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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Luker v. Sykes (10/16/2015) sp-7059

Luker v. Sykes (10/16/2015) sp-7059

         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  



JILU H. LUKER and GEORGE W.                           )  

LUKER II,                                             )        Supreme Court Nos. S-14744/14763  


                  Appellants and                      )        Superior Court No. 4FA-06-02646 CI  

                  Cross-Appellees,                    )  

                                                      )        O P I N I O N  

                  v.                                  )  

                                                      )        No. 7059 - October 16, 2015  

DWANE J. SYKES,                                       )  


                  Appellee and                        )  

                  Cross-Appellant.                    )  


                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                  Fourth Judicial District, Fairbanks, Michael P. McConahy,  



                  Appearances:          Jilu  H.  Luker,  pro  se,  Canyon  Country,  


                  California, Appellant and Cross-Appellee.1  Dwane J. Sykes,  

                  pro se, South Ogden, Utah, Appellee and Cross-Appellant.  

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


                  Bolger, Justices.   

                  MAASSEN, Justice.  

         1        The appeal was brought by both Jilu and George Luker, but George Luker            

died while the appeal was pending.   

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



                   A property owner sued neighboring property owners, claiming that he had  


access rights across their land because of both an express easement and a right of way  


created by federal law. He also sought damages for a number of alleged torts.  Following  

trial, the superior court found that both the express easement and the federally created  

right of way existed but found against the easement holder on all his tort claims.  The  


owners of the burdened property appealed the finding of a federally created right of way,  

and the easement holder cross-appealed the superior court's dismissal of his damages  

claims and its rulings on a number of procedural issues.  

                   We reverse the superior court's finding of a federally created right of way,  


concluding that the court erred in determining when the land at issue became private land  

not subject to the federal law.  We affirm the superior court's judgment in all other  

respects, including its finding of an express easement.  


                   The central issue in this case is whether Duane Sykes has a right to access  


his property across his neighbors' lots, identified in this opinion by their tax lot numbers,  

3318 and 3353.  The land containing the two lots - now belonging to Jilu and George  


Luker - was originally obtained from the United States government by Elbridge Walker  


through the federal homestead laws.2  

                                                      Walker applied for a patent to the land in October  

         2         See 43 U.S.C.  161-263 (1958).  The homestead laws of the United States   

were  extended  to  the  District  of  Alaska  prior  to  statehood  with   District-  (and  then  

Territory-) specific provisions, see  48 U.S.C.  371-80a (1958), and the provisions  

relevant to this case continued in force after statehood.  See An Act to Provide for the  

Admission of the State of Alaska Into the Union, Pub. L. 85-508  8(d), 72 Stat. 339,  

344-45  (1958)  ("Upon  admission  of  the  State  of  Alaska  into  the  Union  as  herein  


provided, all of the Territorial laws then in force in the Territory of Alaska shall be and  



                                                          - 2 -                                                    7059

----------------------- Page 3-----------------------


1958 and again in July 1961.  The U.S. Department of the Interior's Bureau of Land  

Management (BLM) approved a survey of the land in 1962, and the Department issued  

Walker a patent in 1963.  The property  was  acquired by Sykes's wife in 1973 in a  


foreclosure sale, and in August 1974 the Sykeses transferred it to a holding company  

they controlled called Frontier International Land Corporation.   

                   Frontier International announced through newspaper advertisements that  

it intended to sell a number of 2.5- and 5-acre parcels at public auction in September and  

November 1974.  The advertisements, and other information posted at the auction sites,  


explicitly  reserved  to  the  sellers  several  easements  for  access  to  nearby  Chena  Hot  

Springs Road to the north and Grange Hall Road to the east.  As relevant here, they  

included what is labeled on a drawing as a "66' R.O.W." from the interior of the property  


east to Grange Hall Road, running on a straight line between sections 28 and 29 on the  


north and sections 32 and 33 (containing tax lots 3318 and 3353) on the south.   

                   Among  the  purchasers  were  Donald  and  Cossette  Kimmel,  who  on  

September 28, 1974 signed a real estate contract for two 2.5-acre lots, tax lots 3318 and  


3353, and received a statutory warranty deed for the property from Frontier International.  


continue in full force and effect throughout said State except as modified or changed by  


this Act, or by the constitution of the State, or as thereafter modified or changed by the  


legislature of the State."); see also 43 U.S.C.  270, 270-5 to 270-12, 270-14 to 270-17  


(1964 supp.) (recodification of former 48 U.S.C.  371-80a (1958)).  

