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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Reeves v. Godspeed Properties, LLC (1/26/2018) sp-7219

Reeves v. Godspeed Properties, LLC (1/26/2018) sp-7219

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

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                         

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                            

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



JOHN  REEVES  and  FAIRBANKS                                     )  

GOLD  CO.,  LLC,                                                 )          Supreme  Court  Nos.  S-15461/15482  

                                                                 )  

                                         

                      Appellants and                                                                                                        

                                                                 )          Superior Court No. 4FA-12-02133 CI  

                      Cross-Appellees,                           )  

                                                                                                 

                                                                 )          O P I N I O N  

           v.                                                    )  

                                                                                                                   

                                                                 )          No. 7219- January 26, 2018  

                                                          

GODSPEED PROPERTIES, LLC                                         )
  

                                          

and GOLD DREDGE 8, LLC,                                          )
  

                                                                 )
  

                                        

                      Appellees and                              )
  

                      Cross-Appellants.                          )
  

                                                                 )
  



                                                                                                           

                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                                         

                      Fourth Judicial District, Fairbanks, Bethany Harbison, Judge.  



                                                                                                            

                      Appearances:             Joseph  W.  Sheehan,  Sheehan  Law  Office,  

                                                                                                                   

                      Fairbanks,  for  Appellants/Cross-Appellees.                                  Michael  C.  

                                                                                                                

                      Kramer,  Kramer  and  Associates,  and  Robert  John,  Law  

                                                                                           

                      Office  of  Robert  John,  Fairbanks,  for  Appellees/Cross- 

                                           

                      Appellants.  



                                                                                                                  

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

                                                                                        

                      Carney, Justices.  [Winfree, Justice, not participating.]  



                                            

                      STOWERS, Justice.  



                                                                                                                                          

                      FABE, Chief Justice, with whom CARNEY, Justice, joins,  dissenting in  

                      part.  


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

I.         INTRODUCTION  



                       Two adjoining landowners dispute the creation and continuing validity of  

                                                                                                                                                 



an easement for ingress and egress to and from property near Fairbanks.  The superior  

                                                                                  



court held that a valid easement was created but had been extinguished by prescription.  

                                                                                                                                                      



We are asked to decide whether one party's mining activities - placing gravel piles,  

                                                                                                                                           



equipment, and a processing plant in the easement - were sufficient to prescriptively  

                                                                                                       



extinguish the entire easement.  We hold that they were not.  Although the processing  



plant extinguished the portion of the easement on which it stood, the evidence presented  

                                                                                                                                    



regarding the gravel piles and equipment was insufficient to support extinguishing the  

                                                                                                                                               



entire easement.  

            



II.        FACTS AND PROCEEDINGS  

                                      



           A.          Facts  



                       Alaska Gold Company owned a considerable amount of property near  

                                                                                                                                             



Fairbanks in the early 1980s. In 1982 John Reeves purchased a lot from Alaska Gold -  

                                                                                                                                                



MS-851 - that contained an old gold dredge, which he turned into a tourist attraction.  

                                                                                                                                                      



The parties refer to this property as "Gold Dredge 8."  MS-851 was located southwest  

                                                                                                                                   



of MS-1724, a separate lot owned by Alaska Gold. Alaska Gold allowed Reeves to cross  

                                                                                                                                            

MS-1724 to reach Gold Dredge 8.1  

                                                        



            1          A sketch of the relevant properties is attached as an                                          Appendix to this        



opinion. Reeves also owned the Byrne Fraction, which connected the easement to Gold                                                         

Dredge 8.   



                                                                       -2-                                                                 7219
  


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

                                        In 1986 Alaska Gold sold MS-1724 to Alice Ellingson.                                                                                                                             Alice married   



Harold Ellingson shortly thereafter. The deed contained a reserved easement for Alaska                                                                                                                                                           



Gold to cross MS-1724 to reach its other properties:                                                                          



                                         SPECIFICALLY RESERVING UNTO THE GRANTOR, its                                                                                                                                      

                                         successors and assigns a dedicatable easement for ingress,                                                                                                  

                                         egress, and utilities, 100 feet in width, along the southerly                                                                                          

                                        boundary   of   Side   Claim   On   Bench   Off   No.  2  Above  

                                        Discovery   On   Engineer   On   R.L.  Placer,   United   States  

                                        Mineral Survey No. 1724 beginning at its intersection with                                                                                                              

                                        the westerly boundary of the Old Steese Highway right of                                                                                                                      

                                        way   and   proceeding   South   5937'  West  approximately  

                                         500.00   feet to Corner No. 1 of said claim; Thence North                                                                                                        

                                         7009' West approximately 728.2 feet to Corner No. 2 of said                                                                                                             

                                         claim.  



                                                                                                                                                                                                                                                                        

Alaska Gold owned MS-1709, the property at the terminus of the reserved easement.  



                                                                                                                                                                                                                                

Pete Eagan, Alaska Gold's manager beginning in 1986, used the easement occasionally  



                                                                                                                                                                                                                                                           

to travel to Alaska Gold's land beyond the easement.   Eagan was friendly with the  



                                                                                                                                                                                                                                                

Ellingsons, and he was aware of the easement to cross MS-1724.  He also gave Reeves  



                                                                                                                                                                                                         

permission to use Alaska Gold's easement to access Gold Dredge 8.  



                                                                                                                                                                                                                                                       

                                        Alice and Harold Ellingson erected a gold plant on MS-1724 soon after  

                                                                                                                                                    2     The plant began operating in 1988.  

                                                                                                                                                                                                                                                                        

Alice purchased the property from Alaska Gold. 



At Reeves's suggestion, the Ellingsons also erected an elevated footbridge spanning the  

                                                                                                                                                                                                                                                             



easement so that tourists could walk from Gold Dredge 8 to the gold plant to view the  

                                                                                                                                                                                                                                                            



mining operations.  Eagan commonly drove off the easement onto other portions of the  

                                                                                                                                                                                                                                                            



Ellingsons' property with the Ellingsons' knowledge.  

                                                                                                                               



                    2                    The deed conveyed the property to Alice Ebenal, but she changed her name                                                                                                                                     



to Alice Ellingson after marrying Harold. Alice and Harold built the gold mine together.                                                                                                                                                                                

Harold died before trial.                                  



                                                                                                                               -3-                                                                                                                     7219
  


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

                    In 1996 Reeves sold Gold Dredge 8 to Holland America, which in turn sold  

                                                                                                                             



it to Godspeed Properties. In 2000 Reeves bought Alaska Gold's remaining property in  

                                                                                                                                



the area.   This included part of MS-1709 - the parcel next to MS-1724 - at the  

                                                                                                                              



terminus of the easement.  In 2002 the Ellingsons shut down the gold plant, and in 2009  

                                                                                                                           



Godspeed purchased MS-1724 from Alice Ellingson. Thus, at the time of this litigation,  

                                                                                                                     



Godspeed owned Gold Dredge 8 and MS-1724, while Reeves owned MS-1709, the  

                                                                                                                              



parcel at the end of the easement crossing MS-1724.  

                                                                 



                    Reeves  informed  Godspeed  of  the  easement  and  offered  to  sell  it  to  

                                                                                                                           



Godspeed.  The parties negotiated between 2009 and 2012 but were unable to come to  

                                                                                                                                



an agreement.  During this time Godspeed developed MS-1724 as an integrated tourist  

                                                                                                                         



attraction with Gold Dredge 8; it built a small-gauge railway through the property for  

                                                                                                                              



visitors to view Gold Dredge 8 and learn about mining in the area.  

                                                                                              



                    In 2012 Reeves was granted plat approval to subdivide MS-1709. The plat  

                                                                                                                             



memorialized Reeves's plan to dedicate the easement through MS-1724 to public use as  

                                                                                                                                



the  access  for  the  subdivision.                Reeves  constructed  a  rough  dirt  road  through  the  

                                                                                                                             



easement.  In response, Godspeed built a gravel berm across the easement and blocked  

                                                                                                                       



access.  



          B.        Proceedings  



                    Godspeed filed a complaint against Reeves seeking declaratory relief and  

                                                                                                                             



to quiet title. Godspeed also moved for and was granted a preliminary injunction barring  

                                                                                                                        



Reeves from constructing the road until a court determined whether the easement was  

             



valid.  After considerable motion practice, the superior court ruled that the 1986 deed  

                                                                                                                            



from Alaska Gold to Ellingson created a valid easement.  The court also concluded that  

                                                                                                                             



"John  Reeves  and  [Reeves's  company]  Fairbanks  Gold  Company,  LLC  are  the  

                                                                                                                             



successors-in-interest to Alaska Gold Company."  The parties proceeded to trial on the  

                                                                                                                              



                                                               -4-                                                        7219
  


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

main remaining issue:                                         whether the easement was extinguished by prescription during                                                                                            



the time that the Ellingsons owned MS-1724 and Alaska Gold owned MS-1709.                                                                                                                    



                                    During the trial, Alice Ellingson testified that she and Harold poured the                                                                                                                  



concrete foundation for the gold plant in 1986 and that it was "all concrete and steel and                                                                                                                                     



it   .   .   .   probably   [weighed]   .  .   .   a   couple   hundred   tons."     The   plant   was   "pretty  



sophisticated," cost close to a million dollars to install, and occupied "not quite half" of                                                                                                                                       

                                     3      She explained that equipment, conveyor belts, and sand, gravel, and  

the easement.                                                                                                                                                                                                                 



sewer rock surrounded the plant.   She also testified that the plant was in continuous  

                                                                                                                                                                                                          



operation until 2002 when it was dismantled.  Both Alice and Eagan testified that the  

                                                                                                                                                                                                                                



footbridge between Reeves's property and the gold plant was high enough to drive  

                                                                                                                                                                                                                          



underneath.  



