                             SECOND DIVISION
                               MILLER, P. J.,
                          DOYLE, P. J., and REESE, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                   February 26, 2018




In the Court of Appeals of Georgia
 A17A1423. DAVIS et al. v. GANAS et al.                                       DO-055

      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 § 9-11-56, 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



      1
        (Citation and punctuation omitted.) Home Builders Assn. of Savannah v.
Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003), quoting Youngblood
v. Gwinnett Rockdale &c., 273 Ga. 715, 717 (4) (545 SE2d 875) (2001); Lau’s Corp.
v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

                                          2
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




                                           3
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.”



      2
        The record does not include purchase documents from Wisenbaker to any
future owner(s) until the 2015 sale of the Property to the Ganases. There is no
evidence of the date that the dock and boathouse were constructed, although there is
an affidavit of possession executed by Dorothy and Donald Bendis, who sold the
Property to the Ganases, stating that the dock and boathouse were constructed prior
to the Bendises’ purchase of the property on June 16, 1993. Therefore, the evidence
indicates that the boathouse and dock were erected some time between June 25, 1967,
and June 16, 1993.
      3
        As explained below, the Ganases contest the validity of the deed from South
Beach to Davis, arguing that it is unenforceable because it was not sufficiently
specific. The trial court did not rule on this argument.

                                         4
      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

      4
         On March 30, 2016, the trial court entered a consent order enjoining the
defendants from taking any actions to impede the Ganases’s rights to enjoy the waters
of Long Pond and to have undisturbed access thereto, including any docks extending
into the lake, until further order of the court.


                                          5
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



      5
        The trial court stated that “it is not necessary to decide whether the [quitclaim]
deed from . . . South Beach to . . . Davis is on its face defective because the main
issue in the suit is to establish the [Ganases’] rights to the dock and boathouse as well
as their access to Long Pond[,] and these questions can be answered without ruling
on the first question proposed by the [Ganases].”

                                            6
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


      Here, it is undisputed that the Property was included in Gaskins’s and Yancey’s

platted subdivision that centered around Long Pond, which was designated on the

subdivision plat, and the original property owners were expressly granted rights of

access to Long Pond. Accordingly, the trial court properly concluded that the Ganases

have an irrevocable easement of access to the waters of Long Pond, and we affirm

that portion of the order granting partial summary judgment to the Ganases.7




      6
        (Citations and punctuation omitted.) Davis v. Foreman, 311 Ga. App. 775,
778 (3) (717 SE2d 295) (2011), quoting Walker v. Duncan, 236 Ga. 331, 332 (223
SE2d 675) (1976); Patterson v. Powell, 257 Ga. App. 336, 337 (571 SE2d 400)
(2002); and citing Higgins v. Odom, 246 Ga. 309 (271 SE2d 211) (1980).
      7
         Because “[t]he easement was not created by the [restrictive] covenant[s], . .
. it could not be nullified by the expiration of the covenant[s].” Patterson, 257 Ga.
App. at 338.

                                          7
      There is, however, an issue of fact as to whether “free access to the waters”

includes the right to construct and/or maintain a boathouse and dock. “The grant of

an easement impliedly includes the authority to do those things which are reasonably

necessary for the enjoyment of the things granted.”8 Further, “[w]here an easement

is granted without limitations on its use, the grantee is entitled to avail himself of

other reasonable uses which develop over time if such uses significantly relate to the

object for which the easement was granted.”9

      Here, there is

      an issue of fact regarding what is reasonably necessary for the
      enjoyment of the . . . access easement . . . , as well as regarding whether
      [a dock and boathouse] would cause unreasonable damage to [Long
      Pond] or unreasonable interference with [the owner of Long Pond’s]
      enjoyment [thereof]. We therefore remand the case to the trial court for
      further proceedings on that issue.10

      8
        Jakobsen v. Colonial Pipeline Co., 260 Ga. 565, 566 (2) (397 SE2d 435)
(1990), citing Brooke v. Dellinger, 193 Ga. 66 (17 SE2d 178) (1941).
      9
          Jakobsen, 260 Ga. at 566 (2).
      10
        Crabapple Lake Parc Community Assn. v. Circeo, 325 Ga. App. 101, 111 (2)
(751 SE2d 866) (2013). Although the trial court concluded that access to the lake
“extends to the dock and boat-house that is currently erected on the [Ganases’s]
property,” the court did not make any findings regarding whether such structures were
reasonably necessary for the Ganases enjoyment of their easement or whether they
would interfere with Long Pond owner’s rights to the lake.

                                          8
      (b) The Ganases argue for the first time on appeal that the trial court properly

granted summary judgment because the statutes of limitation for violation of

restrictive covenants11 and trespass12 have expired, and therefore, the defendants are

barred from pursuing any claim arising from the placement of the dock or boathouse.

