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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ray M. Collins and Carol J. Collins v. David W. Hall and Margaret R. Hall, as Trustees of the D&M Hall Community Property Trust, dated March 14, 2005 (9/27/2019) sp-7410
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are r equested to bring errors to the attention of the Clerk of the Appellate C ourts,
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
RAY M. COLLINS and CAROL J. )
COLLINS, ) Supreme Court No. S-16795
)
Appellants, ) Superior Court No. 1JU-14-00771 CI
)
v. ) O P I N I O N
)
DAVID W. HALL and MARGARET R. ) No. 7410 - September 27, 2019
HALL, as Trustees of the D&M Hall )
Community Property Trust, dated )
March 14, 2005, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Joseph W. Geldhof, Law Office of Joseph W.
Geldhof, Juneau, for Appellants. Lael A. Harrison, Faulkner
Banfield, P.C., Juneau, for Appellees.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
CARNEY, Justice.
I. INTRODUCTION
This case concerns a boundary dispute between the Collinses and the Halls,
who are adjoining property owners in a recreational subdivision on an island near
Juneau. The Collinses alleged that structures on the Halls' property encroached onto the
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Collinses' property and violated the subdivision's restrictive covenants. They brought
claims for quiet title and trespass based on boundaries recorded in a 2014 survey of their
lot. This survey was prepared by the same surveyor who had initially platted the
subdivision in the mid-1970s; the 1970s survey in turn referred to a survey monument
established in 1927.
The Halls responded that the Collinses' surveyor had used the wrong point
of beginning for his subdivision survey; that a surveyor they had hired in 2012 found the
true point of beginning based on the 1927 survey; that the correct property boundary lay
some distance from where the Collinses claimed; and that the supposedly encroaching
structures were fully on the Halls' land. The Halls argued that their proposed boundary
line conformed accurately to the recorded documents and deeds while the Collinses' did
not. The superior court found that the boundary advocated by the Halls was correct and
issued a judgment quieting title based on their 2012 survey, though it acknowledged that
its decision could cloud title for other property owners on the island. The court also
found that the restrictive covenants at issue had been abandoned and concluded they
could not be enforced against the Halls.
We conclude that the superior court's findings as to the boundary location
and restrictive covenants were not clearly erroneous, and we therefore affirm the court's
decision on those issues. But because the superior court's findings and conclusions did
not address one of the Collinses' trespass claims, we remand for consideration of that
issue.
II. FACTS AND PROCEEDINGS
A. Facts
Carol and Ray Collins own property designated as Lot 14, Area 1, in the
Colt Island Recreational Development subdivision on Colt Island, near Juneau. David
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and Margaret Hall, as trustees of the D&M Hall Community Property Trust, own
adjoining land designated as Lot 15, Area 1, in the same subdivision.
The Collinses acquired title to their property by deed in 1990 and co-owned
it with another family until 2013, when the co-owners deeded their interest to the
1 Their 2013 deed, which they recorded, identifies their property as: "Lot 14,
Collinses.
Area 1, Colt Island Alaska Recreational Development, according to Plat No. 75-11, U.S.
Survey No. 1755, Juneau Recording District, First Judicial District, State of Alaska."
The Halls acquired title to their lot by deed in 1994 and recorded their deed
shortly afterward. In 2005 they transferred the property to a community property trust
and again recorded the deed. Their deed, like the Collinses', identifies their property as:
"Lot Fifteen (15), Area One (1), Colt Island Recreational Development according to Plat
75-11, U.S. Survey 1755, Juneau Recording District, First Judicial District, State of
Alaska."
The Collinses and Halls each have a cabin on their lot. The Halls' property
also has a separate "shop" building, which they built, and an outhouse built by Lot 15's
previous owner. The parties dispute the location of the boundary line between their
properties and whether the shop and outhouse encroach onto the Collinses' property.