                                    Therewas also considerabletestimony about theconditionoftheremainder  

                                                                                                                                                                                                              



of the easement.  Alice testified that Harold built berms out of sewer rock around the  

                                                                                                                                                                                                                                



property.   One year, he also blocked the main gate with a berm in  the winter and  

                                                                                                                                                                                                                              



unblocked it in the spring.  And she testified that there were piles of material in the  

                                                                                                                                                                                                                                



easement that were continually being built up and moved as they were sold.  Hatton  

                                                                                                                                                                                                                    



Franciol, a former employee of the Ellingsons, testified that cars had been parked on the  

                                                                                                                                                                                                                                



easement and that, based on a picture taken when the Ellingsons owned MS-1724, a pile  

                                                                                                                                                                                                                            



of rock spanned almost the entire easement at one end. But he also explained that miners  

                                                                                                                                                                                                                      



berm off the entrance to mines at the end of the season to comply with safety regulations.  

                                                                                                                                                                                                         



Like  Alice,  he  testified  that  the  material  piles  in  the  easement  were  for  sale  and  

                                                                                                                                                                                                                             



                  3                 It is clear from aerial photographs of the area that Alice meant the gold                                                                                                               



plant occupied almost half of the width of the easement where it was situated, not half                                                                                                    

of the entire easement.           



                                                                                                                -5-                                                                                                        7219
  


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

                                                                                                                                                                                                                                                                                                           4  

constantly moving.                                                                                     Eagan testified that the process piles                                                                                                                                                                   "were not permanent"; "the                                                                                                  



nature of [the] business is that you produce piles of material and then hopefully you're                                                                                                                                                                                                                                                                                                                                       



 [going] to sell them."                                                    



                                                                      Eagan further testified that he would visit the property three to six times                                                                                                                                                                                                                                                                                     



 each summer.                                                             He stated that "Harold ended up having the plant out there and . . . parts                                                                                                                                                                                                                                                                        



of the easement were blocked.                                                                                                                                       But [Eagan did] know that you could pretty much get                                                                                                                                                                                                                           



through there," and it was never "absolutely blocked." Alice testified that a "substantial"                                                                                                                                                                                                                                                                                               



gate blocked the easement but that it was only meant to keep out the public and that                                                                                                                                                                                                                                                                                                                                                          



Reeves had a key to the gate.                                                                                                                               Reeves testified that the gate was built after he sold the                                                                                                                                                                                                                            



dredge.   And former employees testified that they had seen Reeves using the easement                                                                                                                                                                                                                                                                                                                             



 frequently.  



                                                                      In   its   decision   the   superior   court  noted   that   "because   of   the   social  



relationship between the Ellingsons and Eagan/Alaska Gold, adversity is difficult to                                                                                                                                                                                                                                                                                                                                                                   



determine." As a result the court required "Godspeed [to] show extensive activity in the                                                                                                                                                                                                                                                                                                                                                           



 easement area."                                                                      The court concluded that "operating and maintaining the gold plant                                                                                                                                                                                                                                                                               



within the easement area for a period of 15 years unreasonably interfered with Alaska   



Gold's  ingress   and   egress   along   the   easement   to   access   MS-1709,"   and   "[i]t   also  



unreasonably interfered with a prospective dedication of the easement to the public."                                                                                                                                                                                                                                                                                                                                                                                   



The court found that the gold plant was a "permanent and expensive improvement that                                                                                                                                                                                                                                                                                                                                                           



was difficult and damaging to remove" and that it "completely blocked approximately                                                                                                                            



half of the easement."                                                                                                      The court further                                                                                     found   that sometimes the plant                                                                                                                                                  activities  



blocked the entire easement or forced someone navigating it to go close to the gold plant                                                                                                                                                                                                                                                                                                                                                



in a manner that would be unsafe for the general public. Finally, the court found that the                                                                                                                                                                                                                                                                                                                                                         



Ellingsons had constructed various barriers that restricted public access to the easement.                                                                                                                                                                                                                                                                                                                                                                              



                                   4  

                                                                                                                                                                                                                                                                                                                                                                                                                                     

                                                                      These piles were created by material that was produced by the gold plant.  



                                                                                                                                                                                                                           -6-                                                                                                                                                                                                                                    7219  


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

 Based on these findings the court concluded                                                            that the          entire easement had been terminated                          



by prescription.   



                                Both parties appeal. Godspeed appeals the superior court's conclusion that                                                                                             



 an easement was created, and Reeves appeals its conclusion that the easement was                                                                                                                     



 terminated by prescription.        



 III.            STANDARD OF REVIEW                           



                                Whether a deed or plat is ambiguous is a question of law that we review de                                                                                                



              5  

 novo.                                                                                                                                                  

                    "When applying the de novo standard of review, we apply our independent  



                                                                                                                                                                                                       

judgment . . . , adopting the rule of law most persuasive in light of precedent, reason, and  



                    6  

                                                                                                                                                                                                  

policy."                When a deed is ambiguous, the trial court's findings about the parties' intent  



                                                                                                                  7  

                                                                                                                                                                                                

                                                                                                                      A decision is clearly erroneous "when  

 are findings of fact that we review for clear error. 



                                                                                                                                                                                             

 a review of the entire record leaves us with a definite and firm conviction that a mistake  



                                        8  

                       

 has been made." 



                 5              HP  Ltd. P'ship  v.  Kenai  River  Airpark,  LLC,  270  P.3d  719,  726  (Alaska  



 2012).  



                 6              Ranes  & Shine,  LLC  v.  MacDonald  Miller  Alaska,  Inc.,  355  P.3d  503,  507- 



 08   (Alaska   2015)   (alteration   in   original)   (quoting   ConocoPhillips   Alaska,   Inc.   v.  

 Williams  Alaska  Petroleum.,  Inc.,  322  P.3d   114,   122  (Alaska  2014)).  



                 7              Norken Corp. v. McGahan, 823 P.2d 622, 626 (Alaska 1991).  

                                                                                                                                                                      



                 8               Chung v. Rora Park, 339 P.3d 351, 353 (Alaska 2014) (quoting Offshore  

                                                                                                                                                                                           

 Sys.-Kenai  v. State, Dep't  of  Transp. & Pub.  Facilities, 282 P.3d 348,  354  (Alaska  

                                                                                                                                                                                            

 2012)).  



                                                                                                     -7-                                                                                            7219
  


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

                         Whether an easement was extinguished by prescription presents issues of                                                            



                                  9  

both law and fact.                                                                                                                               

                                      "We do not disturb a trial court's findings of fact unless they are  



                                                                                                                                  10  

                                                                                                                       

clearly erroneous.  We review the application of law to facts de novo." 



IV.         DISCUSSION  



                                                                                                    

            A.           The 1986 Deed Created An Easement Appurtenant.  



                                                                                                                                                            

                         The superior court concluded that Alaska Gold's transfer of MS-1724 to  

                                                                                                   11     Godspeed contends that this  

                                                                                                                                                         

Ellingson in 1986 created an easement appurtenant. 



holding was error because the deed contained ambiguities.   Specifically, Godspeed  

                                                                                                                                             



argues that the deed uses the word "dedicatable" - which is not a word - and does not  

                                                                                                                                                          



specify which property is benefited by the easement.  

                                                                                



                         " '[T]he touchstone of deed interpretation is the intent of the parties,' and  

                                                                                                                                                         

'where possible, . . . the intentions of the parties [will be] given effect.' "12                                                         We apply a  

                                                                                                                                                              



three-step test to interpret a deed:  first, we "look at the four corners of the document to  

                                                                                                                                                             



see if it unambiguously presents the parties' intent"; second, "[i]f a deed is ambiguous,  

                                                                                                                                           



the next step is to consider 'the facts and circumstances surrounding the conveyance' to  

                                                                                                                                                             



discern the parties' intent"; and finally, "[i]n the event that the parties' intent cannot be  

                                                                                                                                                            



            9            See HP Ltd. P'ship                 , 270 P.3d at 726 (holding that creation of easement by                                         



prescription presented mixed issues of law and fact).                                   



            10          Id.  



            11           An easement appurtenant "is a right to use a certain parcel, the servient  

                                                                                                                                                 

estate, for the benefit of another parcel, the dominant estate."  SOP, Inc. v. State, Dep't  

                                                                                                                                                      

of Nat. Res., Div. of Parks &Outdoor Recreation, 310 P.3d 962, 969 n.32 (Alaska 2013)  

                                                                                                                                                     

(quoting 25 AM. J   UR. 2                  D  Easements and Licenses                         8 (2004)).      

                       



            12  

                                                                                                                                                             

                        Estate of Smith v. Spinelli, 216 P.3d 524, 529 (Alaska 2009) (alterations in  

                                                                                                                                                         

original) (first quoting Norken Corp., 823 P.2d at 625; then quoting Shilts v. Young, 567  

                                           

P.2d 769, 773 (Alaska 1977)).  



                                                                             -8-                                                                      7219
  


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

                                                                                                13  

determined, we rely on rules of construction."                                                       The inquiry under step two "can be                                     



broad, looking at 'all of the facts and circumstances of the transaction in which the deed                                                                              



                                                                                                                                                                      14  

was executed, in connection with the conduct of the parties after its execution.' "                                                                                          



                                                                                                                                            

                           The language of the 1986 deed states, in relevant part:  "SPECIFICALLY  



                                                                                                                                                        

RESERVING  UNTO  THE  GRANTOR,  its  successors  and  assigns  a  dedicatable  



                                                                                                                                                             

easement  for  ingress,  egress,  and  utilities,  100  feet  in  width,  along  the  southerly  



                                                                                                                                                                    

boundary of . . . [MS] No. 1724."  While "dedicatable" is not a word, its use was plainly  

                                                                                                                                         15  We conclude that  

                                                                                                                                                                          

an attempt to create an easement that was capable of being dedicated. 



the use of a slight variation on a well-known and commonly used word does not make  

                                                                                                                                                                       



the deed ambiguous; rather, the use of the variant word is akin to a spelling mistake.  

                                                                                                                                                                                   



"Where it is perfectly plain that a word is misspelled, the courts will construe the deed  

                                                                                                                                                                        



according to the meaning of the word intended, rather than according to the meaning of  

                                                                                                                                                                             

the word actually used."16                              This is especially true when construing the word as written  

                                                                                                                                                             

                                                                                                                                             17    Here "looking  

"would give no effect to the clause containing the doubtful word."                                                                                             

                                                                                                                               



              13           McCarrey v. Kaylor                        , 301 P.3d 559, 563 (Alaska 2013) (quoting                                                Estate of   



Smith, 216 P.3d at 529).                            



