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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Yuk v. Robertson (5/26/2017) sp-7174

Yuk v. Robertson (5/26/2017) sp-7174

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

JAY  YUK  and  HEE  SU  YUK,                                         )  

                                                                     )      Supreme  Court  No.  S-16242  

                                Appellants,                          )  


                                                                     )      Superior Court No. 3AN-15-08659 CI  

           v.                                                        )  


                                                                     )     O P I N I O N  


SIDNEY L. ROBERTSON SR. and                                          )  


THERESA A. ROBERTSON,                                                                                         

                                                                     )     No. 7174 - May 26, 2017  


                                Appellees.                           )  



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


                      Judicial District, Anchorage, Mark Rindner, Judge.  


                      Appearances:  John C. Pharr, Law Offices of John C. Pharr,  


                      P.C., Anchorage, for Appellants.  J. E. Wiederholt, Aglietti,  


                      Offret & Woofter, Anchorage, for Appellees.  


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                      WINFREE, Justice.  



                      After  a  surveyor  discovered  a  discrepancy  between  the  location  of  a  


longstanding fence and the boundary between two lots, property owners sued to quiet  


title to the  fenced-off  section of their  lot.   But the  owners of the  encroaching  fence  


claimed adverse possession  of the  fenced-off section, and the  superior court entered  


summary judgment  in their  favor.   The property  owners who brought the  quiet title  

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

action appeal, arguing that the court erred in its application of procedural rules and  


substantive law.  Seeing no error, we affirm the superior court's decision.  


II.                     FACTS AND PROCEEDINGS  


                        A.                      Facts  

                                                A fence between Lots 3 and 4 of A-B-K Commercial Subdivision No. 3 in  


Anchoragedoesnot follow the platted boundary line, effectively placing a 6-foot by 300- 


foot portion of Lot 4 (the disputed property) on Lot 3's side of the fence.  The lots were  


platted in 1967.  A municipal sewer easement recorded in 1969 for the "West 10 feet of  


Lot 4" wholly encompasses the disputed property.  The sewer line was built later that  


year, and the parties agree that the municipal easement still exists.  


                                                A 1969 aerial photograph of the area shows no fence or building on either  


lot, but the fence appears in its current location in a similar 1979 photograph.  Before  


 Sidney and Theresa Robertson purchased Lot 3 in 1991, Sidney's parents owned it and                                                                                                                                                                                                                

used it for a daycare.                                                          The Robertsons bought Lot 3 and the daycare "as a turn-key                                                                                                                                           

operation" and have continued operating it since. Both they and their predecessors used                                                                                                                                                                                                             

the disputed property for the daycare's playground equipment.                                                                                                                                                                     

                                                Jay and Hee Su Yuk purchased Lot 4 in 2010; they then commissioned a                                                                                                   

property survey that documented a discrepancy between the fence and the boundary line.                                                                                                                                                                                                                                  

In 2011 the Yuks demanded that the Robertsons move the fence to the correct boundary;                                                                                                                                                                                           

the Robertsons refused, claiming they owned the disputed property through adverse                                                                                                                                                                        

possession. The Yuks repeated their demand in 2015, but the Robertsons again refused.                                                                                                                                                                                                                                   

The Yuks then sued to quiet title to the disputed property.                                                                                                                                                      

                        B.                      Proceedings  

                                                In   answer   to   the   Yuks'   quiet  title   complaint,   the   Robertsons   asserted  

adverse possession as an affirmative defense.                                                                                                                             They moved for summary judgment,                                                                     

claiming that they had acquired title to the disputed property. The Yuks, in an opposition                                                                                                                                                                                     

                                                                                                                                                      -2-                                                                                                                                          7174

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and cross motion for summary judgment, claimed that the Robertsons should have raised                                                                                                     

adverse possession as a counterclaimand that the Robertsons failed to satisfy the adverse                                                                                             

possession requirements.                                     

                               Beforethesummary judgmenthearing thesuperior court                                                                             orderedtheparties          

                                                                                                          1  - an unrelated case in which the court  

to read its recent order in                                Ibarra v. Daugherty                                                                                                             

had found adverse possession of a parcel enclosed by an encroaching fence - and to be  


prepared to discuss it at the hearing. After the hearing the court granted the Robertsons'  


summary judgment motion and denied the Yuks'.  The court observed in a footnote that  


the Yuks had failed to distinguish the facts and ruling of Ibarra .  Determining that the  


Robertsons proved by clear and convincing evidence that they had satisfied the elements  


of adverse possession, the court recognized their ownership of the disputed property.  


