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Tenala, Ltd., v. Fowler (8/2/96), 921 P 2d 1114
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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, telephone (907) 264-0607, fax (907) 264-
0878.
THE SUPREME COURT OF THE STATE OF ALASKA
TENALA, LTD., )
) Supreme Court No. S-6820
Appellant, )
) Superior Court No.
v. ) 4FA-91-383 CI
)
AUDREY FOWLER, as Personal )
Representative of the ESTATE ) O P I N I O N
OF SALLY C. MAYO, )
) [No. 4376 - August 2, 1996]
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Jay Hodges, Judge.
Appearances: Eugene R. Belland, Fairbanks,
for Appellant. Ronald L. Baird, Office of
Ronald L. Baird, Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Carpeneti,
Justice, pro tem.
EASTAUGH, Justice.
I. INTRODUCTION
Audrey Fowler, as personal representative for the Estate
of Sally Mayo (Mayo), brought this action to quiet title to land
bordering the west, south, and east sides of a lot located on Fifth
Avenue in Fairbanks. There are two main lots involved in this
dispute, one of which, Lot 5, is subdivided into four sub-lots.
Mayo holds record title to one of the sub-lots, Lot 5C. Tenala,
Ltd., (Tenala), holds record title to the three remaining sub-lots
(Lots 5A, 5B, & 5D) and the other main lot, Lot 6. Fowler claims
adverse possession of portions of Lots 6 and 5D and claims a
disputed strip between Lots 5C and 5B. The superior court found
for Fowler and Tenala appeals. We affirm in part and reverse in
part.
II. FACTS AND PROCEEDINGS
A. The Facts
The lots at issue here are Lots 5 and 6, Block 76,
Fairbanks Townsite. The parties agree that Mayo holds title to Lot
5C and that Tenala holds title to Lots 5A, 5B, 5D, and 6. (EN1)
The three main contested areas consist of (1) a twelve to fifteen
foot wide area of the eastern portion of Lot 6, running along the
western border of Lot 5C from Fifth Avenue to a point just south of
Lot 5C's southern border; (2) a strip (the "disputed strip")
between Lots 5C and 5B, running north-south the length of Lot 5C,
having a width of approximately 3.45 feet along Fifth Avenue, and
abutting the north boundary of Lot 5D for a distance of
approximately 7-9 feet; and (3) an area to the south of Lot 5C,
encroaching onto Lot 5D.
All of Lot 5 was owned at one time by Hosea Ross. Hosea
Ross transferred Lot 5C to Sally Mayo in a 1940 deed. Ed Ross had
previously given Lee Mayo, Sally Mayo's husband, a 1927 deed for
all of Lot 5. No documents show that Ed Ross had any interest in
Lot 5 when he conveyed it to Lee Mayo.
Tenala is a closely held corporation. Its chain of title
to Lot 5 traces back to Hosea Ross via Russell Beaverson, then-
president of Tenala, who transferred Lots 5A, 5B, and 5D to Tenala
in 1961 and 1962. (EN2)
It is undisputed that Hosea Ross's transfers of parts of
Lot 5 left two small areas that were not conveyed to either Mayo or
to Tenala's predecessors in title. The first is the disputed strip
between Lots 5C and 5B. The second is a triangle about 1.8 feet
wide between Lot 5C's southern border and Lot 5D's northern border.
(EN3)
The Mayos moved into an existing cabin on Lot 5C in 1926.
The existing structures slightly encroached onto Lot 6, and an
addition and a coal shed built by the Mayos further encroached onto
Lot 6 and Lot 5D. (EN4) The coal shed was built to the south of
the cabin, and a vegetable garden was planted immediately to the
east of the coal shed. At some point someone constructed a fence
that extended in a easterly direction from the northeast corner of
a shed to the south of the Mayo coal shed (hereinafter the
"east/west fence"). This fence divided the portions of Lot 5 used
by the Mayos from those used by their neighbors to the south. This
fence lies 8 to 9 feet south of Lot 5C, and thus encroaches on Lot
5D.
