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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lee v. Konrad (8/29/2014) sp-6948

Lee v. Konrad (8/29/2014) sp-6948

         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  



CODY LEE and STACEY DEAN,                             )  

                                                      )        Supreme Court Nos. S-14503/14524  

                  Appellants and                      )  

                  Cross-Appellees,                    )        Superior Court No. 3AN-08-09772 CI  


         v.                                           )        O P I N I O N  


BARBARA KONRAD,                                       )       No. 6948 - August 29, 2014  


                  Appellee and                        )  

                  Cross-Appellant.                    )  

_______________________________ )

                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial  District,  Anchorage,  Stephanie  E.  Joannides  and  

                  Andrew Guidi, Judges.   

                  Appearances:         James   B.      Wright,      James     B.    Wright      &  

                  Associates, P.C., Anchorage, for Appellants/Cross-Appellees.  

                  Heather        L.     Gardner,         Seattle,       Washington,           for  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  STOWERS, Justice.  


                  Cody Lee and Stacey Dean (collectively referred to as "Lee") and Barbara  


Konrad dispute the boundary between their lots in an Anchorage subdivision.  Lee insists  


that the boundary line was established by a 1992 survey, which Lee later marked with  

----------------------- Page 2-----------------------


fence posts.  Konrad argues that a survey she commissioned after purchasing her lot in  


2008 disclosed the true boundary and that encroachment of fill material caused by Lee  

along the fenceline between the lots was a trespass.  The superior court concluded that  

Konrad's  survey  correctly  identified  the  boundary  line  and  that  the  fill  material  


encroachment was a trespass.  The court issued an order requiring Lee to remove the fill  

material and erect a retaining barrier to prevent future trespass; it declared Konrad the  

prevailing party and awarded attorney's fees.  

                    This appeal requires us to consider:  (1) whether the superior court correctly  


determined the boundary between the lots; (2) whether the court erred by concluding that  


dirt and gravel encroaching onto Konrad's property was a trespass, and, if not, whether  


the court properly ordered Lee to remove the fill material and construct a retaining wall;  


and  (3)  whether  the  court's  attorney's  fees  award  was  an  abuse  of  discretion.    We  

conclude that because Lee and Konrad's predecessors agreed to the boundary established  


by the 1992 survey, and marked that boundary with fence posts in 1999, the boundary  


between the lots was established by acquiescence.  We thus reverse the superior court's  

boundary line finding.  We conclude that the superior court correctly found that the fill  

material encroaching onto Konrad's property after she purchased her lot was a trespass.  


But the court erred by ordering Lee to remove fill material that encroached onto the  


property before Konrad purchased it because this fill material was not a trespass as to  


Konrad.    We  also  hold  that  it  was  an  abuse  of  discretion  to  order  Lee  to  pay  for  


construction of a retaining wall to prevent future encroachment.  Because this opinion  

affects the superior court's prevailing-party analysis, we vacate the award of attorney's  


fees  and  remand  for  redetermination  of  prevailing-party  status  and  recalculation  of  


attorney's fees; we also note that when it calculated attorney's fees, the superior court  

applied an erroneous rate for Konrad's attorneys.  

                                                               -2-                                                         6948

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          A.        Facts  

                    Shelikof Subdivision is situated south of Dowling Road and west of Lake  


Otis Road in Anchorage; it was platted in 1972. The boundary line in dispute in this case  


separates two properties located on Ivan Drive, Lots 13 and 14 of Block 3 of Shelikof  


Subdivision.  Lot 13 sits south of and uphill from Lot 14; there is a gradual slope from  


Lot 13 to Lot 14.1  

                    In 1989 Cody Lee purchased Lot 13 on Ivan Street under a warranty deed  


that incorporated the 1972 plat.  Lot 14 was owned and occupied by Jack and Jerrie  


Southern at the time.  In 1992 the Southerns hired surveyor Ken Lang to mark their  


property line.  Lang did not provide the Southerns with records or a written explanation  


of  the  survey,  but  he  marked  Lot  14's  corners  with  stakes  labeled  with  his  license  


number.  The survey was largely consistent with the parties' historical usage, though it  


indicated that the Southerns' flower bed partially crossed the property line onto Lee's  


property.  After the Lang survey, the Southerns remedied this encroachment by moving  

the flower bed to their side of the property line.  


                    Stacey Dean married Lee in 1997 and moved into his house on Lot 13.  In  

1999 Lee decided, with the Southerns' permission, to erect a partial fence to mark the  

property line between Lots 13 and 14.  The fence posts were placed consistent with the  


parties' mutual understanding of the boundary line's location, and Jack Southern offered  


to  help  Lee  set  the  fence  posts.    In  an  early  affidavit  Lee  estimated  the  posts  were  

"several inches on [his] side of the line," but a subsequent review of photos and survey  

reports led him to believe that a greater setback existed.  A 1999 aerial photo indicated  



                    We attach a rough sketch of the disputed property as an appendix to this  


                                                               -3-                                                             6948  

----------------------- Page 4-----------------------

that the fence posts defined a straight line segment beginning at the rear of Lots 13 and  


14 and ending about a third of the distance between the rear and street front of the lots.  


                    In 2003 the Southerns sold Lot 14 to David and Patty Jo Wilson, who in  


                                                                                     2  The Wilsons and Lee treated  

2006 sold the property to their daughter, Sherrie Wilson.  


the boundary line marked by the fence posts as the true property line without any dispute.  


Sherrie Wilson stated that she believed the property line extended along her side of the  


fence line to a light pole on the street.  

                    In 2005 or 2006 Lee excavated a basement crawlspace under his home and  


placed the fill in his backyard next to the fence posts.  Lee approached Sherrie Wilson  


at the time to inform her that "as [he] placed [the] fill, the slope was tending to partially  


come onto . . . her side of the property line"; Lee offered to "make it better" if she was  

concerned about the fill.  Wilson stated that she was never bothered by the fill, and did  

not object or ask Lee to remove it.  


                    Lee did not complete the fence until 2007, eight years after he first erected  


the fence posts, and 15 years after the 1992 Lang survey.  The completed fence followed  


a straight line from the rear of the lots to about halfway down the common property line,  

at which point it curved into Lot 13 to abut Lee's house.  In 2007 Lee "straightened"  

approximately 16 feet of the curved fence so that it no longer wrapped back to the house.  


                    In 2008 Sherrie Wilson sold Lot 14 and a mobile home on the property to  

Barbara Konrad.  Wilson sold both "as-is" and "did not represent to [Konrad] or any  

realtor or buyer any boundary inconsistent with the boundary" marked by the fence.  


Wilson and Konrad did not discuss the boundary line, nor did they discuss who owned  

the fence between Lots 13 and 14.  



                    Sherrie Wilson lived on Lot 14 during the time it was owned by David and  

Patty Jo Wilson.  

                                                               -4-                                                             6948  

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                    Later that year, Konrad hired John Schuller of ArcTerra Engineering &  


                                                                                                                  on Lot 14,  

Surveying to survey her property.  Schuller did not locate any monuments 


but he did find rebar markers defining three of the four corners of Lot 14.  Schuller was  


unable to locate the fourth corner (the corner at the street front of the boundary between  


Lots 13 and 14), so, using as reference points rebar markers on the lot and monuments  

along Ivan Drive and across the street, he placed his own rebar marker to define the street  

front corner between Lots 13 and 14.  

