concurring specially. I agree and concur with the conclusion and result reached by the majority of the court, but I cannot agree, without reservation uncategorically, with the statement made in headnote 2(a) and the corresponding division of the opinion that the “owner of land is a *454preferred claimant to the air space above it reasonably incident to the normal and necessary use of the premises, and to a distance of at least 75 feet above the buildings thereon.” This statement and ruling purports to be predicated upon a proper construction of the provisions of Code § 11-101 that: “Flight in aircraft over the lands and waters is lawful, unless at such a low altitude as to interfere with the then existing reasonable use to which the land or water or space over the land or water is put by the owner of the land or water; or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.” The case of Scott v. Dudley, 214 Ga. 565, 568 (105 S. E. 2d 752) recently decided by the Supreme Court, in construing the provisions of said Code § 11-101, did not place upon the same the limited construction, as is now apparently being placed by the majority opinion of the Court of Appeals, but the Supreme Court merely ruled that “Still, the owner of the land is a ‘preferred claimant’ to the air space above it, and he is entitled to redress for any use thereof which results in an injury to him or to his property, and we think it can be safely asserted that the owner of land has title to and a right to control the air space above it k> a distance of at least 75 feet above his buildings thereon; but we are not here holding that his title to the air space above his land is limited to an altitude of that height.” (Italic ours.)
As stated by the late Chief Justice Russell in his special concurrence in Thrasher v. City of Atlanta, 178 Ga. 514, 532 (173 S. E. 817) taking into consideration the law of aviation, which is still in its infancy, and the questions involving same which are so fundamentally attached to the dearest rights of our citizens, not only now but for all future time, “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 common law, as well as under the Code, ‘The right of the owner of lands extends downward and upward indefinitely’ (Civil Code of 1910, § 3617) [Code of 1933, § 85-201], and ‘The owner of realty having title downwards and upwards indefinitely, an unlawful interference with his rights, below or above the sur*455face, alike give him a right of action’ (§ 4477) [Code of 1933, § 105-1409].” See Delta Air Corp. v. Kersey, 193 Ga. 862 (20 S. E. 2d 245). I must agree with the statements in that case, made on pages 868 and 869 that: “It is sufficient to say that the flight of aircraft across the land of another cannot be said to be a trespass without taking into consideration the question of altitude . . . While there can hardly be any doubt that an owner of land on which his home is located must be said to have legal title to the air space above his land to a distance of at least fifty feet [Italics mine], with the consequence that any flight by aircraft within this space constitutes a trespass . . .” It was further said by Chief Justice Russell in the special concurrence in the Thrasher case, supra, that: “The height above the surface at which the flying is to be pursued cannot 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.”
Prior to the advent of aircraft and of their frequent and necessary flights over the lands of others, as well as the waters of the earth, it was generally understood that the owner of land owned and controlled the air space to an indefinite distance above his lands. The majority opinion in the instant case states that such ownership and control is a limited one and that while “The owner of land is a preferred claimant to the air space above it reasonably incident to the normal and necessaiy use of the premises” same is only “to a distance of at least 75 feet above the buildings thereon”, and such statement and ruling seem to place the right of a landowner to title and control of the air space over his land to only 75 feet above any buildings located thereon.
I am therefore not inclined to agree with this statement and the resulting ruling which seems to limit the rights of one owning realty to the control and ownership of the air space above his lands to such specifically limited and definite height above such lands.
It follows that while I agree with the decision and the con*456elusion reached that the plaintiff landowner in his petition set out a cause of action against the defendant municipality as the owner of and as having control of the portion of the Atlanta airport adjacent to his land relative to the flying of planes over the same at a low altitude, I cannot agree with the statement in the opinion that the owner of such realty only has ownership thereto “reasonably incident to the normal and necessary use of the premises, and to a distance of at least 75 feet above the buildings thereon.” In my opinion and judgment at this advanced age and era of fixed wing and other now known means of flying, the owner of realty continues to have ownership and title to the air space above him and to the ground beneath him, subject to the reasonable use thereof by aircraft and to the rights of mining, etc. I am forced not to agree with the holding of the majority as indicated. The matter resolves itself purely into a jury question as to the matter or nuisance value, and is not a question of law. The jury may determine both matters, i.e., the height above and the depth below the lands, basing such determination upon the particular facts involved in each case before them. In my opinion the question is not one of law for the detennnation of this court.