When the Mayos moved onto Lot 5C, a garage was located on
Lot 6. The Shermer family then owned Lot 6 and the garage.
Between the garage and Lot 5C there was a strip of land more than
15 feet wide that the Mayos used to chop wood, store garbage cans,
and park cars. The Mayos also used this area as a driveway for
access to their coal shed and the rear of their cabin. While they
owned Lot 6, the Shermers used the garage and occasionally also
used the 15-foot strip to its east for access to the rear of the
garage. During a 1986 repaving project, the City of Fairbanks
installed an asphalt ramp between Fifth Avenue and the driveway on
Lot 6. The Mayos have continuously used this strip since 1926.
Additionally, when the Mayos moved onto Lot 5C they
treated as their own two cabins located east of Lot 5C. These
cabins remained in existence until at least 1940.
Tenala gradually removed old structures on its parcels.
The trial court found that the garage on Lot 6 was removed before
1965 but after 1961. Additionally, two log cabins on Lot 5B were
removed between 1940 and 1965. In 1965, a house on Lot 5B was also
removed. In the mid-1970s, Tenala cleared and planted grass on a
portion of Lot 5B and used that area as a volleyball court. To
protect the Mayos' garden from stray volleyballs, Lee Mayo
constructed an additional fence (the "north/south fence") running
in a northerly direction from the existing east/west fence. (EN5)
The extent and nature of the Mayos' use of Lot 5C and the
surrounding property has remained largely unchanged since 1965.
B. The Proceedings
Fowler, as representative of Sally Mayo's estate, brought
a quiet title action against Tenala in 1991. After a three-day
bench trial, the court held that under AS 09.10.030 Mayo had
adversely possessed the eastern fifteen feet of Lot 6 abutting Lot
5C and a northern portion of Lot 5D. The trial court also held
that Mayo had adversely possessed the disputed strip between Lot 5C
and Lot 5B under color or claim of title pursuant to AS 09.25.050.
The court stated that title to the disputed strip vested in the
Mayos in 1934 and that Tenala had failed to prove that it
subsequently adversely possessed this area away from Mayo pursuant
to AS 09.10.030.
The court entered judgment quieting title, to which it
attached a survey of the redefined Mayo parcel. The judgment
dismissed Tenala's counter- and cross-claims with prejudice.
Fowler sought attorney's fees and costs. She was awarded
attorney's fees of $13,730 and costs of $1,927.75.
III. DISCUSSION
A. With the Exception of the Actual Building Encroachments,
Mayo Lacked the Requisite Exclusivity to Adversely
Possess the Eastern Portion of Lot 6; Therefore, Mayo Has
Earned a Fee Simple Estate to the Areas Encroached by the
Buildings and a Prescriptive Easement to the Remainder of
the Claimed Land in the Eastern Portion of Lot 6.
Alaska has two adverse possession statutes, AS 09.10.030
and AS 09.45.052 (formerly AS 09.25.050). Alaska Statute 09.
10.030 contains the general adverse possession provision:
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 the
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 action.
AS 09.10.030 (amended 1994). Alaska Statute 09.10.030 is not just
a statute of limitations, but can also be used as the basis for
establishing new title through adverse possession. Ayers v. Day &
Night Fuel Co., 451 P.2d 549, 581 (Alaska 1969). The other adverse
possession statute, AS 09.45.052, allows claimants with color of
title to establish legal title after passage of a shorter period,
seven years. (EN6) Because Fowler is not claiming the eastern
portion of Lot 6 under a color of title theory, her claim to Lot 6
is governed by AS 09.10.030.
In Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d
826, 832 (Alaska 1974), we stated that the purpose of the
requirements for adverse possession is to put the true owner on
notice of an adverse possessor's claim. Towards this end, the
exclusivity and continuity of an adverse possessor's use of a
disputed area must only rise to that level which would characterize
an average owner's use of similar property. Nome 2000 v.
Fagerstrom, 799 P.2d 304, 309 (Alaska 1990). The level of use also
determines whether a claimant acquires a fee title estate via
adverse possession or merely a prescriptive easement. (EN7)
According to Professor Cunningham:
The chief distinction is that in adverse
possession the claimant occupies or possesses
the disseisee's land, whereas in prescription
[the claimant] makes some easement-like use of
it. . . .
