Doyle, Presiding Judge. South Beach Development, Inc., who owned Long Pond, a private lake in Lowndes County, Georgia, executed a deed transferring title of the lake to Charles E. Davis. Thereafter, Dana and Jerry Ganas purchased a tract of land abutting the waters of Long Pond, which tract included a boathouse and dock that extended into the lake. After Davis attempted to restrict their use of the lake, the Ganases sued Davis and South Beach, seeking damages and to permanently enjoin them from interfering with the Ganases’ rights to use the waters of the lake, including the use of the boathouse and dock. The Ganases moved for partial summary judgment as to their claim for injunctive relief and as to Davis’s counterclaim for trespass, and the trial court granted the motion. The defendants appeal, and for the reasons that follow, we affirm in part, vacate in part, and remand the case for further proceedings consistent with this opinion.To prevail at summary judgment under OCGA § 91156, 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. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.[1] So viewed, the undisputed facts in this case show that in 1962, South Beach was created for the purpose of purchasing, subdividing, and developing real estate. On June 2, 1969, South Beach conveyed to Elmon Gaskins and Reuben Yancey several tracts of land abutting Long Pond, as well as those portions of the lake bottom of Long Pond that South Beach owned, in exchange for a deed to secure debt for a portion of the purchase price in favor of South Beach, such that South Beach would reclaim ownership if Gaskins and Yancey defaulted on the note. Gaskins and Yancey created a subdivision, which was platted and recorded; the subdivision included the lot subject to this appeal (“the Property”). On June 25, 1969, after creating the subdivision, Gaskins and Yancey formulated and recorded restrictive covenants that applied to the lots, including the Property, and the subdivision. The covenants were specifically limited to a period of 20 years. One of the covenants granted property owners the right to build a dock that could extend no more than 30 feet into the waters of Long Pond. On July 7, 1969, Gaskins and Yancey sold the Property to Talley M. Wisenbaker; the deed stated: “It is the intention of this instrument that [the purchaser], his heirs[,] and assigns shall have free access to the waters of Long Pond, regardless of the recession thereof as against the claims of the Grantors herein.” Two days later, South Beach executed a quit claim deed and released the Property from any indebtedness. In October 1970, Gaskins and Yancey ultimately defaulted on their purchase security deed, and South Beach foreclosed on and regained title to all property in the subdivision that had not been sold, including the lake bottom and excluding the Property, which had already been sold. At some point, a subsequent purchaser of the Property built a house, as well as a dock and boathouse that extended into Long Pond.[2]In May 2015, South Beach executed a quit-claim deed conveying to Davis “all lands owned by South Beach . . . lying and being in [two particular lots] now or formerly covered by waters of Long Pond. . . .”[3] On October 22, 2015, the Bendises conveyed the Property, which is bounded by Long Pond, to the Ganases. At that time, the house constructed on the property had apparently been destroyed by fire, but the dock and boathouse remained. According to Jerry Ganas, he was aware before he purchased the Property that Davis claimed ownership of the bottom of Long Pond, and Jerry and Davis had discussed how much Davis would “charge” for “lake bottom property.” On February 2, 2016, the Ganases filed suit against the defendants, seeking damages and an injunction precluding them from interfering with the Ganases’ right to use and enjoy the waters of Long Pond, including the dock and boathouse. The Ganases specifically alleged that Davis had erected a barbed-wire fence along the Property, preventing them from enjoying their property rights in Long Pond.[4] Both Davis and South Beach filed answers. On June 1, 2016, Davis amended his answer to add a counterclaim for trespass, seeking equitable relief and an injunction.On June 23, 2016, the Ganases moved for partial summary judgment, arguing that the quitclaim deed from South Beach to Davis was void; the Ganases have a permanent easement to use the waters of Long Pond, including the ability to erect and maintain a dock and boathouse; and Davis’s counterclaim was untimely and should be dismissed. On July 19, 2016, Davis filed a motion seeking leave to amend his answer to assert his counterclaim for trespass. On January 9, 2017, following a hearing, the trial court granted partial summary judgment to the Ganases. In the order, the trial court specifically declined to rule on their argument regarding the validity of the quitclaim deed from South Beach to Davis.[5] The court (1) concluded that based upon the language of the deeds conveying the property from South Beach to Gaskins and Yancey and all subsequent conveyances, including the deed from the Bendises to the Ganases, the grantors intended that any owner of the Property “enjoy full access to Long Pond”; (2) found that the Ganases have a “permanent irrevocable easement” in the lake, which enjoyment “extends to the dock and boathouse that is currently erected on the [Ganases's] property”; and (3) struck Davis’s counterclaim as compulsory and untimely. This appeal followed. 1. The Ganases’ right to access to Long Pond. The defendants concede that the Ganases acquired free access to the waters of Long Pond because the Property was included in a platted subdivision, which granted the owners such access, and the Ganases relied on such. Nevertheless, the defendants contend that the trial court erred by concluding as a matter of law that the right to enjoy free access to the waters includes the right to construct and maintain a dock and boathouse that is anchored to the bottom of Long Pond, which the Ganases do not own. We agree. (a) Georgia law is clear that where a developer sells lots according to a recorded plat, the grantees acquire an easement in any areas set apart for their use. An easement acquired in this manner is considered an express grant, and is an irrevocable property right. The rationale is that the grantees of the property have given consideration for its enhanced value in the increased price of their lots.[6]