                   The  homestead  laws  were  repealed  by  the  Federal  Land  Policy  and  


Management Act of 1976, Pub. L. No. 94-579  702, 90 Stat. 2743, 2787 (1976).  We  


refer to the relevant Alaska-specific provisions by their 1958 codification in territorial  

law at Title 48 of the U.S. Code, their last publication before the relevant events in this  



                                                            - 3 -                                                     7059

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


Pursuant  to  the  terms  of  the  contract,  the  deed  was  placed  in  escrow  pending  "full  


payment  of  [the]  purchase  price"  and  not  recorded  until  November  1977.    In  the  

meantime, two months after the contract was signed, the Sykeses recorded a Grant of  

Access Easement dated November 29, 1974, which purported to give the Sykeses "a  

perpetual easement for roadway purposes" along the line shown in the auction materials.3  



Cosette Kimmel attested by affidavit that she and her husband had been aware of the  


claimed  easements when they purchased the lots and had intended that their lots be  


subject to the easements shown in the Sykeses' later-recorded grant.    

                    The Lukers purchased lots 3318 and 3353 from the Kimmels in 1999.  They  

were soon in a dispute with Dwane Sykes over his claim to an easement.  Sykes wanted  


to connect an existing interior road with Grange Hall Road on the east by completing an  

access road along the northern boundary of the Lukers' lots.  But the Lukers considered  

Sykes's easements to be defective, and they contested his rights to access and to perform  


any further construction on the road.   They eventually installed a locked gate at the  

Grange Hall Road end of the claimed easement.  

                    Sykes filed suit against the Lukers in 2006.  He sought declaratory relief  

and argued that he was entitled to use the north 33 feet of lots 3318 and 3353 pursuant  


to his express easement as well as a right of way established under federal law, former  

          3         The easement also covers "the North 33 feet of the East 1550 feet of section     

32" on land identified as tax lot 3208, also owned by the Lukers.  The Lukers did not  

dispute at trial that Sykes was entitled to an easement over that land.  

          4         Over the Lukers' objection, the superior court admitted Cosette Kimmel's  

affidavit  into  evidence  at  trial  under  Alaska  Evidence  Rule  804(b)(5)  as  having  


circumstantial guarantees of trustworthiness equivalent to those of listed exceptions to  


the hearsay rules.  The Lukers do not challenge this ruling on appeal.   

                                                             - 4 -                                                       7059

----------------------- Page 5-----------------------



43 U.S.C.  932 (1958), Revised Statute 2477 (abbreviated as "RS 2477").   Sykes also  


alleged that the Lukers' interference with his rights of access had damaged the value of  

his remaining lots, frightened off prospective buyers, and caused him emotional distress.6  

He claimed hundreds of thousands of dollars in actual damages as well as treble and  

punitive damages.  

                   The  parties  eventually  reached  a  stipulated  judgment,  which  the  court  

signed in 2009.  Two years later, however, the Lukers moved that the judgment be set  

aside, claiming that it included language Sykes had inserted without their approval.  The  


superior court set the judgment aside and scheduled a trial.  With both sides proceeding  


pro se, the superior court then dealt with what it termed "a barrage of motions filed by  


[Sykes] and one motion filed by the Luker Defendants," most of which did not conform  

with the Alaska Civil Rules or "have support in law or fact."   

                   A four-day bench trial was held in December 2011, after which the superior  

court found both an express easement for Sykes and an RS 2477 right of way over the  


Lukers' property.7                                                  

                            But it also found that Sykes had failed to prove any of his claims for  

         5         Like the homestead statutes, RS 2477 was repealed by the Federal Land  

Policy and Management Act of 1976, Pub. L. No. 94-579,  706(a), 90 Stat. 2743, 2793  



         6         In  his  complaint,  Sykes  also  asserted  claims  based  on  an  "easement  


apparent," "easement of reasonable necessity," and "easement of absolute necessity."  

Sykes has not raised issues related to these claims on appeal, and we therefore do not  

address them.  

         7         The superior court also discussed a utility easement in favor of Golden  

Valley Electrical Association, the validity of which had been raised during trial.  The  

court noted that there was "no evidence that the utility easement is anything but valid"  


and made "no other findings regarding the utility easement."  Neither party raises any  

claims on appeal with regard to the utility easement.  