. . .
The most basic difference is between
'use' and 'possession', for that determines
whether activities that are adverse will gain
an easement or estate for the claimant.
Usually it is obvious whether the activity is
only use, such as passing over land, or
possession, marked by occupation, fencing, or
permanent improvements.
Roger A. Cunningham, et al, The Law of Property  8.7, at 451-52
(2d ed. 1993). Cunningham further explains that
maintaining . . . a paved driveway is usually
treated as a prescriptive use, but its
permanent, continuous, and substantial nature
might lead a court to consider it possessory.
. . . It seems the test should flow from the
principle that possession implies not only the
possessor's use but his exclusion of others,
while use involves only limited activities
that do not imply or require that others be
excluded.
Id. at 452 (emphasis added) (footnotes omitted).
The Mayo's actual building encroachments onto Lot 6 were
continuous, open, and adverse, and represent permanent physical
improvements to the land that required the exclusion of others.
Therefore, we find that Mayo acquired a fee simple estate to the
areas of encroachment.
Apart from the slight building encroachments, the Mayos
used the eastern portion of Lot 6 for access to the rear of the
house and the coal shed, garbage can storage, and an unimproved
driveway. Fowler concedes that the Shermers, Tenala's predecessors
in interest in Lot 6, also occasionally used this area for access
to the rear of the Shermers' garage. Other than the slight
building encroachments, the Mayos never placed any permanent
improvements on Lot 6 and never fenced or posted the area as their
own. Nothing in the Mayos' use of Lot 6 can be interpreted to have
given notice to the true owners that the Mayos were claiming a
possessory interest in the driveway strip. (EN8) Consequently, if
the Mayos met the other requirements of continuous, uninterrupted,
open, and adverse use, the interest in the unimproved driveway area
of Lot 6 to which Fowler is entitled is a prescriptive easement,
and not fee title.
Tenala does not dispute that the Mayos have continuously
and openly used, without interruption, the eastern portion of Lot
6 as a driveway since 1926. However, Tenala argues that this use
was permissive. Therefore, the adversity of this use is the only
open issue.
We have held that there is a presumption that use by an
alleged easement holder is permissive. City of Anchorage v.
Nesbett, 530 P.2d 1324, 1330 n.16 (Alaska 1975). This presumption
is overcome by proof of a distinct and positive assertion of a
right hostile to the owner of the property. Id. In Swift v.
Kniffen, 706 P.2d 296, 304 (Alaska 1985), we stated that "[t]he
hostility element turns on the distinction between acquiescence and
permission,"and held that if the true owners merely acquiesce, and
do not intend to permit a use, the claimant's use is adverse and
hostile. Therefore, we must decide whether the record reveals that
Tenala intended to permit the Mayos' use or merely acquiesced in
that use. In Hubbard v. Curtiss, 684 P.2d 842, we stated that
"[t]he key difference between acquiescence by the true owner and
possession with the permission of the true owner is that a
permissive use requires the acknowledgment by the possessor that he
holds in subordination to the owner's title." Id. at 848
(citations omitted).
At trial, not only was there no evidence the Mayos were
given formal permission to use the driveway, an officer of Tenala
testified that the issue of the Mayos' use was never discussed with
the Mayos. On direct testimony, Eugene Belland stated that he was
aware of the Mayos' use and had never talked to Lee or Sally Mayo
about it. (EN9) Belland's testimony is characteristic of
acquiescence, rather than an affirmative intent to grant permission
to continue the long-term use which predated Tenala's ownership.
Statements made by Tenala to this court further support a
conclusion that Tenala acquiesced in rather than intentionally
permitted the Mayos' use. Tenala asserted in its opening brief
that "as a successor to Shermer, [Tenala] respected the uses by
Sally Mayo thus allowed and arising during Shermer's ownership and
did not interfere with Sally Mayo's exercise of the same." Nothing
in the record contradicts the evidence of acquiescence. We
consequently find that the requisite adversity existed and that
Fowler, as representative of her mother's estate, acquired a
prescriptive easement to the portion of the easterly fifteen feet
of Lot 6 which is not improved by the Mayo's buildings, and
acquired a fee simple estate to those areas of physical
encroachments.
