O.C.G.A. § 44-11-8 (2019)
Setoff of value of improvements against mesne profits by trespasser
A trespasser may not set off improvements in an action brought for mesne profits except when the value of the premises has been increased by the repairs or improvements which have been made. In that case, the jury may take into consideration the improvements or repairs and may diminish the profits by that amount but not below the sum which the premises would have been worth without such improvements or repairs.
History
Orig. Code 1863, § 3397; Code 1868, § 3416; Code 1873, § 3468; Code 1882,
§ 3468; Civil Code 1895, § 5087; Civil Code 1910, § 5671; Code 1933, § 33-106.
Annotations
JUDICIAL DECISIONS O.C.G.A. § 44-11-8 does not allow an excess recovery by trespasser who sued for mesne profits, and hence states a different rule than O.C.G.A. § 4411-9, regulating the set off of improvements by one who took possession bona fide. Beverly v. Burke, 9 Ga. 440, 1851 Ga. LEXIS 35 (1851); Dean v. Feely, 69 Ga. 804, 1883 Ga. LEXIS 121 (1883); Dudley v. Johnson, 102 Ga. 1, 29 S.E. 50, 1897 Ga. LEXIS 435 (1897); Moate v. Rives, 146 Ga. 425, 91 S.E. 420, 1917 Ga. LEXIS 329 (1917). O.C.G.A. § 44-11-8 inapplicable to equitable proceeding for accounting
and partition. Smith v. Smith, 141 Ga. 498, 141 Ga. 629, 81 S.E. 895, 1914 Ga. LEXIS 83 (1914). Basis for setoff amount. - The increased value of the premises is the subject matter of setoff, and not the actual value of the improvements. Roe v. Doe, 39 Ga. 328, 1869 Ga. LEXIS 213 (1869). Setoff of improvements made by spouse. - The husband of a legatee and life tenant may not setoff the value of improvements made by his wife, when he is sued by another legatee. Burns v. Richardson, 145 Ga. 430, 89 S.E. 418, 1916 Ga. LEXIS 353 (1916).
RESEARCH REFERENCES Am. Jur. 2d. 25 Am. Jur. 2d, Ejectment, § 57. Am. Jur. Pleading and Practice Forms. 14 Am. Jur. Pleading and Practice Forms, Improvements, § 2.