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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cowan v. Yeisley (5/27/2011) sp-6560
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
HAROLD M. COWAN and )
ELLEN JANE COWAN, )
) Supreme Court No. S-13380
Appellants, )
) Superior Court No. 1KE-06-00310 CI
v. )
) O P I N I O N
SHARON YEISLEY, GERALD BYRON, )
CHERRYLE BYRON, KETCHIKAN ) No. 6560 - May 27, 2011
GATEWAY BOROUGH, and all other )
persons or unknown parties claiming a right, )
title, estate, lien, or other interest in the real )
estate described in the Complaint in this )
action, hereby designated as JOHN DOES, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Ketchikan, Michael A. Thompson, Judge.
Appearances: Michael P. Heiser, Ketchikan, for Appellants.
Scott A. Brandt-Erichsen, Borough Attorney, Ketchikan, for
Appellee Ketchikan Gateway Borough, and H. Clay Keene
and Blake M. Chupka, Keene & Currall, P.C., Ketchikan, for
Appellee Sharon Yeisley.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
STOWERS, Justice.
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I. INTRODUCTION
In 1948 Claude Yeisley received a patent to Tract A, consisting of 4.45
acres of land in Ketchikan, from the United States. In 1956 he deeded a lot of land
within Tract A to his daughter and her husband, the Cowans, along with a "perpetual
right of way running with the land" over a 30-foot strip of "right of way" running along
the southeastern side of Tract A. Between 1960 and 1973, Claude Yeisley conveyed
most of the remainder of Tract A to his son and daughter-in-law, James and Sharon
Yeisley. None of the deeds issued between 1960 and 1973 mentioned the right of way.
In 1980 James Yeisley applied for a subdivision of all of Tract A with the exception of
the Cowans' land. The plat showed the right of way; it was approved and recorded. The
property was resubdivided in 1981, and the new plat also showed the right of way. By
marking the right of way, the two plats had the effect of dedicating the right of way to
the Ketchikan Gateway Borough.
In 2006 the Cowans filed suit against the Borough, Sharon Yeisley, and
other parties, requesting quiet title to the right of way. They argued that the 1956 deed
conveyed it to them, or, in the alternative, that they had obtained title through adverse
possession. All parties filed motions for summary judgment. The superior court ruled
that the 1956 deed did not convey the disputed land to the Cowans, and denied summary
judgment on the adverse possession claim. On the first day of trial, the superior court
ruled that it would apply the then-current adverse possession statute (amended in 2003)
instead of the statute in effect in 1980. The court found that the 2003 statute foreclosed
the Cowans' claims and entered judgment in the defendants' favor. The Cowans appeal
the superior court's rulings on the 1956 deed, the adverse possession claim, and other
claims.
Because we find that it was error to apply the 2003 adverse possession
statute and because the Cowans raised a genuine issue of material fact as to whether they
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adversely possessed the disputed land under the pre-2003 adverse possession statute, we
remand for further proceedings on the adverse possession claim.
II. FACTS AND PROCEEDINGS
A. Land Grant And Conveyance
On April 5, 1948, the United States issued a patent granting Claude Yeisley
title to Tract A, consisting of 4.45 acres of land in Ketchikan.1 In 1953 Harold and Ellen
Cowan built a house on a portion of Tract A with Claude's permission. Claude also
commissioned Milford Page to prepare a plat of Lot 1, the portion of Tract A on which
the Cowans had built their house. The Page plat showed a 30-foot wide "R.O.W.," or
"right-of-way," at the southeastern boundary of Tract A, but it was never recorded.
In July 1956 Claude executed and recorded a warranty deed (1956 deed)
conveying Lot 1to the Cowans. The legal description of Lot 1 in the 1956 deed matched
the description on the Page plat. The 1956 deed also granted the Cowans "[a] perpetual
right of way running with the land over the 30 foot strip of right of way, which right of
way abuts the southeasternly sideline of . . . Tract A."
In 1960 and 1963 Claude executed warranty deeds conveying Lots 2-4 of
Tract A to James and Maxine Smith (the Smiths). In 1963 Claude executed and recorded
another warranty deed (1963 deed) conveying a lot of land adjacent to the southeastern
boundary of Tract A to the Cowans.
In 1971 Claude executed and recorded a warranty deed (1971 deed)
conveying Lot 5 of Tract A to his son and daughter-in-law, James and Sharon Yeisley.
In 1973 Claude executed and recorded another warranty deed (1973 deed) conveying a
large portion of Tract A to James and Sharon.