B. The Superior Court Did Not Err in Holding that Mayo
Adversely Possessed the Disputed Strip between Lot 5B and
Lot 5C.
Fowler claims adverse possession of the disputed strip
between Lot 5C and 5B under color of title from the 1927 Ed Ross-
Lee Mayo deed. Alaska Statute 09.45.052 dictates that a claimant
with color of title may adversely possess a piece of property by
holding it without interruption for seven years, if possession is
adverse and notorious. Shilts v. Young, 567 P.2d 769, 775 (Alaska
1977). We have explained the color of title doctrine in the
following way:
The function of the doctrine of color of title
is to define the exact boundaries of the land
which is claimed. When one adversely
possesses land under color of title the extent
of the land possessed is measured by the terms
of the purported instrument giving color of
title rather than by actual physical use by
the claimant.
Lott v. Muldoon Road Baptist Church, Inc., 466 P.2d 815, 817-18
(Alaska 1970) (footnotes omitted). The color of title doctrine
presupposes invalidity of the instrument under which a claim is
brought. Id. Therefore, Fowler is not required to establish that
Ed Ross had any interest to convey in the 1927 deed to Lee Mayo.
The superior court found that Mayo, pursuant to AS
09.45.052, had acquired title to the disputed strip by 1934. The
issue of the Mayos' use of the disputed strip is a factual question
which we review under the clearly erroneous standard. Peters, 519
P.2d at 833. The application of legal doctrines to the facts,
however, presents questions of law which we review independently.
Id. at 834. Uncontested evidence was presented at trial that the
Mayos treated the cabins on Lot 5B as their own until they were
removed, sometime between 1940 and 1965. The court found that the
Mayos continuously used the disputed strip from 1927, and that "the
parties presented no evidence that anyone in the seven years
between 1927 and 1934 made a claim to this land adverse to the Mayo
family." The court also found that the Mayos paid taxes on the
disputed strip since 1940. Furthermore, in finding that the Mayos
openly claimed the disputed strip, the court noted an incident when
May Butler, Sally Mayo's daughter, advised Belland that the area he
was mowing was part of the Mayo lot. The court's factual findings
are not clearly erroneous.
Based on the evidence before it, the superior court
concluded that there was clear and convincing evidence that the
Mayos had "openly treated the 'disputed strip' as their own land"
and had acquired title under color or claim of title based on the
1927 deed to Lee Mayo. (EN10) We find that the superior court did
not err in holding that the Mayos' use was sufficiently exclusive,
hostile, and notorious to adversely possess the disputed strip.
As the superior court correctly noted, because the Mayos
acquired title via adverse possession in 1934, the relevant
question is whether Tenala subsequently acquired title to this area
through adverse possession. In holding that Tenala had not
adversely possessed the disputed strip away from the Mayos, the
superior court noted that the Mayos had paid taxes on the disputed
strip since 1940 and had treated it as their own since 1927, that
Tenala had made no claim to the strip prior to the lawsuit, and
that Tenala had never held legal title or color of title to the
strip. Given these facts, the superior court held that Tenala had
failed to present clear and convincing evidence of adverse
possession.
Tenala argues that the superior court erred in holding
that Tenala had made no claim to the disputed strip prior to this
lawsuit. Tenala points to the following conduct as indicating
Tenala's claim to this parcel: rototilling and seeding the area in
1967, mowing the lawn, and using part of it as a volleyball court.