                    Lee and Dean owned a construction company, and Dean served on the local  

Zoning and Planning Board; Lee considered Dean and himself to be familiar with land  

surveying techniques.  Believing that Schuller's rebar marker improperly defined the  



street front corner, Lee removed the marker, thereby destroying the value of the survey. 

                    On June 4, 2008, Konrad wrote a letter  to Lee informing him that she  


intended to have a permanent marker set to mark the survey; Konrad threatened to pursue  


legal action if Lee removed this marker.  The following day Lee responded with a letter  

explaining why he believed Schuller's survey was erroneous:  

                    Your  surveyor  did  not  do  a  full  survey  by  pulling  from  


                    monuments at the corners of the Shelikof subdivision.  Those  


                    monuments            were      placed       before       determining          the     lot  

                    locations . . . .  The only way to determine where the true  


                    corners of the property [are] is to pull not from existing rebar,  

                    but from the monuments that determined the original survey  

                    in 1972.  

          3         In the context of a land survey, a "monument" means "(A) a United States   

public land survey monument; (B) an Alaska state land survey primary monument; (C)     

an exterior primary monument controlling a recorded survey; (D) a geodetic control  

monument established by a state or federal agency." AS 34.65.100(3).  



                    According to Lee, he first talked to Konrad and offered to "split a survey  


with her so that [they] could resolve this without going to court," but she declined to  

accept his offer, so he removed the marker.  

                                                               -5-                                                         6948

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Lee suggested that he would be willing to move his fence if "a reputable surveyor using  


the Boundary Survey method of going back to the monuments" determined that the fence  


encroached on Konrad's property.  

                   Notwithstanding Lee's letter, Konrad hired Schuller to resurvey the land  

for another fee.   Schuller recalculated the position and determined that the corner was  

actually three to four inches to the south of where his first survey located it.  Schuller  


marked the corner accordingly.  This time Lee did not remove Schuller's rebar marker,  

but he did remove a wooden lattice that Schuller used as an additional survey marker.  


                   Lee subsequently hired Lantech, Inc., a land and construction survey firm  

that  had  previously  performed  work  for  Lee  and  Dean's  construction  company,  to  

conduct a lot stake survey of Lot 13.  Lantech found the fourth survey marker placed by  


Ken Lang in 1992 that Schuller had been unable to find.   Lantech's survey revealed  

"conflicting corner monumentation for the lots that front along the west side of Ivan  


Drive," including Lots 13 and 14.  In order to determine the true record position of the  

lot corners, Lantech surveyed the original subdivision boundary along East 68th Avenue,  


the existing centerline road control, and several other lot corners within the subdivision.  

Lantech determined that the front corner was slightly to the northwest of the corner  

location determined by Schuller's survey and just to the south of Lang's rebar marker  

but roughly consistent with the fence separating Lots 13 and 14.  


                   In August 2008 Lee sent Konrad and her attorney a copy of the Lantech  

survey.  He demanded that "[s]ince [Konrad's] as built [survey was] determined to be  

incorrect," Konrad should:  (1) relinquish any claim to his property and acknowledge  


that the fence properly marked the boundary line; (2)  direct  Schuller to remove his  


stakes; (3) refund him the $2,800 cost of the lot stake survey; (4) make no further claims  

on his property; and (5) pay for any and all attorney's fees.  Konrad's attorney responded  

                                                           -6-                                                    6948

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four days later by requesting that Lee "remove the fence from [Konrad's] property at his  


          B.        Proceedings  


                    Lee filed suit in superior court in August 2008.  He sought "[a]n award of  


declaratory relief serving to quiet title and remove any cloud on that title as between the  


parties"; a temporary injunction pending resolution of the lawsuit; monetary damages;  


and costs and attorney's fees.  Konrad counterclaimed and requested costs of her survey;  


"injunctive relief stopping the trespassers, removing the fence and quieting the title"; and  

attorney's fees and costs.  

                    Lee subsequently amended his complaint, asserting that because the fence  

posts   marking   the   boundary   were   set   in   1999,   almost   nine   years   before   the  


commencement  of  the  lawsuit,  he  had  established  "a  prima  facie  case  for  adverse  


possession under claim of title." Konrad responded and asserted a trespass counterclaim,  


alleging that Lee had "now built a fence and put in an elevated gravel pad," causing  


rocks and gravel to continuously "roll off the pad and trespass into Konrad's yard."  Lee  

acknowledged  that  construction  of  the  fence  was  completed  while  the  lawsuit  was  


pending, but denied having installed an elevated gravel pad.  Lee also "[a]dmitted that  


a small amount of gravel may have 'trespass[ed] into Konrad's yard,' but denied that this  

caused Konrad any harm."  

                    The      parties     moved        for     summary         judgment         on     the    boundary         by  

acquiescence,  adverse  possession,  and  trespass  claims.    Lee  also  requested  that  the  

superior court "declare the law of the case" by finding the Lantech survey proper as a  


matter of law.  In May 2010 the superior court issued an order on the parties' motions.  


                    The superior court found that Lee successfully acquired "the portion of the  


disputed area encompassed  by [the] 2007 fence" by adverse possession, but that his  


"claim fails as to the street front portion of the disputed area."  The court also denied  

                                                               -7-                                                         6948

----------------------- Page 8-----------------------

Lee's motion to declare the law of the case, concluding that a genuine issue of material  


fact existed regarding the historical use of the property.  The court further considered  


whether the boundary had been established by agreement, and found that Lee "create[d]  

an  issue  of  material  fact  as  to  whether  the  historical  property  owners[]  treated  any  


particular line as an agreed upon boundary line."  The court therefore determined that  

Lee was "not entitled to judgment as a matter of law under the equitable doctrine of  


mutual recognition and acquiescence, because [he had] not met [his] burden to show by  


clear and convincing evidence the existence of a clear and certain line that is sufficiently  


defined."  Finally, the superior court declined to rule on issues relating to the surveys,  

instead leaving these issues for trial.  

                    The  court  also  addressed  Konrad's  trespass  claim.    It  concluded  that  


Wilson's consent to the gravel/fill encroachment gave Lee a revocable license to trespass  


on her land, but this license was terminated when Konrad bought the property or when  


she raised the issue of trespass in the lawsuit.   The court further found that although  

Konrad  had  established  a  continuing  trespass,  Lee's  liability  was  "simply  that  of  

removal,"  such  that  once  a  legal  boundary  was  officially  established,  he  would  be  

required  to  "remove  the  encroachment  and  ensure  no  further  encroachment  .  .  .  by  

building a retaining wall or otherwise."  


                    The superior court held a three-day trial in June 2010.  The majority of the  


trial testimony focused on the survey methods used in the two recent, competing surveys  


by Lantech and Schuller.  On January 10, 2011, the superior court issued its decision.  


The court first made general findings before addressing the boundary line at issue.  The  

court  concluded  that  because  Schuller  took  into  consideration  the  existing  use  of  

surrounding properties, his method was more reliable.  The court therefore concluded  


that Schuller's survey correctly identified the property line between Lots 13 and 14.  The  

                                                               -8-                                                         6948

----------------------- Page 9-----------------------

 court did not address or make any findings on whether the boundary line may have been  


 established by agreement between Lee and Konrad's predecessors.  



