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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dias v. State, Dept. of Transportation and Public Facilities (9/17/2010) sp-6510
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
| DAVID T. DIAS and | ) |
| MARIBELLE DIAS, | ) |
| ) Supreme Court No. S- 13570 | |
| Appellants, | ) |
| ) Superior Court No. 3AN-08-6170 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF | ) |
| TRANSPORTATION AND PUBLIC | ) |
| FACILITIES, | ) |
| ) No. 6510 - September 17, 2010 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Ronald L. Baird, Office of
Ronald L. Baird, Anchorage, for Appellants.
Jeffrey P. Stark, Assistant Attorney General,
Anchorage, and Daniel S. Sullivan, Attorney
General, Juneau, for Appellee.
Before: Fabe, Winfree, Christen, and
Stowers, Justices. [Carpeneti, Chief Justice,
not participating.]
STOWERS, Justice.
I. INTRODUCTION
The Diases obtained land that was adjacent to a public
road and subject to an easement and right of way held by the
State. The State contacted them to begin using the easement and
right of way for road construction. The Diases filed suit in the
superior court to quiet title, asserting that the State had only
a temporary easement for the removal of gravel and other
materials and that the temporary easement had expired. The
superior court granted the States motion for summary judgment,
finding that the instrument conveyed to the State the right to
construct and maintain a road and perform related activities.
The Diases appeal. We agree with the superior court and affirm
the grant of summary judgment.
II. FACTS AND PROCEEDINGS
In 1969 Frank Cornelius conveyed an easement and right
of way on land he owned in Palmer to the State of Alaska,
Department of Highways.1 The conveyance was recorded on a
standard form entitled GRANT OF RIGHT OF WAY EASEMENT. The
standard language on the form provided that the grantor conveyed
a perpetual, full and unrestricted easement and right of way.
A typewritten passage on the form described the
conveyance as [a] strip of land 150 feet wide, adjacent to the
northwesterly side of Trunk Road (Route 565) . . . [for] a
distance of 2000 feet. A consideration of no/100 dollars was
typed into a corresponding blank on the form. The typewritten
description provided that the State will pay ten cents per cubic
yard for gravel or other material removed from above described
area. The form provided space to describe the purpose of the
conveyance, which was left blank. Trunk Road FAS 565 was typed
into a space provided for PROJECT NO.
In 1992 Cornelius conveyed a portion of the land that
was subject to the easement and right of way to David and
Merribelle Dias.
In 2007 the State contacted the Diases to negotiate its
use of the easement and right of way and the acquisition of
additional right of way for the Trunk Road Reconstruction
Project. The Diases asserted that the State did not have an
existing right of way and refused to convey any additional right
of way.
The Diases filed a Complaint for Quieting Title with
the superior court, asking the court to quiet their interest in
the property free of any interest of the State. The State filed
a counterclaim, asking the court to declare that it had a valid
easement for highway right-of-way purposes.
The Diases moved for summary judgment, arguing that the
easement and right of way was solely for the removal of gravel
and other materials, not construction of a public road, and that
it had expired. The State filed a cross-motion for summary
judgment, arguing that the instrument granted it a perpetual
right to use the easement and right of way for highway
construction and maintenance.
The superior court granted the States summary judgment
motion, concluding that the 1969 instrument granted the State a
valid and enforceable easement and right-of-way over the [Diases]
property for the purpose of constructing and maintaining a
roadway, and for other related purposes.
The Diases appeal.
III. DISCUSSION
A. Standard Of Review
We review a superior courts grant of summary judgment
de novo.2 In our review, we determine whether any genuine issue
of material fact exists and whether on the established facts the
moving party is entitled to judgment as a matter of law.3
Whether a deed is ambiguous is a question of law subject to de
novo review.4
B. Three-Step Analysis
When interpreting deeds, we attempt to give effect to
the intentions of the parties using a three-step analysis.5 The
first step is to look to the four corners of the document to see
if it unambiguously presents the parties intent.6 The analysis
ends here if the deed, taken as a whole, is only open to one
reasonable interpretation.7
If we determine that the deed is ambiguous, the next
step in determining the parties intent is a consideration of the
facts and circumstances surrounding the conveyance.8 If the
parties intent is still not discernable after examining extrinsic
evidence, then we resort to rules of construction.9
C. The Deed Unambiguously Grants The State A Perpetual
Right To Construct A Road.
The Diases argue that the instruments language
unambiguously supports the use of the conveyance only for
temporary material extraction. The State argues that the
instrument unambiguously grants it a perpetual highway right of
way. The language of the instrument supports the States
contention.
The instrument grants the State the right to construct
and maintain a highway and to perform related activities, such as
removing gravel. The instrument is entitled GRANT OF RIGHT OF
WAY EASEMENT and it conveys an easement and right of way. We
have stated that [a] right-of-way is generally considered to be a
class of easement.10 We have described a right of way as
primarily a privilege to pass over anothers land,11 and we have
consistently used the phrase right of way to refer to strips of
land used for passage of people or things.12 Blacks Law
Dictionary also defines right of way as a right of passage.13
Given the definition of right of way and our past interpretation
of the term, the instrument unambiguously gives the State the
right to use the land for passage.