1 See Appendix for an illustration of Tract A.
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None of the above deeds explicitly conveyed the 30-foot strip of land (the
disputed land) first referred to in the Page plat as a "R.O.W." The sole reference to the
disputed land in any of the deeds is the grant of a "perpetual right of way running with
the land" in the 1956 deed to the Cowans.
B. Subdivision Of Tract A And Dedication Of Disputed Land To Borough
In 1979 James Yeisley commissioned a subdivision survey as part of a
subdivision application he had filed with the Ketchikan Gateway Borough (Borough).
In February 1980 the Zoning Administrator for the Borough recommended that the
Planning Commission approve the commissioned survey as a plat of the land. In the
recommendation, "the right-of-way shown on the proposal" - the disputed land - was
"confirmed as existing."
During a hearing before the Planning Commission, Harold Cowan objected
to the preliminary plat and stated that "he [had] a 30 foot right-of-way and the lower lines
[of the commissioned survey] don't show this." The Planning Commission approved the
plat with the condition that the final plat note a 30-foot right of way. In March 1980 the
Borough recorded a modified version of the 1979 survey as final plat 80-9. The
certificate of ownership on plat 80-9 was signed only by the Yeisleys; the Cowans did
not sign the plat.
In May 1980 Ellen Cowan wrote a letter to the Borough stating that she was
"holding a deed to [the] existing 30 ft right of way" and that she had "no intention of
opening up this right of way to anyone." In 1981 there was an additional resubdivision
of Tract A. A new plat was recorded as plat 81-40, and only the Yeisleys signed the
certificate of ownership.
C. Later Developments On Tract A
After acquiring the land in the 1963 deed, the Cowans built a driveway
connecting their home on Lot 1 to the road that ran across part of the disputed land.
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Ellen Cowan affied that the Cowans used the "remainder of the thirty-foot (30') right-of-
way . . . in the same manner as the rest of [their] property - as an area for the children
to play, to grow flowers, to park cars, etc." In addition, Ellen Cowan affied that Sharon
Yeisley attempted to use the disputed land twice, but that she stopped when the Cowans
"advised her she was trespassing." Ellen also affied that the Cowans saw "various
surveyors" on their property from 1979 to 1981 and that they would ask the surveyors
to leave or "chase them off."
In 1986 the Cowans brought suit for quiet title after Sharon Yeisley hired
contractors to build on the disputed land in 1984. Sharon did not follow through on her
plans to develop the land, and the Cowans' lawsuit was dismissed for lack of prosecution.
In January 2006 Sharon Yeisley conveyed a portion of her property to
Gerald and Cherryle Byron (the Byrons).
D. Trial Court Proceedings
In July 2006 the Cowans again filed suit against Sharon Yeisley, the
Byrons, and the Borough. The Cowans sought quiet title to the disputed land, claiming
that they were its owners through the 1956 deed or through adverse possession, and that
plats 80-9 and 81-40 were invalid because, as the owners of Lot 1 with an interest in the
disputed land, their signatures were required for a valid plat. They also raised trespass
claims against Sharon Yeisley and the Byrons, and claimed that the Byrons had interfered
with their water rights. In response, Sharon and the Byrons filed several counterclaims
and cross-claims.
In November 2006 the Borough filed a motion for partial summary
judgment on the Cowans' quiet title claim to the disputed land. The Borough argued, in
part, that the Cowans' claim was barred by waiver, estoppel, and laches, and that the
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Borough was entitled to clear title because the land was validly dedicated to the public
in plats 80-9 and 81-40.
In January 2007 Sharon Yeisley filed a motion for summary judgment on
the Cowans' quiet title and trespass claims. She argued that the 1956 deed only
conveyed an easement interest to the Cowans, that the Cowans did not obtain title to the
disputed land through adverse possession, and that the Borough was the fee simple
owner. The Cowans argued in response that there was a genuine issue of material fact
whether they had adversely possessed the disputed land, and that Sharon's claims were
barred by waiver, estoppel, and laches.
In March 2007 the Cowans filed a motion for summary judgment on all of
their claims, and the Byrons filed a motion for summary judgment on the Cowans' quiet
title, trespass, and water rights claims.
On April 23, 2007, the superior court issued an "Omnibus Order" on all the
parties' motions for summary judgment. The court denied the Byrons' motion for
summary judgment on the issues of trespass and water contamination. It held that the
1956 deed did not grant the Cowans a fee interest in the disputed land, and that Sharon's
claims were not barred by waiver, laches, or estoppel. It also held that the Cowans'
ownership of Lot 1 did not render plats 80-9 and 81-40 invalid, but that the plats might
be invalid if the Cowans had obtained fee title to the disputed land through adverse
possession before the 1980 dedication. The court then held that the Cowans had raised
a genuine issue of material fact on whether their possession of the disputed land was
"hostile" and whether it had ripened into title before dedication. It therefore denied
summary judgment on the adverse possession claim.