                    In  final orders issued in June and August 2011,  the superior court ordered 


Lee to:  (1) pay Schuller all necessary costs for a resurvey; (2) "remove all encroaching  


fill, existing fence and any other material . . . placed on Lot 14"; (3) construct an adequate  

retaining  wall,  the  proposed  design  of  which  would  be  reviewed  by  a  construction  


company selected by Konrad; (4) bear "[a]ll costs of fill and fence removal[,] as well as  

costs  for  construction,  design  and  review  of  design  for  the  retaining  wall";  and  

(5) "restore the encroached-upon land to an orderly state."  


                    The  court  declared  Konrad  the  prevailing  party  and  found  that  the  


reasonable value of Konrad's attorneys' services was $55,000, utilizing an hourly rate  

of $250 and $350 respectively for Konrad's two attorneys.  The court then awarded  


Konrad 30% of these fees pursuant to Alaska Civil Rule 82(b)(2), for a total of $16,500.  


But  the  court  declined  to  award  Konrad  an  enhanced  fee  award  on  the  basis  of  her  


Alaska Civil Rule 68 offer of judgment.  The court reasoned that Konrad had made her  


offer to both Lee and Dean, but Dean did not own the property and therefore "could not  

have bound [Lee] to a change in the property line."  The court therefore determined that  

because "the offer was conditioned on acceptance by both offerees," it was invalid.  


                    Lee and Dean appeal.   Konrad cross-appeals on the adverse possession  

claim and the denial of an enhanced attorney's fee award.  

           5        The  case  was  reassigned  from  Judge  Stephanie  E.  Joannides  to  Judge  


 Andrew Guidi in April 2011.  Judge Guidi issued the final judgment and presided over  

 the post-trial motions.  

                                                               -9-                                                           6948  

----------------------- Page 10-----------------------



                    "We review legal questions de novo, adopting the rule of law that is most  


                                                                                Factual findings are reviewed for  

persuasive in light of precedent, reason, and policy."                                      

clear error.7  "We will reverse the trial court's factual findings only when, 'after a review  


of the entire record, we are left with a definite and firm conviction that a mistake has been  


made.' "8  

                    We have not considered a boundary line dispute of the type at issue here.  

We observe, however, that the determination of a disputed boundary often presents a  



compound  issue  involving  questions  both  of  law  and  fact.     The  relative  weight  of  


different types of evidence of disputed boundaries ordinarily presents a question of law,  


but the credibility of witnesses, including the weight given the opinions of surveyors, the  



location or existence of physical markers, and the timing of events, are questions of fact. 

                    Equitable injunctive relief is an extraordinary remedy that is appropriate  


only where the party requesting relief is likely to otherwise suffer irreparable injury and  

          6         Estate  of  Smith  v.  Spinelli ,  216  P.3d  524,  528  (Alaska  2009)  (internal  

 quotation marks and alterations omitted).  

          7         Peterson v. Ek , 93 P.3d 458, 463 (Alaska 2004).  

          8         Id. (quoting Demoski v. New , 737 P.2d 780, 784 (Alaska 1987)).  

          9         See Hansen v. Stewart, 761 P.2d 14, 16 (Utah 1988).  

           10       See id. ("[Legal] rules specify . . . the relative weight to be given various   

 types  of  evidence  that  may  be  used  to  determine  the  location  of  a  boundary.    For  

 example, natural landmarks are generally preferred over artificial monuments . . . .  On  


 the other hand, the determination of factual questions may also be important in boundary  

 cases.  For example, whether a specific event occurred or where a particular marker is  

 located may be critical." (internal citations omitted)).  

                                                             -10-                                                        6948

----------------------- Page 11-----------------------



lacks an adequate remedy at law.                      We review the superior court's decision to grant or  



deny injunctive relief for abuse of discretion.                       "Abuse of discretion exists 'if the [order]  



is arbitrary, capricious, manifestly unreasonable or the result of an improper motive.' " 


An award of attorney's fees, including a superior court's prevailing-party determination,  


                                                               We review de novo whether the superior court  

is also reviewed for abuse of discretion. 

applied the law correctly in awarding attorney's fees.15  

           11        Cf.  Carrol v. El Dorado Estates Div. No. Two Ass'n, Inc.                            , 680 P.2d 1158,  

 1160  (Alaska  1984)  ("Where  a  statute  specifically  authorizes  injunctive  relief,  the  

 plaintiff need not show either irreparable injury or lack of an adequate remedy at law."  


 (citations omitted)); see also, e.g., Sharp v. 251st St. Landfill, Inc., 925 P.2d 546, 549  


 (Okla.  1996)  ("An  injunction  is  an  extraordinary  remedy  that  should  not  be  lightly  

 granted."  (citations  omitted));  Grimes  v.  Enter.  Leasing  Co.  of  Philadelphia,  LLC.,  

 66 A.3d 330, 340 (Pa. 2013) ("Injunctive relief is considered an extraordinary equitable  


 remedy and it is to be granted only where the . . . party [seeking injunctive relief] has  


 established  that  immediate  and  irreparable  harm,  which  cannot  be  compensated  by  

 damages, will result if the injunction is denied. Furthermore, the party seeking to enjoin  

 certain  conduct  must  demonstrate  that  greater  injury  would  result  by  refusing  the  

 injunction than by granting it." (alterations in original) (internal quotation marks and  

 citations omitted)).  



                    Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  


 177 P.3d 1181, 1184 (Alaska 2008) (citing Betz v. Chena Hot Springs Grp. , 657 P.2d  

 831, 837 (Alaska 1982)).  

           13        Weilbacher v. Ring, 296 P.3d 32, 37 (Alaska 2013) (quoting Hughes v.  

Foster Wheeler Co. , 932 P.2d 784, 793 (Alaska 1997)).  



                    Id. (citing Hopper v. Hopper , 171 P.3d 124, 129 (Alaska 2007)); Taylor v.  

Moutrie-Pelham , 246 P.3d 927, 929 (Alaska 2011) (citing Fernandes v. Portwine , 56  

 P.3d 1, 5 (Alaska 2002)).  



                     Beal v. McGuire , 216 P.3d 1154, 1162 (Alaska 2009) (citing Glamann v.  

Kirk , 29 P.3d 255, 259 (Alaska 2001)).  

                                                               -11-                                                        6948

----------------------- Page 12-----------------------


          A.       The Boundary Line Dispute  

                   Lee asserts that:  (1) the superior court selected the incorrect property line,  


disregarding established principles of boundary law and the historic expectations of the  


property owners; (2) Lee and Konrad's predecessors all recognized the same line as the  


dividing boundary line, such that Lee laid claim to the property under the doctrine of  


boundary by acquiescence; and (3) the superior court improperly applied a new standard  


for adverse possession at trial after deciding the adverse possession issue on summary  


judgment.    Lee  argues  that  "the  primary  error  in  the  case  was  the  superior  court's  


treatment of the undisputed history of usage at the boundary between Lots 13 [and] 14."  