                               The Yuks appeal.  




                               "We  review  grants  of  summary  judgment  de  novo,  exercising  our  


independent judgment to determine whether the parties genuinely dispute any material  


facts and, if not, whether the undisputed facts entitle the moving party to judgment as a  


matter of law."2   Under the independent judgment standard, we adopt "the rule of law  


that is most persuasive in light of precedent, reason, and policy."3                                                                                    "We review de novo  


                1              No. 3AN-11-10737 CI (Alaska Super., June 21, 2012).                                                             

               2              DeVilbissv.Matanuska-SusitnaBorough,356P.3d290,293(Alaska2015)  


(quoting  Price v. Kenai Peninsula Borough                                                          , 331 P.3d 356, 358-59 (Alaska 2014)).                                    

               3              Id. at 294 (quoting Young v. Embley, 143 P.3d 936, 939 (Alaska 2006)).  


                                                                                                -3-                                                                                        7174

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


a superior court's interpretation of court rules . . . ."                                             We also review de novo "whether                  

an evidentiary presumption was correctly applied."                                                  5  

IV.          DISCUSSION  


                          The  Yuks  make  two  procedural  claims  involving  the  superior  court's  


application of court rules. The Yuks also dispute the superior court's determination that  


the Robertsons satisfied the elements of adverse possession.  We affirm the superior  


court's decision in all respects.  


             A.           Procedural Claims  


                          Thesuperior court recognized the Robertsons' title to the disputedproperty  


notwithstanding the Yuks' claim that affirmative relief was not available unless the  


Robertsons asserted adverse possession as a counterclaim, rather than as an affirmative  


defense.  The Yuks make the same argument on appeal.  But despite the Yuks' repeated  


assertions,  prior  cases  have  never  required  that  adverse  possession  be  raised  as  a  



counterclaim in a suit to quiet title.                                    And Alaska Civil Rule 8(c) allows the superior  


                                                                                                                               The court did not err  

court to treat a mistakenly identified defense as a counterclaim. 

             4            Shea v. State, Dep't of Admin., Div. of Ret. &Benefits                                               , 204 P.3d 1023, 1026           

(Alaska 2009) (citing                      Cameron v. Hughes                      , 825 P.2d 882, 884 n.2 (Alaska 1992)).                         

             5            Dault v. Shaw, 322 P.3d 84, 91 (Alaska 2013) (citing In re Estate of Fields,  


219 P.3d 995, 1002-03 (Alaska 2009)).  


             6            See,  e.g.,  Glover  v.  Glover,  92  P.3d  387,  391,  396  (Alaska  2004)  


(evaluating appeal of adverse possession claim raised as affirmative defense to original  


quiet title complaint); see also Burke v. Maka, 296 P.3d 976, 979-80 (Alaska 2013)  


(noting that adverse possession was raised as affirmative defense to original complaint  


but deciding appeal based on a different affirmative defense).  


             7            Alaska R. Civ. P. 8(c) ("When a party has mistakenly designated a defense  


as a counterclaim, or a counterclaim as a defense, the court on terms, if justice so  


requires, shall treat the pleading as if there had been a proper designation."); see also  



                                                                                 -4-                                                                           7174

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by   granting   the   Robertsons   relief   based   on   their   affirmative   defense   of   adverse  


                      The Yuks also claim that the superior court violated Alaska Appellate                                    

                                                                                                          8  The Yuks argue that  

Rule 214 by citing              Ibarra in the final summary judgment order.                                                    

because Ibarra  was unpublished, it "should have limited precedential value."   Even  


assuming Rule 214 applies to judges - and there is no indication that it does9  - the  


court first cited Ibarra in its order prior to the summary judgment hearing as a similar  


recently decided case that the parties should be prepared to discuss, and later to help  


explain its ultimate decision.10                      The court's references to its prior decision were for  


proper purposes and its ultimate citation in its summary judgment order was not error.  


           B.         Adverse Possession  


                      The parties agree that pre-2003 adverse possession law applies to this  




            Their arguments focus on former AS 09.10.030, which during the relevant period  


           7          (...continued)  


Jackson  v.  Nangle,  677  P.2d  242,  251-52  (Alaska  1984)  (treating  defense  as  


           8          See Alaska R. App. P. 214(d)(1) ("Citation of unpublished decisions in  


briefs and oral arguments is freely permitted for purposes of establishing res judicata,  


estoppel, or the law of the case.  Citation of unpublished decisions for other purposes is  


not encouraged.").  