                                                          - 5 -                                                    7059

----------------------- Page 6-----------------------

damages.  Due to the number of unsuccessful claims and the amount of damages Sykes  

had sought, the superior court found the Lukers to be the prevailing parties and awarded  


them costs under Alaska Civil Rule 79.  

                    The Lukers appeal, challenging the superior court's finding of an RS 2477  



right of way.  Sykes cross-appeals, arguing that the superior court judge should have  


recused himself because of bias. He also contends that the superior court erred in finding  


against him on his damage claims, in its management of discovery, in denying his motion  


for  partial  summary  judgment  and  failing  to  grant  oral  argument  on  the  motion,  in  


limiting the time allowed for his presentation of evidence at trial, and in finding that the  

Lukers were the prevailing parties.  


                    Whether an RS 2477 right of way exists "is based upon factual findings  


about  property  use  and  legal  conclusions  about  whether  the  use  was  sufficient  to  


establish" the right of way; we review the superior court's factual findings for clear error  


and the application of the law to the facts de novo.8  

                    We review for abuse of discretion the superior court's discovery rulings,9  



control over trial proceedings,               and determination of prevailing party status for purposes  

of Alaska Civil Rule 79.11  


                    We  review  "a  request  for  disqualification  of  a  judge  based  on  the  

          8        Price v. Eastham , 75 P.3d 1051, 1055 (Alaska 2003).  

          9         Wooten v. Hinton, 202 P.3d 1148, 1151 (Alaska 2009).  

          10        See   Am.  Nat'l  Watermattress   Corp.  v.  Manville,  642  P.2d  1330,  1339  

(Alaska 1982).  

          11       BP Pipelines (Alaska) Inc. v. State, Dep't of Revenue , 327 P.3d 185, 189  

(Alaska 2014) (citations omitted).  

                                                             - 6 -                                                      7059

----------------------- Page 7-----------------------



appearance of impropriety" de novo                         and  "denial of a motion to disqualify a judge for  


abuse of discretion."                



          A.	        The Superior Court's Conclusion That An RS 2477 Right Of Way  

                     Existed Was Erroneous.  


                     The Lukers focus their appeal on the superior court's conclusion that there  



was an RS 2477 right of way on their property.                             We agree and reverse this aspect of the  

superior court's decision.  



                     Enacted as part of the Lode Mining Act of 1866,                              RS 2477 provided that  

"the  right  of  way  for  the  construction  of  highways  over  [federal]  public  lands,  not  



reserved for public uses, is hereby granted."                           "The grant was self-executing, meaning  


that an RS 2477 right-of-way automatically came into existence if a public highway was  

          12         Griswold v. Homer City Council, 310 P.3d 938, 941 (Alaska 2013).  

          13         Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013).  

          14         The Lukers' opening bri               ef   defined "[t]he crux of              the issue" as whether  

Alaska  law  post-statehood  "created  easements  on  property  .  .  .  that  the  BLM  had  

previously passed . . . to the Walkers[] under Federal regulations in force for Federal land  


transfers."    (Emphases  omitted.)    Their  reply  brief  reiterated:    "Luker's  appeal  was  

clearly limited to question the Judge's opinion that a section line right of [way] existed  



on subject [property] at the time Sykes's wife purchased the property at a distressed  

property sale."  



                     See Price v. Eastham , 75 P.3d 1051, 1055 (Alaska 2003) (citing Leroy K.  


Latta, Jr., Public Access Over Alaska Public Lands as Granted by Section 8 of the Lode  

Mining Act of 1866 , 28 SANTA CLARA L.  REV . 811, 811 (1988)).  

          16        Fitzgerald v. Puddicombe , 918 P.2d 1017, 1019 (Alaska 1996) (quoting 43   

U.S.C.  932, repealed by Pub. L. No. 94-579, Title VII,  706(a), 90 Stat. 2793 (1976))                          

(internal quotation marks omitted).  