On July 1, 2008, the parties came before the superior court for trial. On the
first day of trial, the court ruled that the "modern test," or post-2003 adverse possession
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law, applied.2 The court held that the Cowans could not, as a matter of law, fulfill current
AS 09.45.052 requirements that they either have color of title or a "good faith but
mistaken belief" that the disputed land was within the boundaries of their property; the
court entered judgment in the Borough's favor on the quiet title claim. Because the
Cowans did not have an ownership interest in the disputed land, the court's ruling also
mooted the trespass claims, and the Cowans voluntarily dismissed their water rights
claim against the Byrons.
The court awarded Sharon $58,673.32,representing a mixture of attorney's
fees under Alaska Civil Rules 82(b)(2) and 68(b). It also awarded the Borough
$1,985.96 in attorney's fees under Rule 82, and awarded the Byrons $12,137.25,
representing a mixture of attorney's fees under Rules 82 and 68.
The Cowans appeal.
III. STANDARD OF REVIEW
When reviewing a grant of summary judgment, we "must determine
whether any genuine issue of material fact exists and whether the moving party is entitled
to judgment on the law applicable to the established facts."3 "All reasonable inferences
of fact from proffered materials must be drawn against the moving party and in favor of
the non-moving party."4
2 In 2003 the Legislature changed the adverse possession statute to eliminate
adverse possession where the claimant does not have color of title or a good faith (but
mistaken) belief that the land was in their property. AS 09.45.052; Ch. 147, § 3, SLA
2003; see also Hansen v. Davis, 220 P.3d 911, 916 n.7 (Alaska 2009).
3 Wright v. State, 824 P.2d 718, 720 (Alaska 1992) (citing Zeman v.
Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985)).
4 Id.
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5 6
Questions of statutory construction, whether a deed is ambiguous, and the
interpretation of rules and statutes governing attorney's fees7 are questions of law, which
we review de novo.
III. DISCUSSION
A. The Superior Court Did Not Err In Ruling That The Cowans Did Not
Have An Express Fee Interest In The Disputed Land.
The Cowans argue that the superior court erred in ruling that the 1956 deed
granted the Cowans an easement rather than a fee interest in the disputed land.
Specifically, they argue that Claude Yeisley must have intended for them to be the sole
owners of the land because he never deeded an interest in the disputed land to anyone
else,8 and that it would be "illogical to conclude that Claude Yeisley kept the strip of land
for himself after conveying the balance of Tract A."
We conclude that the 1956 deed unambiguously grants the Cowans an
easement, not a fee interest.
5 State v. Strane, 61 P.3d 1284, 1286 n.4 (Alaska 2003) (citing Todd v. State,
917 P.2d 674, 677 (Alaska 1996)).
6 Dias v. State, Dept. of Transp. & Pub. Facilities, 240 P.3d 272, 274 (Alaska
2010) (citing Estate of Smith v. Spinelli, 216 P.3d 524, 529 (Alaska 2009)).
7 Lakloey v. Ballek, 211 P.3d 662, 664-65 (Alaska 2009).
8 The Cowans argue that Claude did not deed the disputed land when he
deeded the rest of Tract A to Sharon and James in the 1971 and 1973 deeds. They further
argue that Sharon did not have an easement by implication or an easement by necessity
to the disputed land. Finally, they argue that Claude could not have impliedly dedicated
the land to the Borough as a public right of way.
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We have held that the "first step in deed construction is to look to the four
corners of the document to see if it unambiguously presents the parties' intent."9 Only
if the deed is ambiguous does this court proceed to the next step, which is "a
consideration of the facts and circumstances surrounding the conveyance."10 "If the
words of the deed taken as a whole are capable of but one reasonable interpretation, a
court need go no further."11
The 1956 deed granted to the Cowans a "perpetual right of way running
with the land over the 30 foot strip of right of way." As the superior court noted, we
have held that "[t]he general rule is that the term 'right of way' is synonymous with
'easement.' "12 We have described a right of way as "primarily a privilege to pass over
another's land,"13 and we have consistently used the phrase "right of way" to refer to
strips of land used for passage of people or things.14 Other courts have also held that
9 Norken Corp. v. McGahan, 823 P.2d 622, 626 (Alaska 1991).
10 Id.
11 Id. (citing Knadler v. Adams, 661 P.2d 1052, 1053 (Wyo. 1983)).
12 Dillingham Commercial Co., Inc. v. City of Dillingham, 705 P.2d 410, 415
(Alaska 1985); see also N. Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629,
637 n.38 (Alaska 2000).