           9          See Alaska R. App. P. 214(d) (referring only to citations by parties).  


           10         See Hallam v. Holland Am. Line, Inc., 180 P.3d 955, 959 (Alaska 2008)  


(noting that "[u]npublished decisions may still have persuasive value").  


           11         See Cowan v. Yeisley, 255 P.3d 966, 973 (Alaska 2011) (holding that "the  


changes to AS[ ]09.10.030 were not intended to be retrospective").  


                                                                     -5-                                                              7174

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

                            A person may not bring an action for the recovery of real                                                          

                           property, or for the recovery of the possession of it unless the                                                      

                            action is commenced within 10 years.                                           An action may not be                   

                            maintained   for   the   recovery   unless   it   appears   that   the  

                           plaintiff, an ancestor, a predecessor, or                                             the grantor of the             

                           plaintiff was seized or possessed of the premises in question                                              

                            within 10 years before the commencement of the action.                                                              [12]  

Under that law a claimant must show by clear and convincing evidence "that for the  


statutory period [the adverse possessor's] use of the land was continuous, open and  


notorious, exclusive[,] and hostile to the true owner."13                                                            The Yuks appeal the superior  


court's findings of exclusive and hostile possession.  


                            We  have  defined  clear  and  convincing  evidence  as  "that  amount  of  


evidence  which  produces  in  the  trier  of  fact  a  firm  belief  or  conviction  about  the  


                                                                    14   If an adverse possessor fulfills all four elements for  

existence of a fact to be proved."                                                                                                                                           


the ten-year statutory period, then title automatically vests in the possessor.15   "It is well  


recognized that a fence, as a matter of law, is 'one of the strongest indications of adverse  


                             16   And although adverse possession has four distinct elements, "the main  

possession.' "                                                                                                                                                          


              12            Former  AS  09.10.030  (1994),  amended  by  ch.  147,    1,  2,  SLA  2003;  see  

Revisor's   notes,   AS   09.10.030  (1994)   (describing   1994   stylistic   changes   to   1962  

statutory  language);  see  also  Dault  v.  Shaw,  322  P.3d  84,  92  (Alaska  2013)  (explaining  

effect  of  2003  statutory  amendment).  

              13            Vezey v.  Green, 35 P.3d  14, 20 (Alaska  2001)  (quoting Nome  2000  v.  


Fagerstrom, 799 P.2d 304, 309 (Alaska 1990)).  


              14            Theresa L.  v. State, Dep't of  Health  & Soc.  Servs., 353 P.3d  831,  838  


(Alaska 2015) (quoting Bigley v. Alaska Psychiatric Inst., 208 P.3d  168, 187 (Alaska  



              15            Cowan, 255 P.3d at 974.  


              16           Penn v. Ivey, 615 P.2d 1, 4 n.4 (Alaska 1980) (quoting Albert v. Declue,  



                                                                                      -6-                                                                               7174

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purpose of nearly all the requirements is essentially the same, that is, to put the record                                


owner on notice of the existence of an adverse claimant."                                                                           

                                                                                                 A fence can provide that  



required notice. 

                     1.         Exclusivity  

                     The Yuks claim on appeal that the superior court erred in its exclusivity  


finding for two reasons:  (1) "adverse possession cannot lie against the Municipality,"  


and (2) the easement demonstrates that use of the disputed property is shared with the  


general public and thus not exclusive.  But the superior court correctly determined -  


contrary to the Yuks' arguments - that the municipal sewer easement on the disputed  


property did not destroy the Robertsons' exclusivity.  Instead there is "an easement to  


use the land for a municipal sewer," and "regardless of who owns the fee simple estate,"  


they hold title "subject to the easement."  The Robertsons cannot adversely possess the  


municipal interest, and they did not claim to do so.  They instead sought to adversely  


possess the Yuks' interest in the disputed property, subject to the easement.  


                     Nor does the easement demonstrate that the Robertsons have failed to meet  


the exclusivity requirement. Exclusivity requires only that the adverse possessor use the  


land "as an average owner of similar property would use it."19   It is " 'not susceptible to  


           16        (...continued)  

526  S.W.2d  39,  40  (Mo.  App.   1975))  (first  citing  Knapp  v.   Wise,  594  P.2d   1023  (Ariz.  

App.   1979);  then  citing  Gospel Echos  Chapel  Inc.  v.   Wadsworth,  507  P.2d  994  (Ariz.  