                                                               - 7 -	                                                        7059

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

established across public land in accordance with the law of Alaska."17  Alaska, like other  

public  authorities,  could  accept  the  federal  grant  and  create  a  right  of  way  for  road  

construction by taking "some positive act . . . clearly manifesting an intention" to do so.18  

We  have  recognized  that  the  Territorial  legislature  accepted  the  federal  grant  by  its  


passage of chapter 35,  1, SLA 1953 (now codified as AS 19.10.010), which dedicated  

tracts  of  land  between  all  sections  for  public  highways  and  thereby  "effectively  

established the territory's claim to the federal right-of-way grant."19  


                      In this case, the parties dispute whether a right of way was imposed on the  

section line dividing the Lukers' property from the sections to their north.  The section  


lines were created on April 16, 1962, when the BLM accepted the official survey of the  



             Whether the land was "public lands, not reserved for private uses" on that date  


is determinative:  if it was, then an RS 2477 right of way was created along the section  

           17         Price ,  75  P.3d  at  1055  (citing  Fitzgerald ,   918  P.2d   at   1019)  (internal  

quotation marks omitted).  

           18         Girves v. Kenai Peninsula Borough, 536 P.2d 1221, 1226 (Alaska 1975)  


(quoting Hamerly v. Denton , 359 P.2d 121, 123 (Alaska 1961)).   

           19         Id.  at 1226-27.          The public highway dedication was tracts 100 yards wide               

between sections of land owned by or acquired from the state and tracts "four rods wide   

between all other sections in the state."  AS 19.10.010.   



                      See Cox v. Hart, 260 U.S. 427, 436 (1922) ("A survey of public lands does  


not ascertain boundaries; it creates them . . . .  [T]he running of lines in the field and the  


laying  out  and  platting  of  townships,  sections  and  legal  subdivisions  are  not  alone  


sufficient to constitute a survey.  Until all conditions as to filing in the proper land office  

and all requirements as to approval have been complied with, the lands are to be regarded  

as unsurveyed and not subject to disposal as surveyed lands. . . .  In other words, to  


justify the application of the term 'surveyed' to a body of  public land something is  

required beyond the completion of the field work and the consequent laying out of the  


boundaries, and that something is the filing of the plat and the approval of the work of  


the surveyor.").  

                                                                    - 8 -                                                             7059

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

line by operation of law.21  


                    The parties agree that the property at issue was "reserved for private uses"  


once Elbridge Walker acquired the right to homestead on it.  The Lukers contend this  



occurred in 1958, upon Walker's first application for patent.                                 Sykes contends it did not  


occur until 1963, when the BLM, as the federal agency charged with administering the  

homestead laws,23 allowed Walker's entry.  


                    The superior court agreed with Sykes.  It relied on notations in the BLM's  

case  abstract  system,  including  the  notation  "Application  Filed"  on  two  dates,  

October 27, 1958 and July 10, 1961, and "Authorization Issued ENTRY ALLOWED"  


on August 28, 1963.  Based on this evidence, the court concluded:  

                    Walker made three entry claims for the property:  27 October  


                     1958, 10 July 1961, and finally in 28 August 1963.  The first  


                    two entries were not successful; the last entry, after the filing  


                    of the U.S. survey, ultimately resulted in the issuance of a  


                    patent to the Walkers.  The court finds the critical entry for  

                    purposes of determining whether a section line applies is the  


                    last entry that resulted in the issuance of a patent . . . .  

The superior court concluded that it was when the BLM recognized Walker's entry in  


1963 that he established rights to the land under the Homestead Act.  And because the  


survey had previously been accepted (and the section lines created) in 1962, the superior  


court found that an RS 2477 right of way necessarily existed over the land.  

          21        See Girves, 536 P.2d at 1226-27.  

          22        Although the Lukers also argue that AS 19.10.010 does not apply because   

Walker's  first  attempt  to  enter  the  land  was  in  1958  and  thus  prior  to  statehood,  

AS 19.10.010 is simply the adoption as state law of ch. 35,  1, SLA 1953, the territorial  


law in effect at that time.  Girves, 536 P.2d at 1226.  

          23        See Reorganization Plan No. 3 of 1946, Pub. L. No. 79-733  403, 60 Stat.  


1097, 1100 (1946).  

                                                              - 9 -                                                        7059

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


                     The superior court was correct in concluding that "the critical entry for  


purposes of determining whether a section line applies is [the] . . . entry that resulted in  


the issuance of a patent."  But it was error to conclude that Walker had a claim to such  

a patent only upon the BLM's approval of his entry.   