Lee "ask[s] [this] court to recognize the law of practical location, by whatever name  

(practical location, boundary by agreement, by acquiescence, or by estoppel),[16] based  

on the undisputed 16+ year history between 1992 and 2008."  Specifically, Lee asserts  


          16        Lee  also  frequently  refers  to  the  applicable  doctrine  as  the  "Cooley  

 doctrine,"  apparently  relying  on  the  view  expressed  by  Justice  Thomas  Cooley's  


 concurring opinion in Diehl v. Zanger , 39 Mich. 601 (Mich. 1878).  Justice Cooley  

 expanded on this topic in a widely acclaimed and republished paper.  See Herbert W.  


 Stoughton, Thomas McIntyre Cooley and the Judicial Functions of Surveyors, ACSM  


 BULLETIN No. 155 (May/June 1995); Kristopher M. Kline, How to Fix a Boundary Line ,  



   HE TARHEEL SURVEYOR No. 13.2 at 22 (Fall 2013) ("Several states recognize practical  


 location as a variant allowing consideration of fence lines as the best available evidence  

 of the original location of the boundary - this is sometimes referred to as the 'Cooley  

 Doctrine.' ").   Most modern legal treatises and courts, however, refer to the doctrine  


 under  which  a  boundary  line  may  be  determined  by  the  practical  agreement  or  

 acquiescence to a particular line as "boundary by acquiescence" or "recognition and  

 acquiescence."  See e.g., 9 RICHARD R.  POWELL,  POWELL ON  REAL PROPERTY  68.05  

 (1997)  (mutual  recognition  and  acquiescence);  W                                                            

                                                                           ALTER  G.  ROBILLARD  &  LANE  J.  


   OUMAN , CLARK  ON  SURVEYING  AND  BOUNDARIES    20.03,  at  672   (7th  ed.  2009)  

 (boundary by acquiescence).  We adopt the concise and accurate term "boundary by   


                                                            -12-                                                     6948

----------------------- Page 13-----------------------

that "[t]he undisputed evidence of historical use and reliance" demonstrates that from  

 1992 to 2008 the adjacent landowners consistently agreed that the 1992 "Lang line"  

marked the property line between Lots 13 and 14.  


                     Konrad responds that Lee has not shown that the superior court erred in its  


factual determination of the boundary line based on its review of the survey techniques  


used.  Konrad also cross appeals, arguing in part that the court erred in granting summary  

judgment to Lee on his adverse possession claim.  

                     For the reasons discussed below, we conclude that the boundary line was  

conclusively established by acquiescence of the owners of Lots 13 and 14 to the 1992  

Ken Lang survey line.  Accordingly, we need not consider the parties' other points on  

appeal regarding the surveyed locations of the boundary line and adverse possession.  

                     1.        The doctrine of boundary by acquiescence  


                     Boundary by acquiescence is an equitable gap-filling doctrine that may be  


available  where  estoppel  and  adverse  possession  are  unavailable.                                      While  the  exact  

requirements of the doctrine vary from state to state,18 Justice Thomas Cooley of the  

Michigan Supreme Court aptly summarized the doctrine as follows:  "The long practical  


acquiescence of the parties concerned, in supposed boundary lines, should be regarded  


as  such  an  agreement  upon  them  as  to  be  conclusive  even  if  originally  located  


                           Boundary  by  acquiescence  is  "a  rule  of  repose,  with  a  view  to  the  


           17        See 9  POWELL,  supra note   16,  68.05(1)(c).  

           18        Id.  68.05[2] ("The gap-filling role played by the doctrine of recognition       

 and  acquiescence  ensures  there  is  no  accurate  single  or  simple  formulation  of  the  

 doctrine."); see ROBILLARD ,  supra note   16,  20.03, at 294 (Supp. 2010) (noting lack of     

 agreement on precise contours of the doctrine).  

           19        Diehl , 39 Mich. at 606 (Cooley, J., concurring); see also Joyce v. Williams,  


                                                                -13-                                                         6948

----------------------- Page 14-----------------------

quieting of titles," which rests upon the "sound public policy . . . of preventing strife and  


litigation concerning boundaries."20  


                     One leading treatise describes "[a] general consensus of opinion from those  


courts that have considered the creation of a boundary by acquiescence" that the doctrine  


has three requirements:  (1) the existence of a present "dispute from which it can be  

implied that both parties are in doubt as to the location of the true boundary"; (2) "[a]  


continued occupation and acquiescence in a line other than the true boundary"; and (3)  


"[u]se  for  a  period  of  time  of  more  than  the  statutory  period  required  for  adverse  



                    Most courts also require a claimant to prove that a physical, visible marker  


actually establishes the purported property line, though what constitutes a sufficiently  

marked  line  varies  considerably.    For  example,  New  Mexico's  approach,  which  the  

superior  court  relied  on  in  its  summary  judgment  order,  requires:    "(1)  adjoining  


landowners (2) who occupy their respective tracts up to a clear and certain line (such as  


a fence), (3) which they mutually recognize and accept as the dividing line between their  


properties (4) for a long period of time."                        In Maine a party seeking to prove boundary  


by  acquiescence  must  prove  "possession  up  to  a  visible  line  marked  clearly  by  


 26 Mich. 332, 337-38 (1873) (holding that boundary line was established by "continued  

 acquiescence"  to  a  boundary  earlier  agreed  upon  by  the  parties,  as  evidenced  by  

 "subsequent acts and improvements, and continued occupancy on the faith of [the line]").  

           20        Holmes v. Judge , 87 P. 1009, 1014 (Utah 1906) (internal quotation marks     


           21        ROBILLARD ,   supra note   16,  20.03, at 669 (citing                        Campbell v. Noel, 490  

 So. 2d 1014 (Fla. Dist. App. 1986)).   

           22        Cauble v. Beals, 631 P.2d 1311, 1312 (N.M. 1981) (alterations omitted)  

 (quoting Tresemer v. Albuquerque Pub. Sch. Dist., 619 P.2d 819, 820 (N.M. 1980)).  

                                                                -14-                                                         6948

----------------------- Page 15-----------------------



monuments,  fences  or  the  like."                      The  Supreme  Judicial  Court  of  Maine  affirmed  

                                      24                                25 

findings that survey pins                and an old roadway                created a sufficiently visible line, but  



held  the  unmarked  edge  of  a  periodically  mowed  hayfield  insufficient.                                        The  Utah  


Supreme Court held that a party must prove "occupation up to a visible line marked by  


monuments, fences or buildings"27 ; this requirement "may be satisfied where land up to  


the visible, purported boundary line is farmed, occupied by homes or other structures,  


improved, irrigated, used to raise livestock, or put to similar use."                                    In Washington, a  

party  asserting  that  a  boundary  line  was  established  by  mutual  recognition  and  

acquiescence must prove "that the boundary line between two properties was 'certain,  


well[-]defined,  and  in  some fashion physically designated upon the ground,  e.g., by  



monuments, roadways, fence lines, etc.' "                           The Washington Supreme Court held that  

three widely-spaced survey markers set in a thicket of blackberry bushes, ivy, and weeds,  



were insufficient to establish a clear and well-defined boundary.                                      The Iowa Supreme  

Court defined acquiescence as "the mutual recognition by two adjoining landowners for  

           23        Anchorage Realty Trust v. Donovan , 880 A.2d 1110, 1112 (Me. 2004)  

 (citing Dowley v. Morency , 737 A.2d 1061, 1067 (Me. 1999)).  