App.  1973);  then  citing  Cole  v.  Burleson,  375  So.  2d  1046  (Miss.  1979);  and  then  citing  

Swecker  v.  Dorn,  593  P.2d   1055  (Mont.   1979)).  

           17        Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 830 (Alaska  



           18        See Penn, 615 P.2d at 4.  


           19         Vezey v. Green, 35 P.3d  14, 22  (Alaska 2001)  (quoting Nome  2000  v.  



                                                                  -7-                                                            7174

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


fixed standards,' but rather 'depend[s] on the character of the land in question.' "                                                                                                                                          The  

record shows a sewer easement on every lot in the subdivision. While using the disputed                                                                                                                            

property the Robertsons remained subject to the easement - and the possibility that the                                                                                                                                          

municipality could temporarily disrupt their use of the land - as did all the surrounding                                                                                                                


                                    The   Yuks   also   cite   the   adverse   possession   rule   that   "the   statute   of  

limitations does not run in favor of those who occupy property held for public use as a                                                                                                                                               

                                                   21   Although a sewer easement may serve a public purpose, it is much  

street or highway."                                                                                                                                                                                                        

different in character from a street or highway.   And the same authority states that  


"[a]dverse possession may be established as against a nonpublic entity fee owner despite  


the existence of easements, including public easements to a county or state."22                                                                                                                                    We find  


such authority more persuasive than the Yuks' suggestion that a municipal easement  


absolutely bars adverse possession against the private fee owner.  


                  19                (...continued)  


Fagerstrom, 799 P.2d 304, 309 (Alaska 1990)) (citing Peters, 519 P.2d at 831) (holding  


that allowing "moderate use of [the] resources" on the property was not inconsistent with  


exclusive use); see also Nome 2000, 799 P.2d at 310 (holding that allowing berry picking  


and fishing was "consistent with the conduct of a hospitable landowner, and undermines  


neither the continuity nor exclusivity of their possession"); Peters, 519 P.2d at 831  


(holding that "occasional use of the beach by clamdiggers or other trespassers does not  


destroy . . . exclusivity").  

                  20                 Vezey, 35 P.3d at 20 (quoting Nome 2000, 799 P.2d at 309) (citing 3 AM.  


JUR. 2           D  Adverse Possession                                       22 (1986)).     

                  21                3 A       M. J   UR. 2            D  Adverse Possession                                        261 (2017).     

                  22                Id.    253; see  also  4  TIFFANY   REAL   PROP.                                                                                1141   (3d   ed.),   Westlaw  


(database updated Sept. 2016) ("Possession may be exclusive notwithstanding that the                                                                                                                                             

land is subject to rights which are mere easements . . . . [N]or is the existence of an                                                                                                                                           

easement over the land in favor of another individual, or of the public, inconsistent with                                                                                                                                   

his acquisition of title." (footnotes omitted)).                                              

                                                                                                                 -8-                                                                                                        7174

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                                                          We affirm the superior court's determination that the sewer easement did                                                                                                                                                                                                                                    

not negate exclusivity.                                                                            

                                                          2.                          Hostility  

                                                          Thesuperiorcourtcorrectly determined -contraryto                                                                                                                                                                                  theYuks' arguments                          

-  that the Robertsons' active use of the disputed property, coupled with the fence's                                                                                                                                                                                                                                                               

 existence, satisfied the hostility elementofadversepossession. Although                                                                                                                                                                                                                                            the Robertsons  

mistakenly believed that the enclosed property was theirs, the court found that mistake                                                                                                                                                                                                                                                           

"immaterial." Despite the Yuks' emphasis on a presumption of permissive use, the court                                                                                                                                                                                                                                                                         

 found that the Robertsons' openly adverse and active use of the property, combined with                                                                                                                                                                                                                                                                          

the lack of evidence that the use was ever permissive, weighed in the Robertsons' favor.                                                                                                                                                                                                                                                                                                

The Yuks claim the court erred by (1) not requiring that the Robertsons be aware of the                                                                                                                                                                                                                                                                                

 fence's encroachment and (2) improperly applying the presumption of permissive use.                                                                                                                                                                                                                                                                                                    

                                                          The hostility element requires adverse possessors to "prove both that they                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                                                 23   We apply  

acted as owners and that they did not act with the true owner's permission."                                                                                                                                                                                                                                                                                

an objective test to determine hostility, and the adverse possessor's "beliefs as to the true  


legal ownership of the land . . . are irrelevant."24   The Robertsons mistakenly believed  


they owned all of the property the fence enclosed.  But their apparent mistake does not  


undermine the hostility of their claim.  We have held that "the fact that possession was  


