The State of Georgia, acting through the Department of Natural Resources, filed this quiet title action with regard to an island in the Altamaha River “Dick’s Island” or “Rozier’s Island”. The defendants, members of the Rozier family, claim title to the island pursuant to a series of deeds beginning in 1972 filed in McIntosh County. The Roziers contend that their father originally bought the property at a tax sale, but they have no documents to verify this claim. The following matters are not disputed: 1 the island lies within the Altamaha River; 2 the Altamaha is a navigable river; and 3 the defendants cannot trace their claim to the island to either a crown grant from the King of England or a grant from the State of Georgia. OCGA § 50-16-1 indicates that islands located in navigable rivers which were not deeded to an individual by a crown grant or a grant from the State are considered the property of the State. This statute provides that the “lands heretofore specially reserved to the state are . . . all islands contained in any of the navigable waters of the state and not disposed of . . .” Based on OCGA § 50-16-1, the State argued to a special master that it is entitled to summary judgment, as the Roziers were unable to prove that they received the island from a line of title originating with a crown grant or a grant from the State. The Roziers countered the State by arguing that the land in contention had not always been an island, and, as a result, the land was not strictly governed by OCGA § 50-16-1. They claimed that the island had, in fact, been recently formed by avulsion sedimentation brought about by a change in the direction of the river. Although the State appears to concede that the flow of the Altamaha River may have changed in the past, the Roziers provided no evidence that Dick’s Island was formed by avulsion. To the contrary, the Roziers have contended that “an affirmative defense must only be raised, not proven or established.” After a hearing, the special master entered a ruling recommending that the State’s request for summary judgment be granted. The special master found that the Roziers’ contention that the land recently became an island was wholly speculative and unsupported by any evidence.
Thereafter, the Roziers attempted to appeal the special master’s findings to this Court; however, the Roziers’ appeal was dismissed because no final judgment had yet been entered by the superior court. After this dismissal, the State moved the superior court to adopt the special master’s ruling. The superior court denied the State’s motion, finding that the defendants had raised an affirmative defense to the State’s action and that the special master had failed to determine whether the State had properly pierced this affirmative defense. See, e.g., Peppers v. Siefferman , 153 Ga. App. 206 265 SE2d 26 1980. As a result, the superior court referred the matter back to the special master for a trial on this issue. The State, pursuant to the provisions of OCGA § 5-6-34, then obtained a certificate of immediate review and filed an application for interlocutory appeal, which this Court granted. This appeal ensued. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Where the movant is the plaintiff, she has the burden of presenting evidence to support her claim and the burden of piercing the defendant’s affirmative defenses. Footnotes omitted. Smith v. Gordon , 266 Ga. App. 814 1 598 SE2d 92 2004. See OCGA § 9-11-56 c. Nonetheless, the defendant must plead a legally-viable affirmative defense supported by some evidence rather than mere guesswork. ” ‘Mere speculation, conjecture, or possibility are insufficient to preclude summary judgment.’ Rosales v. Davis , 260 Ga. App. 709, 712 2 580 SE2d 662 2003. See also Medders v. Kroger Co. , 257 Ga. App. 876, 878 572 SE2d 386 2002.” Clay v. Oxendine , 285 Ga. App. 50, 56 1 645 SE2d 553 2007.
