2021 Georgia Code
Title 51 - Torts
Chapter 9 - Injuries to Real Estate
§ 51-9-4. Action for Trespass by Person Having Title

The person having title to lands, if no one is in actual possession under the same title with him, may bring an action for a trespass thereon. If a tenant is in possession and the trespass is one which injures the freehold, the owner or a remainderman or reversioner may still bring the action.

(Orig. Code 1863, § 2958; Code 1868, § 2965; Code 1873, § 3016; Code 1882, § 3016; Civil Code 1895, § 3877; Civil Code 1910, § 4473; Code 1933, § 105-1404.)

- Criminal trespass, § 16-7-21.

This section changes the rule of common law which required the plaintiff to be in possession. Atlantic & Gulf R.R. v. Fuller, 48 Ga. 423 (1873).

When the plaintiff has legal title, even though out of possession, the plaintiff may maintain trespass. Williams v. Aycock, 52 Ga. App. 386, 183 S.E. 628 (1936), cert. denied, 183 Ga. 800, 189 S.E. 841 (1937).

This section allows an action of trespass by the true owner, even though the owner was not in possession of the land at the time, provided that the land is vacant, and the owner shows the owner is the true owner by showing title. Tootle v. Player, 113 Ga. App. 305, 147 S.E.2d 867 (1966).

To maintain action for trespass or injury to realty, it is essential that plaintiff show either that the plaintiff was the owner or was in possession at the time of the 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).

To maintain an action for an injunction to prevent the defendant from committing a continuing trespass on certain lands, it was necessary for the plaintiff to show title in the plaintiff or actual possession of that portion of the tract upon which the alleged wrong was being committed. Tolnas v. Pope, 212 Ga. 50, 90 S.E.2d 420 (1955).

Plaintiff must prove good title in the plaintiff. Yahoola River & Cane Creek Hydraulic Hose Mining Co. v. Irby, 40 Ga. 479 (1869); Gaskins v. Gray Lumber Co., 6 Ga. App. 167, 64 S.E. 714 (1909).

- In an action for trespass upon realty, it is not necessary for the plaintiff to set forth in the plaintiff's petition, or attach thereto, an abstract of the title upon which the plaintiff relies. Burns v. Horkan, 126 Ga. 161, 54 S.E. 946 (1906); Allen v. Potter, 153 Ga. 24, 111 S.E. 549 (1922).

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).

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 trespass to realty occurs after death of an intestate, prima facie right to sue therefor is in the intestate's heirs at law, especially when it does not appear that the administrator was in possession at the time of the trespass. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936).

- When a plaintiff is not entitled to recover either on bare title or bare possession, and the suit is not one to recovery 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 landlord without legal process forcibly and violently ejects tenant from rented premises, the landlord is liable to the latter in action of trespass although the tenant was holding over beyond the tenant's term, was in arrears for rent, and had received legal notice to quit. Real Estate Loan Co. v. Pugh, 43 Ga. App. 570, 159 S.E. 587 (1931), later appeal, 47 Ga. App. 443, 170 S.E. 698 (1933).

Trespass must have caused actual damage to the property; it is not enough that the plaintiff might suffer some damage at some point in the future. Upper Chattahoochee Riverkeeper Fund, Inc. v. City of Atlanta, 986 F. Supp. 1406 (N.D. Ga. 1997).

Plaintiff whose property is sold at marshal's sale, which was void because based on excessive levy, holds legal title to premises, and can maintain an action for trespass against one committing a trespass against one's title and right to possession. Williams v. Aycock, 52 Ga. App. 386, 183 S.E. 628 (1936), cert. dismissed, 183 Ga. 800, 189 S.E. 841 (1937).

- A grantee, upon discovery that the grantee has bought an invalid title, may procure the paramount outstanding title from the true owner, and upon so doing will not be estopped from asserting such title in an action of trespass. Moore v. Vickers, 126 Ga. 42, 54 S.E. 814 (1906).

- Under this section, one in possession of land by a tenant has a right of action against a mere trespasser who commits an injury to the land by the removal of gravel. Mayor of Cartersville v. Lyon, 69 Ga. 577 (1882).

Cited in Markham v. Brown, 37 Ga. 277, 92 Am. Dec. 73 (1867); Citizens & S. Bank v. Edelstein, 38 Ga. App. 56, 142 S.E. 307 (1928); Tompkins v. Atlantic Coast Line R.R., 89 Ga. App. 171, 79 S.E.2d 41 (1953); Brooks v. Ready Mix Concrete Co., 94 Ga. App. 791, 96 S.E.2d 213 (1956); Campion v. McLeod, 108 Ga. App. 261, 132 S.E.2d 848 (1963); Ellenberg v. Pinkerton's, Inc., 130 Ga. App. 254, 202 S.E.2d 701 (1973); Merz v. Professional Health Control of Augusta, Inc., 175 Ga. App. 110, 332 S.E.2d 333 (1985); De Castro v. Durrell, 295 Ga. App. 194, 671 S.E.2d 244 (2008).

RESEARCH REFERENCES

Am. Jur. 2d.

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

- 87 C.J.S., Trespass, § 20 et seq.

- Right after redemption from tax sale or forfeiture to maintain action for trespass committed between sale or forfeiture and redemption, 33 A.L.R. 302.

Trespass by acts above surface, 42 A.L.R. 945.

Right of third person to enter premises against objection of landlord, 43 A.L.R. 206.

Liability of grantor or lessor of property which he does not own to true owner for trespass by lessee or grantee, 127 A.L.R. 1015.

Right of licensee of real property to injunction against, or damages for, trespass by third person, 139 A.L.R. 1204.

Measure of damages for tenant's failure to surrender possession of rented premises, 32 A.L.R.2d 582.