           24        Dupuis v. Soucy , 11 A.3d 318, 323 (Me. 2011).  

           25        Marja Corp. v. Allain , 622 A.2d 1182, 1185 (Me. 1993).  

           26        Crosby v. Baizley, 642 A.2d 150, 154 (Me. 1994),                               superceded on other  

gounds by statute , ME . R             EV .   STAT .  810-A (2009).  

           27        Fuoco v. Williams , 421 P.2d 944, 946 (Utah 1966).  

           28        Bahr v. Imus , 250 P.3d 56, 65 (Utah 2011) (citation omitted).  

           29        Merriman v. Cokeley , 230 P.3d 162, 164 (Wash. 2010) (quoting                                     Lamm v.  

McTighe , 434 P.2d 565, 569 (Wash. 1967)).  

           30        Id. at 165.  

                                                               -15-                                                         6948

----------------------- Page 16-----------------------

ten  years  or  more  that  a  line,  definitely  marked  by  fence  or  in  some  manner,  is  the  



dividing line between them."                     The Iowa Court affirmed a finding that boundary by  


acquiescence was established where the boundary was marked by just three fence posts,  


reasoning that "[a]lthough the boundary line claimed . . . is not marked by a fence or  


some other consistently solid barrier, the three posts represent a distinct division of the  


parties' properties."              

                    There is little functional difference between the various formulations of the  

standard for establishing a boundary line by acquiescence.  We agree with the New  


Hampshire Supreme Court that "boundary by acquiescence is grounded 'upon principles  


of public policy that preclude a party from setting up or insisting upon a boundary line  


                                                                                           Given that rationale for the  

in opposition to one which has been steadily adhered to.' " 

doctrine, it makes little sense to rigidly limit the way in which agreement to a boundary  


line can manifest.  To that end, we do not attempt to define the minimum extent to which  


a line must be established by physical markers.  But we observe that it is difficult to  


conceive how parties could prove agreement to a boundary line without some  physical  

markers indicating the line's location.  Accordingly, we hold that a boundary line is  


established by acquiescence where adjoining landowners (1) whose property is separated  

by  some  reasonably  marked  boundary  line  (2)  mutually  recognize  and  accept  that  

boundary line (3) for seven years or more.34  

           31        Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997) (quoting Sille v.  

 Shaffer, 297 N.W.2d 379, 381 (Iowa 1980)) (internal quotation marks omitted).  

           32        Tewes v. Pine Lane Farms, Inc., 522 N.W.2d 801, 806 (Iowa 1994).  

           33        O'Hearne  v.  McClammer,  42  A.3d  834,  839  (N.H.  2012)  (quoting  

Richardson v. Chickering , 41 N.H. 380, 384 (1860)) (alterations omitted).  

           34        For consistency we adopt the seven-year statutory prescriptive period for     


                                                              -16-                                                         6948

----------------------- Page 17-----------------------

                     2.	       The  superior  court  erred  by  failing  to  consider  Lee's  trial  

                               evidence and argument that the boundary between Lot 13 and  

                               Lot 14 was established by acquiescence.  

                     In its summary judgment order the superior court considered what it called  

"the  doctrine  of  mutual  recognition  and  acquiescence"  in  some  detail.    The  court  


concluded that Lee was not entitled to judgment as a matter of law, finding that "[w]hile  


evidence suggests the property owners may have recognized land to the lot 13 side of the  


fence posts as Plaintiffs', there is no clear and convincing evidence that a definite line  


otherwise existed, especially with regard[] to the street front portion of the lots."  In  


essence, the court denied Lee's motion for summary judgment because it found there was  


a genuine issue of material fact.  Thus, if the court was correct in finding a genuine issue  


of material fact, the issue should have been resolved at trial.  But the superior court did  


not revisit the boundary by acquiescence issue in its trial decision; instead, it focused  

almost entirely on the merits of the competing survey techniques.  

                     The  theory  that  the  boundary  line  should  be  established  based  on  the  

longstanding understanding and agreement between Lee and the previous owners of  


 adverse possession under color and claim of title, AS 09.45.052(a), as the time period  

 required  to  establish  boundary  by  acquiescence.    But  we  note  that  boundary  by  


 acquiescence  and  adverse  possession   are  fundamentally  distinct  legal  doctrines.  


 Boundary by acquiescence arises from some of the same policy considerations as adverse  

 possession, but rather than creating a means whereby a party can acquire title to land  


 without  the  other  owner's  consent,  it  allows  parties  to  establish  the  location  of  a  


 boundary by consent, but without written agreement.  See James H. Backman, The Law  

 of Practical Location of Boundaries and the Need for an Adverse Possession Remedy,  


 1986 B.Y.U. L. R 

                           EV . 957, 958-967 (1986).                Adverse possession requires "uninterrupted   

 adverse notorious possession of real property under color of claim for seven years or   

 more."    AS  09.45.052(a).    By  contrast,  boundary  by  acquiescence  does  not  require  

 possession to be adverse; it requires the opposite: mutual acquiescence to possession.  

 ROBILLARD ,  supra note   16,  20.03, at 672.  

                                                                -17-	                                                         6948

----------------------- Page 18-----------------------


Lot 14 was raised and supported at trial.  Lee's closing argument included a discussion  


of the "Ken Lang line."  This line was the property line as determined by a 1992 survey  


commissioned by Konrad's predecessors in interest and agreed to by Lee and Konrad's  


predecessors in interest, and was marked by the fence posts which Lee erected in 1999.  

Lee argued that this line was accepted as the undisputed property boundary by all of Lot  


14's owners prior to Konrad.  His argument was supported by the testimony of Sherrie  


Wilson, who owned Lot 14 from 2003-2008.  It was supported by the trial testimony of  

Jerrie Southern, who lived at Lot 14 from the early 1990s to 2000, and who hired Ken  

Lang in 1992 to perform the survey giving rise to the agreed-upon boundary line.  And  

it was supported by Lee's trial testimony.  


                    Because the boundary by acquiescence issue was not decided in the court's  


summary judgment order and was raised and argued at trial, the court erred by failing to  

consider  whether  the  boundary  line  was  established  by  the  adjacent  lot  owners'  

acquiescence to the 1992 Ken Lang survey line.  


                    3.	       The   boundary   between   Lots   13   and   14   was   conclusively  

                              established by acquiescence to the 1992 Ken Lang survey line.  

                    As  we  have  discussed,  the  boundary  line  claimed  by  Lee  was  first  


established  in  1992  when  Ken  Lang  surveyed  Lot  14.    In  1999  Lee  set  fence  posts  


according to Lang's survey markers, though he explained that he "held them back on  


[his] side of the property line" so as to avoid "issues with the neighbor."  Jerrie Southern  

and Lee both stated that the fence posts were placed consistent with the parties' mutual  


understanding of the boundary line - indeed, Jack Southern offered to assist Lee in  

placing  the  fence  posts.    Lee  and  the  Southerns  never  disputed  the  location  of  the  


boundary between their properties.  Wilson testified that, although she did not know the  


exact location of the property line because "[i]t didn't really matter" to her, she never had  


any dispute with Lee about its location.  She further stated that "[a]t all relevant times I  

                                                               -18-	                                                       6948

----------------------- Page 19-----------------------

believed that the property line extended along my side of Cody and Stacey's fenceline  

out to near the streetlight."  


