Ejectment not remedy for flooding by adjacent owner.

- Riparian owner cannot maintain ejectment against adjacent proprietor who erects dam and floods own land. The riparian owner has a remedy by an action on the case, but the principle of this statute, that land embraces all above and below it, cannot be applied in such a case to give cause for ejectment.(see O.C.G.A. § 44-1-2) Ezzard v. Findly Gold Mining Co., 74 Ga. 520, 58 Am. R. 445 (1885).

Landowner to report gain from sale to cutter of timber aftergrowth as capital gain.

- Landowner, which retained the right to possess and control the land throughout the term of a timber-cutting contract, subject to the cutter's cutting rights, continued to own the land and therefore the timber, even though it granted the cutter an option to purchase the land, and the landowner could therefore report its gain from sale of aftergrowth to the cutter as capital gain rather than ordinary income under the Internal Revenue Code. Glynn Land Co. v. United States, 602 F. Supp. 346 (S.D. Ga. 1985).

Cited in Currin v. Milhollin, 53 Ga. App. 270, 185 S.E. 380 (1936); Adams v. Chamberlin, 54 Ga. App. 459, 188 S.E. 550 (1936); Ingram & Le Grand Lumber Co. v. McAllister, 188 Ga. 626, 4 S.E.2d 558 (1939); Ramsey v. Kitchen, 192 Ga. 535, 15 S.E.2d 877 (1941); Turner v. Ross, 115 Ga. App. 507, 154 S.E.2d 798 (1967); Kirkland v. Morris, 233 Ga. 597, 212 S.E.2d 781 (1975); United States v. Wood, 28 Bankr. 383 (N.D. Ga. 1983); S-D RIRA, LLC v. Outback Prop. Owners' Ass'n, 330 Ga. App. 442, 765 S.E.2d 498 (2014).

When article of personalty becomes realty.

- Whether an article of personalty connected with or attached to realty becomes a part of the realty, and therefore such a fixture that the article cannot be removed therefrom, depends upon the circumstances under which the article was placed upon the realty, the uses to which the article is adapted, and the parties who are at issue as to whether such article is realty or detachable personalty. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).

Until severed from land, building part of realty on which the building sits. Simpson v. Tate, 226 Ga. 558, 176 S.E.2d 62 (1970).

Deed includes buildings.

- Deed to land includes all buildings and other things permanently attached to land conveyed. Sawyer Coal & Ice Co. v. Kinnett-Odom Co., 192 Ga. 166, 14 S.E.2d 879 (1941).

Inconsistency between parol agreement and deed.

- When there is a conveyance of land by deed, containing no reservations as to the buildings, a parol understanding that the vendor retains the ownership of the buildings, with the right to enter and remove the buildings, is certainly inconsistent with the deed and ought to be excluded from the evidence. Simpson v. Tate, 226 Ga. 558, 176 S.E.2d 62 (1970).

Building erected upon another's land, under arrangement with landowner that the building be removed when required is real estate. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).

Alley easement and railroad platform.

- In a dispute between neighbors over the actual location of their common boundary line and the existence of easements in a disused railroad spur track and an alley, the trial court erred in declaring that the plaintiff had no express easement in the alley because as a matter of law, the plaintiffs were entitled to a declaration that they had fee simple title to the platform attached to the building and to declarations that the plaintiffs/owners had an express easement in both the spur track and the alley. 905 Bernina Avenue Cooperative, Inc. v. Smith/Burns LLC, 342 Ga. App. 358, 802 S.E.2d 373 (2017).

Fences.

- Fences permanently affixed to land constitute a part of the realty. Bagley v. Columbus S. Ry., 98 Ga. 626, 25 S.E. 638, 58 Am. St. R. 335 (1896).

Rail fence is part of realty. La Rowe v. McGee, 171 Ga. 771, 156 S.E. 591 (1931).

Minerals in place are part of the land; minerals are real estate. Rockefeller v. First Nat'l Bank, 213 Ga. 493, 100 S.E.2d 279 (1957).

Minerals are constituent elements of the land itself. Rockefeller v. First Nat'l Bank, 213 Ga. 493, 100 S.E.2d 279 (1957).

