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Parker v. Alaska Power Authority (3/29/96), 913 P 2d 1089
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Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
HAROLD F. PARKER, )
) Supreme Court No. S-6350
Appellant, )
) Superior Court No.
v. ) 3AN-83-1880 CI
)
ALASKA POWER AUTHORITY, ) O P I N I O N
)
Appellee. ) [No. 4331 - March 29, 1996]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
Brian C. Shortell, Judge.
Appearances: Harold F. Parker, pro se,
Talkeetna. Ross A. Kopperud, Assistant
Attorney General, Anchorage, Bruce M.
Botelho, Attorney General, Juneau, for
Appellee.
Before: Rabinowitz, Matthews, Compton and
Eastaugh, Justices. [Moore, Chief Justice,
not participating.]
MATTHEWS, Justice.
Harold Parker is the holder of a mining claim located
on land owned by the State. The Alaska Power Authority (APA)
built two power line towers on this land under a right-of-way
permit issued by the State. Prior to the construction of the
towers the APA filed an eminent domain complaint against Parker
because of his ownership of the mining claim on the land.
Parker moved for a deposit of just compensation
pursuant to AS 09.55.400. The APA filed a memorandum which
argued that APA need not proceed by eminent domain. The APA
alleged that Parker's mining claim, a creation of AS 38.05.255,
is subject to reasonable concurrent uses, that the towers
represented a reasonable concurrent use, and that the APA need
not compensate Parker because it had not taken any property or
rights to property from Parker. The parties treated APA's
memorandum as a motion to dismiss, and Parker responded to it.
The trial court then dismissed the case, stating:
Pursuant to Civil Rule 72(i)(1) and (3),
the above-captioned case is dismissed without
prejudice. Defendant Parker is free to mine
in and around [the land the APA occupies]
provided he comply with State of Alaska,
Department of Natural Resources, Division of
Mines' statutes and regulations governing
such activities.
From this order Parker has appealed.
Civil Rule 72(i)(1) and (3), regarding eminent domain,
provided at the time of the dismissal:
(i) Dismissal of Action.
(1) As of Right. If no hearing has
begun to determine the compensation to be
paid for a piece of property and the
plaintiff has not acquired the title or a
lesser interest in or taken possession, the
plaintiff may dismiss the action as to that
property, without an order of the court, by
filing a notice of dismissal setting forth a
brief description of the property as to which
the action is dismissed.
. . . .
(3) By Order of the Court. At any time
before compensation for a piece of property
has been determined and paid and after motion
and hearing, the court may dismiss the action
as to that property, except that it shall not
dismiss the action as to any part of the
property of which the plaintiff has taken
possession or in which the plaintiff has
taken title or a lesser interest, but shall
award just compensation for the possession,
title or lesser interest so taken. The court
at any time may drop a defendant
unnecessarily or improperly joined.
The only issue in this case is whether the superior court
correctly dismissed the complaint under either of the above
subsections. We conclude that dismissal was proper under both
subsections.
Both subsections speak to the acquisition of title or a
lesser interest or the taking of possession of the property in
question. Both subsections make clear that for a defendant to
receive compensation there must be a taking accomplished by
eminent domain. If there has been no taking then a defendant has
no right to compensation, and the action may be dismissed.
APA acquired its right to possess the land in question
by a right-of-way permit from the owner of the surface estate,
the State of Alaska. The question in this case is whether an
additional title or right to possession must be acquired from
Parker. To answer this question the nature of Parker's interest
must be examined.
At common law, the scope of a mineral owner's rights to
the surface estate was "determined by reasonableness: the
mineral owner [was] entitled to use as much of the surface estate
as [was] reasonably necessary to obtain access to the minerals.
Conduct [was] reasonable if it [was] consistent with the
practices of the extraction industry." Ronald W. Polston,
Surface Rights of Mineral Owners - What Happens When Judges Make
Law and Nobody Listens?, 63 N.D. L. Rev. 41, 42 (1987). Norken
Corp. v. McGahan, 823 P.2d 622, 628 (Alaska 1991). Thus, the
mineral interest was the dominant estate, and "the mineral owner
[had] no obligation to pay the surface owner for the reasonable
amount of surface consumed in the development of the mineral
estate."1 Id.; see also Michelle A. Wenzel, The Model Surface
Use and Mineral Development Accommodation Act: Easy Easements
for Mining Interests, 42 Am. U. L. Rev. 607, 622 (1993).
