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McGill v. Wahl (9/18/92), 839 P 2d 393
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
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THE SUPREME COURT OF THE STATE OF ALASKA
JOSEPH McGILL and DAVID McGILL, )
) Supreme Court No. S-4483
Appellants, ) Superior Court No.
) 3AN-90-3099 Civil
GUST K. WAHL and LINDA C. WAHL, ) O P I N I O N
Appellees. ) [No. 3886 - September 18, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Victor D. Carlson, Judge.
Peter A. Michalski, Judge.
Appearances: Paul D. Kelly, Kelly &
Patterson, Anchorage, for Appellants. Albert
Maffei, Anchorage, for Appellees. Kenneth C.
Powers, Assistant Attorney General,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Amicus Curiae, State of
Alaska. Robert L. Breckberg, Boyko &
Flansburg, Anchorage, for Amicus Curiae,
Robert Miller and Jo Ann Miller.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
The McGills appeal the superior court's grant of an
injunction against the blocking of a roadway across
their property to the Wahls' property. The injunction
thus recognized a prescriptive easement held by the
Wahls. The McGills also appeal the superior court's
denial of a jury trial, and its award of attorney's
fees. We affirm the court's decision to deny the jury
trial and grant the injunction. We reverse the award
of attorney's fees and remand the issue for
I. FACTUAL AND PROCEDURAL BACKGROUND
Since the early 1950s the Wahl and McGill families have
owned adjacent properties in Dillingham. Appendix 1,
an adaption of trial exhibit 2, offers a plat format of
the area, with landmarks and the roadway or "gravel
The Wahls' lots are platted as lots 11, 12 and 25, and
the McGills's as lots 4 and 6. Access to the Wahls'
property was via a roadway over lot 6. Originally the
roadway was "just a couple of wheel tracks"which was
used primarily by Gust Wahl's father for access from
Dillingham Airport Road to his properties at lots 12
From the early 1960s until 1966 the Bieker family lived
on a portion of lot 11 and used the roadway for access
to its land. In 1975 the Wahls purchased this part of
lot 11 from the Biekers and lived there with their
family until 1977. Thereafter the Wahls rented out the
house on lot 11 and lived in a house on lot 25.1 The
sole automobile access to the house on lot 11 was via
the roadway. In 1986, the Wahls took possession of the
lot 11 house and used it mostly for storage and as a
space for Linda Wahl's businesses.
In 1977 Highway 1 was constructed. It bisected lot 25.
The roadway was then used by other vehicles to get from
Highway 1 to the Dillingham Airport Road. In 1979 Fred
Wahl, who occupied lot 12, blocked off access to lot 12
from the roadway to stop this traffic. Most of the
roadway was thereafter only used as access for lot 11
and a half acre lot directly north of the Wahls' lot 11
parcel owned at one time by Sonny Olson. The
Dillingham Airport Road end of the roadway was also
used by the McGills as part of their driveway to the
"new"house on lot 4.
The Wahls and the McGills maintained a friendly
relationship until the present dispute arose. The
Wahls also maintained cordial relationships with the
various renters of the lot 11 house.
In April 1989 David McGill, the son of Joseph McGill
and Katherine McGill, the owners of the land, began
constructing a house on lot 6 right along the roadway.
In August 1989 David blocked the roadway by placing
lumber and other construction material across it. When
Gust Wahl asked that the roadway be cleared David
refused and informed Wahl that the roadway would remain
The Wahls filed a complaint on April 17, 1990, seeking
an injunction against the obstruction of the roadway
and damages. The McGills answered, requesting a jury
trial. The Wahls amended their complaint by deleting
their damages claim. After a bench trial, the trial
court granted the injunction, concluding that the Wahls
were entitled to a permanent prescriptive easement.
Three days before the entry of judgment the Wahls filed
a motion for attorney's fees. The judgment awarded the
Wahls $3,265.94 in costs and $8,000 in attorney's fees.