              14           Estate of Smith, 216 P.3d at 529 (quoting Norken Corp., 823 P.2d at 629).  

                                                                                                                                                                       



              15           Black's Law Dictionary defines "dedication" as "[t]he donation of land or  

                                                                                                                                                                             

creation of an easement for public use."  Dedication, BLACK 'S  LAW  DICTIONARY  (10th  

                                                                                                             

ed. 2014).             



              16           Anderson & Kerr Drilling Co. v. Bruhlmeyer , 136 S.W.2d 800, 803 (Tex.  

                                                                                                                                                                       

 1940) (quoting Baustic v. Phillips, 121 S.W. 629, 630 (Ky. 1909)).  

                                                                                                                           



              17           Baustic, 121 S.W. at 630.  

                                                                                  



                                                                                      -9-                                                                              7219
  


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

within 'the four corners of the document,' 'the [word "dedicatable" is] capable of but one                                                                  



                                                     18  

reasonable interpretation.' "                                                                                              

                                                          The deed is not ambiguous in this regard.  



                                                                                                                                                 

                         But the deed is ambiguous as to whether the easement is an easement  



                                                                                                                                                      

appurtenant or an easement in gross. An easement appurtenant "is a right to use a certain  

                                                                                                                                                   19  "[A]n  

                                                                                                                                                         

parcel, the servient estate, for the benefit of another parcel, the dominant estate." 



appurtenant easement . . . may not be used for the benefit of property other than the  

                                                                                                                                                             

dominant estate."20                     While easements appurtenant run with the land and continue to  

                                                                                                                                                               



benefit the dominant estate, easements in gross are assigned to a specific person and do  

                                                                                                                                                              

not run with the land.21                       Here, although the easement is for ingress and egress and is  

                                                                                                                                                                

descendable,22 it is ambiguous whether the easement is an easement appurtenant because  

                                                                                                                                                    



it is not clear, looking at the face of the deed, which parcel of land is to benefit. Because  

                                                                                                                                                    



the deed fails to explicitly state what parcel will be benefited by the easement, the deed  

                                                                                                                                                          

must be considered ambiguous.23  

                                                                



             18          Estate of Smith             , 216 P.3d at 530 (quoting                       Norken Corp.              , 823 P.2d at 626).         



             19          SOP, Inc. v. State, Dep't of Nat. Res., Div. of Parks &Outdoor Recreation,  

                                                                                                                                              

310 P.3d 962, 969 n.32 (Alaska 2013) (quoting 25 AM. J   UR. 2                                                   D  Easements and Licenses         

                                                                                               

  8 (2004)).      



             20          HP Ltd. P'ship v. Kenai River Airpark, LLC, 270 P.3d 719, 730 (Alaska  

                                                                                                                                                    

2012) (second alteration in original) (quoting RESTATEMENT   (THIRD)   OF   PROPERTY:  

                                                                                          

SERVITUDES   4.11 (A                      M. L    AW  INST . 2000)).                



             21          See SOP, Inc., 310 P.3d at 968-69 (citing 25 A                                          M. J   UR. 2     D  Easements and   



Licenses   8, 120 (2004)).                          



             22          The deed uses the operative language "[reserving unto the grantor], its  

                                                                                                                                                              

successors and assigns."  

                              



             23          "Whether a deed is ambiguous is a question of law."  Estate of Smith, 216  

                                                                                                                                                            

P.3d at 528 (quoting Norken Corp., 823 P.2d at 626).  

                                                                                                      



                                                                              -10-                                                                       7219
  


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

                       Thus, we proceed to apply the second step of our three-step analysis in                                                      



interpreting   deeds:     we   consider   "   'the   facts   and   circumstances   surrounding   the  

                                                                               24    The  relevant  inquiry  is  whether  the  

conveyance'   to   discern   the   parties'  intent."                                                                                            



                                                                                                                       25  

easement was intended to benefit another parcel of land or a person.                                                       

                                                                                                           



                       The superior court considered evidence of the parties' intent, the situation  

                                                                                                                                        



of the properties, and the purpose and nature of the easement. The court found that "[the  

                                                                                                                                               



easement] clearly created a servient estate (MS-1724) in favor of a dominant estate  

                                                                                                                                             



(adjacent Alaska Gold [p]roperty, specifically, MS-1709, which is now divided into MS- 

                                                                                                                                                



 1709 and MS-1709A)."   It noted that the "domina[nt] estate is the property  at  the  

                                                                                                                           



terminus of the easement corridor," MS-1709.  This finding is not clearly erroneous.  

                                                                                                                                                         



MS-1709 lies at the end of the easement, so it would be the logical benefited parcel of  

                                                                              



an easement for ingress and egress.   The evidence shows that Alaska Gold usually  

                                                                                                                                          



accessed its land by driving across MS-1724.   And a 2002 Notice of Reservation of  

                                                                                                                                                   



Rights given by Alaska Gold to Reeves reflects this intent by stating that Alaska Gold  

                                                                                                       



had easements to access its adjoining land.  The superior court therefore did not err in  

                                            



holding that the 1986 deed created a valid easement appurtenant on MS-1724.  

                                                                                                                       



            B.	        It   Was   Error   To   Conclude   That   The   Entire   Easement   Was  

                                                                                                                        

                       Terminated By Prescription.  

                                                     



                       The superior court concluded that the entire easement was terminated by  

                                                                                                      



prescription. Aneasementis terminated by prescription iftheparty claimingprescription  

                                                                                                                                   



can "prove continuous and open and notorious use of the easement area for a ten-year  

                                                                                                                       



            24         McCarrey v. Kaylor                 , 301 P.3d 559, 563 (Alaska 2013) (quoting                                   Estate of   



Smith, 216 P.3d at 529).                    



            25         See, e.g., SOP, Inc., 310 P.3d at 968-69.  

                                                                                               



                                                                        -11-	                                                                 7219
  


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

                                                                                    26  

period by clear and convincing evidence."                                                The prescriptive period is triggered when                               



"use of the easement 'unreasonably interfere[s]' with the current or prospective use of                    

the easement by the easement holder."                                       27  



                                                                                                                                                                   

                           The  superior  court  found  that  the  gold  plant  was  a  "permanent  and  



                                                                                                                                                       

expensive improvement that was difficult and damaging to remove" and that "operating  



                                                                                                                                                                 

and  maintaining  the  gold  plant  within  the  easement  area  for  a  period  of  15  years  



                                                                                                                                                                

unreasonably interfered" with Alaska Gold's use of the easement. The court also found  



                                                                                                                                                                        

that the operation of the plant used the entire easement, that Eagan did not drive next to  



                                                                                                                                  

the gold plant, and that it would not have been safe for him to do so.  



                                                                                                                                                                      

                          Reeves disagrees with the superior court and argues:   (1) there was no  



                                                                                                                                                                        

interference, much less unreasonable interference, with the current or prospective use of  



                                                                                                                                                                             

the easement because mining operations ceased before the development of the easement;  



                                                                                                  

(2) the Ellingsons' property was a mining claim, and therefore mining on the property  



                                                                                                                                                                    

should not be considered unreasonable interference; (3) gold plants are movable and  



                                                                                                                                                                 

therefore are not permanent improvements; and (4) the gold plant did not entirely block  



                     

use of the easement.  



                                                                                                                                                            

                          We disagree with Reeves's third argument and conclude that the superior  



                                                                                                                                                          

court did not err in holding that the gold plant extinguished that portion of the easement  



                                                                                                                                                                      

upon which it stood. But we agree with Reeves's fourth argument that the gold plant did  



                                                                                                                                                           

not entirely block use of the easement.  This suggests that the easement was partially  



             26           Hansen v. Davis                  , 220 P.3d 911, 916 (Alaska 2009).                                       



             27  

                                                                                                 

                          Id. (alteration in original) (quoting RESTATEMENT  (THIRD)  OF  PROPERTY:  

   ERVITUDES  4.9 (A                     M. L     AW  INST . 2000)).   

S                          



                                                                                  -12-                                                                           7219
  


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

prescripted.       We    requested    supplemental    briefing    from    the    parties    on    partial  

prescription.28  



                                                                                                                                                                                       

                                1.	             Alaska law allows for partial extinguishment of an easement  



                                                prescription.  



                                                                                                                                                                                                      

                                In  Hansen  v.  Davis  we  "follow[ed]  the  approach  adopted  by  the  



                                                                                                                                                                                                       

Restatement (Third) of Property and many jurisdictions and h[e]ld that an easement can  

                                                                               29   We have not previously addressed the possibility of  

                                                                                                                                                                                                          

be extinguished by prescription." 



partial prescription, but we agree with the weight of authority that an easement may be  

                                                                                                                                                                                                         



partially prescripted.  

                      



                                The  Restatement  explains  that  an  easement  may  be  "modified  or  

                                                                                                                                                                                                       

extinguished" by prescription;30  it further clarifies in a comment that "extinguishment  

                                                                                                                                                                       

brought about by prescription may be complete or partial."31                                                                                         The treatise The Law of  

                                                                                                                                                                                                          



Easements and Licenses in Land explains, "An easement . . . may be increased in width,  

                                                                                                                                                                                                



                28              Reeves also argues that Godspeed's prescription claim is barred by the                                                                                                 



statute of limitations and estoppel and that if the easement was terminated he revived it                                                                                                                   

after the gold plant was removed.                                                      The superior                       court did not address these issues                                    

because Reeves did not litigate them at trial. We                                                                 therefore review for plain error and find  

none.    See Partridge v. Partridge                                                 , 239 P.3d 680, 685 (Alaska 2010).                                                          A claim for            

prescription is based on, not subject to, the statute of limitations.                                                                                        McGill v. Wahl, 839  

P.2d 393, 395-97 (Alaska 1992).  And estoppel fails because Reeves does not point to                                                                                   

any intention by Godspeed or Alice to deceive him.                                                                        See Dressel v. Weeks                              , 779 P.2d 324,          

329   (Alaska   1989)   (requiring   express   intention   to   deceive   when   real   property   is  

involved).   Reeves's claim that he re-established the easement was not litigated below,                                                                                                       

was inadequately briefed on appeal, and is based on facts that the superior court did not                                                                                                              

examine because they occurred after the prescriptive period.                                                                    



                29              Hansen, 220 P.3d at 916 (citations omitted).  

                                                                                                                     



                30              RESTATEMENT  (THIRD)  OF  PROPERTY: S                                                           ERVITUDES   7.7 (A                           M. L       AW  INST .  



