2020 Georgia Code
Title 51 - Torts
Chapter 9 - Injuries to Real Estate
§ 51-9-9. Interference With Rights of Owner Above and Below Surface of Property
The owner of realty has title downwards and upwards indefinitely; and an unlawful interference with his rights, either below or above the surface, gives him a right of action.
(Orig. Code 1863, § 2962; Code 1868, § 2969; Code 1873, § 3020; Code 1882, § 3020; Civil Code 1895, § 3881; Civil Code 1910, § 4477; Code 1933, § 105-1409.)
Cross references.- Extent of title downward and upward indefinitely, § 44-1-2.
Leasing of mining interests in land, § 44-6-102.
Determination of ownership of gas injected into underground storage reservoir, § 46-4-58.
Law reviews.- 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).
JUDICIAL DECISIONS
These statements as to ownership above surface are based upon common-law maxim, cujus est solum ejus est usque ad coelum - who owns the soil owns also to the sky. These provisions of the Code should therefore be construed in the light of the authoritative content of the maxim itself. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).
Language of this section that title to land extends upwards indefinitely would seem to be limitation upon ad coelum doctrine, indicating by implication that the title will include only such portions of the upper space as may be seized and appropriated by the owner of the soil. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).
Even if this section were intended to express the ad coelum theory in its entirety, it remains true that the maxim can have only such legal signification as it brings from the common law. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).
Construction with Groundwater Use Act.
- O.C.G.A. § 51-9-9 and the Groundwater Use Act of 1972, O.C.G.A. § 12-5-90 et seq., can be read in harmony with one another; O.C.G.A. § 51-9-9, as interpreted by the Supreme Court of Georgia, grants a property interest to a real property owner in everything that lies beneath the surface, including groundwater, and the Groundwater Use Act imposes upon that ownership right certain regulatory limits. In re Durango Ga. Paper Co., 336 Bankr. 594 (Bankr. S.D. Ga. 2005).
Owner of land is preferred claimant to airspace above it, and the owner is entitled to redress for any use thereof which results in an injury to the owner or to the owner's property. Scott v. Dudley, 214 Ga. 565, 105 S.E.2d 752 (1958).
Possession is basis of all ownership, and that which man can never possess would seem to be incapable of being owned. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).
Space in far distance above earth is in actual possession of no one, and, being incapable of such possession, title to the land beneath does not necessarily include title to such space. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934); Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245 (1942).
The legal title can hardly extend above an altitude representing the reasonable possibility of man's occupation and dominion, although as respects the realms beyond this the owner of the land may complain of any use tending to diminish the free enjoyment of the soil beneath. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934); Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245 (1942).
Owner of land has title to and right to control airspace above it to distance of at least 75 feet above the owner's buildings thereon (but the owner's title to the airspace above the owner's land is not necessarily limited to an altitude of that height). Scott v. Dudley, 214 Ga. 565, 105 S.E.2d 752 (1958).
Occupant of soil is entitled to be free from danger or annoyance by any use of superincumbent space, and for any use infringement of this right the occupant may apply to the law for appropriate redress or relief. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).
Owner had interest in groundwater.
- Based on the clear and unambiguous language of O.C.G.A. § 51-9-9 and Boardman Petroleum, a debtor, as the property owner, had at a minimum, a bona fide claim of ownership to everything that was above and below the debtor's property including the groundwater lying beneath the surface; for the purposes of the Bidding Procedures Order, the debtor had an asset of indeterminate value which was an asset of the bankruptcy estate and could be offered for sale in the manner provided. In re Durango Ga. Paper Co., 336 Bankr. 594 (Bankr. S.D. Ga. 2005).
Continuing nuisance by airplane flight.