Because this argument was neither raised before nor ruled upon by the trial court, we

do not consider it here.13 Also, we note that the Ganases’s challenge to the validity

of the quitclaim deed from South Beach to Davis remains pending.14

      (c) Finally, we note that the trial court’s ruling regarding adverse possession

is not clear. In the order, the trial court stated: “While evidence was not presented that

establishes adverse possession, the [c]ourt is of the opinion that there is strong

evidence that even if the easement did not exist[,] the prior owners adversely



      11
        See OCGA § 9-3-29 (a) (“All actions for breach of any covenant restricting
lands to certain use shall be brought within two . . . years after the right of action
accrues. . . .”).
      12
         See OCGA § 9-3-30 (a) (“All actions for trespass upon or damage to realty
shall be brought within four . . . years after the right of action accrues.”).
      13
        See Cox v. Progressive Bayside Ins. Co., 316 Ga. App. 50, 52 (2) (728 SE2d
726) (2012) (“The Court of Appeals will not consider arguments neither raised nor
ruled on in the trial court and that are asserted for the first time on appeal.”).
      14
           See Henson v. Tucker, 278 Ga. App. 859, 865 (2) (630 SE2d 64) (2006).

                                            9
possessed the lake bottom where the dock is attached.” We are unable to discern

whether the trial court found that adverse possession was established as a matter of

law, and therefore, this opinion should not be construed as a ruling on such an

argument.

      2. Davis’s counterclaim. Davis argues that the trial court erred by striking his

counterclaim. We agree.

      As previously stated, although Davis asserted trespass as a defense in his initial

answer, he did not assert a counterclaim at that time.15 Almost four months later, he

amended his complaint to add a counterclaim for trespass. After the Ganases filed

their motion for partial summary judgment, Davis filed a motion for leave to amend

his answer and add the counterclaim. In the order granting partial summary judgment

to the Ganases, the trial court stated:

      [Davis’s] counterclaim is compulsory and should be stricken because it
      was untimely filed. The [c]ourt finds that [Davis’s] counterclaim was
      filed outside of the time allowed for such pleadings[,] and [Davis] failed
      to state that the counterclaim was filed late because of oversight,


      15
          Specifically, Davis stated as his third defense that “[the Ganases] have
interfered with and trespassed upon Davis’[s] property rights. In fact, the plaintiffs
have been prosecuted by the City of Lake Park for the offense of ‘criminal trespass’
upon . . . Davis’[s] property.”

                                          10
      inadvertence[,] or excusable neglect[,] nor did [Davis] request
      permission of the [c]ourt before filing said [c]ounterclaim. Accordingly,
      [Davis’s] counterclaim is hereby STRUCK.16


      As the trial court concluded, the counterclaim was compulsory because it arose

out of the same transaction or occurrence as the Ganases’s claim and had matured at

the time Davis filed his answer.17 And because Davis failed to assert the counterclaim

when he filed his initial answer, it was untimely.18 He did, however, seek leave to

amend his answer pursuant to OCGA § 9-11-13 (f), arguing that the counterclaim was

permissive or, in the event the trial court found it to be compulsory, justice required

the court to permit the amendment, which would not prejudice the Ganases.19


      16
           (Emphasis in original).
      17
        See Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 31 (1) (410 SE2d 154)
(1991) (“Essentially, a compulsory counterclaim is one which: 1) arises out of the
same transaction or occurrence as the main claim; and 2) has matured at the time the
answer is filed.”).
      18
          See OCGA § 9-11-13 (a) (“A pleading shall state as a counterclaim any claim
which at the time of serving the pleading the pleader has against any opposing party,
if it arises out of the transaction or occurrence that is the subject matter of the
opposing party’s claim and does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction.”).
      19
        OCGA § 9-11-13 (f) provides: “When a pleader fails to set up a counterclaim
through oversight, inadvertence, or excusable neglect, or when justice requires, he
may by leave of court set up the counterclaim by amendment.”

                                          11
      And although the Ganases filed a motion for summary judgment on this issue

before Davis filed his motion to amend, the trial court had not yet ruled on the

summary judgment motion at that time and did not do so for an additional six months.

The trial court, however, apparently ruled only on the motion for summary judgment,

declining to exercise its discretion and issue a ruling on the merits of the motion to

amend as required by OCGA § 9-11-13 (f). Because the trial court had not yet ruled

on the summary judgment motion when Davis filed the motion to amend, the court

erred by failing to consider Davis’s motion.20 Accordingly, we vacate that portion of

the trial court’s order striking Davis’s counterclaim and remand the case “for the

court to exercise its discretion and issue a ruling on the merits of the motion [to

amend].”21

      Judgment affirmed in part and vacated in part, and case remanded. Miller, P.

J., and Reese, J., concur.




      20
       See Richards v. Wells Fargo Bank, N.A., 325 Ga. App. 722, 727-728 (5) (754
SE2d 770) (2014).
      21
           Id. at 728 (5) (b).

                                         12