13 Gerstein v. Axtell, 960 P.2d 599, 600 n.2 (Alaska 1998) (internal quotation
marks omitted).
14 See, e.g., N. Alaska Envtl. Ctr., 2 P.3d at 629 (right of way for electric
transmission line); Gerstein, 960 P.2d at 600 (right of way for electric distribution lines);
Wessells v. State Dep't of Highways, 562 P.2d 1042, 1049-51 (Alaska 1977) (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 [owner's] purposes").
In contrast, we referred to a right to use a material site as a "material site
(continued...)
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unless the parties make it clear that a fee interest is intended, a grant of a "right of way"
conveys an easement interest.15 Thus, on its face, the deed grants to the Cowans an
easement, not a fee interest.16
Because Claude Yeisley did not convey a fee interest in the 30-foot right
of way to anyone, we conclude that Claude owned the 30-foot right of way outright, and
that Plat 80-9's notation of the 30-foot right of way in the subdivision had the legal effect
of dedicating the disputed land to the public,17 unless the Cowans can demonstrate that
they adversely possessed the strip of land under the pre-2003 statute.18
14(...continued)
right-of-way" in Foster v. State, Dep't of Transp., 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.
15 See JON W. BRUCE & JAMES W. ELY, JR., THE LAW OF EASEMENTS AND
LICENSES IN LAND § 1:22 (2010).
16 Because we find that the deed unambiguously grants the Cowans only an
easement, we do not reach the question of the parties' intent. We also find that the
Cowans' alternative argument that Claude conveyed an exclusive easement in the
disputed land to the Cowans was waived because the Cowans did not raise it below. See
Hagans, Brown, & Gibbs v. First Nat'l Bank of Anchorage, 783 P.2d 1164, 1166 n.2
(Alaska 1989) ("Issues not properly raised . . . at trial are not properly before this court
on appeal.").
17 See AS 40.15.030 ("When an area is subdivided and a plat of the
subdivision is approved, filed, and recorded, all streets, alleys, thoroughfares, parks and
other public areas shown on the plat are considered to be dedicated to public use.");
Ketchikan Gateway Borough Code (KGB) § 55.35.020(e)(3).
18 We note that neither the parties nor the trial court raised the question of
Claude Yeisley's ownership interest in the right of way prior to his death. We also note
that the record is silent on both the date of Claude Yeisley's death and who received legal
title to the land as Claude Yeisley's successor-in-interest upon his death.
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B. It Was Error To Grant Summary Judgment On The Cowans' Adverse
Possession Claim.
Prior to 2003, Alaska had two adverse possession statutes. Under former
AS 09.45.052(a), claimants with color of title could establish adverse possession by
showing that their use of the land was continuous, open and notorious, exclusive, and
hostile to the true owners of the land for seven years.19 Under former AS 09.10.030,
claimants without color of title claiming adverse possession had to fulfill the same
requirements for ten years.20
In 2003 the Alaska Legislature modified AS 09.45.052(a) to add a claim for
adverse possession where there was "uninterrupted adverse notorious possession of real
property for 10 years or more because of a good faith but mistaken belief that the real
property lies within the boundaries of adjacent real property owned by the adverse
claimant."21 The Legislature also modified AS 09.10.03022 with the intent of abolishing
19 Former AS 09.45.052(a) (1991); Tenala, Ltd. v. Fowler, 921 P.2d 1114,
1118-19 (Alaska 1996).
20 Former AS 09.10.030 (1962); Hansen v. Davis, 220 P.3d 911, 915 (Alaska
2009); Tenala, 921 P.2d at 1118.
21 Ch. 147, § 3, SLA 2003. AS 09.45.052(a) currently states (2003
amendment is in bold):
The uninterrupted adverse notorious possession of real
property under color and claim of title for seven years or
more, or the uninterrupted adverse notorious possession
of real property for 10 years or more because of a good
faith but mistaken belief that the real property lies within
the boundaries of adjacent real property owned by the
adverse claimant, is conclusively presumed to give title to
the property except as against the state or the United States.
22 Ch. 147, §§ 1-2, SLA 2003. AS 09.10.030 currently states (2003
(continued...)
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adverse possession in cases where the claimant does not have color of title.23 The net
effect of these changes was to limit Alaskans' adverse possession claims to cases where
22(...continued)
amendment is in bold):
(a) Except as provided in (b) of this section, a person may
not bring an action for the recovery of real property or for the
recovery of the possession of it unless the action is
commenced within 10 years. An action may not be
maintained under this subsection 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 the action.