                     Under the now-repealed homestead laws, a party established a claim to land  


not when the federal authorities allowed entry but rather when the party took the steps  

necessary to have entry recognized.  " '[Entry] means that act by which an individual  


acquires an inceptive right to a portion of the unappropriated soil of the country by filing  

his claim' in the appropriate land office."24  

                                                                    In Walker's case, that "inceptive right" was  

acquired   when   he   filed   his   application   for   entry.      Completing   the   application  


requirements and "fil[ing] his application in the United States Land Office" was "all that  



[an applicant] could possibly do to . . . [make] a lawful homestead entry."                                         At that point,  


the lands at issue became "subject to individual rights of a settler. . . .  [T]he portion  


covered by the entry [was] then segregated from the public domain . . . and until such  


time as the entry may be cancelled by the government or relinquished, the land [was] not  

           24        Hillstrand v. State , 395 P.2d 74, 76 (Alaska 1964) (alteration in original)     

(quoting Chotard v. Pope, 25 U.S. 586, 588 (1827)).  

           25        United States v. 348.62 Acres of Land in Anchorage Recording Dist., 10  

Alaska 351, 364 (D. Alaska 1943); see also Hastings & D.R. Co. v. Whitney , 132 U.S.  


357, 363 (1889) ("Under the homestead law three things are needed to be done in order  


to constitute an entry on public lands:  First, the applicant must make an affidavit setting  


forth the facts which entitle him to make such an entry; second, he must make a formal  


application; and, third, he must make payment of the money required.  When these three  


requisites are complied with, and the certificate of entry is executed and delivered to him,  


the entry is made, the land is entered."); Ault v. State, 688 P.2d 951, 954 (Alaska 1984)  

(quoting 348.62 Acres, 10 Alaska at 359).  

                                                                -  10 -                                                         7059

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

included in grants made by Congress under [RS 2477]."26  

                    While Walker's land was unsurveyed prior to 1962, the homestead laws  

allowed  the  filing  of  an  application  for  entry  onto  unsurveyed  land  along  with  a  



requirement of final proof.                The applicant could obtain patent to the land subject to a  

                 28                                                                   29 

later survey         (or in certain cases without any survey at all   ).   


                    That is what happened in Walker's case.  The evidence at trial showed that  


the BLM received his 1958 and 1961 applications and that he filed his final proof in  



             At that point, the land became "subject to individual rights of a settler" and could  



no longer be "included in grants made by Congress under [RS 2477]."                                        When section  

          26       Hamerly v. Denton , 359 P.2d 121, 123 (Alaska 1961).  

          27        See 48 U.S.C.  371 (1958); Applications for Entry, 22 Fed. Reg. 1431  

(Mar.  7,  1957)  (codified  at  43  C.F.R.    65.8(b)  (1962  cum.  supp.))  ("A  homestead  

application must describe the lands desired, if unsurveyed, by metes and bounds . . . .  


A homestead application for unsurveyed lands must be accompanied by the settler's final  


or commutation homestead proof.").   

          28        48 U.S.C.  375 (1958); 43 C.F.R.  65.8 (1962 cum. supp.).  

          29        See 48 U.S.C.  371 (1958).  

          30        In support of his contention t  hat   1963 w              as  the date when Walker obtained  

rights to the land under the Homestead Act, Sykes presented evidence at trial that Walker  

had "abandoned" his claim by failing to meet the homestead requirements for some  

indefinite  period.    While  such  evidence  might  have  been  relevant  to  a  challenge  to  

Walker's initial claim, see 43 C.F.R.  221.1 (1954), it was insufficient to show that his  


patent from the BLM was defective.  The BLM accepted Walker's application, and  

"actions by the land office personnel . . . show a recognition of [Walker's] incipient right  


to the land.  We will not subject the entryman or his successors in interest to a loss of  


land because of a defective application for entry, when such was acquiesced in . . . by the  


agents of the government."  Hillstrand v. State , 395 P.2d 74, 77 (Alaska 1964).  



                   Hamerly , 359 P.2d at 123.  The practice of the Department of the Interior  


                                                            -  11 -                                                     7059

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


lines were later created in April 1962 upon the federal authorities' acceptance of the  

survey, Walker had already established his claim to the land, which had therefore ceased  

to be "public lands, not reserved for private uses."32  

                                                                               For this reason we reverse the  

superior court's finding that the Lukers' property is burdened by an RS 2477 right of  



          B.	      The Superior Court's Finding That An Express Easement Existed Is  

                   Not Clearly Erroneous.  