                    The basic requirements for boundary by acquiescence are established by  

undisputed  evidence  in  this  case:    the  boundary  line  between  Lots  13  and  14  was  


                                                                                                                   and later  

definitely marked by rebar survey markers placed by Ken Lang, fence posts, 


a  fence, and  the  owners  of the  adjacent lots  mutually  recognized  and  accepted  that  


boundary line for more than seven years.  To the extent that the fence posts were the  


visible marker of the boundary line, that line clearly extended to the front of the property.  

There  is  no  dispute  that  the  boundary  line  between  the  properties  is  a  straight  line.  


Indeed, the 1972 subdivision plat clearly shows that the line is straight.  And given the  


relatively short distance from the back to the front of the lots, there could be no confusion  

about continuation of the straight line established by the fence posts to the front of the  



                    We  conclude  that  the  boundary  line  between  Lots  13  and  14  was  


conclusively established by Lee's and Konrad's predecessors' undisputed acquiescence  


to the 1992 Ken Lang survey line during the period between 1992 and 2008.  Thus, the  


superior court's decision accepting the Schuller survey as the applicable boundary was  

erroneous and we reverse.  

          B.        The Trespass Claim  

                    In 2005 or 2006 Lee excavated a basement crawlspace under his home and  


placed the fill next to the fence posts in his back yard.  Lee's lot is upslope of Lot 14, and  

          35            Lee  apparently  set  the  fence  posts  back  a  few  inches  from  the  Lang  

 property line in order to avoid any possible disputes with his Lot 14 neighbors.  The  

 record  indicates  that  the  owners  of  Lot  14  recognized  that  the  boundary  line  was  


 consistent with the fence posts but that the fence posts themselves were set back slightly  


 on Lot 13.  

                                                             -19-                                                        6948

----------------------- Page 20-----------------------


Lee approached Sherrie Wilson at the time to inform her that "as [he] placed [the] fill the  


slope was tending to partially come onto . . . her side of the property line."  Lee offered  


to "make it better" if she was concerned about the fill.  Wilson stated that she was never  

bothered by the fill and did not object or ask Lee to remove it.  Lee did not remove any  


fill material that had encroached onto Lot 14 before Konrad purchased the property.  Lee  

admitted that some material "may" have continued to move onto Lot 14 after Konrad  


purchased it.  Konrad alleged that the encroachment both before and after she purchased  

Lot 14 was a trespass.  

                    In  its  summary  judgment  order,  the  superior  court  defined  the  issue  


presented  by  the  trespass  claim  as  "whether  an  implied  consent  to  a  gravel/dirt  fill  


encroachment given by a predecessor in interest precludes a landowner from [bringing]  


a trespass action."  The court concluded that it did not:  it found that the encroachment  


was a continuing trespass because the gravel/dirt fill remained on Konrad's property, and  


that Wilson's consent to the encroachment was a revocable license that was terminated  


when Konrad bought the property or when she raised the issue of trespass in litigation.  


The court further ruled that Konrad had standing to raise a continuing trespass claim and  

that Konrad need not establish damages as part of her trespass claim.  

                    Lee argues on appeal that Konrad's trespass claim "should fail as a matter  


of law because . . . Konrad did not own or possess Lot 14 in 2005-2006" when gravel  


spilled across the property line and "the 'offense' was not considered such by those who  

then owned the property, [who] consent[ed] to it."36  

           36        Lee also contends that Konrad's trespass claim was 'so trivial' that she was  

 unable to allege any resulting damage with the specificity required by Alaska Civil Rules  

 9(h) and 26(a)(1)(G).  But a trespasser may be liable for nominal damages even if "his  


 presence  on  the  land  causes  no  harm  to  the  land,"  Brown  Jug,  Inc.  v.  Int'l  Bhd.  of  


 Teamsters, Chauffeurs, Warehousemen & Helpers of Am., Local 959, 688 P.2d 932, 938  


                                                               -20-                                                        6948

----------------------- Page 21-----------------------


                   For the reasons discussed below, we conclude that the superior court erred  


to the extent it concluded that Lee's fill material that encroached on Wilson's lot before  


Konrad purchased the lot constituted a continuing trespass.  The court also erred by  


ordering Lee to remedy any injury caused by fill material placed on Lot 14 with Wilson's  


consent before Konrad purchased the property.  We further conclude that the superior  

court properly ordered Lee to remove any material that encroached onto Lot 14 after  

Konrad purchased the property and to prevent future encroachment, but that it was an  

abuse of discretion to order Lee to pay for the construction of a retaining wall.  


                   1.	       The encroachment of fill material before Konrad purchased Lot  

                             14 was not a trespass.  

                   A "[t]respass is an unauthorized intrusion or invasion of another's land."37  


Consent  is  generally  considered  to  be  an  affirmative  defense  to  trespass.                                Indeed,  

"consent marks a deficiency in the plaintiff's prima facie case at the most fundamental  

level; where the plaintiff consents, the defendant's act is simply not tortious."39  

                   Wilson consented to the fill material's encroachment onto her property.  The  

superior court characterized Wilson's consent as implied consent, and we agree because  



 (Alaska  1984)  (quoting  RESTATEMENT  (SECOND)  OF  TORTS     163   (1965)),  thus  the  

 viability of Konrad's trespass claim does not depend on the specificity of her damage   


          37       Mapco Express, Inc. v. Faulk , 24 P.3d 531, 539 (Alaska 2001) (citing Parks  

Hiway  Enters.,  L.L.C.  v.  CEM  Leasing,  Inc. ,  995  P.2d  657,  664  (Alaska  2000);  


          38        RESTATEMENT (SECOND) OF TORTS  167-175; 1 DAN B. DOBBS, PAUL T.  



   AYDEN  & ELLEN  M. BUBLICK , THE  LAW  OF  TORTS  105, at 317-18 (2d ed. 2011)   

 (citations omitted).  

          39        1 DOBBS, supra note 38,  105, at 318 (citations omitted).  

                                                           -21-	                                                     6948

----------------------- Page 22-----------------------


Wilson's undisputed testimony establishes that at the least, her consent was implied.  "If  

words or conduct are reasonably understood by another to be intended as consent, they  

constitute apparent consent and are as effective as consent in fact."40  Consent to trespass  

may  be  implied  from  actions  or  conduct,  applicable  social  conventions,  or  the  



relationship between the parties.                  In this case the undisputed facts are:  Lee approached  


Sherrie Wilson to inform her that "as [he] placed [the] fill, the slope was tending to  


partially come onto . . . her side of the property line"; Lee offered to "make it better" if  


she was concerned about the fill.  Wilson stated that she was never bothered by the fill,  

and did not object or ask Lee to remove it.  

                    Because  Wilson  consented  to  the  spillage  of  fill  material,  no  trespass  


occurred while Wilson owned Lot 14.  Thus, the superior court erred to the extent it  


concluded that the initial encroachment caused by Lee's placement of fill material along  

the property line was a trespass.  

                    On the other hand, when Konrad came into possession of the property, the  

consent given by Wilson "cease[d] to be effective as conferring a privilege to enter or  


remain"  because  "the  interest  of  the  licensor  in  the  land  [in  this  case,  Wilson,]  .  .  .  

                  42                                                                                                   43 

terminated."          In other words, Wilson's consent effectively vitiated Lee's trespass,                                but  


          40        RESTATEMENT (SECOND) OF TORTS  892 (1979).  

          41        1 DOBBS, supra note 38,  106, at 322-23 (citations omitted).  