- Since the evidence showed that at least 75 flights were made over the plaintiff's school building daily at altitudes of from 50 to 75 feet, just over the top of the plaintiff's trees, that the danger necessarily created thereby to the life and safety of those occupying the plaintiff's premises, the noise and vibration caused thereby, and the distracting effect on the plaintiff's students made further operation of the plaintiff's school impracticable, and that by such flights the right to enjoy freely the use of the plaintiff's property has been substantially lessened, a continuing nuisance was established which equity would enjoin. Scott v. Dudley, 214 Ga. 565, 105 S.E.2d 752 (1958).
Flight of aircraft across land of another cannot be said to be trespass without taking into consideration question of altitude. It might or might not amount to a trespass, according to the circumstances including the degree of altitude, and even when the act does not constitute a trespass, it could be a nuisance as when it "worketh hurt, inconvenience, or damage," to the preferred claimant, namely, the owner of the soil, or to a rightful occupant thereof. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934); Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245 (1942).
Overhanging building.
- The space is up there, and the owner of the land has the first claim upon it. If another should capture and possess it, as by erecting a high building with a fixed overhanging structure, this alone will show that the space affected is capable of being possessed, and consequently the owner of the soil beneath the overhanging structure may be entitled to ejectment or to an action for trespass. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).
Encroachment on foundation.
- Ejectment will lie to recover land of which the plaintiff has been ousted by the erection of a foundation below the surface beyond the plaintiff's own line. Wachstein v. Christopher, 128 Ga. 229, 57 S.E. 511, 119 Am. St. R. 381, 11 L.R.A. (n.s.) 917 (1907).
Person who owns surface may dig therein and apply all that is found therein to one's own personal purposes at one's free will and pleasure. City of Hawkinsville v. Clark, 135 Ga. App. 875, 219 S.E.2d 577 (1975).
Use or digging of well on one's own property is generally a perfectly lawful undertaking and the exercise of a right in property. City of Hawkinsville v. Clark, 135 Ga. App. 875, 219 S.E.2d 577 (1975).
Municipality not vested with arbitrary discretion to refuse well permit.
- While a municipality may make reasonable rules and regulations looking to the protection, safety, and health of its citizens and may require permits for the exercise of its power of regulation, the grant or refusal of a permit to dig a well cannot be left to arbitrary discretion. City of Hawkinsville v. Clark, 135 Ga. App. 875, 219 S.E.2d 577 (1975).
RESEARCH REFERENCES
ALR.
- Right of abutting owner to permanent use of subsurface of street or highway, 7 A.L.R. 646.
Severance of title or rights to oil and gas in place from title to surface, 29 A.L.R. 586; 146 A.L.R. 880.
Meaning of term "surface" as employed in conveyance or devise, 31 A.L.R. 1530.
Trespass by acts above surface, 42 A.L.R. 945.
Recovery for trespass which demonstrates lack of mineral resources supposed to exist, 52 A.L.R. 104.
Liability of adjoining owner for destruction or weakening of lateral support by act of God or sudden unforeseen natural force, 132 A.L.R. 997.
Liability for property damage by concussion from blasting, 20 A.L.R.2d 1372.
Liability for obstruction or diversion of subterranean waters in use of land, 29 A.L.R.2d 1354.
Liability of mine operator for damage to surface structure by removal of support, 32 A.L.R.2d 1309.
Recovery for unauthorized geophysical or seismograph exploration or survey, 67 A.L.R.2d 444.
Solid mineral royalty as real or personal property, 68 A.L.R.2d 728.
Earth, sand, or gravel as subject of conversion, 84 A.L.R.2d 790.
Liability of excavators for damages to noncoterminous tract from removal of lateral support, 87 A.L.R.2d 710.
What constitutes reasonably necessary use of the surface of the leasehold by a mineral owner, lessee, or driller under an oil and gas lease or drilling contract, 53 A.L.R.3d 16.
Zoning regulations limiting use of property near airport as taking of property, 18 A.L.R.4th 542.
Airport operations or flight of aircraft as constituting taking or damaging of property, 22 A.L.R.4th 863.
