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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Price v. Eastham (02/03/2006) sp-5983
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) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| THOMAS E. PRICE, JR., | ) |
| ) Supreme Court No. S- 11647 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3HO-99-00066 CI |
| ) | |
| MIKE EASTHAM, VELDON | ) O P I N I O N |
| SPUD DILLON, LORRAINE | ) |
| TEMPLETON, BRUCE | ) [No. 5983 - February 3, 2006] |
| TURKINGTON, LEE KRUMM, | ) |
| LA VELLE DILLON, BOB FENEX, | ) |
| CAROL FENEX, BRUCE | ) |
| WILLARD, LINDA WILLARD, | ) |
| BUTCH BULLARD, GORDON | ) |
| GREBE, DIANE GREBE, ERIC | ) |
| OVERSON, SAM MATTHEWS, | ) |
| NANCY MATTHEWS, RAY | ) |
| KRANICH, EILENE WYTHE, JACK | ) |
| ALEXANDER, SUE ALEXANDER, | ) |
| RICK ALEXANDER, REED | ) |
| ALEXANDER, DAVE SANDERS, | ) |
| SHIRLEY SANDERS, GREG | ) |
| McCULLOUGH, LLOYD MOORE, | ) |
| PENNY MOORE, TAMMY | ) |
| HAGAN, CHUCK HAGAN, KATE | ) |
| MITCHELL, BEN MITCHELL, | ) |
| RONNIE MORRISON, BARB | ) |
| HRENCHIR, MIKE HRENCHIR, | ) |
| GUS WEBER, RITA WEBER, BOB | ) |
| SIMCOE, MARK JACOBS, BARB | ) |
| JACOBS, SHARON THOMPSON, | ) |
| RICK THOMPSON, FRED | ) |
| THOMPSON, CONNIE THOMPSON, | ) |
| MIKE DEVANEY, RICK | ) |
| ANDERSON, DAVE WEBER, | ) |
| MARK ROBL, TERRY ROBL, | ) |
| TORAS FISK, DAVE BOONE, | ) |
| MARASHA BOONE, GEORGE | ) |
| ESCHIN, JIM BILLS, MIKE | ) |
| OMALLEY, JOE OMALLEY, | ) |
| BILL MARKEL, GORDON BERG, | ) |
| FLOYD NEWKIRK, KARL HORST, | ) |
| ROBERT PELKY, ROBERT | ) |
| PLYMIRE, DON BLACKWELL, | ) |
| VALDA ZIEMELIS, RANDY | ) |
| WHITEHORN, CONNIE | ) |
| WHITEHORN, WILLIE BISHOP, | ) |
| HANS ALBERTSON, BILL | ) |
| SAMPSON, MIKE ARNO, ALLEN | ) |
| ENGLEBRETSON, RODNEY | ) |
| McLAY, JIM SPENCER, JIMMY | ) |
| SPENCER, JOE WRIGHT, JASON | ) |
| KINNARD, AMY KINNARD, SAM | ) |
| WRIGHT, PAUL BUDGE, BRIAN | ) |
| BELLAMY, RICK WISE, NATHAN | ) |
| WISE, JOHN WISE, JACOB WISE, | ) |
| MARTY WISE, JAKE ELLYSON, | ) |
| CAROL ELLYSON, BILL | ) |
| SHELDON, LEROY CABANA, SR., | ) |
| DORIS CABANA, LARRY | ) |
| CABANA, DAWN CABANA, | ) |
| and SCOTT CONNELLY, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Homer,
Harold M. Brown, Judge.
Appearances: Thomas E. Price, Jr., Homer,
pro se, Appellant. Michael Hough, Homer, for
Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
In Price v. Eastham (Price I), we held that a public
prescriptive easement had been established and remanded the case
to the superior court for a determination of the easements scope.1
In Price I, we discussed the question of scope in some detail,
remarking that [c]ourts have restricted the scope of prescriptive
easements significantly to limit the burden on the servient
estate2 and suggesting that the superior court was free to impose
restrictions upon the easement consistent with the Restatement
(Third) [of Property: Servitudes] . . . including . . . limiting
use to certain seasons, prescribing the width of the easement,
and specifying the precise uses that may be made of the easement.3
Upon remand, the superior court issued an order stating
that the easement was to be sixteen feet in width and including a
corresponding legal description. Because the order does not
satisfy Alaska Rule of Civil Procedure 52(a) and therefore does
not permit meaningful review,4 we remand for a determination of
the precise scope of the easement in light of this opinion. We
additionally affirm the superior courts refusal to condition the
scope of the easement upon approval of a modification to Prices
Farm Conservation Plan.