The McGills did not file their opposition to the motion
for attorney's fees until eight days after the
A. RIGHT TO JURY TRIAL
The McGills asked for, but were denied a jury trial.
The trial court based its decision on the fact that the
request for the injunction was akin to a quiet title
action and thus a claim in equity and not in law. The
McGills appeal the denial of the jury trial, claiming
that the action is more like an ejectment.2
The right to a jury trial in actions at law is
guaranteed by article I, section 16 of the Alaska
The Alaska Constitution preserves a jury trial only for
those causes of action which are legal, and not
equitable in nature. State v. First Nat'l Bank of
Anchorage, 660 P.2d 406, 423-24 (Alaska 1982). A claim
for a prescriptive easement, like a claim for adverse
possession, is in the nature of an equitable claim and
was historically tried in the courts of equity. See
Agnew v. Haskell, 692 P.2d 650, 651-52 (Or. App. 1984).
We hold that the McGills were not entitled to a jury
trial as a matter of right.
The Wahls did not specify in their complaint on which
section of the Alaska Statutes they were relying.
However, the complaint alleged that the elements of a
prescriptive easement existed. Therefore we treat
their action as one brought under the statute of
limitations, AS 09.10.030.4
Alaska Statute 09.10.030 not only establishes a time
limit during which an action to recover real property
may be maintained, but also constitutes the method by
which a claimant may establish title through adverse
possession. Bentley Family Trust v. Lynx Enter., 658
P.2d 761, 765 n.10 (Alaska 1983). We believe that the
statute also constitutes a method for establishing an
easement through prescription. See Hamerly v. Denton,
359 P.2d 121, 125 (Alaska 1961) (holding that the
statute of limitations may be "used as a basis" of
establishing an easement). Although originally the
statute was interpreted as merely the basis of "an
appropriate action," Ringstad v. Grannis, 12 Alaska
190, 196 (9th Cir. 1948) (serving as basis of an
ejectment action), we have not required the use of
another statute as the actual method of acquiring
title. See, e.g., Bentley Family Trust, 658 P.2d at
766 (recognizing title by adverse possession without
reference to the statute for quieting title); Peters v.
Juneau-Douglas Girl Scout Council, 519 P.2d 826, 830
n.13 (Alaska 1974); Ayers v. Day & Night Fuel Co., 451
P.2d 579, 581 (Alaska 1969). Thus the party claiming a
prescriptive easement need not bring the action as
either an action to quiet title, AS 09.45.010,5 or an
ejectment, AS 09.45.630.6
We reject the suggestion that whether the plaintiff is
in possession of the disputed property at the time of
the filing of the claim for a prescriptive easement
under AS 09.10.030 is determinative of the question of
whether the claim is treated as a legal or equitable
one. Compare Yaquina Bay Timber & Logging Co. v. Shiny
Rock Mining Corp., 556 P.2d 672, 673 n.1 (Or. 1976)
(noting that the choice between an action to quiet
title or an ejectment "depends upon who is in
possession of the land"). Territorial courts only
applied the possession test in distinguishing between
actions for ejectment and actions to quiet title. See
Elbing v. Hastings, 3 Alaska 125, 129-31 (D. Alaska
1906) (holding that where the "defendants were in
possession of the property at the time of bringing the
action, the suit must be dismissed for failure of proof
-- for want of jurisdiction in equity, and because the
plaintiffs would have a plain, speedy, and adequate
remedy at law").
Our rule prevents the awkward situation where a party
who takes the aggressive stance of seizing possession
of disputed property is awarded the right to a jury
trial. In this case, the McGills abruptly closed the
road and began construction on David McGill's house.
We choose not to adopt a policy which encourages
unilateral self-help and confrontational behavior.7
B. PRESCRIPTIVE EASEMENT
To establish a prescriptive easement a party must prove
that (1) the use of the easement was continuous and
uninterrupted; (2) the user acted as if he or she were
the owner and not merely one acting with the permission
of the owner; and (3) the use was reasonably visible to
the record owner. Swift v. Kniffen, 706 P.2d 296, 302
(Alaska 1985) (quoting Alaska Nat'l Bank v. Linck, 559
P.2d 1049, 1052 (Alaska 1977)). These are the same
requirements to make out a claim of adverse possession.8
Id. The required period of adverse use is ten years.