The instrument provides the State with an easement and
right of way along, over and across land. This phrase is
consistent with a purpose of highway construction; it is
inconsistent with a purpose limited to only the removal of gravel
and other materials, which involves removing the materials from
below the surface of the land. The conveyance is a narrow strip
of land 150 feet wide and 2000 feet long running alongside an
existing road, a configuration that would reasonably be used for
a road.
The instrument lists no/100 dollars as consideration
for the easement and right of way, but provides that the State
will pay ten cents per cubic yard of gravel or other material
removed from the conveyed area. The Diases argue that the
specification of consideration only for the removal of gravel or
other material signifies that the instrument conveyed only the
right to remove those materials. The lack of stated
consideration for the easement and right of way, however, does
not change the plain meaning of the instrument. Cornelius may
have had a number of reasons to limit his cash payments to
compensation for materials removed. For instance, he may have
decided that an improved road would increase the value of his
property. Whatever his motivation, the limited cash compensation
does not affect the scope or purpose of the right of way.
The instrument also grants the State a perpetual right.
The instrument unambiguously states that the right conveyed to
the State is perpetual, defeating the Diases argument that only a
temporary right was granted. The grant of a perpetual easement
and right of way is also consistent with a grant to construct and
maintain a highway, which is a permanent right, and inconsistent
with a grant to only remove materials, which is generally a
temporary right.
Taken as a whole, an analysis of the four corners of
the instrument unambiguously reveals the intent of the original
parties the instrument grants the State a perpetual, full and
unrestricted easement and right of way that can be used for
highway construction and maintenance. The description of the
easement and right of way supports this interpretation, and the
financial arrangements do not change it.14
IV. CONCLUSION
We AFFIRM the superior courts grant of summary
judgment.
_______________________________
1 The Department of Highways became part of the
Department of Transportation and Public Facilities in 1977.
2 Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995)
(citing Tongass Sport Fishing Assn v. State, 866 P.2d 1314, 1317
(Alaska 1994)).
3 Id. at 1051-52 (citing Wright v. State, 824 P.2d 718,
720 (Alaska 1992)).
4 Estate of Smith v. Spinelli, 216 P.3d 524, 529 (Alaska
2009).
5 Id. (internal citations omitted).
6 Id. (quoting Norken Corp. v. McGahan, 823 P.2d 622, 626
(Alaska 1991)).
7 Id. (internal citations omitted).
8 Id. (quoting Norken, 823 P.2d at 626).
9 Id. (internal citations omitted).
10 Wessells v. State Dept of Highways, 562 P.2d 1042, 1046
n.5 (Alaska 1977) (internal citation omitted). See also Andersen
v. Edwards, 625 P.2d 282, 284 n.1 (Alaska 1981).
11 Gerstein v. Axtell, 960 P.2d 599, 600 n.2 (Alaska 1998)
(internal quotations omitted).
12 See, e.g., N. Alaska Envtl. Ctr. v. State, Dept of
Natural Res., 2 P.3d 629, 632 (Alaska 2000) (right of way for
electric transmission line); Gerstein, 960 P.2d at 600 (right of
way for electric distribution lines); Wessells, 562 P.2d at 1049,
1051 (implying that rights of way are for road construction by
stating that one could not reasonably expect a right-of-way to be
triangular in shape and that a right-of-way may follow such route
as is reasonably necessary for the [owners] purposes).
In contrast, we referred to a right to use a material
site as a material site right-of-way in Foster v. State,
Department of Transportation, 34 P.3d 1288, 1289 (Alaska 2001).
However, we made other references to simply a right-of-way that
was used for highway construction. Id. at 1289. This difference
in terms suggests that right of way, with no descriptive
modifier, refers to the privilege to pass over land.
13 Blacks Law Dictionary 1440 (9th ed. 2009) provides the
following applicable definitions for right of way: 1. The right
to pass through property owned by another. . . . 2. The right to
build and operate a railway line or a highway on land belonging
to another, or the land so used. . . . 4. The strip of land
subject to a nonowners right to pass through.
14 Even if we found the deed to be ambiguous, the
extrinsic evidence compels the same result. The records for the
Trunk Road project contain forms entitled Permit to Take Borrow
for Highway Purposes, which the State uniformly used when it
sought easements for gravel removal. These instruments describe
rectangular and triangular easements, consistent with sites for
removal of gravel but not consistent with the construction of a
road. The record contains three other Grant of Right of Way
Easement instruments used for the Trunk Road project that
describe strips of land, consistent with construction of a road.
And two of these instruments explicitly provide that the easement
and right of way was for road construction. These other
instruments provide extrinsic evidence that the State intended to
obtain rights to construct and maintain a road when it used the
Grant of Right of Way Easement instrument with Cornelius to
obtain rights to a strip of land.
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