Tenala also argues that it responded to the claim by May Butler by
escorting her to the fence line and informing her that the
north/south fence represented the boundary line. These facts,
however, do not rise to the level of clear and convincing evidence
of use which is sufficiently hostile, continuous, open, and
notorious to acquire title by adverse possession. Fowler testified
at trial that, as a neighborly gesture, Tenala occasionally mowed
the lawns of neighboring properties. Furthermore, weighing the
conflicting testimony before it, the trial court found that the
Butler/Belland incident supported the fact that the Mayos openly
claimed this area. As we noted above, supra note 4, when faced
with findings based on conflicting testimony, we have even a
stronger basis for deferring to the trial court. Penn, 615 P.2d at
3. Consequently, we hold that the trial court did not err in
concluding that Tenala had failed to carry its burden to show
adverse possession of the disputed strip after 1934.
C. The Superior Court Did Not Err in Holding that Mayo
Adversely Possessed a Portion of the Northern End
of Lot 5D, but Erroneously Determined the South
Boundary Line of the Mayo Lot.
Tenala does not dispute that the Mayos' physical
encroachments and use of the northern end of Lot 5D possess the
requisite characteristics for acquiring a fee simple estate; Tenala
argues instead that the better public policy would be to award an
easement. (EN11) Tenala's arguments are contrary to the existing
law, which holds that fee simple title is acquired if all of the
required elements of adverse possession are met. See, e.g.,
Hubbard v. Curtiss, 684 P.2d 842, 849 (Alaska 1984) (holding that
title automatically vests in the adverse possessor at the end of
the statutory period if all the requirements are met). The law has
long recognized adverse possession as a legitimate method for
acquiring title. Alaska Nat'l Bank v. Linck, 559 P.2d 1049, 1054
(Alaska 1977). In Linck we stated:
While . . . adverse possession statutes keep
stale causes out of the courts, they serve
other important public policies as well. They
exist because of a belief "that title to land
should not long be in doubt, that society will
benefit from someone's making use of land the
owner leaves idle, and that third persons who
come to regard the occupant as owner may be
protected."
Id. (citations omitted). Therefore, Tenala's arguments based on
public policy are unfounded and unpersuasive.
Tenala additionally challenges the superior court's
determination of the Mayos' south boundary line (as set by the
court's finding of adverse possession). The court set the south
boundary with reference to the small shed south of the Mayo coal
shed. The superior court described the south boundary as follows:
[B]eginning at the northeast corner of the
small shed located south of the Mayo "coal"
shed along a line extending westerly at the
same angle and direction as the line denoting
the north edge of the small shed until it
intersects the west edge of the 15 foot
"driveway"previously awarded to Mayo; and,
again beginning at the northeast corner of the
small shed along a line extending easterly at
the same angle and direction as a line that
connects the northeast corner of the small
shed and the intersection of the "picket
fence"[the east/west fence] and the "wood and
wire fence,"[the north/south fence] then from
[this] intersection . . . along a line
extending easterly at the same angle and
direction as the line that connects the
northeast corner of the small shed and the
intersection of the "picket fence"and the
"wood and wire fence"until it intersects the
east boundary of the dispute[d] strip awarded
to Mayo as set forth below.
Tenala challenges this boundary line in two respects.
Tenala first argues that Fowler only claimed to the south
line of the coal shed and not the additional approximately 2« feet
to the small shed. The superior court understood the area claimed
by Fowler with respect to Lot 5D to be bounded by the east/west and
north/south fences and described it as follows: "The area claimed
is enclosed by a fence that runs easterly from a shed that is
approximately two and one-half feet south of the 'coal' shed to a
fence that runs north and south." In support of its contention
that this understanding was incorrect and that Fowler limited her
claim to Lot 5D to the south line of the coal shed, Tenala cites
statements made at trial by Fowler's attorney, Mr. Baird. These
statements, taken in context, are consistent with an understanding
that Fowler was claiming that portion of Lot 5D inside the fence
which runs from the northeast corner of the small shed south of the
coal shed. (EN12) Consequently, the trial court did not clearly
err by using the small shed as the southerly demarcation of
Fowler's claim.
Tenala next argues that Fowler has no claim to the
portion of Lot 5D awarded in the court's judgment outside the area
enclosed by the east/west and north/south fences. This challenge
to the south boundary line set by the trial court concerns the
court's determination that the area adversely possessed by the
Mayos included a portion of Lot 5D east of the north/south fence.