The common law rule is not applicable to lands owned by
or devolving from the State of Alaska. Alaska Statute 38.05.125
reserves minerals from every land grant.2 Thus, much land in
Alaska is divided into surface and mineral estates. A mineral
rights owner has a right to surface uses of the land containing
the minerals he owns. Such uses shall be "limited to those
necessary for the prospecting for, extraction of, or basic
processing of mineral deposits and shall be subject to reasonable
concurrent uses." AS 38.05.255.3 Further, before mineral rights
are exercised under a reservation of mineral rights made pursuant
to AS 38.05.125, the mineral rights owner must "make provision to
pay the owner of the land full payment for all damages sustained
by the owner, by reason of entering upon the land." AS
38.05.130.
Thus, Parker's surface right is a limited one. He can
use the surface as necessary for his mining activities, but his
surface uses are subject to reasonable concurrent uses. The
State, as the owner of the surface estate, is permitted to convey
all or part of its interest to other parties and it has done so
in this case through the right-of-way grant to APA.
Because of Parker's limited interest in the surface
estate, APA has not, by acquiring the right of way or
constructing the power line towers, acquired title or a lesser
interest in, or taken possession of, any property interest Parker
has in the mining claim. APA thus had the right, under Civil
Rule 72(i)(1), to have this case dismissed. For the same reason,
dismissal by the court was proper under Civil Rule 72(i)(3).
Parker has made no attempt to mine the property.
Further, he has not shown that he has plans to commence mining
operations in the near future. Any claim that APA has taken an
interest in or possession of Parker's mineral rights is
premature. If, in the future, Parker can demonstrate that the
APA towers substantially interfere with his mining activity, he
can initiate an inverse condemnation action. We intimate no view
as to how the specific legal or factual issues presented by such
a suit should be resolved.
AFFIRMED.
_______________________________
1 The authorities Parker cites for the proposition that
he has a right to exclusive use of the surface above his mining
claim follow this common law rule; they are not Alaska cases.
2 AS 38.05.125(a) states:
Each contract for the sale, lease or
grant of state land, and each deed to state
land, properties or interest in state land,
made under AS 38.05.045-38.05.120, 38.05.321,
38.05.810-38.05.825, AS 38.08, or AS 38.50
except as provided in AS 38.50.050 is subject
to the following reservations: "The party of
the first part, Alaska, hereby expressly
saves, excepts and reserves out of the grant
hereby made, unto itself, its lessees,
successors, and assigns forever, all oils,
gases, coal, ores, minerals, fissionable
materials, geothermal resources, and fossils
of every name, kind or description, and which
may be in or upon said land above described,
or any part thereof, and the right to explore
the same for such oils, gases, coal, ores,
minerals, fissionable materials, geothermal
resources and fossils, and it also hereby
expressly saves and reserves out of the grant
hereby made, unto itself, its lessees,
successors, and assigns forever, the right to
enter by itself, its or their agents,
attorneys, and servants upon said land, or
any part or parts thereof, at any and all
times for the purpose of opening, developing,
drilling, and working mines or wells on these
or other land and taking out and removing
therefrom all such oils, gases, coal, ores,
minerals, fissionable materials, geothermal
resources, and fossils, and to that end it
further expressly reserves out of the grant
hereby made, unto itself, its lessees,
successors, and assigns forever, the right by
its or their agents, servants and attorneys
at any and all times to erect, construct,
maintain, and use all such buildings,
machinery, roads, pipelines, powerlines, and
railroads, sink such shafts, drill such
wells, remove such soil, and to remain on
said land or any part thereof for the
foregoing purposes and to occupy as much of
said land as may be necessary or convenient
for such purposes hereby expressly reserving
to itself, its lessees, successors, and
assigns, as aforesaid, generally all rights
and power in, to, and over said land, whether
herein expressed or not, reasonably necessary
or convenient to render beneficial and
efficient the complete enjoyment of the
property and rights hereby expressly
reserved."
3 AS 38.05.255 provides in part:
Surface uses of land or water included
within mining properties by owners of those
properties shall be limited to those
necessary for the prospecting for, extraction
of, or basic processing of mineral deposits
and shall be subject to reasonable concurrent
uses.
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