II. FACTS AND PROCEEDINGS
This case concerns the scope of an easement along a
seismic trail crossing the property of Thomas E. Price. The
trail was used without incident for many years (since at least
1956) until the late 1990s when trail traffic increased to the
point of interfering with Prices quiet enjoyment of his land.
Price posted the trail with No Trespassing signs in the winter of
1998-99. He replaced the signs each time unknown persons removed
them. A group of snowmachine drivers eventually sued Price to
settle the dispute.5
In its February 9, 2000 decision, the superior court
found that a right-of-way existed under 43 U.S.C. 932, Revised
Statute (RS) 2477 and, in the alternative, that a prescriptive
easement existed over Prices property.6 The RS 2477 issue had
not been raised by the parties at trial.7 Regarding the scope of
the RS 2477 right-of-way, the superior court stated only the
general direction of the trail; clarified that it may be used for
any purpose consistent with public travel; and declared its width
to be that width established by the traditional use of the trail,
but in no place is the right of way narrower than is safe for two
snowmachines to pass each other, nor wider than the original
width of the seismic trail.
In Price I, we held that the superior courts failure to
give the parties notice and an opportunity to be heard at trial
on the RS 2477 issue violated due process rights and we therefore
reversed the superior courts finding of an RS 2477 right-of-way.8
But we concluded that a public prescriptive easement had been
established over Prices property.9 Since the only relevant
discussion of the easements scope by the superior court concerned
the RS 2477 right-of-way, we remanded the case to the trial court
to establish the scope of the prescriptive easement.10 In so
doing, we cited to sections 4.1 and 4.10 of the Restatement
(Third) of Property: Servitudes, discussed the range of relevant
factors, and provided case law to guide the inquiry upon remand.11
After the hearing on remand, the superior court issued
an order consisting of a single sentence stating that the
easement was to be sixteen feet wide and containing a legal
description of its general direction including the start and end
points. Price now appeals.
III. DISCUSSION
The most important of Prices arguments on appeal is his
complaint that the trial court failed to comply with the
requirement of Civil Rule 52(a) that the superior courts order
contain specific findings of fact and conclusions of law to
permit meaningful review.12 A superior courts findings are
sufficiently clear and explicit to satisfy Civil Rule 52(a) if
they resolve all critical areas of dispute in the case and are
sufficiently detailed to allow for meaningful appellate review.13
In particular, the superior court must provide findings
sufficient to give a clear understanding of the grounds upon
which it reached its decision.14
In our conclusion in Price I, we suggested that the
superior court was free to impose restrictions on the easement
consistent with the Restatement (Third) and this decision,
including, for example, limiting use to certain seasons,
prescribing the width of the easement, and specifying the precise
use that may be made of the easement.15 The order issued by the
superior court makes no reference to any limitations to be placed
on the easement nor does it explain its reasoning in these terms.
Appellees argue that a common sense reading of the
record supports the superior courts order and that a precise
delineation of the easement was in fact provided by the superior
court in its provisions as to width and length of the easement.
But in Price I we provided guidance on the types of limitations
to be considered by the superior court. Unfortunately, the
conclusory nature of the superior courts finding is insufficient
for us to determine whether the superior court meaningfully
considered restrictions on the easement scope. Moreover, Prices
evidentiary showing in the hearing on remand raises the question
whether appellees are attempting to change the way they are using
the easement. Because a change in the use of a prescriptive
easement could significantly affect the scope of the easement, we
now discuss the legal principles and types of facts required to
determine whether appellees present use of the trail is in line
with the use that established the prescriptive easement in the
first place.16
A. It Was Error for the Superior Court To Fail To Make
Findings Sufficient To Allow Meaningful Review of its
Reasoning Concerning the Precise Scope of the Easement.
In its decision of February 9, 2000, the superior court
acknowledged the basic question that drives this case: what is
the proper response when a public prescriptive easement is
properly established by a relatively small number of people but
is subsequently subject to a dramatic increase in the numbers of
those who wish to use it?