                                                                                                                                                                     

2000) (emphasis added), cited with approval in Hansen, 220 P.3d at 916.  



                31              Id.   7.7 cmt. b.  

                                                                  



                                                                                                   -13-	                                                                                           7219
  


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

depth, or height by prescription. Likewise, a servient owner may reduce an easement's                                                        



dimensions by preventing the holder from utilizing a portion of the easement area for the                                                                   

                                      32  and more directly, "[A]n easement may be partially extinguished  

prescriptive period,"                                                                                                                                              

         33  The treatise Powell on Real Property agrees: "The servient owner can extinguish  

. . . ."                                                                                                                                      

       

an easement in whole or in part by adverse uses continued for the prescriptive period."34  

                                                                                                                                               



                         The rationale underlying the doctrine of prescription supports recognizing  

                                                                                                                                           



partial  prescription.                    "The  doctrine  [of  prescription]  protects  the  expectations  of  

                                                                                                                                                            



purchasers and creditors who act on the basis of the apparent ownerships suggested by  

                                                                                                                                                                   

the actual uses of the land."35                              Prescription also "is supported by the rationale that  

                                                                                                                                                         



underlies statutes of limitation[:]   [b]arring claims after passage of time encourages  

                                                                                                                                            



assertion of claims when evidence is more likely to be available and brings closure to  

                                                                                                                                                             

                             36   Recognizing partial prescription best allows for legal title to match  

legal disputes."                                                                                                                                      

           

apparent title and brings closure to legal disputes in the way that best reflects reality.37  

                                                                                                                                                 



            32           JON   W. B         RUCE   & J         AMES   W. E           LY, J     R., T    HE   LAW   OF   EASEMENTS  AND  



LICENSES IN LAND  7:18 (2017).                  

                                    



            33           Id.   10:25, cited with approval in Hansen, 220 P.3d at 916-17.  

                                                                                                                                 



            34           4 P   OWELL ON            REAL  PROPERTY    34.21[1] (Richard R. Powell & Michael  



                                                                

Allen Wolf eds. 2017) (emphasis added).  



            35           RESTATEMENT    (THIRD)    OF    PROPERTY :                                       SERVITUDES                    2.17    cmt.    c  



(referenced in  7.7 cmt. a as explaining rationale behind prescription of easements).                                                  



            36           Id.  



            37           Godspeedarguesthatthelanguageof Hansen precludespartialprescription.  

                                                                                                                                                                   

Hansen  said, "[T]he prescriptive period is triggered where the use of the easement  

                                                                                                                                               

 'unreasonably interfere[s]' with the current or prospective use of the easement by the  

                                                                                                                                                           

easement holder."  Hansen, 220 P.3d at 916 (second alteration in original) (emphasis  

                                                                                                                                              

added) (quoting RESTATEMENT  (THIRD)  OF  PROPERTY:    SERVITUDES    4.9).                                                                  Godspeed  

               

                                                                                                                                        (continued...)  



                                                                             -14-                                                                      7219
  


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

                               Godspeed arguesthatadoptingpartialprescription"will                                                                         substantially erode   



the hostility element for prescription becausedoingso                                                                    will encourage people to stealthily                      



encroach on easements by expanding their garden, extending their lawn, or building an                                                                                                            



addition to their deck."                                  Easement holders will still be able to use their easements,                                                       



Godspeed argues, and will not recognize the infringement of their rights until it is too                                                                                            

                                                                                                                         38  of easements.  The prescriptive  

late.  But this argument understates the "hardi[ness]"                                                                                                          



period is not triggered until the owner of the servient estate's "use of the easement  

                                                                                                                                                                                



 'unreasonably interfere[s]' with the current or prospective use of the easement by the  

                                                                                                                                                                                               

easement holder."39  This standard sufficiently guards the rights of the easement holder.40  

                                                                                                                                                                                   



               37(...continued)  



                                                                                                                                                                                  

notes that Reeves offers no examples of jurisdictions that use "prospective use" language  

                                                                                                                                                                                         

and recognize partial prescription.                                                   But Godspeed  points to  no  case where a court  

                                                                                                                                                 

considered adopting partial prescription and decided not to do so.  And our holding in  

                                                                                                                                                                                

Hansen that an easement can be extinguished by prescription did not reject the rationales  

                                                                                         

that underlie prescription; it embraced them.  



               38              7 T    HOMPSON ON                    REAL  PROPERTY    60.08 (David A. Thompson ed., 2d ed.                                                                     



2017)   (calling   easements   "hardier   creatures   than   .   .   .   real   covenants   and   equitable  

servitudes" because they are harder to terminate).                                       



               39             Hansen, 220 P.3d at 916 (quoting RESTATEMENT   (THIRD)  OF  PROPERTY:  

                                                                                                               

   ERVITUDES 4.9);  see also                                  RESTATEMENT  (FIRST)  OF  PROPERTY   506 cmt. c (A                                                                  M.L       AW  

 S                                

INST . 1944) ("For a use of the servient tenement to be adverse to the owner of an                                                                                                              

              

easement, the use must be made without submission to or without being in subordination                                                                                 

to   the   owner   of   the   easement   and   must   be   open   and   notorious."   (cross-references  

omitted)).  



               40              We note that the arguments Godspeed makes against the adoption of partial  

                                                                                                                                                                                        

prescription here undermine its principal argument that we should conclude prescription  

                                                                                                                                                                           

took place in this case.  Godspeed's hypothetical about encroachment on an easement  

                                                                                                                                                                                 

that  goes  unnoticed  by  the  easement  holder  is  similar  to  the  facts  of  this  case:  

                                                                                                                                                                                                        

Godspeed's  predecessors  in  interest  erected  a  gold  plant  that  blocked  part  of  the  

                                                                                                                                                                                              

easement, but Reeves's predecessor did not bring a case because it still was able to  

                                                                                                                                                                                                 

                                                                                                                                                                       (continued...)  



                                                                                              -15-                                                                                        7219
  


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

                                         The parties agree that if we adopt partial extinguishment, then the standard                                                                                                                        



 set forth in  Hansen should apply.  This is consistent with the authorities already cited,   



which   treat   partial   extinguishment   as   part   of   the   doctrine   of   extinguishment   by   



prescription and not as a separate concept. We therefore hold that Alaska law recognizes                                                                                                                                               



partial extinguishment of easements through prescription and that the standard to show                                                                                                                                                                 



partial extinguishment is the standard we set out in                                                                                                        Hansen .  



                                         2.	                 The gold plant partially extinguished the easement.                                                                                   



                                         The gold plant did extinguish that part of the easement upon which it stood.                                                                                                                                                     



 The superior court found that the gold plant "cost approximately one million dollars to                                                                                                                                                                         



 erect" and "took years to build and substantial effort to dismantle."                                                                                                                                       Alice testified that                          



the plant was "all concrete and steel and it was probably . . . a couple hundred tons," and                                                                                                                                                                 



that it was in continuous operation from 1988 until 2002, when it was dismantled.                                                                                                                                                                        The  



testimony established that the plant was in continuous, open, and notorious operation for                                                                                                                                                                     

                                                             41  and the superior court therefore did not clearly err in finding that  

more than ten years,                                                                                                                                                                                                                                       



the gold plant was a permanent improvement.  

                                                                                                 



                                         3.	                 The  gold  plant's  operations  did  not  fully  extinguish  the  

                                                                                                                                                                                                                                                         

                                                             easement.  



                                         We do not agree with the superior court that the remainder of the easement  

                                                                                                                                                                                                                                           



was extinguished.  "Whether the improvement is an unreasonable interference with the  

                                                                                                                                                                                                                                                             



                     40(...continued)  



                                                                                                                                                                                                                                                

 access its land.  Further, "expanding a garden" and "extending a lawn" are not enough  

                                                                                                                                                                                                                                                         

to trigger extinguishment of an easement by prescription, see Hansen, 220 P.3d at 917,  

                                                                                                                                                                                                                                      

 and "building an addition to [a] deck" may not be in all circumstances, see Titcomb v.  

                                                                                                                                                                                                                                                    

Anthony , 492 A.2d 1373, 1375-76 (N.H. 1985) (holding that an easement was not totally  

                                                                                                                                               

 extinguished because passage on foot was still possible).  



                     41                  See Hansen, 220 P.3d at 916 ("[A] party claiming that an easement was  

                                                                                                                                                                                                                                                          

 extinguished by prescription must prove continuous and open and notorious use of the  

                                                                                                                                                                                                                                                             

 easement area for a ten-year period by clear and convincing evidence.").  

                                                                                                                                                                                        



                                                                                                                             -16-	                                                                                                                      7219
  


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

servitude depends on the character of the improvement and the likelihood that it will                                                                                        



make future development of the easement difficult. If the improvement is temporary and                                                                                        



                                                                                                        42  

easily removed, it is generally not unreasonable."                                                             



                                                                                                     

                            Although the gold plant itself was an unreasonable interference,  none of  



                                                                                                                                                                                       

the  parties testified to an impediment that continuously blocked the entire easement for  



                                                                                                                                                                          

the entire ten-year period.   Alice testified that equipment, conveyor belts, and sand,  



                                                                                                                                                                            

gravel, and sewer rock surrounded the plant. A former employee testified that cars were  



                                                                                                                                                                        

parked in the easement and that a pile of rock spanned almost the entire easement during  



                                                                                                                                                                             

one year. This type of temporary activity was insufficient to terminate the easement over  



                     

a mining claim.  