                   The superior court also found that the evidence supported the existence of  


"private easements of record" as "noted on the auction offering and memorialized in sale  


contracts and deeds conveyed to purchasers," and that "all the subject lots are subject [to]  


the benefits and burdens of these easements."  As noted above, the Lukers focus their  



appeal on the RS 2477 right of way.                    But an express easement differs from an RS 2477  

right  of  way  in  important  respects  and  is  not  governed  by  our  discussion  above.34  


illustrates the operation of this principle.  See, e.g., Albert A. Howe, 26 IBLA 386 (1976)  


("[W]hen appellant filed his application on May 24, 1973, such filing segregated the  

lands encompassed by the application.  This is true despite the fact that the entry was not  

allowed  by  [the  Bureau]  until  more  than  2-1/2  years  later,  because  at  the  time  the  

application was filed appellant was qualified, he had done all that was required by law  

to apply, and the land was subject to appropriation by homestead entry on the date of the  



          32       See 43 U.S.C.  932 (1958).  

          33       See note 14, above.  

          34       Sykes's express easement was created by  deed  from  Frontier International,  

and the scope   of  his  rights is determined by the intent of the parties to the deed.  See  


Windel v. Mat-Su Title Ins. Agency, Inc., 305 P.3d 269, 271 (Alaska 2013) (citing Dias  


v. State, Dep't of Transp. & Pub. Facilities, 240 P.3d 272, 274 (Alaska 2010)) (setting  


out  analysis  for  determining  scope  of  easement  granted  by  deed).	    In  contrast,  "[a]  


                                                          -  12 -	                                                   7059

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

Although  there  was  no  RS  2477  right  of  way,  we  conclude  that  the  evidence  was  


sufficient to support the superior court's finding of express easements tracing the same  


                    Frontier       International's          announcements              of    the    1974       land     auction  


specifically reserved access easements "unto the seller, his heir [sic] and assigns, and  


unto all successors in interest" and referred  potential buyers to attached maps.  The  


easements were described as "a perpetual easement over and upon the roadways and  


easements indicated on the above stated parcels" and were further defined as "30 (or 50)  


feet in width on each side of any section line as established under A.S. 19.10.010" and  

"30  feet  in  total  width  for  all  other  easements  unless  otherwise  designated."    The  

immediate buyer of the parcels at issue here, Cosette Kimmel, attested unequivocally that  


she was well aware of the claimed easements and intended that the land she purchased  


be  subject to  them.    The  real  estate  contract  between  Frontier  International  and  the  


Kimmels specifically acknowledged the reservation of easements as described in the  


auction announcements.  


section-line easement [under AS 19.10.010 and its predecessors] is a statutorily-created  


public right-of-way owned by the State of Alaska," Hillstrand v. City of Homer , 218 P.3d  


685, 688 (Alaska 2009), and its scope depends on interpretation of the statute.  See 0.958  


Acres, More or Less v. State , 762 P.2d 96, 99-100 (Alaska 1988) (determining servient  


estate owner's right of access to public highway constructed on RS 2477 easement by  


noting that "[n]othing in AS 19.10.010" supports the owner's argument and that the  

owner's proposed "rule would be inconsistent with the purpose of the statute"); see also  


RESTATEMENT   (THIRD)   OF   SERVITUDES    4.1(1)  (2000)  ("A  servitude  should  be  


interpreted to give effect to the intention of the parties ascertained from the language  

used in the instrument, or the circumstances surrounding the creation of the servitude,  

and to carry out the purpose for which it was created.").  

                                                              -  13 -                                                      7059

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


                    Given that the existence and scope of an express easement depend on the  

intentions of the parties to the grant,35 and given the evidence in this case that Frontier  

International and the Kimmels intended that the access easements be reserved to Frontier  

International, we see no error in the superior court's conclusion that the Lukers' lots  

remained "subject to the easements noted on the auction offering."36  



          C.        None Of The Issues Raised In Sykes's Cross-Appeal Have Merit.  

                    Sykes raises a number of issues in his cross-appeal.  First, he argues that  


the trial judge should have recused himself because of actual bias and the appearance of  



bias.  Sykes never requested that relief in the superior court.                             We have not determined  



the standard of review to be applied to unpreserved claims of judicial bias,                                       but even  


assuming de novo review - the most exacting standard - Sykes fails to convince us  

          35        Windel, 305 P.3d at 271.  

          36        As  noted  above,  Frontier  International  transferred  its  interest  in  the  

easements to Sykes a few months after it had sold the lots to the Kimmels.  