(b) An action may be brought at any time by a person who
was seized or possessed of the real property in question at
some time before the commencement of the action or
whose grantor or predecessor was seized or possessed of
the real property in question at some time before
commencement of the action, and whose ownership
interest in the real property is recorded under AS 40.17,
in order to (1) quiet title to that real property; or (2) eject
a person from that real property.
23 Although the pre-2003 AS 09.10.030 purported only to bar a remedy, this
court has stated that it can be the basis for a new title. Ayers v. Day & Night Fuel Co.,
451 P.2d 579, 581 (Alaska 1969). The Legislature's 2003 revisions essentially abolished
the bar on the original landowner's remedy and were intended to prevent adverse
possession under this statute. Minutes, House Judiciary Comm. Hearing on SB 93, 23rd
Leg. 1st Sess. (May 18, 2003) (statement of Senator Wagoner, Member, Sen. Labor &
Commerce Standing Comm.) (stating that purpose of bill was "to eliminate the
possibility that a landowner will lose property to a squatter who has no claim to the
property").
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the claimant had either color of title or a good faith but mistaken belief that the claimant
owned the land in question.24
On the first day of trial, the superior court held that it would apply the 2003
test for adverse possession because the Cowans had failed to bring an action for quiet
title before the Legislature had changed the law. The court concluded that the Cowans'
adverse possession claim under the current statute failed as a matter of law because the
Cowans did not have color of title or a good faith but mistaken belief that the property
was within the boundaries of their property. In doing so, the court effectively granted
summary judgment on the Cowans' adverse possession claim.
We find that it was error to grant summary judgment on the Cowans'
adverse possession claim because the 2003 version of AS 09.10.030 does not apply to
this case, and there is a genuine issue of material fact as to whether the Cowans had
adversely possessed the disputed land under the pre-2003 version of the statute.
1. It was error to apply the 2003 version of AS 09.10.030 to the
Cowans' claim.
The Cowans argue that it was error to apply the 2003 version of
AS 09.10.030 to their adverse possession claim because the Cowans were vested with
title to the disputed land well before the statute was changed, the legislative history
indicates that the changes were not intended to be applied to vested adverse possession
rights, and the Legislature did not indicate that the law changing AS 09.10.030 was
retrospective.
Alaska Statute 01.10.090 states that "[n]o statute is retrospective unless
expressly declared therein." The 2003 amendments to AS 09.10.030 specifically stated
that the amended version "applie[d] to actions that have not been barred before [July 18,
24 Hansen, 220 P.3d at 916 n.7.
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2003] by AS 09.10.030 as it read before [July 18, 2003]."25 Thus, the changes to
AS.09.10.030 were not intended to be retrospective.
We have held that "[a] statute will be considered [retrospective] insofar as
it gives to pre-enactment conduct a different legal effect from that which it would have
had without the passage of the statute."26 The Cowans claim that they adversely
possessed the disputed land for more than ten years before 1980. Because title
automatically vests in an adverse possessor at the end of the statutory period,27 the true
owner's action to recover the property would thus have been barred by 1980 under
former AS 09.10.030 if the Cowans in fact perfected their adverse possession claims by
1980. Applying the amended statute to the Cowans' case would therefore give the
Cowans' pre-2003 conduct a different legal effect, effectively stripping them of their
title.
Because the 2003 revision to AS 09.10.030 was not intended to be
retrospective, and applying it to this case would produce retrospective results, it was error
to apply the revised statute to the Cowans' adverse possession claim.
25 Ch. 147, § 5, SLA 2003. The effective date of the Act was July 18, 2003.
26 Eastwind, Inc. v. State, 951 P.2d 844, 847 (Alaska 1997) (internal quotation
marks omitted).
27 Hubbard v. Curtiss, 684 P.2d 842, 849 (Alaska 1984).
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2. There is a genuine issue of material fact precluding summary
judgment on the Cowans' adverse possession claim under
former AS 09.10.030.
The Cowans also argue that they met all of the requirements for adverse
possession under former AS 09.10.030,28 and that the only contested question in this case
was whether their possession of the disputed land was "hostile." The Cowans argue that
they raised a genuine issue of material fact whether their possession of the disputed land
was "hostile" because they presented evidence that they treated the disputed land as their
own, held themselves out as owners of the land, and protected their right to exclusive use
of the land.
In response, Sharon Yeisley argues that the Cowans' use of the disputed
land could not be "hostile" under the law because they had a legally protected right (an
easement) to use the land, and they made no other use of the land besides that which was
legally protected.
