, other than for recovery of possession or damage to his person, by person dispossessed, 101 A.L.R. 476.
Right of licensee of real property to injunction against, or damages for, trespass by third person, 139 A.L.R. 1204.
Recovery by tenant of damages for physical injury or mental anguish occasioned by wrongful eviction, 17 A.L.R.2d 936.
Life tenant's right of action for injury or damage to property, 49 A.L.R.2d 1117.
Right of landlord legally entitled to possession to dispossess tenant without legal process, 6 A.L.R.3d 177.