          37        Sykes argues that a motion he filed for a partial, final judgment pursuant   

to Alaska Civil Rule 54(b) was a "pro se litigant's . . . attempt at disqualification of  

judge," on the theory that an appealable judgment would "put him before the Supreme  


Court for review of the trial court's biased proceedings."  But we see nothing in the  

motion that would reasonably convey that its purpose was disqualification of the judge.  


Although  we  grant  pro  se  litigants  "considerable  leeway  with  regard  to  procedural  


requirements" and excuse procedural defects "when a deficiency results from lack of  


familiarity with the rules," that leeway is inappropriate when an "appellant did nothing  

that informed the trial court it should advise [him] how to accomplish something [he]  


might  have  been  attempting  to  do."    Greenway  v.  Heathcott,  294  P.3d  1056,  1071  

(Alaska 2013) (quoting  Wright v. Shorten, 964 P.2d 441, 444 (Alaska 1998)) (internal  


quotation marks and citation omitted).  

          38        Greenway, 294 P.3d at 1071 ("It is not obvious what standard of review  

applies  to  an  appellate  claim  that  a  trial  court  was  biased,  if  the  trial  court  had  no  

opportunity - such as by motion for recusal, disqualification, or new trial - to resolve  


a claim of judicial bias.").  

                                                            -  14 -                                                      7059

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his claim has merit.  


                    "To prove a claim of judicial bias, the claimant must show that the judge  

formed an opinion of [him] from extrajudicial sources, resulting in an opinion other than  

on the merits."39  

                          Sykes's claims rest first on the superior court's adverse rulings.  "But  

 [d]isqualification was never intended to enable a discontented litigant to oust a judge  

because of adverse rulings made,"40                                                  

                                                     and "[m]ere evidence that a judge has exercised his  

judicial  discretion  in  a  particular  way  is  not  sufficient  to  require  disqualification." 41  

Sykes  also  cites  the  superior  court's  criticism  of  his  conduct  during  the  course  of  


proceedings and the fact that the court blamed him for litigation delays he asserts were  


the fault of the Lukers instead.  But we have also held that "expressions of impatience,  


dissatisfaction, annoyance and even anger, that are within the bounds of what imperfect  

men and women . . . sometimes display" do not establish bias or partiality.42  

                                                                                                                While the  


superior  court's  patience  was  taxed  by  the  proceedings,  it  acted  with  appropriate  


restraint.  Its dissatisfaction with Sykes's performance in court does not demonstrate an  

inability to decide the case's substantive issues on their merits.  

                    Sykes also argues that the superior court erred when it found that he failed  

to prove his various claims for damages in tort.  Although Sykes presented a great deal  


          39        Ronny M. v. Nanette H., 303 P.3d 392, 409 (Alaska 2013) (alteration in     

original) (quoting  Williams v. Williams, 252 P.3d 998, 1010 (Alaska 2011)).  

          40        Sagers  v.  Sackinger,  318  P.3d  860,  867  (Alaska  2014)  (alteration  in  

original)  (quoting  Wasserman  v.  Bartholomew,  38  P.3d  1162,  1171  (Alaska  2002))  

(internal quotation marks omitted). 



                    Id.  (quoting  State  v. City  of  Anchorage,  513  P.2d  1104,  1112 (Alaska  




                    Kingery v. Barrett , 249 P.3d 275, 286 n.43 (Alaska 2011) (quoting Hanson  

v. Hanson , 36 P.3d 1181, 1184 (Alaska 2002)).  

                                                           -  15 -                                                     7059

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

of documentary evidence at trial, his damage claims relied largely on his own testimony,  


which the Lukers directly contested.  The superior court found that Sykes had failed to  


carry  his  burden  of  proof  on  claims  for  intentional  infliction  of  emotional  distress,  

interference  with  a  business  relationship,  defamation,  slander  of  title,  and  abuse  of  


official position, and that to the extent the facts were in dispute, the Lukers' testimony  


was more credible.  "[I]t is the function of the superior court, not of this court, to judge  


witness credibility and to weigh conflicting evidence,"43                                     

                                                                                       and "if most of the evidence is  

oral  testimony,  or  the  superior  court's  factual  determinations  depend  largely  on  

conflicting  testimony,  then  the  superior  court's  greater  ability  to  assess  witness  



credibility requires deferential review by this court."                            Given this deferential review, we  


see no clear error  in  the superior court's decision of the heavily fact-dependent tort  



                     Sykes next argues that the superior court erred in denying his motions to  


compel, to deem certain matters admitted, and to continue trial so that he could do more  


discovery.  The superior court considered these issues at a pretrial conference.  It found  

the Lukers' responses to requests for admission sufficient given their pro se status.  It  

recognized Sykes's difficulty in scheduling the Lukers' depositions before trial given  

that the parties all lived outside of Alaska, and it ordered that the Lukers appear for hour- 


long depositions on the first morning of trial.  It agreed that the Lukers' responses to  


some written discovery were "somewhat troublesome" and "reserve[d] ruling on those  


requests" until trial, warning that "if [the requests] weren't in fact responded to in a fair  


and complete way or otherwise timely objected to, [its] intent would be to preclude the  


defense from offering evidence contrary to the information that was requested."  

