2020 Georgia Code
Title 51 - Torts
Chapter 9 - Injuries to Real Estate
§ 51-9-3. Recovery for Wrongful Interference With Possession of Land

The bare possession of land shall authorize the possessor to recover damages from any person who wrongfully interferes with such possession in any manner.

(Orig. Code 1863, § 2957; Code 1868, § 2964; Code 1873, § 3015; Code 1882, § 3015; Civil Code 1895, § 3876; Civil Code 1910, § 4472; Code 1933, § 105-1403.)

- For article, "Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones," see 33 Georgia St. U.L. Rev. 359 (2017). For comment on Ivey v. Davis, 81 Ga. App. 598, 59 S.E.2d 256 (1950), see 13 Ga. B. J. 86 (1950).

This section is a codification of common law, and the possession referred to is the actual possession of the property. Ault v. Meager, 112 Ga. 148, 37 S.E. 185 (1900); Downing v. Anderson, 126 Ga. 373, 55 S.E. 184 (1906); Fender v. Gardner, 153 Ga. 460, 112 S.E. 368 (1922).

Constructive possession under recorded deed that passed no title is insufficient. Ault v. Meager, 112 Ga. 148, 37 S.E. 185 (1900).

- An action for trespass or injury to realty predicated upon ownership does not necessarily require a perfect paper title, but may be based on prescriptive title. James v. Riley, 181 Ga. 454, 182 S.E. 604 (1935).

Possession of part of tract under color of title will not extend to rest of tract claimed. Fender v. Gardner, 153 Ga. 460, 112 S.E. 368 (1922).

Possession under bond for title is sufficient. Rosette v. Shelton, 159 Ga. 422, 126 S.E. 242 (1924).

- Mere possession of property, although giving the possessor certain rights against a trespasser, is in and of itself not sufficient to constitute an insurable interest. Splish Splash Waterslides, Inc. v. Cherokee Ins. Co., 167 Ga. App. 589, 307 S.E.2d 107 (1983).

- Bare possession of land, though not coupled with title, gives the possessor certain rights; but these rights end when the possession is abandoned. Taylor v. Keen, 10 Ga. App. 106, 72 S.E. 934 (1911).

- Statute providing that bare possession of land shall authorize possessor to recover damages from any person wrongfully interfering with such possession is inapplicable to actions by owners of property for damages. Florence v. Lovell, 75 Ga. App. 401, 43 S.E.2d 728 (1947).

Action for damages for trespass will lie in favor of tenant in possession of premises. Farmers' Mut. Fire Ins. Co. v. Harris, 50 Ga. App. 75, 177 S.E. 65 (1935).

To maintain action for trespass or injury to realty, it is essential that plaintiff show either that the plaintiff was owner or was in possession at time of trespass. Palmer v. Pennington, 179 Ga. 76, 175 S.E. 380 (1934); Coleman v. Nail, 49 Ga. App. 51, 174 S.E. 178 (1934); James v. Riley, 181 Ga. 454, 182 S.E. 604 (1935); Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936); Southern Union Mut. Ins. Co. v. Mingledorff, 211 Ga. 514, 87 S.E.2d 54 (1955); Davis v. Palmer, 213 Ga. 862, 102 S.E.2d 478 (1958); Lyons v. Bassford, 242 Ga. 466, 249 S.E.2d 255 (1978).

- Jury was entitled to award a property owner compensatory and punitive damages pursuant to O.C.G.A. §§ 51-9-3 and51-12-5.1 because a willful trespass occurred when a neighbor directed the construction of a sewer lateral across the owner's property to tie into the owner's sewer line when the neighbor knew that the neighbor had neither a written easement nor permission from the owner to do so. LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 703 S.E.2d 85 (2010).

One who is bona fide in possession of land under claim of ownership may, upon proof of such possession and such circumstances as would render the issuance of the writ of injunction necessary and proper, maintain an action to enjoin interference with one's possession. Lyons v. Bassford, 242 Ga. 466, 249 S.E.2d 255 (1978).

When the petition shows the defendant to be the owner of the land, the plaintiff must show the plaintiff's right of possession. Whitehead v. Nix, 114 Ga. App. 409, 151 S.E.2d 480 (1966).

Possession alone as against trespasser is sufficient prima facie evidence to enjoin continuing trespass. Oliver v. Irvin, 219 Ga. 647, 135 S.E.2d 376 (1964).

An injunction will be granted when an insolvent defendant is committing waste on land possessed by the plaintiff. Benson v. Taylor, 122 Ga. 581, 50 S.E. 348 (1905).