Absolute conveyance carries all mines, minerals, and clays in and under the land conveyed. Wright v. Martin, 149 Ga. 777, 102 S.E. 156 (1920).

Sand lying on land where deposited by forces of nature, though not actually attached to the soil, is a part of the realty. La Rowe v. McGee, 171 Ga. 771, 156 S.E. 591 (1931).

Standing timber is constituent element of the land itself. Rockefeller v. First Nat'l Bank, 213 Ga. 493, 100 S.E.2d 279 (1957).

Trees growing on land constitute a part of the realty. Coody v. Gress Lumber Co., 82 Ga. 793, 10 S.E. 218 (1889); Douglass v. Bunn, 110 Ga. 159, 35 S.E. 339 (1900); Marthinson v. King, 150 F. 48 (5th Cir. 1906); La Rowe v. McGee, 171 Ga. 771, 156 S.E. 591 (1931); Foy v. Scott, 197 Ga. 138, 28 S.E.2d 107 (1943).

Growing crops are a part of the land. Newton County v. Boyd, 148 Ga. 761, 98 S.E. 347 (1919).

Mature crops.

- Annual productions of crops, having matured and ceasing to draw sustenance from the earth, become personalty. Hamilton v. State, 94 Ga. 770, 21 S.E. 995 (1894).

Nursery and nursery stock, though placed upon the land by the grantor after executing the security deed, are to be treated as a part of the realty, as between such grantor and a purchaser at the sale under the security deed. Adcock v. Berry, 194 Ga. 243, 21 S.E.2d 605 (1942).

Manure made in the usual course of husbandry upon a farm is so attached to and connected with the realty that, in the absence of an express stipulation to the contrary, the manure becomes appurtenant to and is treated as part of the realty. La Rowe v. McGee, 171 Ga. 771, 156 S.E. 591 (1931).

Easements for telephone lines constitute realty. In re Brinn, 262 F. 527 (N.D. Ga. 1919).

Definition of "fixtures".

- Term "fixtures" may be deemed to embrace all those chattels which, by reason of their annexation to the land, partake both of the nature of personalty and realty, irrespective of the question whether the fixtures are removable or not. Burpee v. Athens Prod. Credit Ass'n, 65 Ga. App. 102, 15 S.E.2d 526 (1941).

Requisite of fixtures.

- To constitute a fixture there must be annexation to realty, together with unity of title and ownership of the realty and the thing affixed. State v. Dyson, 89 Ga. App. 791, 81 S.E.2d 217 (1954).

General rule in Georgia is that personal property which is actually or constructively attached to real property is considered part of the realty so that an interest arises in the property under real estate law. Wright v. C & S Family Credit, Inc., 128 Bankr. 838 (Bankr. N.D. Ga. 1991).

Person owning thing annexed to land need not have fee simple title to the land. It is sufficient if the person holds an estate for years in the land or an easement or right of way over the land, and the purchaser of an interest in the land will acquire the vendor's title to the fixtures attached thereto, unless it is otherwise provided in the purchaser's contract. State v. Dyson, 89 Ga. App. 791, 81 S.E.2d 217 (1954).

Trade fixtures constitute exception to general rule.

- General rule of common law was that articles attached to realty become a part thereof; but there was an exception to this rule in the case of trade fixtures. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).

Trade fixtures.

- Owner of a place of trade is generally not permitted to remove trade fixtures adapted to the purpose for which the building was constructed, in the absence of an agreement to that effect entered into at the time of the sale. The fixtures will pass under the instrument which conveys title to the realty. The rule in reference to trade fixtures is applicable in cases of landlord and tenant, or when the occupant is in for a limited time; but it generally has no application whatever between a grantor and grantee. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).

Scale installed in tobacco warehouse is fixture.

- When a scale is installed in a tobacco warehouse at the time of its erection, placed on and attached under the warehouse constructed for the particular scale, fitted in an opening in the warehouse floor made for the scale, and attached to the warehouse floor, and has been located in the building for 10 years or more, and the warehouse could not be operated without the scale, the jury can find that the scale is a permanent fixture and part of the warehouse building, and that the scale passes with a conveyance of such building made by the owner, even though the building is owned by one person and the land on which the building is located is owned by another. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).