This area was included in the judgment awarded to Fowler because
the superior court extended the south property line until it
intersected with the disputed strip. Tenala argues that, because
the north property line of Lot 5D marks the south boundary of the
disputed strip, the disputed strip and the south property line as
described by the court do not intersect. Tenala is correct. (EN13)
As noted above, during the trial the superior court explained that
it understood the claimed area as being bounded by the east/west
and north/south fences. Therefore, it was merely an oversight that
the superior court defined the east end of the south property line
as it did. Consequently, we hold that the south boundary line of
the Mayo's fee simple estate starts at the northeast corner of the
small shed located to the south of the Mayo's coal shed and extends
easterly at the same angle as a line that connects the shed and the
intersection of the east/west fence and north/south fence, then
runs northerly along the line of the north/south fence until it
intersects with the north property line of Lot 5D, and from this
intersection extends northeasterly along the north property line of
Lot 5D until this property line intersects with the eastern border
of the disputed strip. (EN14)
D. Although Tenala Waived Any Argument with Respect to the
Costs and Attorney's Fees Awards, We Vacate These Awards
Due to Our Partial Reversal of the Trial Court and Remand
Them for Re-evaluation in Light of Our Holdings.
Tenala asserts that the superior court erred in awarding
attorney's fees and costs, but makes no supporting arguments on
appeal and merely refers us to its trial court memoranda on the
issue. Therefore, Tenala has effectively abandoned these issues.
See Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska
1991) (treating issues cursorily or not addressed in a party's
appellate briefs as abandoned) (citing Lewis v. State, 469 P.2d
689, 691-92 (Alaska 1970)). This court need not consider arguments
which a party on appeal merely adopts and incorporates by reference
to its lower court memoranda. Bidwell v. Scheele, 355 P.2d 584,
587-88 (Alaska 1960).
Nonetheless, because we have found that Fowler, as
representative of her mother's estate, acquired a prescriptive
easement and not fee title for most of the disputed portion of Lot
6, we vacate the attorney's fees and costs awards. On remand, the
trial court will have to decide who is the prevailing party. The
prevailing party determination is left to the discretion of the
trial court, LeDoux v. Kodiak Island Borough, 827 P.2d 1121, 1124
(Alaska 1994), as is the award of costs. Pavone v. Pavone, 860 P.2d
1228, 1233 (Alaska 1993).
E. On Remand, the Dismissal of Tenala's Counter- and Cross-
Claims Should Be Made To Be Without Prejudice.
Tenala argues that its counter- and cross-claims should
have been granted at least with respect to Lots 5A and 5B and that
portion of Lot 5D not enclosed by the east/west and north/south
fences. Fowler responds that Tenala waived this argument by
failing to raise it below. We have held that we will decline to
review issues that are not raised at the trial court, except to the
extent that they may constitute plain error. Miller v. Sears, 636
P.2d 1183, 1189 (Alaska 1981). "Plain error exists where an
obvious mistake has been made which creates a high likelihood that
injustice has resulted." Id. (citing City of Nome v. Ailak, 570
P.2d 162, 171 (Alaska 1977)).
An involuntary dismissal with prejudice is a harsh
sanction which should only be applied in extreme cases. Power
Constructors, Inc. v. Acres Am., 811 P.2d 1052, 1055 (Alaska 1991);
Zeller v. Poor, 577 P.2d 695, 697 (Alaska 1978); Mely v. Morris,
409 P.2d 979, 982 (Alaska 1966). While Tenala did not ask for
affirmative relief on its counter-claims and did not pursue its
cross-claims, no prejudice to Fowler or the other defendants was
shown. Therefore, we hold that it was plain error to dismiss
Tenala's counter- and cross-claims with prejudice. We reverse the
trial court's decision and remand with instructions that these
claims be dismissed without prejudice.