Id.; AS 09.10.030.
The Wahl's continuous and clearly visible use of the
property is not disputed.9 The McGills claim that the
Wahls failed to establish the second element, also
known as the hostility element, for the required period
The trial court found "That Plaintiffs have acted as if
they were the owners and not merely acting with the
permission of the owner." This finding is not clearly
erroneous.10 There is a presumption that the use of
land by an alleged easement holding was permissive.
Ordinarily, this presumption is overcome only by
"`proof of a distinct and positive assertion of a right
hostile to the owner.'" Dillingham Commercial Co. v.
City of Dillingham, 705 P.2d 410, 417 (Alaska 1985)
(quoting Hamerly v. Denton, 359 P.2d 121, 126 (Alaska
However, in this case it would be inappropriate for us
to presume that the Wahls were acting as merely
permitted users of the roadway. Such a presumption
does not arise where a roadway was not established by
the owner of the servient estate for its own use but
was for many years the only means of passage to the
dominant estate. Richardson v. Brennan, 548 P.2d 1370,
1372 (Nev. 1976).11
The roadway originally was and continuously has been
used as access to the lots behind the McGills'
property. The roadway existed and was used by the Nels
Wahls before the McGills came to the property.
Although other lot owners now use Highway 1 to get to
their lots, the use of the roadway has never changed
with respect to lot 11. The McGills, having come to
land burdened by the roadway, cannot now claim that the
users of the roadway were acting merely with their
permission. Likewise, the McGills without any
affirmative action cannot now claim that they intended
to permit the use of the road by the other landowners.12
We reject the suggestion that the Wahls' nonexclusive
use of the roadway precludes a prescriptive easement.
Besides the McGills, Olson used the roadway to access
his property when he was developing it. Also, until
Fred Wahl blocked the access across lot 12, the roadway
was used occasionally by others to travel from Highway
1 to Dillingham Airport Road.
Exclusivity of use is not generally a requirement for a
prescriptive easement as it is for a claim of adverse
possession. 2 John S. Grimes, Thompson on the Modern
Law of Real Property 343, at 215-16 (1980 rep.).
However, exclusive use will be a factor in determining
whether a use was under a claim of right.
We are not persuaded that the Wahls' use of the roadway
was so shared as to overcome the presumption that the
easement existed. The Wahls, their predecessors and
their renters on lot 11 were the primary and only
consistent users of the roadway. The McGills used only
the very northern part of the roadway across lot 4 as
their driveway. It would not be expected that an
easement holder would object to traffic on or use of
that part of a roadway which did not interfere with its
The McGills also contend that the Wahls' claim of the
prescriptive easement was barred by laches. They
maintain that the ten month delay between the erection
of the barricade and the filing of the complaint
unfairly prejudiced David McGill, who continued to
build his house in the belief that the Wahls had
acceded to the closure of the roadway to lot 11. The
Wahls claim that the ten month delay was not
unreasonable and that they filed the complaint as soon
as it was economically feasible. The Wahls also claim
that little construction work was done during the ten
month period and thus David McGill was not prejudiced
by the delay. The trial court found that
laches did not bar the action because, even though the
complaint was not filed until April 1990, David McGill
had notice of the Wahl's claim against him in August
We have previously held that for laches to apply the
defendant must show "(1) that the plaintiff has
unreasonably delayed in bringing the action, and (2)
that this unreasonable delay has caused undue harm or
prejudice to the defendant." City and Borough of
Juneau v. Breck, 706 P.2d 313, 315 (Alaska 1985). In
measuring the plaintiff's delay, the key determination
is "when, in light of any resulting prejudice to
defendants, it became reasonable to expect plaintiffs
to act upon the wrong." Moore v. State, 553 P.2d 8, 16
(Alaska 1976). The court will look to the point in
time at which the defendants' actions indicated that
their conduct was irrevocable and "would have
galvanized a reasonable plaintiff into seeking a
lawyer." Breck, 706 P.2d at 316. The analysis is
actually less of a distinct two-part test than an
overall balancing of the equities. Id. at 316 n.14.