                                                                                                                                                                                

                            In Hansen  we considered whether the maintenance of a  garden on an  

                                                                                                                                                                      43      We  

                                                                                                                                                                             

                                                                                                                                                              

easement was sufficient to terminate an easement and concluded it was not. 



explained that "[a]s a matter of law, the maintenance of a garden on the easement area  

                                                                                                                      



did not constitute an improvement sufficiently adverse to commence the prescriptive  

                                                                                                                                                            

                 44  And cars, equipment, and gravel piles are not significantly less moveable than  

period."                                                                                                                                                                     



a garden.  In mining country gravel piles, berms, miscellaneous mining equipment, and  

                                                                                                                                                                              



vehicles (often broken down) are the "vegetation" one would expect to find "growing"  

                                                                                                                                                               



in the area.  

                          



                            The weight of authority indicates that equipment, conveyor belts, and sand,  

                                                                                                                                                                           



gravel, and sewer rock are insufficient to terminate an easement, at least in a setting like  

                                                                                                                                                                              



              42            RESTATEMENT  (THIRD)  OF  PROPERTY: S                                               ERVITUDES    4.9 cmt. c;                           see also   



Hansen, 220 P.3d at 917 ("As a general guideline, temporary improvements to an unused                                                                                  

easement area that are easily and cheaply removed will not trigger the prescriptive                                                                         

period.").  



              43            Hansen, 220 P.3d at 917-18.  

                                                                        



              44            Id. at 917.  

                                         



                                                                                      -17-                                                                                 7219
  


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

mining country. "[T]he adversity standard is not met when the owner of a servient estate                                                                  



uses the easement area for gardening; places obstructions on the easement that the                                                                           



easement   holder   can   simply  go  around;   or   relies   on   a   natural   barrier,   such   as   an  



embankment, to obstruct the easement holder," and "parking cars from time to time in                                                              



                                                                                                                                                                45  

a   manner   that   obstructs   the   easement   does   not   meet   the   continuity requirement."                                                                  



Further, "what constitutes unreasonable interference, and thus triggers the prescriptive  

                                                                                                                                              

period, [is] heavily fact dependent."46   This includes the manner in which the parties are  

                                                                                                                                                              

using the land.47  

                   



                         The superior court found that the operation of the gold plant, including the  

                                                                                                                                                              



conveyor belts, jigs, and supporting equipment, made driving past it in the easement  

                                                                                                                                                  



unsafe.  The court also found that Eagan never drove past the plant in the easement,  

                                                                                                                                                 



instead taking other routes through the property.   Neither of these findings leads to  

                                                                                                                                                                



prescription as a matter of law: "[w]here the easement holder has not used the easement  

                                                                                                                                                   



for some time, or at all, the servient estate owner enjoys wide latitude with respect to use  

                                                                                                                                                              



of the easement area, and a showing of extensive activity will be required to demonstrate  

                                                                                                                                             

adversity."48   There is no reason why the Ellingsons should have had to worry about the  

                                                                                                                                                              



             45          BRUCE  &  ELY,  supra  note  32,     10:25  (citations  omitted).  



             46          Hansen,  220  P.3d  at  917.  



             47          See  id.;  BRUCE  &  ELY,  supra  note  32,     10:25.  



             48          Hansen,  220  P.3d  at  917.   The  superior  court's  finding  that  Eagan never  



drove  past  the  gold  plant  in  the  easement  was  clearly  erroneous.   Eagan  testified  that  he  

drove  under  the  footbridge  between  the  plant  and  Gold  Dredge  8,  which  means  that  he  

drove   in   the   easement   next   to   the   gold   plant.     This   testimony   is   uncontradicted.   

Regardless,  an  easement  holder  does  not  have  to  use  an  easement  to  maintain  title  to  it.   

See  id.  



                                                                              -18-                                                                        7219
  


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

safety of someone driving through the easement if no one was driving through the                                                                                   



easement.   



                          "[T]he servient estate owner[] . . . has a right to use the area in question to                                                            



the extent that such use does not unreasonably interfere with the easement holder's                                                                     

               49  This allows for maximumvalue to come fromthe easement. The question then  

rights."                                                                                                                                                         



is not whether Eagan actively asserted Alaska Gold's easement rights or whether Eagan  

                                                                                                                                                             



could have driven on the easement at a time when he was not asserting those rights; the  

                                                                                                                                                                   



question is whether Eagan could have used the easement if he had insisted on using it.  

                                                                                                                                                                           



And more to the point, the question really is whether Eagan could not have used the  

                                                                                                                                                                   



easement  for  the  entire  ten-year  prescriptive  period.                                                   No  evidence  established  that  

                                                                                                                                                                 



Eagan's use of the easement was unreasonably interfered with for the ten-year period.  

                                                                                                                                                           



                          As explained above, we conclude that the easement was terminated by  

                                                                                                                                                                    



prescription only where the gold plant sat.  This means that the easement still exists in  

                                                                                                                             



some form for its entire length but that part of it is narrower in width because of the gold  

                                                                                                                                                                 



plant's obstruction.  The superior court found that the gold plant blocked at least half of  

                                                                                                                                                                     



the width of the easement. But the only evidence offered to show the location of the gold  

                                                                                                                                                                 



plant was several aerial photographs, and none of the photographs show the gold plant  

                                                                                                                                                               



crossing the line that demarcates the boundary of the proposed public road - that is,  

                                                                                                                                                                    



none of the photographs show the gold plant extending even 40 feet into the 100-foot  

                                                                                                                                                 



easement.  Given that the photographs were the only evidence offered as to the position  

                                                                                                                                                         



of the gold plant, the court's finding that at least half of the easement was blocked was  

                                                                                                                                                                 



clearly erroneous.  On remand the superior court should determine the extent to which  

                                                                                                                                                             



the permanent structure of the gold plant occupied the easement and terminate only that  

                                                                                                                                                                  



portion of the easement.  

                             



             49           BRUCE  &  ELY,  supra  note  32,     10:25.  



                                                                                -19-                                                                                 7219  


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

                                                               Deciding   this   appeal   calls   for   an   understanding   of   Alaska   history   -  



particularly Alaska gold mining history and how gold mines operate.                                                                                                                                                                                                                                                                               Operating an   



active gold mine means that gravel piles, berms, and miscellaneous mining equipment   



and vehicles will appear and move around the property and disappear over time.  This  



is part and parcel to owning land in mining country, and the Ellingsons, Eagan, and                                                                                                                                                                                                                                                                                                                 



Reeves all understood this.                                                                                                     To conclude years later that these kinds of mining activities                                                                                                                                                                               



terminated   the   easement   would   ignore   the   reality   of   the   parties'   mining   and  other  



activities on the ground and would be unjust.                                                                                                                                                                        We conclude that the easement was only                                                                                                                                      



terminated to the extent the gold plant stood on it and that none of the ancillary mining                                                                                                                                                                                                                                                                                           



activities, rock piles, equipment, and vehicles were sufficient to terminate the remainder                                                                                                                                                                                                                                                                             

of the easement.                                                             50  



                                50                             We offer several responses to the dissenting opinion.                                                                                                                                                                                                              First, the dissent                                



argues that "the court adopts a doctrine that is new to Alaska law without giving the                                                                                                                                                                                                                                                                                                                  

parties an opportunity to litigate this issue in the trial court." But as explained in section                                                                                                                                                                                                                                                                                       

IV.B.1   of our opinion, authoritative treatises "treat partial prescription as part of the                                                                                                                                                                                                                                                                                                           

doctrine of prescription and not as a separate concept."                                                                                                                                                                                                            See  RESTATEMENT  (THIRD)  OF  

PROPERTY: SERVITUDES 7.7&cmt. b(A                                                                                                                                                              M.L                 AW  INST . 2000); BRUCE  &E                                                                                                     LY,  supra  note  

                                                                                                                                                      

 32,  7:18, 10:25; P                                                                    OWELL ON                                              REAL  PROPERTY,  supra  note 34,  34.21[1]. Thus, partial                                                                                                                                                                               

extinguishment issimply                                                                                              part ofthedoctrineofextinguishmentby                                                                                                                                                       prescriptiongoverned   

by the regular rules of extinguishment; it is not a new doctrine.                                                                                                                                                                                             



                                                               Second, the parties were given the opportunity to address in detail the                                                                                                                                                                                                                                                                

application of partial prescription to the facts of this case.                                                                                                                                                                                                              We ordered the parties to file                                                                                            

 supplemental briefing as follows:                                                                                    



                                                                1.	                            ShouldAlaskaadopt                                                                               thedoctrineof                                                       partial extinguishment of  

                                                                                              an easement by prescription?                                                                                                                 Why or why not?                                                



                                                               2.	                            Regardless of the answer to question 1, what are the elements                                                                                                                                                                                   

                                                                                              of partial extinguishment by prescription, and under what                                                                                                                                                                                                       

                                                                                              circumstances have courts applied this doctrine?                                                                                                                                       



                                                               3.	                             Should this doctrine apply to the case at bar?                                                                                                                                                                             Why or why                              

                                                                                                                                                                                                                                                                                                                                                        (continued...)  



                                                                                                                                                                                                  -20-	                                                                                                                                                                                         7219
  


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

V.          CONCLUSION  



                        We AFFIRM the superior court's conclusion that the 1986 deed created an  

                                                                                                                                                       



easement  appurtenant  and  AFFIRM  its  finding  and  conclusion  that  the  gold  plant  

                                                                                                                                       



extinguished that part of the easement it occupied.  We REVERSE the court's finding  

                                                                          



            50(...continued)
  



                                    not?
  



                                                                                                                                                   

The parties responded and agreed that if this court adopted partial extinguishment, then  

                                                                        

the standard set forth in Hansen should apply.  



                                                                                                                                

                        Third, the dissent argues that if the parties knew that partial extinguishment  

                                                                                                                                                  

was in play at trial, they might have focused their presentation of evidence on more  

                                                                                                                                                             

particular parts of the easement to demonstrate whether those parts were extinguished.  

                                                                                                                                                       

But at trial Reeves's overall position was that there had been no prescription, so he  

                                                                                                                                                       

presented evidence and testimony to show as little interference with the easement as  

                                                                                                                                                   

possible.           Godspeed,  on  the  other  hand,  contended  that  the  entire  easement  was  

                                                                                                                                                

extinguished  and  accordingly  presented  evidence  and  testimony  to  show  as  much  

                                                                                                                                        

interference with the easement as possible.   In other words, both parties had every  

                                                                                                                                          

incentive to offer all of the evidence available to themto prove their respective positions;  

                                                                                                                                       

all of that evidence relevant to total extinguishment or no extinguishment necessarily  

                                                                                                                                          

encompassed all evidence of partial extinguishment.  Notably, neither party requested  

                                                                                                                                                  

in their supplemental briefing to this court that the case be remanded to the superior court  

                                                                                                                                                      

so additional evidence could be presented on the issue of partial extinguishment, nor did  

                                                                                                       

they argue that the superior court's factual findings were insufficient.  