Both lots are also close to a right of way known as Totem Pole Trail, though the exact
location of the lot boundaries relative to the trail is disputed.
Each party's deed states that the party's lot is subject to any recorded
easements and restrictive covenants. These include a June 1976 declaration of protective
covenants for the entire subdivision. At issue are Covenant 5 of the declaration, which
requires a 20-foot setback from any lot line for "[a]ll cabins, buildings, and storage
1
They apparently shared the lot with another family until that family deeded
their interest in the property to the Collinses in 2013.
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facilities of any type," and Covenant 9, which requires all toilet facilities to have a "self-
contained chemical holding tank" and to comply with state and federal waste disposal
regulations.
Because much of this case centers on the various surveys done on Colt
Island and on the discrepancies among them that gave rise to the boundary dispute, a
summary of relevant surveys, along with the monuments and markers associated with
them and the boundaries they purport to establish, is useful.
1. U.S. Survey 1755
Colt Island was first surveyed in 1927 by Fred Dahlquist, a surveyor for the
then-existing General Land Office, when the federal government conveyed the entire
island to a private owner as a homestead. Dahlquist's survey, titled U.S. Survey 1755,
used an existing survey marker on nearby Admiralty Island, USLM 1285, as a reference
2
point.
His field notes provide a bearing and distance from USLM 1285 to his beginning
3
point on the northwest corner of Colt Island, which he designated as "Cor. No. 1. M.C."
The superior court referred to this point as "Meander Corner 1." Because Meander
Corner 1 was an "unsafe place" to set a monument - vulnerable to erosion or
submersion - Dahlquist established a "witness corner" on a rock a short distance from
2 Surveyor John W. Bean, who later surveyed Colt Island and platted the
subdivision, testified that USLM stands for "United States location monument" or
"United States land monument" and refers to a permanent monument, usually marked
by a heavy brass or aluminum cap, established in a public land survey as a reference for
subsequent surveys of the surrounding area.
3 According to Bean, "M.C." stands for "meander corner," or a corner where
meander lines meet. A meander line on a survey marks the mean high tide line of a
shoreline or water body boundary; because tides vary, a meander line may not reflect the
actual high tide line at a later date, but it may still be used to determine property
boundaries and areas for legal purposes.
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Meander Corner 1. 4 According to his field notes, he marked the rock with a cross and
the letters "WC MC1 S1755," to stand for "Witness Corner to Meander Corner 1" of
U.S. Survey 1755. He also established witness corners on two spruce trees nearby, but
these had apparently been cleared by the time later surveys were done. U.S. Survey 1755
shows meander lines for the entire perimeter of Colt Island but does not subdivide the
island's interior. Based on the survey field notes, the distance between WCMC1 and
5
USLM 1285 is 3,814.61 feet, and the bearing is N31º24'42"E.
2. Plat 75-11
In the mid-1970s, the owners of Colt Island partnered with a developer to
subdivide the island for recreational use and sale. The developer hired surveyor John W.
Bean to perform a survey and create a subdivision plat, intending to create 100-by-150-
foot beachfront lots to sell as cabin lots.
Bean began his surveying work in 1974. Because Dahlquist had not
monumented Meander Corner 1, Bean instead attempted to find Dahlquist's witness
corner, WCMC1. He later testified that he could not find a rock carved with the labels
listed in Dahlquist's field notes, but he did eventually find a rock that appeared to be
marked with a "fine X," which he "accepted to use" as the survey's point of beginning,
believing it to be WCMC1. Starting from this point, Bean set up a number of "control
points," or reference markers - generally rebar stakes that he would label or cover with
4 Bean testified that if a monument cannot be set at the referenced point or
is set at an unstable location, a witness corner is a point that refers by bearing and
distance to the point where another monument is or should be.
5 The bearing indicates that, from USLM 1285, the direction of WCMC1 is
31º24'42" east of north. The field notes do not give this distance or bearing; however,
they provide the distance and bearing from USLM 1285 to Meander Corner 1 and from
Meander Corner 1 to WCMC1. The distance and bearing between USLM 1285 and
WCMC1 can therefore be mathematically calculated.