          42        RESTATEMENT (SECOND) OF TORTS  171(c) cmt. f. (1965).  

          43        1 DOBBS, supra  note 38,     105,  at 318 ("The plaintiff's consent . . . negates  

 any tortious intent, so the plaintiff fails in one element of her proof."); R 



 (SECOND) OF TORTS   167 cmt. b ("[A] consent to enter a particular part of the land in  


 a particular manner or at a particular point or for a particular purpose carries with it  

 consent to such harm to the land and to the possessor's interest in the persons and things  

 on the land as is incidental to a careful exercise of the license.").  

                                                             -22-                                                       6948

----------------------- Page 23-----------------------


when Wilson sold her property to Konrad, Konrad started afresh; she had a viable cause  


of action with respect to any fill material encroachment that may have occurred after she  


purchased Lot 14, but not with respect to the fill material that Lee had previously spilled  

onto the property when Wilson owned it.  


                    We also observe that Konrad suffered no injury as a result of encroachment  


that  occurred  before  she  purchased  Lot  14.                          If  Konrad  had  serious  objections  to  


purchasing Lot 14 with the previous fill encroachment, she could have conditioned her  

purchase on Wilson removing the material.  But Konrad agreed to purchase the property  


"as-is" and did not express any concern regarding the presence of the fill material before  


purchasing Lot 14. In purchasing Lot 14 "as-is," she effectively became the owner of the  


land that included whatever fill material had spilled onto the land previously.  If there  


was  any  reduction  (or  increase)  in  Lot  14's  value  based  on  that  encroachment,  it  

presumably  was  reflected  in  the  purchase  price.    Konrad  got  exactly  what  she  

purchased - Lot 14 "as-is" - and suffered no injury as a result of the fill material that  

was on and part of Lot 14 when she purchased the property.  


                    2.	        The material that spilled onto Lot 14 after Konrad purchased it  

                               may properly be characterized as a trespass.  


                    The superior court's findings identify two times when fill and gravel spilled  


onto Lot 14.  The first time was "[i]n late 2005/early 2006, [when] Lee raised the level  


of his backyard with excavated dirt and gravel fill.  This resulted in fill and gravel spilling  


over onto lot 14 and encroach[ing] onto lot 14 by two or three feet.  Sherrie Wilson, the  

then-owner of [Lot 14], did not object to this encroachment."  The second time was  


when, "[i]n addition to the fill Plaintiffs previously placed within their fence from the  


excavation of their basement, they brought additional fill after the law suit was filed[,]  

and it has further spilled over onto [Konrad's] property."  

                                                                -23-	                                                        6948

----------------------- Page 24-----------------------

                     To establish a claim of trespass, a plaintiff must prove that she had actual                

or  constructive  possession  of  the  property  in   question  at  the  time  the  alleged  injury  

               44	                                                                                   45 

occurred.          Ordinary trespass "is complete when it is committed";                                thus a plaintiff who  


acquires a possessory interest in the property may not recover for a trespass that occurred  


prior to that possession.46  

                     As stated previously, because Wilson consented to the fill material spilling  

onto her property, the privilege of consent applied to preclude a trespass claim with  

regard  to  the  material  that  encroached  before  Konrad  purchased  the  lot.    But  in  the  


absence of consent from Konrad, Lee had an obligation to prevent additional fill material  


from  spilling  onto  Lot  14.    Thus,  after  Konrad  purchased  Lot  14,  Lee's  conduct  in  


allowing that encroachment was tortious, and the superior court properly characterized  


this as a trespass.  

                     3.	       The       superior         court       erred        by     granting          relief      for     any  

                               encroachment  of  fill  material  that  occurred  before  Konrad  

                               owned Lot 14, but properly granted relief for encroachment that  


                               occurred after Konrad purchased the lot.  

                     As explained above, because Konrad purchased the property after Lee's  

initial placement of fill material along the property line with Wilson's consent, Konrad  


suffered no injury due to the initial encroachment of fill material.  Thus, Konrad lacked  


standing to bring a trespass action based on material deposited on Lot 14 before she  

           44        Cape Fox Corp. v. United States, 456 F.Supp. 784, 804 (D. Alaska 1978)   

 (footnote omitted), judgment reversed in part on other grounds by Cape Fox Corp. v.       

 United States, 646 F.2d 399 (9th Cir. 1981).  

           45        W.   PAGE KEATON ,   PROSSER AND KEATON ON   TORTS  13, at 83 (5th ed.  


           46        Id. ; see also RESTATEMENT (SECOND) OF TORTS  157.  

                                                                -24-	                                                         6948

----------------------- Page 25-----------------------



purchased the lot.              Konrad did have standing, of course, to bring a trespass action for  


any fill material that spilled onto Lot 14 after she purchased the property.  And Konrad  


had standing to seek injunctive relief to require Lee to cease all continuing encroachment  


of the fill material, to remove the fill material that had encroached after Konrad purchased  

Lot 14, and to prevent any further encroachment.  



                     Ordinarily we review grants of injunctive relief for abuse of discretion. 

But the superior court's order was premised on the incorrect legal conclusion that Konrad  


had an actionable trespass claim for the fill material that spilled onto Lot 14 before she  


purchased the lot.  It was therefore legal error to order Lee to remove the fill material that  


was already present on Lot 14 when Konrad purchased the property.  


                     The same cannot be said of the fill material that continued to spill onto  


Konrad's property after she purchased the lot.  We conclude that the superior court did  


not abuse its discretion to the extent it ordered Lee to cease the continuing encroachment  


of the fill material, to remove any fill material that encroached onto Konrad's property  

after  she  purchased  the  lot,  and  to  prevent  any  further  encroachment.    However,  


"injunctive relief should be no more burdensome to the defendant[] than necessary to  


provide  complete  relief  to  the  plaintiff[]."                             Photographs  and  diagrams  of  the  


encroachment show that all of the material, including whatever spilled onto the property  

           47        See  KEATON ,   supra  note   45,    13,   at  83  (explaining  that  plaintiff  who  

 acquires title to a property may not recover for an ordinary trespass that occurred prior  

 to her ownership).  



                     See Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's  


 Servs., 177 P.3d 1181, 1184 (Alaska 2008) (citing Betz v. Chena Hot Springs Grp. , 657  

 P.2d 831, 837 (Alaska 1982)).  



                     Richardson v. City of Rutland , 671 A.2d 1245, 1249 (Vt. 1995) (quoting  

Madsen v. Women's Health Ctr., Inc. , 512 U.S. 753, 765 (1994)).  

                                                                 -25-                                                           6948

----------------------- Page 26-----------------------

while it was owned by Wilson, only slightly altered the slope of a narrow strip of Lot  

14's   backyard   along   the   fence   line.      And   the   record   indicates   that   continued  


encroachment, if any, after Konrad purchased Lot 14 was minor.  Further, the superior  


court did not find that a retaining wall was the only way to prevent future encroachment.  