                                                                                                                                             

                        Fourth, thedissent suggeststhat "extensive activity" should not be required  

                                                                                                                                           

to show unreasonable interference in this case because, unlike in Hansen, the easement  

                                                                                                                                              

holder used the easement.  The superior court required a showing of extensive activity  

                                                                                                                                                       

in this case because the social relationship of the parties made adversity difficult to  

                                                                                                                                       

determine.   We agree with the superior court.   And under any standard, equipment,  

                                                                                                                                                      

conveyor belts, and sand, gravel, and sewer rock in mining country do not rise to the  

                                                                                                                                            RUCE   &  

level of unreasonable interference sufficient to terminate an easement.  See B 

ELY,  supra  note 32,  10:25.                        We reiterate, apart from the gold plant no evidence was                                       

admitted and no testimony established that any equipment, conveyer belts, sand, gravel,                                                        

or sewer rock remained in place and obstructed the easement for a ten-year period.                                                      



                                                                          -21-                                                                    7219
  


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

 and conclusion that the remainder of the easement apart from the location of the gold                                                                                                                                                                                                                                                                                                                                                    



plantwas                                         terminated and REMANDfor further proceedings consistent withthis opinion.                                                                                                                                                                                                                                                                                              



                                                                                                                                                                                                                                        -22-                                                                                                                                                                                            7219
  


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

FABE, Chief Justice, with whom CARNEY, Justice, joins, dissenting in part.                                                                                                                                                                                                                                                                  



                                                             I disagreewith the court's analysis                                                                                                                       andits                         conclusion that thesuperior court                                                                                             



erred in finding that the entire easement over the Ellingsons' property was terminated by                                                                                                                                                                                                                                                                                                      



prescription.   The court's decision is based on a theory of partial extinguishment of the                                                                                                                                                                                                                                                                                                  



easement, a theory that was never considered by the superior court.                                                                                                                                                                                                                                                                As a matter of                                               



procedural fairness, this court should remand to the superior court for the parties to have                                                                                                                                                                                                                                                                                          



an opportunity to present additional evidence on this new, fact-intensive theory.                                                                                                                                                                                                                                                                                                  And,  



in my view, even under a partial extinguishment theory, the superior court correctly                                                                                                                                                                                                                                                                             



concluded that the entire easement was extinguished.                                                                                                                                                                                               I therefore agree with the court's                                                                                      



conclusion that the part of the easement under the gold plant was extinguished, but I                                                                                                                                                                                                                                                                                                                 



respectfully dissent from the court's decision that the remainder of the easement was not                                                                                                                                                                                                                                                                                                   



also extinguished.   



I.	                            PRINCIPLESOFPROCEDURALFAIRNESSPROHIBITREVERSALON                                                                                                                                                                                                                                                                                                           

                               NEW GROUNDS WITHOUT AN OPPORTUNITY TO BE HEARD.                                                                                                                                                                                                                                                      



                                                             Neither party raised the question of partial extinguishment of the easement                                                                                                                                                                                                                         



in   the   trial   court,   nor   did   the   superior   court   address  the   question   in   its   ruling.   



Importantly, the parties had no reason to believe that the issue of partial extinguishment                                                                                                                                                                                                                                          



would be addressed because none of our prior decisions have adopted or even considered                                                                                                                                                                                                                                                                   



that doctrine.                                                 Hansen v. Davis                                                                      remains the only Alaska case that has addressed the                                                                                                                                                                                    

                                                                                                                                                                                                        1  and that decision made no mention of the  

question of extinguishment by prescription,                                                                                                                                                                                                                                                                                                                                                 



possibility of partial extinguishment by prescription despite a similar fact pattern where  

                                                                                                                                                                                                                                                                                                                                                                               



one portion of the easement was occupied by permanent improvements and another  

                                                                                                                                                                                                                                                                                                                                                                       

portion was occupied by more temporary improvements.2                                                                                                                                                                                                                       So by basing its decision on  

                                                                                                                                                                                                                                                                                                                                                                                               



                               1                             220  P.3d  911,  915-16  (Alaska  2009).  



                               2                             Id.  at  913-14.  



                                                                                                                                                                                             --2233--                                                                                                                                                                                                    7219  


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

partial extinguishment, the court adopts a doctrine that is new to Alaska law without                                                                                                           



giving the parties an opportunity to litigate this issue in the trial court.                                                                                                          Procedural  



fairness requires that parties be given an adequate hearing, which includes the principle                                                                                                    



that "[p]arties must have notice of the subject of proceedings that concern them 'so that                                                                                                                 

they will have a reasonable opportunity to be heard.' "                                                                             3  



                                 In Price v. Eastham we considered this issue in a context very similar to  

                                                                                                                                                                                                              

that of the current  case.4                                         There, a group of snowmachiners brought suit against a  

                                                                                                                                                                                                               



landowner, claiming that they had established a prescriptive easement over part of the  

                                                                                                                                                                                                           

land by using the same trail consistently since the 1950s.5   Price, the landowner, argued  

                                                                                                                                                                                                  



that an easement had not been perfected and counterclaimed for injunctive relief against  

                                                                                                                                                                                                  

the  snowmachiners.6                                     Instead  of  ruling  on  the  prescriptive  easement  question,  the  

                                                                                                                                                                                                          



superior court initially held that an easement had been established under former 43  

                                                                                                                                                                                                            



U.S.C.  932 (also known as RS 2477), under which sufficient public use of certain types  

                                                                                                                                                                                                       



                                                                                                                                                                                                                 7  

of land could establish a self-executing grant of land from the federal government.   

                                                                                                                                                                                 

                                                                                                                                              8  On appeal, we held that the  

Neither party had raised this issue before the superior court.                                                                                                                                              

                                                                                                                                 



superior court violated Price's due process rights by ruling on an issue that Price did not  

                                                                                                                                                                                                           



have an opportunity to litigate:  

                                                         



                3               Price v. Eastham                           , 75 P.3d 1051, 1056 (Alaska 2003) (quoting                                                                      Potter v.   



Potter, 55 P.3d 726, 728 (Alaska 2002)).                                          



                4                75  P.3d   1051.  



                5               Id.  at   1054.  



                6               Id.  



                7               Id.  at   1054-55.  



                8               Id.  at   1056.  



                                                                                                    -2244--                                                                                           7219
  

                                                                                                    - 


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

                                                                            Because Price did not have notice that an RS 2477                                                                                                                                   

                                                  right-of-way   was   at   issue,   his   due   process  rights   were  

                                                  violated. Here, Price did not have an opportunity to be heard                                                                                                                                                

                                                   on the RS 2477 matter; in fact, he reasonably believed that                                                                                                                                                       

                                                  RS 2477 was not at issue. Accordingly, we hold that the trial                                                                                                                                                      

                                                   court's failure to give Price notice and an opportunity to be                                                                                                                                                           

                                                  heard and to present evidence on the RS 2477 issue at trial                                                                                                                                             

                                                  violated his due process rights, and we therefore reverse the                                                                                                                                                         

                                                   superior   court's   finding   of   an   RS   2477   right-of-way   on  

                                                                                                          

                                                                                                  [9]  

                                                  Price's land.                                             



                                                  Like the superior court in Price, here the court bases its conclusion on a  

                                                                                                                                                                                                                                                                                                                                 

doctrine that the parties did not raise before the superior court.10                                                                                                                                                                                   The parties here "did  

                                                                                                                                                                                                                                                                                                                      

not have an opportunity to be heard on the [partial extinguishment] matter."11   And like  

                                                                                                                                                                                                                                                                                                                        



Price, Godspeed "reasonably believed" that partial extinguishment "was not at issue"  

                                                                                                                                                                                                                                                                                                              

                 12 because no caseinAlaskahas previously adopted or even considered that doctrine,  

here                                                                                                                                                                                                                                                                                                 



nor did the superior court address the issue in its decision.  

                                                                                                                                                                                         



                         9                        Id.  



                          10                      Although the issue of partial extinguishment is obviously related to the                                                                                                                                                                                                



broader question of extinguishment by prescription, I believe it is properly considered                                                                                                                                                                                                      

a separate issue here.                                                             Its status as a distinct question is particularly relevant in light of                                                                                                                                                                     

the fact that no case in Alaska had previously addressed the question whether the partial                                                                                                                                                                                                                     

extinguishment doctrine is even recognized in this state.                                                                                                                                                              

                                                   In  Price,thequestion                                                          ofan               easementby                                     prescriptionandan                                                       easement under   

RS 2477 were closely related in that they both required the claimants to show some of                                                                                                                                                                                                                                         

the same factual elements.                                                                           Id.  at 1056-57.                                            But we concluded that it was a violation of                                                                                                                  

due process to issue a decision on one type of easement when the parties had no notice                                                                                                                                                                                                                         

of that issue.                                     Id. at 1056.  Under this precedent, it is evident that giving the parties an   

opportunity to brief and present evidence about a related issue is not sufficient to satisfy                                                                                                                                                                                                                  

the principles of procedural fairness in these circumstances.                                                                                                                                                                      



                          11                      See id. at 1056.  

                                                                                       



                          12                      See id.  

                                                                 



                                                                                                                                                            --2255--                                                                                                                                                7219
  


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

                             As we have explained, "[b]ecause basic fairness requires an opportunity to                                                                                    



present relevant evidence, applying an unanticipated body of law could be an abuse of                                                                                                      



                                                                                                                                                                                            13  

discretion if doing so were to make different outcome-determinative facts relevant."                                                                                                             



                                                                                                                                                                     

We have in many contexts remanded cases to the superior court when a novel legal  



                                                                                                                                                                        

theory was presented in a manner that prevented one or both parties from presenting  



                                                                                                                                                                                         

evidence related to that theory.  For example, in a different type of easement case, we  



                                                                                                                                                                                   

remanded the question whether the dedication of an easement had been accepted when  



                                                                                                                                                                             

"neither party expressly presented the theory of common law dedication to the superior  

               14    And in a case where the superior court allowed amendment of the pleadings  

court."                                                                                                                                                                   



after trial to include a breach of contract claim, we vacated and remanded the decision  

                                                                                                                                             



to allow presentation of evidence related to damages for breach of contract because one  

                                                                                                                                                                                        



party  had  not  had  the  opportunity  to  present  evidence  to  support  its  position  on  

                                                                                                                                                                                         

damages.15  



                             Here, neither the parties nor the superior court raised the issue of partial  

                                                                                                                                                                                 



extinguishment, and the superior court made no factual findings relating to a partial  

                                                                                                                                                                                 



extinguishment theory.  The parties accordingly focused their arguments on the simpler  

                                                                                                                                                                               



question whether the entire easement was extinguished; they might have emphasized  

                                                                                                                                                                     



different facts or legal arguments had they known that they would need to address the  

                                                                                                                                                                                         



               13            Frost v. Spencer                     , 218 P.3d 678, 682 (Alaska 2009);                                              see also Bruce L. v.                     