We find, as the superior court did in its Omnibus Order, that there may be
a genuine issue of material fact regarding the existence of hostility.29
We have held that "[h]ostile possession does not imply that the adverse
possessor bore ill will or aggression toward the true owner; it only means that the adverse
possessor held the land in such a way that his interest in the property was incompatible
28 "In order to acquire title by adverse possession, the claimant must prove,
by clear and convincing evidence, . . . that for the statutory period his use of the land was
continuous, open and notorious, exclusive and hostile to the true owner." Nome 2000 v.
Fagerstrom, 799 P.2d 304, 309 (Alaska 1990) (citations and quotation marks omitted).
Under former AS 09.10.030, the statutory period for adverse possession without color
of title was ten years.
29 The superior court stated: "[T]he facts sworn to by [Ellen] Cowan in her
first affidavit, if believed by a jury, could theoretically rise to the level of hostility even
despite the strong presumption created by permissive use."
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with the record owner's interest."30 "If the adverse possessor, without the true owner's
permission, 'acted toward the land as if he owned it,' then his claim is hostile."31 The test
is an objective one.32
We have also stated that when possession has begun permissively, it cannot
become hostile until the presumption of permissive use is rebutted "by proof of a distinct
and positive assertion of a right hostile to the owner of the property."33 Subsequent to
the trial court's Omnibus Order, we decided Hansen v. Davis, which provides additional
guidance on the concept of "hostility" in the context of easements.34
When the trial court issued its Omnibus Order, it found that there was a
genuine issue of material fact regarding the existence of hostility but failed to explain the
basis of this finding. Because it was error to apply the revised adverse possession statute
and the Cowans presented evidence that might support a finding of adverse possession
under the former statute, we reverse and remand on the issue of adverse possession. On
remand, the trial court should determine whether there is a genuine issue of material fact
regarding any of the factors of adverse possession under the pre-2003 statute in light of
our holding inHansen. Additionally, the trial court should determine specifically which
30 Glover v. Glover, 92 P.3d 387, 392 (Alaska 2004).
31 Id. (quoting Smith v. Krebs, 768 P.2d 124, 126 (Alaska 1989)).
32 Smith, 768 P.2d at 126 (citingPeters v. Juneau-Douglas Girl Scout Council,
519 P.2d 826, 832 (Alaska 1974)).
33 City of Anchorage v. Nesbett, 530 P.2d 1324, 1329 (Alaska 1975) (quoting
Ayers v. Day & Night Fuel Co., 451 P.2d 579, 581 (Alaska 1969) (internal quotation
marks omitted)).
34 220 P.3d 911, 916-17 (Alaska 2009) (determining that what constitutes
"unreasonable interference" sufficient to trigger prescriptive period for extinguishing
easement by prescription is heavily fact dependent; temporary improvements to unused
easement area that are easily removable will not trigger prescriptive period).
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of the Cowans' activities on the 30-foot right of way, if any, constitute "hostile" activity
and when each of those activities took place. The trial court may either reexamine the
facts in the record as it stands, or re-open the record and take new evidence to make these
determinations.
C. The Superior Court's Ruling That The Disputed Land Was Validly
Dedicated To The Public Is Vacated And Remanded.
The Cowans argue that the disputed land was not validly dedicated to the
public because the plats through which the land was dedicated were invalid; as owners
of the disputed land or holders of an easement, they argue that their signatures were
required on the plats to make them valid.
Alaska law allows for the dedication of land for public use through the
subdivision process.35 Former AS 40.15.030, in effect in 1980 and 1981, stated: "When
an area is subdivided and a plat of the subdivision is approved and recorded, all streets,
alleys, thoroughfares, parks and other public areas shown on the plat are deemed to have
been dedicated to public use."36 Thus if either plat 80-9 or 81-40 was validly approved
and recorded, the disputed land was validly dedicated to public use.
The Cowans argue that, because the Ketchikan municipal code in effect in
1980 did not give the Platting Board the discretion to omit the signature of easement
holders, "it follows that the Borough intended that certificates of ownership and consents
35 AS 40.15.030.
36 In 1988 the Legislature modified the statute to substitute "considered to be"
for "deemed to have been." Ch. 161, § 32, SLA 1988. Likewise, KGB § 55.35.020(e)(3)
provides: "[u]pon recordation of the final plat, all . . . easements, or rights-of-way shown
on the plat shall, and are deemed to have been dedicated to public use. Any such areas
not dedicated to public use must be clearly marked as not dedicated on the face of the
plat."