IV. CONCLUSION
For these reasons, we AFFIRM in part and REVERSE in
part. We AFFIRM the holding that Mayo adversely possessed the
areas of actual building encroachments in Lot 6 and acquired a fee
title interest to these areas. We REVERSE the holding that Mayo
adversely possessed the remaining easterly fifteen feet of Lot 6
and REMAND for entry of judgment giving Mayo a prescriptive
easement to that part of Lot 6 for use as a driveway and storage
area and for correction of the judgment to reflect these changes in
the western boundary of Mayo's property. We AFFIRM the superior
court's holding that Mayo, under color of title pursuant to AS
09.45.052(a), adversely possessed the disputed strip between Lots
5C and 5B. Likewise, we AFFIRM the superior court's finding that
Mayo adversely possessed the fenced area of Lot 5D, but we REMAND
so the judgment may be corrected to adjust the southern boundary of
Mayo's property. We VACATE the attorney's fees and costs awards
and REMAND for re-evaluation of these claims. Finally, we REVERSE
the dismissal with prejudice of Tenala's counter- and cross-claims
and REMAND with instructions that these dismissals be without
prejudice.
ENDNOTES:
1. Appendix A depicts the lots and the disputed boundaries. Lot
5 is shaped roughly like an upside down "L", and borders on both
Fifth and Sixth Avenues. Lot 6 is rectangular, runs along the
western border of Lot 5, and fronts on Fifth and Sixth Avenues.
Lot 5C is located in the northwest corner of Lot 5; Lot 5D is south
of Lot 5C and Lot 5B is east of Lot 5C and 5D. Lot 5A comprises
the northeast corner of Lot 5.
2. In 1962, Beaverson also transferred Lot 6 to Tenala.
3. The trial court presents a thorough analysis of how these gaps
were created in the chain of title. Fowler v. Tenala, Ltd., No.
4FA-91-383 CI, 8-11 (Alaska Super., January 25, 1994).
4. An "as-built"plot plan created after Sally Mayo's death
indicates that the southwest corner of the cabin addition
encroaches onto Lot 6 by up to 2 feet and the coal shed encroaches
about 3 to 4 feet onto Lot 6 and about 8 to 9 feet onto Lot 5D.
5. Tenala contends that this fence was not built in the 1970s,
but rather "in all probability"dates to 1940 and was built by
Hosea Ross. The trial court, however, accepted Fowler's testimony
regarding the purpose and date of the fence. We only set aside a
trial court's factual findings if we determine them to be clearly
erroneous. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d
826, 833 (Alaska 1974) (citing Ayers v. Day & Night Fuel Co., 451
P.2d 579, 582 (Alaska 1969)). "A finding is clearly erroneous
when, although there may be evidence to support it, we are left
with the definite and firm conviction on the entire record that a
mistake has been committed." Id. (quoting Alaska Foods, Inc. v.
American Mfr.'s Mut. Ins. Co., 482 P.2d 842, 848 (Alaska 1971)).
When a trial court's decision of a factual issue depends largely on
conflicting oral testimony, the trial court's competence to judge
credibility of witnesses provides even a stronger basis for
deference by the reviewing court. See Penn v. Ivey, 615 P.2d 1, 3
(Alaska 1980) (citations omitted). The trial court's findings with
respect to this fence are not clearly erroneous.
6. AS 09.45.052(a), in relevant part, states:
The uninterrupted adverse notorious possession
of real property under color and claim of
title for seven years or more is conclusively
presumed to give title to the property except
as against the state or the United States.
7. The other requirements for a prescriptive easement are the
same as those for adverse possession. McGill v. Wahl, 839 P.2d 393
(Alaska 1992) ("To establish a prescriptive easement a party must
prove (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. These are the same
requirements to make out a claim of adverse possession."(citations
omitted)).
8. In Fagerstrom and Peters, we held that the claimants' uses
rose to the level of an average owner and thus gave notice to the
true owner. Unlike Mayo, however, the claimants in Fagerstrom and
Peters placed physical improvements on the disputed property and
staked off the boundaries of their claims. Fagerstrom, 799 P.2d at
307; Peters, 519 P.2d at 828. Furthermore, the claimants' uses
were more extensive in those cases. See, e.g., Fagerstrom, 799
P.2d at 307-08 (indices of claim include: boundaries staked off;
subsistence base camp use; picnic area with gravel pit, chairs, and
barrel stove; placement of camper home; construction of outhouse
and fish rack; and planting of trees); Peters, 519 P.2d at 828-29
(indices of claim include: physical improvements; placement and
replacement of boundary markers; regular and extensive weekend use,
as well as living on the property during seal season; construction
of improvements to process and smoke fish; boat repair activities;
deer hunting and clam digging; and planting a garden).