 W.E., 247 P.3d 966, 977 (Alaska 2011) (applying the reasoning of                                                                                     Frost  to reverse a                   

superior court decision that had relied on an issue not raised by the parties).                                                                       



               14            McCarrey v. Kaylor, 301 P.3d 559, 568 (Alaska 2013).  

                                                                                                                                          



               15            Alderman v. Iditarod Props., Inc. , 32 P.3d 373, 395-97 (Alaska 2001). See  

                                                                                                                                                                                        

also  Estate  of  Kim  ex  rel.  Alexander  v.  Coxe,  295  P.3d  380,  396  (Alaska  2013)  

                                                                                                                                                                                 

(remanding for further proceedings when trial court's decision relied on new argument  

                                                                                                                                                                          

made  at  oral  argument  on  summary  judgment  without  the  other  party  having  an  

                                                                                                                                                                                         

opportunity to respond).  

                                  



                                                                                           --2266--                                                                                 7219
  


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

                                                                                                                                                                                                                 16  

question whether separate parts of the easement had been                                                                                                                 extinguished.                                  For example,   



the parties presented some evidence about rock piles and other equipment or structures                                                                                                                                             



incidental to the gold plant that interfered with use of the easement.                                                                                                                                  The superior court                       



did not make detailed findings about those other obstructions, considering them part of                                                                                                                                                                   



the plant's operation, which it determined sufficiently interfered with the                                                                                                                                       prospective use   



of   the   easement   as   a   public   means   of   ingress   and   egress   to   extinguish   the   entire  

                              17           As  we  have  concluded  in  analogous  situations,  adopting  a  partial  

easement.                                                                                                                                                                                                                                  



extinguishment theory here means the court is "applying an unanticipated body of law"  

                                                                                                                                                                                                                                                  

that might "make different outcome-determinative facts relevant."18                                                                                                                                            The fact that the  

                                                                                                                                                                                                                                                      



parties did not have an opportunity to address this issue or present facts relevant to this  

                                                                                                                                                                                                                                                     



theory before the superior court, therefore, creates a procedural fairness problem.  

                                                                                                                                                                                                                                                   



                                        Because the court has concluded that the partial extinguishment doctrine  

                                                                                                                                                                                                                                       



applies to this case, I believe it is most appropriate to remand this fact-specific inquiry  

                                                                                                                                                                                                                                          



to the superior court for an opportunity for presentation of additional evidence on this  

                                                                                                                                                                                                                                                     



theory and for the superior court's determination whether the easement was partially or  

                                                                                                                                                                                                                                                         



fully extinguished. This is the approach we have followed in other cases involving fact- 

                                                                                                                                                                                                                                                  



                    16                  Cf. Frost                 , 218 P.3d at 682 (considering whether the court's application of                                                                                                                       



a different body of law "would, if announced at the outset of the trial, have reasonably                                                                                                                                       

led [the parties] to present different evidence or to place more emphasis on some of the                                                                                                                                                               

evidence that [they] did present").                                     



                    17                 See  Hansen  v.  Davis,  220  P.3d  911,  915  (Alaska  2009)  (holding  that  

                                                                                                                                                                                                                                                   

easement may be extinguished when owner of servient estate "unreasonably interferes  

                                                                                                                                                                                                                                    

with the current or prospective use of the easement" (emphasis added)).  

                                                                                                                                                                                            



                    18                 Frost, 218 P.3d at 682.  

                                                                                               



                                                                                                                          --2277--                                                                                                               7219
  


----------------------- Page 28-----------------------

                                                                                                                 19  

intensive easement issues,                                                                                              and I believe we should adhere to that established practice                                                                                                                                                              



here.    



II.	                         EVEN    UNDER    A    PARTIAL    EXTINGUISHMENT    THEORY,    THE  

                             SUPERIOR COURT DID NOT CLEARLY ERR.                                                                                                                                                                        



                                                         But even if it were appropriate to decide this case on the factual record                                                                                                                                                                                                                    



developed below - without providing an opportunity for the parties to present evidence                                                                                                                                                                                                                                                       



now that they know that the doctrine of partial extinguishment applies - I would affirm                                                                                                                                                                                                                                                                  



the superior court's decision.                                                                                                I agree with the court's conclusion that the portion of the                                                                                                                                                                             



easement under the gold plant was extinguished, but I disagree with its conclusion that                                                                                                                                                                                                                                                                            



the remainder of the easement was not also extinguished.                                                                                                                                                                                                           We held in                                              Hansen   that  



"permanent and expensive improvements that are difficult and damaging to remove will                                                                                                                                                                                                                                                                               



                                                                                                                                      20  

trigger the prescriptive period."                                                                                                                                                                                                                                                                                                                                 

                                                                                                                                                 Here, the superior court found that the gold plant was  



                                                                                                                                                                                                                                                                                                                                                            

a steel and concrete structure that cost nearly a million dollars to install, while other  



                                                                                                                                                                                                                                                                                                                                                                     

temporary improvements at times occupied and interfered with the remainder of the  



                                                                                                                                                                                                                                                                                                                                                          

easement.                                             The  superior  court  focused  its  analysis  on  the  way  these  and  other  



                             19                          We remanded for further fact-finding in                                                                                                                                    Price  after reviewing the superior                                                                         



court's conclusion                                                                  that a prescriptive easement had                                                                                                                    been   created   (a conclusion                                                                                              the  

superior court had reached independent of the RS 2477 easement question discussed                                                                                                                                                                                                                                                        

above).   See Price v. Eastham                                                                                                    , 75 P.3d 1051, 1059 (Alaska 2003).                                                                                                                              We noted that the                                                 

superior court had not "define[d] the extent of the prescriptive easement over Price's                                                                                                                                                                                                                                                              

land" and therefore we "remand[ed] for a determination of the scope of this easement"                                                                                                                                                                                                                                                 

rather than answering that question ourselves.                                                                                                                                                         Id.    

                                                         In  Hansen,similarly,after deciding                                                                                                                theissueofprescriptiveextinguishment                                                                  

we were left with the question whether the easement had been effectively transferred to                                                                                                                                                                                                                                                                                   

new owners.                                               220 P.3d at 918.                                                                We remanded this issue for further factual findings,                                                                                                                                              

explaining   that   "[q]uestions    concerning    a    property's    chain    of    title    are    often  

fact-intensive, and the trial court is in the best position to address questions of fact."                                                                                                                                                                                                                                                                           Id.   

Accordingly, we "decline[d] to decide this issue as a matter of law and remand[ed] for                                                                                                                                                                                                                                                                                

a hearing on the quiet title action."                                                                                                                  Id.  



                             20                          Hansen, 220 P.3d at 917.  

                                                                                                                                                                        



                                                                                                                                                                                 --2288--	                                                                                                                                                                     7219
  


----------------------- Page 29-----------------------

improvements interfered                   with   public access            to  the   easement.     An   easement can                   be  

extinguished by use that interferes with a prospective use of it,                                   21                      

                                                                                                        and Reeves currently  



                                                                                                                                  

intends to use the easement for a public road.  I would therefore conclude that the entire  



                                                                                                        

easement was extinguished, even if each part of the easement is considered separately  



                                                               

under a partial extinguishment theory.  



                                                                                                                             

                     The creation or extinguishment of an easement by prescription presents  

                                                   22  The relevant findings of fact are reviewed for clear  

                                                                                                                                   

questions of both law and fact: 



         23                                                                                                 24  

error,      and the application of law to these facts is reviewed de novo.                                      But we clarified  

                                                                                                                             



in Hansen that for the specific question of "[d]etermining what constitutes unreasonable  

                                                                                                                      



interference, and thus triggers the prescriptive period" for extinguishing an easement by  

                                                                                                                                       

prescription, the analysis "will be heavily fact dependent."25  

                                                                                                   



                     In Hansen we held that "[a]s a matter of law, the maintenance of a garden  

                                                                                                                                



on  the  easement  area  did  not  constitute  an  improvement  sufficiently  adverse  to  

                                                                                                                                      

                                                           26   Here,  the  court  relies  heavily  on  Hansen  to  

commence  the  prescriptive  period."                                                                                                  

                                              



conclude that "cars, equipment, and gravel piles are not significantly less moveable than  

                                                                                                                                    



a garden" and  that therefore those  impediments were insufficient to  extinguish  the  

                                                                                                                                     



           21        Id.  at 915.   



           22  

                                                                                                                                    

                     See Op. at 8 (citing HP Ltd. P'ship v. Kenai River Airpark, LLC, 270 P.3d  

                             

719, 726 (Alaska 2012)).  