Both parties testified that Gust Wahl confronted David
McGill in August 1989 and asked him to clear the
roadway. The testimony also showed that David McGill
told Gust Wahl that the roadway would not be opened.
Both Wahl and McGill suggested that the issue would
have to be resolved in court. David McGill enlisted an
attorney in anticipation of litigation. Gust Wahl
sought advice from the same attorney, but was informed
that he was representing the McGills. The Wahls then
hired their present attorney, but did not file their
complaint until April 1990, ten months after the Wahls
were admittedly "galvanized into seeking a lawyer."
Gust Wahl testified that the delay was caused by his
lack of funds to pursue the lawsuit.
In Breck, we held that under the circumstances an eight
month delay was inexcusable and resulted in undue
prejudice to the defendant. The action was barred by
laches. Id. at 317. This case is similar to Breck in
two respects. First, in Breck, the trial court found
that the defendants, the City and Borough of Juneau,
were on notice of Breck's allegations because Breck had
expressed her concerns before the assembly at least
nine times. Id. (Burke, J. dissenting). Second, we
rejected the proposition that an otherwise unreasonable
delay was always excusable because of the plaintiff's
lack of funds or legal resources to pursue the claim.
Id. at 316 & n.13.
However, we conclude that the balance of the equities
favors an affirmance of the trial court. Although the
source of prejudice identified in Breck, and alleged in
this case was the partial completion of a construction
project, Id. at 316, the actual prejudice was not the
same. The ten month delay did not significantly
prejudice David McGill. McGill testified that he
placed the house so as to intentionally block the road
and settle the issue. Thus, when he did the original
work he was aware that the house might have to be
removed. The prejudice from the delay, therefore, can
only be the resources spent working on the house during
the delay. Although McGill did complete some work on
the house in that time it was far from being completed.
McGill testified that the house would take two to three
years to build. There was also testimony that the
house was movable.
These circumstances distinguish this case from Breck.
David McGill should not be allowed to assert the
defense of laches when he pursued a course of conduct
which he knew from the beginning was likely to arouse
D. ATTORNEY'S FEES
The McGills were not given an opportunity to file a
motion opposing the award of attorney's fees requested
by the Wahls. Alaska Civil Rule 82(a), as it read when
the judgment was entered, did not require that a motion
for attorney's fees be submitted within a given time
period in order for fees to be awarded. Alaska R. Civ.
P. 82(a) (1990-91), amended by, Alaska Supreme Court
Order No. 1066 (effective July 15, 1991). However, the
absence of that provision does not mean that a motion
need not be made or that the opposing party should not
be given an opportunity to respond. According to Civil
Rule 77(c), the McGills should have been allowed ten
days to submit an opposition to a motion filed against
On remand, the trial court should consider the
complexity of the factual and legal issues presented,
the length of trial and the amount of preparation
necessary for trial in seeking the percentage of
reasonable actual fees to be recovered. See, e.g.,
Miller v. LHKM, 751 P.2d 1356, 1362 (Alaska 1988)
(approving of consideration of noncomplexity of the
issues and brief duration of the case in awarding a low
percentage of actual costs); Moses v. McGarvey, 614
P.2d 1363, 1370 (Alaska 1980) ("We recognize that
complexity may be considered in determining the amount
to be awarded, but that factor alone does not justify
the award of full fees.").
The decision of the trial court granting the injunction
is AFFIRMED. The trial court's award of attorney's
fees is REVERSED and REMANDED for reconsideration.
1. Apparently the access to the house on lot 25 after 1977
was via Highway 1. Although the houses on lots 11 and
25 were less than 80 feet apart, there was no driveway
connecting the houses. Rather there was only a
footpath up the hill to the house on lot 11.