This question implicates two separate inquiries: (1)
how to delineate the scope of a prescriptive easement at the
moment of perfection; and (2) whether a given change or expansion
in the scope of that easement is permissible. The two inquiries
are inseparable because the original scope of the easement must
be fully understood before the second inquiry may begin. The
second inquiry requires a comparison be made between the uses
made of the easement when it was perfected and the proposed new
use.17
In Price I, we provided guidance to the superior court
on both inquiries.18 We began by noting that [b]ecause an easement
directly affects ownership rights in the servient tenement,
judicial delineation of the extent of an easement by prescription
should be undertaken with great caution.19 In citing this
language, we echoed the language of section 4.10 of the
Restatement that urges a delicate balance be struck between the
needs of the easement beneficiary and the owner of the servient
estate.20
Regarding the first inquiry, the Restatement directs
that a prescriptive easements scope should be determined by the
nature of the adverse use that led to its creation in the first
place.21 In Price I, we cited the Restatement provision stating
that the focus of the inquiry should be placed on the servient
estate owners reasonable expectations.22 In particular, the
inquiry must consider what the servient estate owner should
reasonably have expected to lose by failing to interrupt the
adverse use before the prescriptive period had run.23
Once the original use and purpose for which the
easement was created is understood, the second inquiry begins.
The second inquiry must compare the new uses to the old uses of
the easement.24 The comparison is undertaken to answer the
question whether a new or challenged use of the easement falls
within the purpose for which the easement was originally created.25
In this inquiry, the Restatement urges courts to balance the
interests of the servient and dominant estate holders as well as
take conservation and neighborhood preservation concerns into
account.26 When a change in the use of a prescriptive easement is
involved, the Restatement stresses caution, stating that the
degree of change permitted for a prescriptive easement is
generally less than that for an expressly created easement.27
In making this second inquiry, the Restatement further
notes that conflicts between the original and new uses frequently
present factual issues as to how broadly or narrowly the purpose
should be defined, whether the proposed change is reasonably
necessary, whether it is of the sort that should have been
contemplated by the parties, how much damage or interference is
likely to ensue, and whether it is reasonable.28
At the evidentiary hearing below and on appeal, Price
has attempted to address these factors.29 Prices main argument is
that when compared with previous uses, the establishment of a
parking lot and the sudden increase in snowmachines combined to
create a use of the trail well outside of his reasonable
expectations. In the hearing on remand, Price tried to present
evidence concerning the establishment of a new parking lot near
the trail. The superior court stopped Price, stating that the
goal of the hearing was to determine the scope of the easement
and, crucially, refused to consider the motivations of the
appellants in changing the use of the easement. But the
Restatement (Third) does direct the courts to include an inquiry
into the motivations behind any change proposed by the easement
holder in the use of the easement.30
Prices argument depends in large part on the date this
easement was perfected. The emphasis in the inquiry is on
whether the challenged use can be shown to have been conducted
continuously for at least ten years. In this case, the ten-year
period should be measured back ten years from the first attempt
to block its use. Since Price posted the trail with No
Trespassing signs in the winter of 1998-99, the date of
perfection (in retrospect) is 1988-89. According to the two-step
analysis of the Restatement, the superior court must first
examine the uses of the easement made in 1988-89 and then proceed
to compare them with later uses of the trail.
Prices argument therefore hinges on the factual inquiry
as to whether the use of the trail changed dramatically in 1996.
In the record before us, there is evidence to suggest a
significant change in use. In its opinion of February 9, 2000,
the superior court notes that evidence in the record suggests
that the trail was used only occasionally for many years by a
small number of people. It is uncontroverted that a parking lot
was subsequently established in 1996 near the trailhead of the
easement and a new trail linking the parking lot to the original
trail was established soon thereafter. Price provides evidence
to show that before the establishment of the parking lot, the
public had used other trails to access the Caribou Hills
development. Prices witness in the hearing on remand also
expressed his opinion that the only reason the trail goes where
it does is because of the new parking lot.
Price also complains that his estate is being
unreasonably burdened by the present use of the trail. During
the hearing on remand, the superior court first mistook Prices
presentation of evidence showing increased use, erosion and
environmental damage to his estate as an attempt to dispute the
establishment of the easement and then questioned the relevance
of his evidence on environmental erosion. But Prices evidence
concerning environmental damage to his estate is germane to the
issue of easement scope. The Restatement approach directs the
courts to take conservation and neighborhood preservation
concerns into account when balancing the interests of the
dominant and servient estate holders.31 Prices evidence of
erosion damage occurring in recent years could also suggest that
the change in use has been both significant and unexpected when
compared to previous uses.