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be signed by all parties having any interest of record" in plat 80-9.37 They offer no
evidence to support this claim. They also argue that the Borough should have exercised
its discretion to require the Cowans' signatures for dedication of plat 81-40, but they give
no reason why the Platting Board erred in failing to do so.
There was no language in the Ketchikan municipal code in effect March
1980 - when plat 80-9 was approved - indicating that the signatures of easement holders
in the dedicated land were required to approve and record a subdivision plat.38 The
Ketchikan municipal code in effect in 1981 when plat 81-40 was recorded gave the
Platting Board the discretion to omit the signatures of parties owning "rights-of-way,
easements or other interests that cannot ripen into fee."39 It is therefore clear that the
Cowans' signatures were not required to validate the plats if the Cowans held only an
easement interest in the land.40
37 The Cowans also argue that the Borough acted unreasonably in failing to
obtain their signatures on the plats because it knew or should have known of the Cowans'
adverse possession claim. But they only point to Harold Cowan's objection to the
preliminary 1980 plat that he had a "30 foot right-of-way," and to a copy of Ellen
Cowan's letter to the Borough in which she stated that she was "holding a deed to [the]
existing 30 ft right of way." Because these statements could be interpreted as claims that
the Cowans owned a right-of-way easement in the land, rather than claims that they
owned the land outright, these statements alone would not put the Borough on notice of
an adverse possession claim.
38 Both the Borough and the Cowans agree that in March 1980 the Ketchikan
municipal code provided: "The subdivider shall comply with all State laws concerning
dedication of all streets . . . and easements for public purposes by the owner(s) and wife
(wives) of the owner(s); if the lands dedicated are mortgaged, the mortgagee shall also
sign the plat." Former KGB 49.20.040(d)(5)(e).
39 KGB 55.35.020(f)(8)(b).
40 We also note that there is a question whether the Cowans have standing to
complain about the lack of signatures on the plats that were publicly dedicated to the
(continued...)
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If the superior court finds that the Cowans held only an easement interest
in the disputed land, its ruling that the land was validly dedicated to the public because
the Cowans' signatures were not required to validate plats 80-9 and 81-40 is correct. If
the superior court determines on remand that the Cowans had obtained fee title to the
disputed land through adverse possession before 1980, however, the Cowans' signatures
would have been required to validate both plats, and thus the dedication of the land to the
public through those plats would be invalid. We therefore vacate the superior court's
decision on this issue so that it may make a new determination on remand after it
determines whether the Cowans adversely possessed the disputed land prior to 1980.
D. Neither The Cowans' Nor Sharon's Claims Are Barred By Waiver,
Laches, Or Estoppel.
We find no merit in either the Borough's or the Cowans' waiver, estoppel,
and laches arguments.
1. The Cowans' claims are not barred by waiver, laches, or
estoppel.
The Borough argues that the Cowans waived their claims by failing to
pursue them after the plats were recorded in 1980 and 1981, and by allowing their 1986
quiet title action to lapse for want of prosecution. It also argues that the Cowans' claims
should be barred by laches and equitable estoppel because the Borough was prejudiced
by the Cowans' delay in pursuing them.
40(...continued)
Borough if they only held an easement interest in the land. We have stated that a plaintiff
must establish that the plaintiff has "an interest which is adversely affected by the
complained-of conduct" in order to have standing to sue. Keller v. French, 205 P.3d 299,
304 (Alaska 2009). Because the Cowans' easement interest in the disputed land is
essentially identical to the interest they would hold as members of the public if the land
was publicly dedicated, they would not have the adversely affected interest necessary for
standing unless the superior court finds on remand that they obtained title to the land
through adverse possession.
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In response, the Cowans argue that they never intended to waive their right
to the disputed land, and that the Borough was not prejudiced by the delay.
Although the superior court made no ruling on the Borough's arguments in
its Omnibus Order or final judgment, the court's silence on the Borough's arguments
constituted an implicit ruling that the Cowans' claims were not barred by waiver,
estoppel, or latches.
We have stated: "Neglect to insist upon a right only results in an estoppel,
or an implied waiver, when the neglect is such that it would convey a message to a
reasonable person that the neglectful party would not in the future pursue the legal right
in question."41 An implied waiver requires "direct, unequivocal conduct indicating a
purpose to abandon or waive the legal right . . . ."42
Although the Cowans did not pursue legal action after plats 80-9 and 81-40
were recorded, Ellen Cowan did tell the Borough that she had "no intention of opening
up this right of way to anyone." She also affied that the Cowans did not pursue their
1986 quiet title action because Sharon had stopped her plans to develop the disputed
road. The Cowans' behavior thus did not clearly, directly, or unequivocally indicate that
they would not pursue a quiet title claim in the future, as required for a finding of both
waiver and estoppel.43
41 Powers v. United Servs. Auto. Ass'n, 6 P.3d 294, 299 (Alaska 2000)
(quoting Airoulofski v. State, 922 P.2d 889, 894 (Alaska 1996)).