Speaker system installed in nightclub was fixture.

- Building tenant, a nightclub, was not entitled to the proceeds of an insurance policy that was plainly and unambiguously payable to the mortgage holder of the building after it was damaged by fire. In the absence of evidence that a speaker system destroyed by the fire was not a fixture, the tenant was not entitled to reimbursement for its loss. Club Libra, Inc. v. R. L. King Props., LLC, 324 Ga. App. 547, 751 S.E.2d 418 (2013).

Motive-power pump and engine used for pumping water out of artesian well and the pipes and other accessories connected therewith, installed on premises for the purpose of furnishing water, is ordinarily considered a part of the real estate. Blain v. Corbin, 51 Ga. App. 472, 180 S.E. 854 (1935).

Water pumping equipment deemed part of land benefitted.

- Water pump and gasoline motor installed upon a low piece of land for the specific purpose of supplying water to another and adjacent higher lot is, in purpose and method of its utilization, so associated with the lot of land where the pipes convey the water and for the use of which the pump was installed that the fixture is to be regarded as legally annexed, that is, a fixture, to the higher land rather than to the lot of land on which the fixture is actually installed. Blain v. Corbin, 51 Ga. App. 472, 180 S.E. 854 (1935).

Reservation of right to remove annexed articles.

- Right to remove annexed articles as personalty may be reserved in instrument conveying title to realty, or by an agreement extrinsic and collateral. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).

Sale of wrongfully removed fixture to innocent purchaser.

- When furnace is a chattel attached to the realty, as an irremovable fixture, and when, after the execution of a security deed, it is detached and carried away by the grantor, an action will lie for the furnace's recovery. The fact that it was subsequently attached to the realty of the grantor in another county and this realty was sold to an innocent purchaser does not deprive the innocent owner of the property merely because some other person may be the innocent purchaser who is ignorant of plaintiff's ownership. Burpee v. Athens Prod. Credit Ass'n, 65 Ga. App. 102, 15 S.E.2d 526 (1941).

Personalty affixed to realty termed "fixture" when transfer in doubt.

- If the parties intend only to convey realty, the term "fixtures" is the accepted terminology if there is any doubt as to whether personalty affixed to the realty is to be transferred. San Joi, Inc. v. Peek, 140 Ga. App. 397, 231 S.E.2d 145 (1976).

Fixtures on leased property tax exempt.

- Improvements on leased property were fixtures and were not taxable as personal property. Fulton County Bd. of Assessors v. McKinsey & Co., 224 Ga. App. 593, 481 S.E.2d 580 (1997).

Intent as to permanency or attachment open to investigation.

- While the law classifies articles, the law at the same time recognizes their ambiguous or variable character and permits the parties to class the articles differently in different instances. The element of intention enters into the question of permanency, whether of attachment or placing, and the intention is open to investigation by parol evidence. Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854, 169 S.E. 115 (1933).

House passed with land in foreclosure action.

- House's owner who moved the house onto a lot owned by another failed to state a claim against a lender for wrongful foreclosure of the owner's house along with the lot because, under Georgia law, real estate included all lands and the buildings thereon, O.C.G.A. § 44-1-2(a)(1), so the house passed with the land. Jurden v. HSBC Mortg. Corp., 330 Ga. App. 179, 765 S.E.2d 440 (2014).

Extent to which machine a fixture is question for jury.

- When some of the machinery is shown not to be attached to the building other than by wires and pipes by which power is applied, others are not attached in any way to the building, and still others are attached, the case is a question for the jury. The issue is a question of fact, not a question of law. Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854, 169 S.E. 115 (1933).

One who owns the soil owns also to the sky.

- Ownership above the surface was based upon the common law maxim, cujus est solum ejus est usque ad coelum - who owns the soil owns also to the sky. Former Code 1933, §§ 85-201 and 105-409 (see O.C.G.A. §§ 44-1-2 and51-9-9) should therefore be construed in light of the authoritative content of the maxim itself. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).

Limited to common law interpretation.

- Even if former Code 1933, §§ 85-201 and 105-409 (see O.C.G.A. §§ 44-1-2 and51-9-9) were intended to express the ad coelum doctrine 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).