9. Belland testified that he was the "major operating officer"of
Tenala and that when he stated that the Mayos' use did not bother
him, he was speaking as an officer of the corporation.
10. Tenala argues, however, that the superior court failed to
consider a 1922 deed, recorded in 1933, from the City of Fairbanks
to William Gertz. Tenala asserts that the recording of this deed
was a hostile act that destroyed Mayo's color of title claim.
Tenala offers no support for the contention that the recording of
a deed is a sufficiently adverse act to destroy a color of title
claim. When an argument is cursorily treated and unsupported by
citation to legal authority we consider it waived. A.H. v. W.P.,
896 P.2d 240, 243 (Alaska 1995) (arguments that pro se appellant
inadequately briefed and failed to support with citations to legal
authority treated as abandoned); Forquer v. State, 677 P.2d 1236,
1238 n.2 (Alaska 1984) (appellants waived issues for which they
failed to adequately develop both their arguments and the record to
enable the court to adequately address them); Wernberg v. Matanuska
Elec. Ass'n, 494 P.2d 790, 794 (Alaska 1972) (arguments given only
cursory treatment and unsupported by citations to legal authority
considered abandoned); Fairview Dev., Inc. v. City of Fairbanks,
475 P.2d 35, 36 (Alaska 1970) (single conclusory paragraph without
citation of any authority is not adequate to put an issue before
the court), cert. denied, 402 U.S. 901 (1971).
Because this asserted destruction of Mayo's color of title
claim is the foundation for Tenala's argument that it acquired
title to the disputed strip via the doctrine of strips and gores,
this related theory of ownership must fail. Additionally, because
Mayo acquired title through adverse possession in 1934, Tenala's
claim under the quitclaim deeds procured shortly before trial from
the heirs of Hosea Ross is also without merit.
11. Tenala concedes that the Mayos' use of the northern portion of
Lot 5D has "an exclusivity of use which could be construed as an
exclusivity of possession under the Alaska case law, thus ripening
into a fee title rather than a servitude."
12. On four occasions at trial Baird characterized Fowler's claim
to Lot 5D as being the area "to the rear of the coal shed." The
first statement by Baird relied upon by Tenala indicates the
intended meaning of this phrase. At trial Baird stated, "We are
not making any claim under title or adverse possession to any area
south of the fenced line and the rear of the coal shed." The fact
that Baird qualified the fenced area as being to "the rear of the
coal shed"indicates that he was not referring to the south wall of
the coal shed, but rather was informally referring to the area
south of the coal shed up to the fence line, i.e., the small shed.
Other statements by Baird which Tenala contends indicate a
limitation of Fowler's claim to the area to the rear of the coal
shed can be interpreted consistently with this understanding.
13. The disputed strip was created when the area between Lots 5C
and 5B was left unconveyed by Hosea Ross. Lot 5D, however, was not
left unconveyed but rather was included in a deed from Hosea Ross
to C.M. Housler, a predecessor in interest to Tenala. The disputed
strip does not extend southerly into Lot 5D, making the superior
court's demarcation of the south property line physically
impossible. Furthermore, although at one time Fowler asserted a
claim to all of Lot 5, Fowler dropped any claim under color of
title to that portion of Lot 5D not enclosed by the east/west and
north/south fences.
14. We note that the western edge of the south property line as
set forth by the superior court is also altered due to our holding
that Mayo did not acquire a fee simple estate to the eastern
fifteen feet of Lot 6. While the south property line of Mayo's fee
simple title ends at the western border of Lot 5D, the southern
boundary of Mayo's prescriptive easement extends in a westerly
direction for fifteen feet.
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