42 Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978).
43 See Carr-Gottstein Foods Co. v. Wasilla, LLC, 182 P.3d 1131, 1136
(Alaska 2008) ("Waiver is generally defined as the intentional relinquishment of a known
right.") (internal quotation marks omitted); Tufco, Inc. v. Pac. Envtl. Corp., 113 P.3d
668, 671 (Alaska 2005) ("A party claiming equitable estoppel must prove four elements:
(1) an assertion of a position by word or conduct; (2) reasonable reliance on the assertion;
(continued...)
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The Borough also failed to prove whether, and to what extent, the Borough
and others were prejudiced by the delay - a required element of estoppel and laches.44
The Borough argues that it was prejudiced because it did not collect tax revenue on the
disputed land, but it presents no evidence regarding how much the tax revenue would be.
The Borough also argues that the lots created by plat 81-40 would have no access to the
road if the Cowans owned the right of way, but the Cowans' claim that alternative access
routes exist creates a question of fact regarding how prejudicial the Cowans' ownership
of the disputed land would be.
Because the Borough offered insufficient evidence to support its arguments,
we hold that the superior court did not err in implicitly ruling that the Cowans' claims
were not barred by waiver, estoppel, or laches.
2. The superior court did not err in ruling that Sharon's claims are
not barred by waiver, laches, and estoppel.
The Cowans argue that Sharon waived her claims by failing to pursue them
during the Cowans' previous quiet title lawsuit that was dismissed for lack of
prosecution, and that Sharon's unreasonable delay in bringing this lawsuit prejudiced
them.
43(...continued)
(3) resulting prejudice; and (4) the estoppel will be enforced only to the extent that justice
requires.").
44 See Tufco, 113 P.3d at 671; Anchorage Citizens for Taxi Reform v.
Municipality of Anchorage, 151 P.3d 418, 425 (Alaska 2006) (citing State, Dep't of
Commerce & Econ. Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 358-59 (Alaska 2000))
("Laches operates to bar a claim when a court finds one party caused unreasonable delay
in seeking relief that resulted in prejudice to the other party."); Pavlik v. State, Dep't of
Cmty. & Reg'l Affairs, 637 P.2d 1045, 1047-48 (Alaska 1981) (finding that there is an
interdependence between the elements of delay and prejudice in the laches analysis).
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The superior court ruled that Sharon's arguments were not barred by
waiver, laches, or estoppel because there were "many conceivable reasons, other than
acquiescence, that might explain why [Sharon] did not force the litigation."
The Cowans present no evidence of waiver, estoppel, or laches besides
Sharon's failure to oppose the 1992 dismissal of the Cowans' first quiet title action. But
as the superior court stated, there are many conceivable reasons other than acquiescence
that would explain why Sharon did not force the litigation in the face of the Cowans'
failure to prosecute. Sharon's failure to force the litigation cannot reasonably be viewed
as a waiver of her property rights, nor would it be reasonable for the Cowans to rely on
her lack of action as an assertion that she did not own the land. Because Sharon had no
obligation to force the continuance of the Cowans' first quiet title action, she did not
unreasonably delay in bringing her counterclaims. The superior court thus did not err in
ruling that Sharon's arguments were not barred by waiver, estoppel, or laches.
E. Attorney's Fees Are Vacated.
In light of our decision, we vacate the award of attorney's fees.45
IV. CONCLUSION
45 We note that the trial court did not have the benefit of Beal v. McGuire,
216 P.3d 1154, 1178 (Alaska 2009) (considering validity of nominal offers of judgment
made at outset of litigation), when it awarded attorney's fees in this case. In this case,
Sharon Yeisley served a $1 offer of judgment on August 31, 2006, approximately six
weeks after the complaint was filed. In addition, it was error to award both Rule 82 and
Rule 68 attorney's fees; a party may receive the greater of Rule 68 or Rule 82 fees, but
not both. See Ellison v. Plumbers & Steam Fitters Union Local 375, 118 P.3d 1070,
1078 (Alaska 2005).
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For the reasons discussed above, we AFFIRM in part, REVERSE in part,
VACATE the award of attorney's fees, and REMAND for furtherproceedings consistent
with this opinion on the Cowans' adverse possession claim.
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1973 Deed
1971 Deed
1960/63 Deeds to Smiths
1956 Deed to Cowans
Appendix 6560
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| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
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