To address the Restatements emphasis on the reasonable
expectations of the landowner,32 Price points out that he did not
feel the need to dispute the use of the trail prior to 1998
precisely because that use was sporadic and did not interfere
with his operations on the land. To forestall any argument that
he sat on his rights with regard to this new use of the easement,
Price also takes pains to point out that he protested the non-
consensual increase in use of the trail (by posting No
Trespassing signs) within two years of the establishment of the
parking lot and well within the ten-year prescriptive period.
In short, Prices position is that the purpose for which
the trail was expanded (and marked and groomed for the first
time) after 1996 was to accommodate the increased traffic from
the parking lot. He argues that this purpose is quite different
from the purpose for which the original easement was established,
that is, occasional recreational use and access to three
residences. He places particular emphasis on how the trail went
from a normal trail to a snowmachine superhighway quite suddenly.
Prices argument echoes the analysis in several cases in which an
increase in intensity, frequency, and manner of use
particularly a sudden increase in traffic33 on an easement due to
circumstances beyond the reasonable expectations of the servient
estate-owner was held to be impermissible.34
In response to Prices arguments, Eastham provides a
list of people who over the last forty years have used the trail
for various purposes, including for access to Caribou Lake
residences as well as for recreational uses. But Eastham does
not cite to evidence in the record that would demonstrate a lack
of change in the type or intensity of use of the easement.
Eastham also fails to argue or point to evidence supporting a
conclusion that even if the uses are new, they are substantially
similar to previous uses and, therefore, fall well within Prices
expectations.35
On the other hand, Eastham does point to evidence
concerning the variety of the trails uses that go to the issue of
seasonality as well as to evidence indicating the present width
of the trail and industry standards concerning the width of
snowmachine trails. In response to Prices argument that the
snowmachiners can use a different trailhead, one that is in the
process of being established by the Homer Soil and Water
District, Eastham cites to evidence showing that the trail over
Prices land leads to three other trails and allows access to
different directions. Eastham uses this evidence to argue that
the trail over Prices land is therefore distinct from and serves
different purposes from the proposed trailhead. Eastham also
refers us to evidence to show that this proposed trailhead is
three miles away from the present parking lot and, as it is
illegal to drive snowmachines along the road, is not useful to
the snowmachiners.
It is of course the function of the superior court to
judge witness credibility and weigh conflicting evidence.36 If,
as in this case, most of the evidence is oral testimony, or if
the superior courts factual determinations depend largely on
conflicting testimony, then the superior courts greater ability
to assess witness credibility requires deferential review by this
court.37 But the superior court must nonetheless make its
findings with sufficient specificity that we may review both the
grounds for its decision and its application of the law to the
facts.
We therefore remand the case for a determination of the
scope of the easement in light of the analysis contained in
sections 4.1 and 4.10 of the Restatement and our discussion in
Price I. The analysis should also examine changes in the use of
the easement since 1988-89. In undertaking this analysis, the
superior court may, in its discretion, conduct additional
evidentiary hearings concerning the changes in frequency,
intensity, and manner of use of the easement.38
B. The Superior Court Did Not Err When It Refused To
Condition the Scope of the Prescriptive Easement upon
Approval of Appellees Application for a Modification of
Prices Farm Conservation Plan.
Price also argues that the superior court should have
conditioned the use of the prescriptive easement on Easthams
first securing approval from the relevant regulatory authorities
for a modification to Prices Farm Conservation Plan.39 Eastham
argues that this is a new argument and therefore impermissible
upon appeal.
We have stated that we will not consider on appeal new
arguments which (1) depend on new or controverted facts; (2) are
not closely related to appellants arguments at trial; and (3)
could not have been gleaned from the pleadings, unless the new
issue raised establishes plain error.40 On the other hand, we
have also noted that the pleadings of pro se litigants should be
held to less stringent standards than those of lawyers41 and have
explained that the briefs of pro se litigants are to be read
generously.42
In this case, Price did not make his Farm Conservation
Plan argument at the trial court level or upon appeal in Price I
and failed to raise this issue at the remand hearing after our
decision in Price I. Thus, he has failed to preserve this claim
on appeal.43 Moreover, even if Price had mentioned this argument
during the hearing on remand, his failure to raise the argument
in Price I would still preclude him from raising the issue for
the first time in this appeal.44 As we have noted, an appeal
should narrow the issues in a case, not expand them.45
IV. CONCLUSION
The evidence presented in the record is well suited to
answer the question presented in Price I, that is, whether an
easement over Prices land existed in the first place. But it is
presently not in a form proper to the precise delineation of the
scope of the easement in light of the direction provided by us in
Price I or by the Restatement (Third).