           23        See  Op.  at  8  (citing  HP  Ltd.  P'ship,  270  P.3d  at  726).  



           24        See  Op.  at  8  (citing  HP  Ltd.  P'ship,  270  P.3d  at  726).  



           25        Hansen,  220  P.3d  at  917.  



           26        Id.  



                                                                  --2299--                                                        7219
  


----------------------- Page 30-----------------------

                                                       27  

easement   by   prescription.                                 But   in   Hansen   we   considered   only   the   garden   and  



vegetation; we did not consider the effect of the greenhouse occupying the other portion                                                                         



of the easement because the prescriptive period of ten years had not yet elapsed since the                                                                                

                                              28     And in  Hansen,  we never  held  that a permanent  building  

greenhouse was                     built.                                                                                             



constructed on part of an easement is insufficient to extinguish the entire easement.  If  

                                                                                                                                         



the easement is considered as a whole, then a gold plant occupying roughly half of the  

                                                                                                                                                                          



easement  would  easily  satisfy  the  Hansen  test  for  prescriptive  extinguishment:  

                                                                                                                                                                                 



"[P]ermanent and expensive improvements that are difficult and damaging to remove  

                                                                                                                                                                

will trigger the prescriptive period."29                                        A gold plant consisting of a steel and concrete  

                                                                                                                                                              

structure that cost almost a million dollars to install30  surely qualifies as a "permanent  

                                                                                                                                                       



and expensive improvement" under Hansen .  

                                                                                             



                           Applying this reasoning to the partial extinguishment theory, the superior  

                                                                                                                                                               



court was almost certainly correct to conclude that the portion of the easement under the  

                                                                                                                                                                          

                                                          31   The superior court was also correct to conclude that the  

gold plant was extinguished.                                                                                                                                              

                               



gold plant extinguished the entire easement when the plant is viewed in conjunction with  

                                                                                                                                                                       



themoretemporary improvements occupying muchoftheremainder oftheeasement and  

                                                                                                                                                                         



the  current  proposed  use  of  the  easement  as  a  public  road.                                                                Once  the  gold  plant  

                                                                                                                                                                    



permanently blocked half of the easement, the rock piles and equipment impeded a large  

                                                                                                                                                                     



              27           Op. at 17.     



              28           Hansen, 220 P.3d at 917-18.                



              29           Id.  at 917.   



              30           Op. at 5.     



              31           Op. at 16.     



                                                                                    --3300--                                                                         7219
  


----------------------- Page 31-----------------------

                                                                                                                                                                                                                                                32  

portion of the remaining passable land, thereby "unreasonably interfer[ing]"                                                                                                                                                                         with and   



extinguishing that portion of the easement.                                                                                              



                                          Even considering each portion of the easement entirely separately, the                                                                                                                                                       



superior court's findings were not clearly erroneous in concluding that the portion of the                                                                                                                                                                              



easement not covered by the gold plant was still extinguished under our                                                                                                                                                                 Hansen  test.   



Eagan testified that he may have been forced to drive outside the edges of the easement                                                                                                                                                             



at times, because parts of the easement were blocked.                                                                                                                      Thus, the superior court did not                              



clearly err in finding that Eagan could not always drive the entire length of the easement,                                                                                                                                                        



even if he was sometimes able to drive next to the plant.                                                                                                                       Nor did it clearly err in finding                                          



that the general public could not safely use the easement while the gold plant intruded   



into it.               Therefore, the superior court was correct to conclude that this portion of the                                                                                                                                                                  



easement   was   extinguished,   even   when   considered   separately   from   the   gold  plant  



portion.  



                                          Aneasementcanbeextinguished by prescription iftheservient owner's use                                                                                                                                                         



"unreasonably interferes with the current or prospective use of the easement by the                                                                                                                                                                                    

                                                         33  There is no indication that the superior court clearly erred in finding  

easement holder."                                                                                                                                                                                                                                          



that the gold plant's operation "unreasonably interfered with a prospective dedication of  

                                                                                                                                                                                                                                                                           



the easement to the public."  Indeed, the prospective use of the easement for a public  

                                                                                                                                                                                                                                                          



road was a factor the superior court considered at several points, noting that at the times  

                                                                                                                                                                                                                                                                



when a single vehicle could navigate the easement, it "would not be safe for the general  

                                                                                                                                                                                                                                                          



public" to do so.  The superior court also found that additional efforts were made to  

                                                                                                                                                                                                                                                                           



restrict access by the general public even if Eagan could drive around barriers to access  

                                                                                                                                                                                                                                                             



Alaska Gold's property.  

                                                                                



                     32                   See  Hansen,  220  P.3d  at  915.  



                     33                   Id.  at  916.  



                                                                                                                                  --3311--                                                                                                                        7219  


----------------------- Page 32-----------------------

                                        Moreover, the nature of the other impediments and blockages is sufficient                                                                                                                   



to establish that the non-gold-plant portion of the easement was extinguished. In setting                                                                                                                                                    



 out the standards for termination by prescription under Alaska law, we explained in                                                                                                                                                                     



Hansen  that the doctrine of extinguishment by prescription relies on the longstanding                                                                                                                                   



property law principle of encouraging property owners to protect their rights:                                                                                                                                                          "When  



 satisfied, the various requirements of adverse possession, and similarly prescription,                                                                                                      



 serve to 'put [the property owner] on notice of the hostile nature of the possession so that                                                                                                                                                        



                                                                                                                                                                                                                                                           34  

he [or she], the owner, may take steps to vindicate his [or her] rights by legal action.' "                                                                                                                                                                        



In light of this principle, we concluded that "[u]se of the easement that unreasonably  

                                                                                                                                                                                                                        



interferes with the 'easement owner's enjoyment of the easement' is adequate 'to give  

notice that the easement is under threat.' "35 Accordingly, we explained that "[w]here the  

                                                                                                                                                                                                                                                       



 easement holder has not used the easement for some time, or at all, the servient estate  

                                                                                                                                                                                                                                               



 owner enjoys wide latitude with respect to use of the easement area, and a showing of  

                                                                                                                                                                                                                              

                                                                                                                                                                                        36       The converse of this  

 extensive activity will be required to demonstrate adversity."                                                                                                                                                                                     

                                                                                                                                                        



 statement is that an easement may be extinguished if the easement holder knew of the  

                                                                                                                                                                                                                                                      



 other party's adverse use and did nothing to stop it.  

                                                                                                                                                           



                                        In  Hansen,  it  was  "undisputed  that  the  easement  was  unused  by  an  

                                                                                                                                                                                                                                                       

 easement holder from its creation until [the time of the lawsuit]."37                                                                                                                                  Thus, by Hansen 's  

                                                                                                                                                                                                                                    



 own standard, it would have required a demonstration of "extensive activity" to meet the  

                                                                                                                                                                                                                                                       



                    34                 Id.   (first   alteration   in   original)   (footnote   omitted)   (quoting   Peters   v.  



Juneau-Douglas Girl Scout Council                                                                            , 519 P.2d 826, 832 (Alaska 1974)).                                                 



                    35                 Id. (quoting 7 THOMPSON ON  REAL  PROPERTY    60.08(b)(7)(i) (David A.                                                                                                                                          

                                                                                  

Thomas ed., 2004)).                    



                    36                 Id. at 917.
  

                                                         



                    37                 Id.
  

                                                  



                                                                                                                          --3322--                                                                                                               7219
  


----------------------- Page 33-----------------------

unreasonable interference test in that case; we found that the claimants had failed to                                                                                                                                             



make this showing.                                     In the current case, by contrast, the parties agree that Eagan, the                                                                                                      



local representative of the easement holder, repeatedly used the easement during the                                                                                                                                           



period of the Ellingsons' adverse use.                                                                    Yet neither Eagan nor Alaska Gold took any                                                                          



action to halt the Ellingsons' use.                                                          As the superior court pointed out, "the parties were   



not protective of their property rights."                                                                  



                                    In fact, the use of the easement in this case was more extensive than in                                                                                                                       



Hansen :   In contrast to the garden beds in                                                                     Hansen, the easement here was occupied by                                                                        

                                                                                                                                                                                                                         38      So  

equipment and rock piles that sometimes blocked large portions of the                                                                                                                         easement.                         



contrary  to  the  court's  conclusion,  the  fact  that  a  garden  failed  the  "unreasonable  

                                                                                                                                                                                                 



interference" test in Hansen does not mean that similar (and even more extensive) use  

                                                                                                                                                                                  



of the easement would fail the test in the current case, where the easement holder knew  

                                                                                                                                                                                                                          



of the interference and did nothing to protect its rights.   Accordingly, the extensive  

                                                                                                                                                                                                              



interference  caused  by  the  rock  piles  and  heavy  equipment  here  satisfies  the  

                                                                                                                                                                                                                              



"unreasonable  interference"  test  -  even  when  considered  independently  from  the  

                                                                                                                                                                                                                               



portion of the easement occupied by the gold plant.  I would therefore hold that the  

                                                                                                                                                                                                                               



 superior court did not clearly err in concluding that the entire easement was extinguished  

                                                                                                                                                                                                       



by prescription.  

                                             



                                    For these reasons, I respectfully dissent fromthe court's decision to reverse  

                                                                                                                                                                                                                     



a portion of the superior court's decision.  I believe that the proper course of action in  

                                                                                                                                                                                      



this case is to remand to the superior court to allow the parties to supplement their  

                                                                                                                                                                                                                           



evidentiary presentations now that they know that the doctrine of partial extinguishment  

                                                                                                                                                                                               



is the law in Alaska. Here, the newly adopted legal doctrine, "if announced at the outset  

                                                                                                                                                                                                                        



                  38                Unlike   the   garden   in   Hansen,  some   rock   piles   here   were   not   easily  



removed:   "[P]retty good size equipment" would have been needed to move them; they                                                                                                                                          

could not be moved "by hand."                                      



                                                                                                               --3333--                                                                                                    7219
  


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of the trial, [would] have reasonably led [the parties] to present different evidence or to                                                                                                                                                



                                                                                                                                                                                                39  

place more emphasis on some of the evidence that [they] did present."                                                                                                                                                                   

                                                                                                                                                                                                        But even if we  



                                                                                                                                                                                                                             

are to decide the case on the current record, I would affirm the superior court's factual  



                                                                                                                                                                                                                                     

finding that the majority of the easement was blocked and that the entire easement was  



                                       

extinguished.  



                   39                Frost  v.  Spencer,  218  P.3d  678,  682  (Alaska  2000).  



                                                                                                                      --3344--                                                                                                               7219  


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Appendix   1                                                     7219  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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