To constitute actual possession by enclosure, land must be completely enclosed; but it is not necessary that it should be completely enclosed on every side by artificial means, such as fences. Natural barriers, in part, may be utilized, provided, in connection with fences, they constitute a complete enclosure which indicates complete and notorious dominion over land. An enclosure of land, in part by fences, in part by the high banks of a creek, and in part by a rocky shoal, if all together make a complete enclosure, may constitute actual possession of that land. McCrea v. Georgia Power Co., 179 Ga. 1, 174 S.E. 798 (1934).

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).

Remaindermen are proper parties but not necessarily indispensable parties to enjoin continuing trespass. Oliver v. Irvin, 219 Ga. 647, 135 S.E.2d 376 (1964).

- 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).

- When the plaintiff alleged a right of use and possession as tenant of certain premises, and a willful and wanton violation of this right by the defendant, the defendant's landlord, in tearing down the porch and steps at the entrance to the premises, thereby requiring the tenant to use a ladder in order to enter or leave the premises, though no actual injury to one's purse or person is shown, this trespass interfered with the tenant's enjoyment of the use and possession and caused the tenant to suffer inconvenience, humiliation, and embarrassment, and the petition sets forth a cause of action as against a general demurrer (now motion to dismiss). Ivey v. Davis, 81 Ga. App. 598, 59 S.E.2d 256 (1950).

- When an intruder illegally interferes with or evicts a tenant, the tenant can recover the value of the premises for rent during the remainder of the time. Bass v. West, 110 Ga. 698, 36 S.E. 244 (1900); Daniel v. Perkins Logging Co., 9 Ga. App. 842, 72 S.E. 438 (1911).

- Since the plaintiff was not the owner of the freehold when the trespass was committed but bought it afterwards, the plaintiff's recovery should be restricted to the damages which the plaintiff personally sustained as the tenant in possession, the right of recovery for damage by permanent injury to the freehold being in the person who then owned the premises under the provisions of former Code 1933, § 105-1404 (see now O.C.G.A. § 51-9-4). Burkhalter v. Oliver, 88 Ga. 473, 14 S.E. 704 (1891).

- A landlord who without legal process forcibly and violently ejects a tenant and the tenant's personal goods from the rented premises is liable to the latter in an action of trespass, although the tenant was holding over beyond this term, was in arrears for rent, and had received legal notice to quit. Collins v. Baker, 51 Ga. App. 669, 181 S.E. 425 (1935).

When a tenant has not breached the contract of rental but is entitled to possession of the rented premises, and this is known to the landlord, the act of the landlord in maliciously causing a warrant to issue to dispossess the tenant, and thereby causing the tenant to be forcibly evicted from the premises, constitutes a trespass by the landlord against the tenant's right of possession, for which the tenant has a cause of action in tort against the landlord. Yopp v. Johnson, 51 Ga. App. 925, 181 S.E. 596 (1935).

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 an 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 a 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 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 a 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).

- The bare possession of land authorizes the possessor to recover damages against a railroad due to a fire negligently set. Flint River & N.E.R.R. v. Maples, 10 Ga. App. 573, 73 S.E. 957 (1912).

- 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).

- It has been held that a plaintiff may sue for the recovery of the proceeds and profits of land if the plaintiff be entitled to them, even if the plaintiff has not the legal title to the land. Oglesby v. Stodghill, 23 Ga. 590 (1857).

- The measure of damages to the owner of land and the measure of damage to a tenant in possession of land are entirely separate and distinct. Zugar v. Glen Falls Indem. Co., 63 Ga. App. 660, 11 S.E.2d 839 (1940).

Cited in Yahoola River & Cane Creek Hydraulic Hose Mining Co. v. Irby, 40 Ga. 479 (1869); Central R.R. v. Brinson, 70 Ga. 207 (1883); Whiddon v. Williams Lumber Co., 98 Ga. 700, 25 S.E. 770 (1896); Hughes v. Bivins, 31 Ga. App. 198, 121 S.E. 590 (1923); Pollard v. Walton, 55 Ga. App. 353, 190 S.E. 396 (1937); Crump v. McEntire, 190 Ga. 684, 10 S.E.2d 186 (1940); Bennett v. Rewis, 211 Ga. 507, 87 S.E.2d 52 (1955); Ammons v. Central of Ga. Ry., 215 Ga. 758, 113 S.E.2d 438 (1960); Bethel Farm Bureau v. Anderson, 217 Ga. 529, 123 S.E.2d 754 (1962); 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.

- 75 Am. Jur. 2d, Trespass, §§ 30 et seq., 33 et seq.

- 87 C.J.S., Trespass, § 17 et seq.

- Dispossession without legal process by one entitled to possession of real property as ground of 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.

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.