dissenting.
The question of necessity presented by this case is of constitutional dimensions and is a question of law to be decided by the courts. Piedmont Cotton Mills v. Ga. R. &c. Co., 131 Ga. 129 (62 SE 52) (1908)\ Atlantic & B. R. Co. v. Penny, 119 Ga. 479 (46 SE 665) (1903). It is not an "any evidence” test as the majority implies. Guhl v. Pinkard, 243 Ga. 129 fn. 1 (252 SE2d 612) (1979). The Court of *624Appeals has reviewed the evidence and has determined as a matter of law that MARTA acted beyond its authority in condemning airspace it did not need to accomplish its public purpose. I would dismiss the writ of certiorari as having been improvidently granted.
It is interesting to note that the Court of Appeals held that MARTA merely obtained an easement, rather than fee simple title, in that portion of the property which is conceded to be essential. There is ample authority that airspace may be owned in fee simple. Wright, The Law of Airspace (1968); Final Draft of Model Airspace Act, 7 Real Property, Probate and Trust Journal 353 (1972); Pearson v. Matheson, 102 S. C. 377 (86 SE 1063) (1915).