To determine the scope of the public prescriptive
easement on Prices land, the superior court must make specific
factual findings regarding the dates to be ascribed to the
prescriptive period; the original purpose and use of the
easement; any changes that have been made in the use of the
easement; and, finally, the reasonableness of that change, taking
into account such factors as the speed of the changes in use,
damage to the estate, and the reasonable expectations of the
servient landowner. Therefore, we REMAND the case to the
superior court for such findings and both parties should prepare
to address the factors at issue.
As Price failed to raise his third issue in Price I or
during the hearing on remand, we AFFIRM the superior courts
decision to refuse to condition the prescriptive easement upon
approval of appellees application for a modification of Prices
Farm Conservation Plan.
_______________________________
1 75 P.3d 1051, 1059 (Alaska 2003).
2 Id.
3 Id.
4 Civil Rule 52(a) states in pertinent part: In all
actions tried upon the facts without a jury or with an advisory
jury, the court shall find the facts specially and state
separately its conclusions of law thereon . . . .
5 The plaintiff in the trial court was originally the
organization Snomads, Inc. Michael Easthams amended complaint
substituted ninety-one individual plaintiffs for the Snomads.
6 To clarify, the trial court did not discuss the
prescriptive easement or its scope in its initial decision of
February 9, 2000. However, it did hold that a prescriptive
easement existed over Prices land in its denial of Prices motion
for reconsideration on the original RS 2477 ruling. Price, 75
P.3d at 1053.
7 Id.
8 Id. at 1056.
9 Id. at 1056-57.
10 Id. at 1058-59.
11 Id.
12 Alaska R. Civ. P. 52(a); cf. Fyffe v. Wright, 93 P.3d
444, 456 (Alaska 2004); Ilardi v. Parker, 914 P.2d 888, 892
(Alaska 1996).
13 Mapco Express, Inc. v. Faulk, 24 P.3d 531, 537 (Alaska
2001).
14 Ilardi, 914 P.2d at 892.
15 Price, 75 P.3d at 1059.
16 In Murray v. Murray, we faced a situation similar to
the procedural facts in Price. 856 P.2d 463 (Alaska 1993). In
Murray I, a divorce case, we remanded the case to the superior
court to make findings sufficient to distinguish between marital
and separate property. The trial courts subsequent opinion did
not set out the analysis regarding the categorization of property
called for in Alaskan case law, but named certain assets and
deemed them separate property in a conclusory fashion. As a
result, we remanded the case a second time. Id. at 466. In our
decision, we provided guidance as to the kinds of findings the
superior court would need to make in order to answer the
questions raised by the case. Id. at 466-68; see also H.C.S. v.
Cmty. Advocacy Project of Alaska, Inc. ex rel. H.L.S., 42 P.3d
1093, 1101 (Alaska 2002) (court also finds trial court findings
insufficient and gives guidance as to what facts must be found to
answer the inquiry).
17 Price, 75 P.3d at 1058 n.40; Restatement (Third) of
Prop.: Servitudes 4.10 cmt. d (2000).
18 Price, 75 P.3d at 1058-59.
19 Id. at 1058 (citing Wright v. Horse Creek Ranches, 697
P.2d 384, 388 (Colo. 1985)).
20 Restatement (Third) of Prop.: Servitudes 4.10 cmt. b
(2000).
21 Id. 4.1 cmt. a.
22 Price, 75 P.3d at 1058 n.39 (citing Restatement (Third)
of Prop.: Servitudes 4.10 cmt. d (2000)).
23 Price, 75 P.3d at 1058 (citing Restatement (Third) of
Prop.: Servitudes 4.10 cmt. d (2000)).
24 Restatement (Third) of Prop.: Servitudes 4.10 cmt. h
(2000).
25 Id. 4.10 cmt. c (2000); see also Andersen v. Edwards,
625 P.2d 282 (Alaska 1981).
26 Restatement (Third) of Prop.: Servitudes 4.10 cmt. h
(2000). Comment h states: Although generally easements are
permitted to evolve along with the properties they serve, the
outcome in individual cases may depend on how fast the transition
is taking place in the area and whether the easement was created
by grant or prescription. The degree of change permitted for a
prescriptive easement is generally less than that for an
expressly created easement. In balancing the interests of the
dominant and servient estate holders, conservation and
neighborhood preservation concerns should be relevant as well as
developmental concerns.