The superior  court  judge who conducted the trial concluded that Lee's liability was  


"simply that of removal" - Lee was required to "remove the encroachment and ensure  

no further encroachment . . . by building a retaining wall or otherwise."  We conclude  


that requiring Lee to pay a contractor selected by Konrad to approve the design of a  


retaining wall and construct a retaining wall is an unreasonably burdensome remedy for  


the  encroachment  of  fill  material  onto  Lot  14  after  Konrad  purchased  the  lot.    It  is  


sufficient to order Lee to remove the encroaching fill material and ensure no further  

encroachment will occur.  We reverse the superior court's  order and remand the trespass  

issue to the superior court for further proceedings consistent with this opinion.  

          C.       Attorney's Fees  


                   Alaska Civil Rule 82(a) provides that "the prevailing party in a civil case  


shall be awarded attorney's fees" unless otherwise provided by law or agreed to by the  

parties.  "The prevailing party is the one who has successfully prosecuted or defended  


against the action, the one who is successful on the main issue of the action and in whose  



favor   the   decision   or   verdict   is   rendered   and   the   judgment   entered." 

prevailing-party determination is within the broad discretion of the trial court.51  

                   Because  this  decision  will  affect  the  superior  court's  prevailing-party  


analysis, we vacate the court's attorney's fee award and remand for reconsideration of  

          50        Taylor  v.  Moutrie-Pelham,  246  P.3d   927,  929  (Alaska  2011)  (quoting  

Progressive Corp. v. Peter ex rel. Peter                  , 195 P.3d 1083, 1092 (Alaska 2008)) (internal  

 quotation marks omitted).  

          51        Day v. Moore , 771 P.2d 436, 437 (Alaska 1989) (citation omitted).  

                                                            -26-                                                          6948  

----------------------- Page 27-----------------------

prevailing-party status and recalculation of  attorney's fees.  We do not reach whether the   

superior court abused its discretion by finding that Konrad was the prevailing party in the   

first instance, nor do we address whether the superior court erred by failing to grant                    

Konrad enhanced attorney's fees under Alaska Civil Rule 68.                                              But we do observe that in   

its  calculation   of  attorney's  fees  the  superior  court  adopted  an  erroneous  rate  for  

Konrad's attorneys. 

                       As a member of the Alaska Public Employees Association (APEA), Konrad  


was  entitled  to  receive  legal  services  at  a  contractually  reduced  fee  rate.    Konrad's  


attorneys contracted with APEA to charge APEA members an hourly rate of no more  


than  $140.    But  in  their  motion  for  attorney's  fees,  Konrad's  attorneys  argued  that  


Konrad should receive fees calculated on the value of their "usual" rate, rather than their  

agreed-upon APEA rate.  


                       In awarding attorney's fees to Konrad pursuant to Rule 82, the superior  


                                                                                                                              and Krone v.  

court, relying on our decisions in Arctic Slope Native Association v. Paul 

                                                                               53 found that "the reasonable hourly value  

State, Department of Heath and Social Services,  

of defense counsels' services [was] $55,000, utilizing a valuation" of $350 per hour for  


one of Konrad's attorneys and $250 per hour for the other attorney.  The superior court  

interpreted Arctic Slope Native Association to mean that "in cases where the attorney  

charges no fee or a reduced rate, the proper approach is to value the attorney's services  


and  to  make  a  [Rule]  82  award  which  is  some  fraction  of  that  value."    The  court  


apparently derived this proposition from Municipality of Anchorage v. Gentile , where in  

            52         609 P.2d 32 (Alaska 1980).  

            53         222 P.3d 250 (Alaska 2009).  

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a footnote we briefly summarized Arctic Slope Native Association  in almost identical  


                    In Arctic Slope Native Association , attorneys charged a fellow attorney a  


reduced rate.55  After the attorney prevailed at trial, the trial court awarded attorney's fees  


pursuant to Rule 82 and valued the attorneys' services at their customary hourly rate.56  


Noting that the attorneys were "apparently motivated by considerations of professional  


courtesy," we held that "the trial court's award was not of a full attorney's fee in the  


sense prohibited by our cases."                   In Krone we applied the aforementioned proposition,  



as  summarized  in  Gentile,  to  conclude  that  the  superior  court  should  have  awarded  

attorney's fees to public interest class representatives who prevailed on a constitutional  

challenge by "objectively valu[ing] the attorney's services" even though the attorney  


                                                  We  held  that  this  objective  valuation  "might  be  

provided  pro  bono  services. 

accomplished simply by multiplying reasonable hourly rates by the actual reasonable  


          54        See Municipality of Anchorage v. Gentile, 922 P.2d 248,  263 n.20 (Alaska  

 1996) ("In cases  where  the attorney charges  no f   ee  or a lower  than usual fee, however,  

 the proper approach is to value the attorney's services and to   make a Rule 82 award  

 which is  some  fraction of this value." (citing Arctic Slope Native Ass'n ,  609 P.2d at 38)).  

          55        Arctic Slope Native Ass'n , 609 P.2d at 38.  

          56        Id.  

          57        Id.  (citing  ETHICAL   CONSIDERATION    2-18   OF   THE                        CODE   OF   PROF 'L  


 RESPONSIBILITY , ABA CANONS OF PROF 'L ETHICS, NO .  2-18 ("It is a commendable and  

 long-standing tradition of  the ba            r t  hat  special  consideration is given in the fixing of any  

 fee for services rendered a brother lawyer or a member of his immediate family.")).  

          58        Krone , 222 P.3d at 257 (footnote omitted).  

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hours   worked, or          in  an  appropriate   context, by            further   considering  value-enhancing  

factors such as risk premiums and encouraging representation in similar cases."59  


                    Under these cases a court may set a reasonable market rate for pro bono or  


quasi-pro bono services that are provided, but this case does not involve such services.  

Unlike  in  the  pro  bono  context,  Konrad's  attorneys  received  a  financial  benefit  for  


offering the reduced rate:  they were able to obtain business they might not otherwise  

have  received  had  they  not  participated  in  the  APEA  benefits  plan.    An  objective  

valuation of the attorneys' services should take into account the benefit received by  


Konrad's attorneys in the form of referrals.  In this case the most objective estimation of  


that  rate  is  simply  the  rate  Konrad's  attorneys  agreed  to  accept  in  exchange  for  

participating in the APEA benefits plan - $140 per hour.  The hourly rates adopted by  

the  superior  court  thus  did  not  represent  an  objective  valuation  of  the  attorneys'  


services.        We conclude that the superior court misapplied Rule 82 in its valuation of  

Konrad's attorneys' hourly rates.  

V.        CONCLUSION  


                    For the reasons explained above, we REVERSE the superior court's ruling  

that  Schuller's  survey  defined  the  boundary  line:    rather,  the  boundary  line  was  


established by the acquiescence of Lee and Lot 14's owners before Konrad purchased Lot  


14.  We AFFIRM the superior court's conclusion that Lee is liable for trespass of any fill  


material that spilled onto Lot 14 after Konrad purchased the lot, but we REVERSE the  

court's determination that Konrad could state a claim of trespass as to fill material that  


spilled onto lot 14 prior to Konrad's purchase of the lot.  We also REVERSE the court's  


order of injunctive relief and REMAND for further consideration of Konrad's trespass  

          59        Id. (footnotes omitted).  

          60        See id.  

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claim consistent with this opinion. We VACATE the superior court's award of attorney's                                                      

fees and REMAND for reconsideration of the prevailing-party status and attorney's fees     


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For illustrative purposes only - not to scale.  

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