dissenting.
I dissent because appellees have not established that their possession of the property was exclusive.
It is undisputed that Georgia Power has superior written title. Georgia Power and Irvin and Jackson trace their claim to title to a common grantor, Sara E. White. White conveyed the property to Georgia Power in 1910 in “fee simple forever” with a limited reservation of rights during her lifetime. The earliest written deed claimed by Irvin and Jackson’s predecessors-in-title is dated 1938.
Because Georgia Power had superior legal title, Irvin and Jackson could acquire title only through the actual ouster of Georgia *768Power.6 In Carter v. Becton,7 this Court held that where two persons jointly possessed the land, one could not prescribe against the other in the absence of an ouster and that “where the possession is mixed, the legal seisin is according to the legal title.”8 In Carter, this Court refused to find title by adverse possession because the essential element of exclusive possession was missing.9
Here the evidence showed that Georgia Power continuously maintained a tunnel and towers for overhead transmission wires on the property and flooded a portion of the property on a regular basis. Georgia law provides that “[t]he property right of the owner of real estate extends downward indefinitely and upward indefinitely.”10 There is no requirement that a landowner fully occupy every inch of land or use all the subsurface and above ground rights in order to “possess” his land. Contrary to the implications in the majority opinion, the lines of the property claimed by adverse possession were never clearly defined or marked by fence by Irvin and Jackson or their predecessors-in-title. Additionally at least one-third of the property lies below the rim of the gorge and there is no evidence of possession of this portion by anyone other than Georgia Power. The evidence demonstrates that Georgia Power exercised possession of portions of the remaining property at all times since 1913. Because Georgia Power occupied and used the property consistent with its legal title, I conclude that this occupation and use cannot be construed as an ouster from the land.
The majority relies upon a doctrine enunciated in Bushey v. Seven Lakes Reservoir Co.11 that primary use of the subsurface effects a severance of the surface and subsurface estates. Irvin and Jackson, however, have never argued for a severance of the surface and subsurface estates, and I find it inappropriate to decide the case on a novel theory not raised or argued by the parties. Additionally, the facts of Bushey are easily distinguished. In Bushey the disputed land consisted of a strip of land approximately two rods wide above the high-water line of two reservoirs. The record owner’s deed prohibited the fencing of this area so adjoining landowners could water their livestock. After the adjoining landowner fenced and continuously farmed this area, the record owner’s sole evidence of possession to the disputed land consisted of the occasional entry to spray weeds *769and inspect the reservoir. Here, Georgia Power’s possession of the surface consisted of permanent structures, which were from time to time rebuilt and the transmission lines relocated elsewhere on the property, and also flooding large portions of the surface area. Therefore, Georgia Power’s use of the land is inconsistent with a theory of severance of the surface and subsurface estates.
Decided March 19, 1997 Reconsideration denied April 3, 1997. Smith, Gilliam & Williams, John H. Smith, M. Tyler Smith, for appellant. Forrester & Brim, James E. Brim III, Carol Ann Walker, for appellees. James S. Howell, amicus curiae.Because the 1910 deed gave Georgia Power legal title and appellees have failed to establish their exclusive possession of the property, I would reverse.
I am authorized to state that Justice Carley and Justice Hines join in this dissent.
Lines v. State of Ga., 245 Ga. 390, 395 (264 SE2d 891) (1980).
250 Ga. 617 (300 SE2d 152) (1983).
Id. at 618, quoting Deputron v. Young, 134 U. S. 241 (10 SC 539, 33 LE 923) (1890); see also OCGA § 44-5-165 (possession must be “so exclusive as to prevent actual occupation by another”).
Id. at 619.
OCGA § 44-1-2 (b).
545 P2d 158 (Colo. App. 1975).