                             23                            Vezey, 35 P.3d at 22 (citing                                                                                              Smith v. Krebs                                                     , 768 P.2d 124, 126 (Alaska                                                               


                             24                          Peters, 519 P.2d at 832.  


                                                                                                                                                                                     -9-                                                                                                                                                                        7174

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


taken under mistake or ignorance of the true boundary lines is immaterial."                                                       Instead,  

"[t]he question is whether . . . the claimant acted toward the land as if he owned it."                                                    26  

                      A fence can demonstrate hostile occupation.  In Penn v. Ivey we held that  


using a driveway enclosed by a fence - which, as in this case, did not follow the correct  


boundary - satisfied the hostility element.27                                  Only the adverse possessors and their  


guests were permitted to use the driveway, which we observed was "how a record owner  


would use a driveway."28  Here the Robertsons placed playground equipment near the  


fence and allowed staff and children at the daycare to use the disputed property, thereby  


using the property as owners would.  


                      TheYuksfurther arguethatthesuperiorcourt improperly placedtheburden  


on them to disprove permissive use.  We have in many cases applied a presumption of  


permissive use, placing the burden on the adverse possessor to prove by clear and  


convincing  evidence that the use was not permissive.29                                           To rebut that presumption  


adverse possessors must show they were "not on the owner's land with permission, and  


           25         Hubbard v. Curtiss, 684 P.2d 842, 848  (Alaska 1984) (citing  Norgard v.  

Busher,  349  P.2d  490  (Or.   1960)).  

           26         Id.  (quoting  Peters,  519  P.2d  at  832).  

           27         615  P.2d   1,  4  (Alaska   1980).  

           28         Id.  

           29         See, e.g., Vezey v. Green,  35  P.3d   14,  22-23  (Alaska 2001);  Ayers v. Day  

&  Night  Fuel  Co.,  451  P.2d  579,  581  (Alaska  1969);  cf.  Dault  v.  Shaw,  322  P.3d  84,  93- 

94  (Alaska  2013)   (applying  the  presumption  to  a  prescriptive  easement  and  noting  that  

"the  crucial  fact  is  that  the  initial  use  was  by  permission").  

                      We  have  not  applied this presumption  in  every  case.   See  Penn,  615  P.2d  

at  3  (discussing  permissive  use  without  applying  presumption);  Alaska Nat'l  Bank  v.  

Linck,  559  P.2d   1049,   1052-54  (Alaska   1977)  (not  discussing  presumption  at  all).   

                                                                     -10-                                                              7174

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


that the record owner could have ejected" them.                                        That burden          can  be   difficult to   


overcome if evidence shows possession began permissively, such as with a lease.                                                      But  


absent such evidence we have held the presumption rebutted when the adverse possessor  

                                                                                                   32  and "held the property  



"at all times acted as if the land were his and treated it as his" 

as an owner."33  


                     The Yuks present no evidence that the Robertsons ever used the disputed  


property with permission of the fee owners.  And the Robertsons have shown that they  


treated the disputed property as their own, occupying the strip and using it for their  


daycare. The fence marks the Robertsons' holding the property as owners, for "[n]o one  


seeing the fence . . . could have assumed that the [disputed property] belonged to anyone  


other than the owners of the adjoining [lot]."34                                The Robertsons have overcome the  


presumption of permissive use by clear and convincing evidence.  


                     We therefore affirm the superior court's determination that the Robertsons  


proved hostile possession of the disputed property by clear and convincing evidence.  


V.         CONCLUSION  

                     Based on the foregoing we AFFIRM the superior court's decision.  


           30         Vezey,  35  P.3d  at  22-23  (quoting  Smith  v.  Krebs,  768  P.2d  124,  126  (Alaska  


           31        See  Glover  v.  Glover,  92  P.3d  387,  392,  395  (Alaska  2004)  (remanding  for  

more factual  findings  on hostility where occupancy  began  as a lease);  Ayers ,  451 P.2d  

at   581-82   (holding   adverse   possessor   failed   to   overcome   presumption   in   light   of  

evidence  he  made  a  rent  payment  to  fee  owners).  

           32        Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 833 (Alaska  



           33         Vezey, 35 P.3d at 23.  


           34        Penn, 615 P.2d at 4.  


                                                                  -11-                                                             7174

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