27 Id.
28 Id. 4.10 cmt. c.
29 In Price I, we provided the superior court guidance in
the application of these principles in the form of case law
exemplifying the rule that subsequent uses of an easement must be
reasonably related to uses made during the prescriptive period.
Price at 1058 nn.37, 40, 41, 42 and cases cited therein. In
several of these cases, section 478 of the Restatement (First) of
Property is relied upon as a guide for discussion. See e.g.,
Twin Peaks Land Co. v. Briggs, 130 Cal. App. 3d 587, 593-95
(1982); Wright v. Horse Creek Ranches, 697 P.2d 384, 388-89
(Colo. 1985); Benner v. Sherman 371 A.2d 420, 422 (Maine 1977).
Section 478 states that in ascertaining whether a particular use
is permissible under an easement created by prescription, a
comparison must be made between such use and the use by which the
easement was created with respect to (a) their physical
character, (b) their purpose, and (c) the relative burden caused
by them upon the servient tenement. Restatement (First) of Prop.
478 (1944) (Factors in Ascertaining Extent of Easements Created
by Prescription). Price uses this terminology in his brief, but
we use the language of the Restatement (Third).
30 Restatement (Third) of Prop.: Servitudes 4.10 cmts. f,
g, h (2000).
31 Id. 4.10 cmts. f, h.
32 Id. 4.1 cmt. h.
33 Id. 4.10 cmt. f; see also Gibbens v. Weisshaupt, 570
P.2d 870, 876 (Idaho 1977) (holding that an increase in degree of
use due to commercial activities and additional residences on the
dominant tenement is an unreasonable expansion of prescriptive
easement); Gutcheon v. Becton, 585 A.2d 818, 822 (Me. 1991)
(holding that increased use did not burden servient estate
because there was no evidence of increased noise or other
effluence associated with traffic); Leffingwell Ranch, Inc. v.
Cieri, 916 P.2d 751, 757 (Mont. 1996) (holding that subdivision
of ranch parcel into 174 units resulted in overburden of easement
created for access to three homesteads); Cote v. Eldeen, 403 A.2d
419, 420-21 (N.H. 1979) (holding that daily commercial use of
easement by large trucks exceeded scope of prescriptive easement
since prior use was occasional and non-commercial).
34 See Wright v. Horse Creek Ranches, 697 P.2d 384, 388
(Colo. 1985) (holding that development altering the physical
characteristics of a road imposed additional and non-consensual
burdens on the estate and was an impermissible change of use);
Block v. Sexton, 577 N.W.2d 521, 525-26 (Minn. 1998) (holding
that extent of prescriptive easement should not be enlarged
beyond objects originally contemplated); Hash v. Sofinowski, 487
A.2d 32, 35 (Pa. 1985) (noting that court should act with care in
determining the width of a prescriptive easement).
35 If Eastham can show that snowmachiners were using the
trail at as high a rate as they now use it before the
establishment of the parking lot and for at least ten years, then
Price cannot complain that the challenged use is outside of his
expectations. If Eastham cannot make this showing, then Price is
protected from an invasive use of his land because he acted
promptly and did not sit on his rights. This balance between the
establishment of potentially beneficial new uses and the
preservation of the rights of landowners is exactly that which
the Restatement seeks to establish. Cf. Restatement (Third) of
Prop.: Servitudes 4.10 cmt. c (2000).
36 In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska
2001).
37 Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001).
38 Murray, 856 P.2d at 466.
39 Price owns only the agricultural interest in his land.
Price, 75 P.3d at 1057. Price argues that since he must prepare
and submit a proposed amendment to his Farm Conservation Plan
whenever he wishes to change his use of the land, the users of
the prescriptive easement should be forced to do the same.
40 Krossa v. All-Alaskan Seafoods, Inc., 37 P.3d 411, 418-
19 (Alaska 2001).
41 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972)).
42 Hymes v. Deramus, 119 P.3d 963, 965 (Alaska 2005).
43 See Sea Lion Corp. v. Air Logistics of Alaska, Inc.,
787 P.2d 109, 115 (Alaska 1990).
44 Cf. State, Comm. Fisheries Entry Commn v. Carlson, 65
P.3d 851, 873 (Alaska 2003); Univ. of Alaska v. Simpson Bldg.
Supply Co., 530 P.2d 1317, 1323-24 (Alaska 1975).
45 Carlson, 65 P.3d at 873-74.
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