Title includes only space seized and appropriated.

- Language of former Code 1933, §§ 85-201 and 105-409 (see O.C.G.A. §§ 44-1-2 and51-9-9) that the title to land extends upwards indefinitely would seem to be a limitation upon the 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).

Title to land does not necessarily confer title to space far above.

- In order to recover for a trespass, it is necessary to show title or actual possession. The space in the far distance above the 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).

Height to which landowner has title and control.

- Landowner has title to and right to control air space above the land to a distance of at least 75 feet above the landowner's buildings thereon, but the landowner's title to the air space above the landowner's land is not necessarily limited to an altitude of that height. Scott v. Dudley, 214 Ga. 565, 105 S.E.2d 752 (1958).

Landowner has first claim to space overhead.

- Space is up there, and the owner of the land has the first claim upon the space. If another should capture and possess the space, 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).

Owner of land is preferred claimant to airspace above the land, and the landowner is entitled to redress for any use thereof which results in injury to the landowner or the landowner's property. Scott v. Dudley, 214 Ga. 565, 105 S.E.2d 752 (1958).

Right to complain of use tending to diminish enjoyment of soil beneath.

- 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).

Occupant of the soil is entitled to be free from danger or annoyance by any use of the 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).

Airplane pilot does not seize and hold space or stratum of air through which the pilot navigates, and cannot do so. The pilot is merely a transient, and the use to which the pilot applies the ethereal realm does not partake of the nature of occupation in the sense of dominion and ownership. So long as the space through which the pilot moves is beyond the reasonable possibility of possession by the occupant below, the pilot is in free territory, not as every or any man's land, but rather as a sort of "no man's land." Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).

Trespass by aircraft a question of altitude.

- Flight of aircraft across the land of another cannot be said to be a trespass without taking into consideration the 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 if 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).

When aircraft flights constitute nuisance.

- When 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 plaintiff's trees, that the danger necessarily created thereby to the life and safety of those occupying plaintiff's premises, the noise and vibration caused thereby, and the distracting effect on plaintiff's students made further operation of plaintiff's school impracticable, and that by such flights the right to enjoy freely the use of 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).

Mobile homes.

- Mobile home can be considered as part of the realty when it is placed on the property with the intent that the mobile home remain permanently in place and that the mobile home pass as part of the realty when conveyed. In order to determine what the intent was with respect to the mobile home, all of the surrounding facts and circumstances should be considered in each case as outward manifestations of what was in fact intended. 1969 Op. Att'y Gen. No. 69-316.

Am. Jur. 2d.

- 63A Am. Jur. 2d, Property, §§ 13 et seq., 48, 49.

C.J.S.

- 73 C.J.S., Property, §§ 18, 21 et seq.

ALR.

- Scope and import of term "owner" in statutes relating to real property, 2 A.L.R. 778; 95 A.L.R. 1085.

Oil and gas or other mineral rights in land as affected by language in conveyance specifying purpose for which the property is to be used, 5 A.L.R. 1498; 39 A.L.R. 1340.

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.

Storage tank or other apparatus of gasoline station as fixture, 36 A.L.R. 447; 52 A.L.R. 798; 99 A.L.R. 69.

Garage as fixture, 36 A.L.R. 1519.

Oil, gas, or other mineral rights in land, apart from ownership of soil, as subject as real estate to lien of judgment against the owner of the mineral interest, 52 A.L.R. 135.

Relative rights, as between municipality and abutting landowners, to minerals, oil, and gas underlying streets, alleys, or parks, 62 A.L.R.2d 1311.

Solid mineral royalty as real or personal property, 68 A.L.R.2d 728.

Manure as real or personal property as between seller and buyer of real property, 82 A.L.R.2d 1099.

Separate assessment and taxation of air rights, 56 A.L.R.3d 1300.

Airport operations or flight of aircraft as nuisance, 79 A.L.R.3d 253.

Airport operations or flight of aircraft as constituting taking or damaging of property, 22 A.L.R.4th 863.

Conveyance of land as including mature but unharvested crops, 51 A.L.R.4th 1263.

Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.

Mine tailings as real or personal property, 75 A.L.R.4th 965.