          43        Fyffe v. Wright , 93 P.3d 444, 450 (Alaska 2004).  


                    Id. at 450-51.  

                                                              -  16 -                                                            7059  

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



                    We review "a trial court's discovery rulings for abuse of discretion."                                    We  


conclude  that  the  superior  court  acted  well  within  its  discretion  in  addressing  these  


discovery matters.   We further conclude that Sykes waived his complaints about the  

sufficiency of the Lukers' discovery responses when he failed to raise the issue again as  

the evidence came out at trial, as the superior court had invited him to do.46  


                    Sykes next argues that the superior  court erred by failing to grant oral  


argument on his motion for partial summary judgment on the existence of an easement,  

then  denying  the  motion.    Acknowledging  that  he  prevailed  at  trial  anyway  on  the  

easement issue, he contends that a grant of summary judgment would have given him  


more trial time for his tort claims and a greater chance to win them. This argument is too  


speculative for us to credit.  Trial of the easement issues mooted any claim on appeal that  


the court earlier erred in denying partial summary judgment on the same issues.47  


                    Sykes also argues that the superior court erred by limiting his trial time.  


Resolving this claim "necessarily depends on the facts of each case.  We are not willing  


to condemn time limits in the abstract, and the issue can be raised by a party actually  

          45        Gibson v. GEICO Gen. Ins. Co., 153 P.3d 312, 316 (Alaska 2007).  

          46        See Millette v. Millette, 177 P.3d 258, 268 (Alaska 2008) (holding issue  

waived when "[b]y proceeding through almost the entire . . . hearing without mention of  


his motion to compel, [the plaintiff] did not sufficiently bring the issue to the superior  

court's attention").  



                    See Larson v. Benediktsson, 152 P.3d 1159, 1168 (Alaska 2007) (holding  

that  orders  denying  summary  judgment  because  of  genuine  issues  of  material  fact  

become "unreviewable after a trial on the merits").  

                                                              -  17 -                                                      7059

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

                             48                                                            49 

claiming  prejudice."               Sykes  fails  to  identify  any  prejudice.                  His  "conclusory  

arguments that his case was curtailed do not establish error or prejudice.  They give us  


no basis for saying that these time limits were inappropriate, or for offering guidance to  

the trial courts."50  

                   Finally, Sykes argues that the superior court abused its discretion when it  

found the Lukers to be the prevailing parties for the purpose of an award of costs under  


Alaska Civil Rule 79.  Sykes prevailed on the existence of an RS 2477 right of way (a  


decision we now reverse) and an express easement, but he failed to prove any of his  

claims for hundreds of thousands of dollars in damages.  "We have held that a litigant  


who successfully defeats a claim of great potential liability may be the prevailing party  

even if the other side receives an affirmative recovery."51  The superior court reasonably  


applied that principle here, and we see no abuse of discretion in its finding that the  


Lukers were the prevailing parties for purposes of Rule 79.  


                   We REVERSE the superior court's decision that an RS 2477 right of way  

existed over the Lukers' parcels pursuant to federal law.  We AFFIRM the superior  

court's decision in all other respects.  

         48        City of Fairbanks v. Rice, 20 P.3d 1097, 1110 (Alaska 2000).  

         49        In this case, the superior court scheduled trial for four days and allowed  

Sykes to use the first three, leaving the Lukers with the one remaining.  

         50       Rice , 20 P.3d at 1110.  

         51       Alaska Constr. & Eng'g, Inc. v. Balzer Pac. Equip. Co.                          , 130 P.3d 932,  

935-36  (Alaska  2006)  (quoting  Buoy  v.  ERA  Helicopters,  Inc.,  771  P.2d  439,  448  

(Alaska 1989)) (internal quotation marks and citations omitted).  

                                                        -  18 -                                                  7059

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