2. Also submitting briefs on this question were amici
curiae State of Alaska and Robert Miller and Jo Ann
Miller. Both parties' standing derives primarily from
the case of State v. Miller, Case No. 3AN-88-10139
Civil (Alaska Super., August 13, 1991). In that case,
the superior court denied a public prescriptive
easement across the Millers' land for the use of an
access road into Chugach State Park. The superior
court held in that case that the Millers were entitled
to a jury trial.
3. Section 16. Civil suits; Trial by Jury.
In civil cases where the amount in
controversy exceeds two hundred fifty
dollars, the right of trial by a jury of
twelve is preserved to the same extent as it
existed at common law. The legislature may
make provision for a verdict by not less than
three-fourths of the jury and, in courts not
of record, may provide for a jury of not less
than six or more than twelve.
Alaska Const. art I, 16.
4. Alaska Statute 09.10.030 reads as follows:
Actions to recover real property in
10 years. No person may bring an action for
the recovery of real property, or for the
recovery of the possession of it unless
commenced within 10 years. No action may be
maintained for recovery unless it appears
that the plaintiff, an ancestor, a
predecessor, or the grantor of the plaintiff
was seized or possessed of the premises in
question within 10 years before the
commencement of the action.
5. Alaska Statute 09.45.010 reads as follows:
Action to quiet title. A person in
possession of real property, or a tenant of
that person, may bring an action against
another who claims an adverse estate or
interest in the property for the purpose of
determining the claim.
6. Alaska Statute 09.45.630 reads as follows:
Actions for recovery of real
property. A person who has a legal estate in
real property and has a present right to the
possession of the property may bring an
action to recover the possession of the
property with damages for withholding it;
however, recovery of possession from a tenant
shall be made under AS 09.45.060 --
7. The McGills and amicus curiae Millers contend that they
are entitled to a jury trial on the authority of Hollis
v. Tomlinson, 540 So. 2d 51 (Ala. 1989), and Frahm v.
Briggs, 12 Cal. App. 3d 441 (1970). In these cases,
the courts held that actions for injunctions against
interference with a prescriptive easement were
necessarily legal and not equitable causes of action,
because in order to enforce the right to an easement in
equity, the right first had to be established in a
separate action at law. Hollis, 540 So. 2d at 52;
Frahm, 90 Cal. App. 3d at 445. However, this first
step of establishing title at law was rejected long ago
by Alaska courts. Pacific Coal & Transp. Co. v.
Pioneer Mining Co., 205 F. 577, 579-80 (9th Cir. 1913)
(discussing Alaska law). Under Alaska statutes, the
plaintiff in possession does not have to show that it
has a right to judgment at law in a separate proceeding
before seeking to quiet title in equity. Id.;
8. Adverse possession however focuses on "possession"
rather than "use." Linck, 559 P.2d at 1052.
9. The superior court found that the prescriptive period
ran from October 1975 when the Wahls purchased lot 11
from the Biekers until August 1989 when David McGill
blocked the roadway.
10. This court has previously characterized the findings of
the elements of prescriptive easements as factual ones.
Swift, 706 P.2d at 303. This court will overturn such
findings only if they are clearly erroneous and there
exists a definite and firm conviction that a mistake
has been made. Donnybrook Bldg. Supply v. Interior
City Branch, First Nat'l Bank of Anchorage, 798 P.2d
1263, 1266 (Alaska 1990).
11. The facts of Richardson are very similar to the case
before us. In Richardson, a driveway across the
servient estate was used by the owners of the dominant
estate since the inception of the dominant estate. The
driveway was in existence and being used by the tenants
on the dominant estate when the owners of the servient
estate were assigned their lease to the land.
Originally, the driveway was the only access to the
dominant estate. 548 P.2d at 1372.
12. We have held before that in some cases the landowner's
intent to permit or acquiesce to the use of an easement
was the dispositive determination. See Swift, 706 P.2d