I concur in the ruling reversing the judgment of the trial judge dismissing the cause of action in the court below. In the main I concur with what has been so splendidly stated by Mr. Justice Bell in expressing the opinion of the court. Many points of the gravest impprtance to the public are involved, and it is very evident that the law of every one of them has been carefully considered in the light of all authorities which could illustrate the questions. As the result of the industry and legal ability of Mr. Justice Bell, the writer of this opinion, the discussion of the legal principles involved deserves to stand as a landmark in the history of jurisprudence, unsurpassed in the lucidity of its expression and the force and cogency of reasoning supporting his conclusions.
Some of the questions involved, in the law of aviation, which is still in its infancy, are so fundamentally attached to the dearest rights of our citizens, not only now but for all future time, that I wish to state that -in concurring in the main in the splendid opinion •prepared for the' court I by no means concur in anything that is said either in the opinion or the headnotes'which would contravene my view that at commofflaw, as well as under the Code, “The right of the owner of lands extends downward and upward indefinitely” (Civil Code of 1910, § 3617), and “The owner of realty having title downwards and upwards indefinitely, an unlawful interference with his rights, below or above the surface, alike give him a right of action” (§ 4477). Consequently the grant of a franchise, no matter of what kind, can no more condemn a right of way for an aviation company over the land or dwelling of another until the owner has received adequate compensation for the condemnation of his property to a public use, than would be the case where the condemnation sought to aifect the surface of the ground or the use of the same by subterranean excavation. The height above the surface at which the flying is to be pursued can *533not be arbitrarily fixed by those who expect to do the aerial navigation, except in proper proceedings or as a matter of contract with the owner of the soil. I am content to make this general statement of my objections, which of course includes any inference or intimation in the opinion which may conflict therewith.
In regard to the necessity of alleging negligence with respect to noise and dust as injuring the health of the plaintiff’s wife, the following observations may not be impertinent: To the writer as now advised, it would seem to be a legal absurdity and a gross miscarriage of justice to say that a party may recover for permanent injury to real estate under the constitutional provision against the taking or damaging of private property for public purposes, without averring that the public utility was improperly constructed or operated, that is, without showing negligence or. its equivalent, and at the same time to hold (although the court does not so rule in the present case) that no recovery can be had for a personal injury, as for the impairment of one’s health, without proceeding further and showing ’ such improper construction or operation or negligence, where the person injured is actually occupying the real estate as a permanent home and is injured by the same cause which damaged the real estate. In other words can it be true that for damage to the real estate negligence need not he shown, but that in case of personal injury negligence must he shown? The nature of the respective causes of action may be different, the former being a suit under the constitutional provision against taking or damaging private property for public purposes without compensation, and the latter being a suit for injury occasioned by a nuisance; but the principle that a thing may be a nuisance though otherwise lawful would seem to put the plaintiff in the personal injury case in at least as favorable a position as if he vvere suing for damages to his land. .If a thing actually causes a personal injury, can the proprietor escape liability on the ground that he has constructed and operated the utility in the manner authorized and required by law, whereas these facts would constitute no defense in a suit for permanent injury to the real estate ? Is land more precious in the sight of the law than the physical health and comfort of a human being? To ask the question would seem to answer it. '
On the former appearance of this case (Thrasher v. Atlanta, 176 Ga. 71 (166 S. E. 856), the writer held himself disqualified. But *534he later discovered that the supposed ground of disqualification did not exist, and accordingly participates with the other Justices in rendering the present decision.