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a plastic or aluminum cap - for the planned subdivision. These control points were
placed merely to assist Bean with completing his survey; he did not intend them to be
survey monuments that future surveyors could use as references, and he later testified
that monuments, unlike temporary control points, should be identifiable by name or
description and durable enough to last a number of years. As part of this initial work,
Bean and the developer also had loggers clear Totem Pole Trail, which was planned as
a 20-foot-wide right of way along the western side of the island; the developer had an
extra five feet cleared on either side of the trail.
In 1975 Bean recorded a plat of the subdivision, Plat 75-11. Plat 75-11 was
6
a "paper plat," meaning that it did not record any field work or new monumentation.
Instead it referred to U.S. Survey 1755 and its associated monuments.
3. Informal survey by David Hall in 1999
David Hall performed an "informal survey" of his own lot in August 1999
to try to determine his property lines in preparation for expanding his cabin. He testified
that when he bought the property, "[n]obody really knew exactly where the property
lines were," but "it didn't seem to be a problem" because "everybody was friends." He
started his survey from a stake at what he believed was a corner of Lot 18, three lots
away from his property; he apparently assumed this stake was from the "original
survey." Measuring 300 feet from the stake on Lot 18, he found a partially rotted stake
6 Thesurveyors who testified at trial agreed that at the time, state lawallowed
Colt Island, as part of an unorganized borough, to be subdivided for sale and
development based on a paper plat that was not field-surveyed or recorded. This
remained true until 1998 when the Alaska legislature passed AS 40.15, requiring
subdivision plats in unorganized boroughs to be approved by the Department of Natural
Resources and imposing monumentation requirements for those subdivisions. Ch. 40,
§ 10, SLA 1998; see AS 40.15.305 (requiring approval of plats); AS 40.15.320
(requiring monumentation).
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at what he believed was the northeastern corner of his lot, Lot 15. He assumed this too
"was from the original survey" and replaced it with a piece of rebar. He then placed
additional stakes where he believed the boundary between Lot 15 and Lot 14 lay. The
drawing he created afterward indicates that, according to the boundaries he marked, a
generator shed on the Collinses' property - which at the time they co-owned with
another family - encroached a few feet onto the Halls' property. This shed was later
removed. The Halls' shop and outhouse lay fully within Lot 15 according to the
boundaries Hall determined. When doing his survey, Hall apparently looked for but
could not find WCMC1.
4. Survey work by Bean in 2009
Bean, the surveyor who created Plat 75-11, performed additional surveys
of various lots in the subdivision between the 1970s and the 2000s. Notably, in 2009 he
was asked to survey multiple lots, including the Collinses'. In the course of that survey
he placed markers on what he believed to be the corners of Lot 14, the Collinses'
property. He determined the corner locations based on corners he had previously placed
on a neighboring lot, which in turn were based on the control points he had set in the
1970s. The boundaries Bean marked in 2009 were different from those Hall had found
in 1999 by roughly ten feet. Bean did not attempt to locate Meander Corner 1 or
WCMC1 and did not record any surveys of Colt Island at the time.
5. Plat 2012-32
In 2012, a few months after the co-owner of the Collinses' lot died, the
Collinses apparently notified the Halls that the Halls' shop and outhouse were
encroaching over the boundary Bean had marked and threatened to sue. In response the
Halls hired R&M Engineering, Inc., to perform and record an "as-built survey" of their
lot showing "all of [the Halls'] buildings in relationship to the property lines." Hall
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believed that R&M's survey would "supersede[] what [he] did" in 1999, as Hall was not
a licensed surveyor and had not recorded any of his work.
Surveyor Mark Johnson, who led the R&M survey crew but did not
personally visit Colt Island, reviewed Dahlquist's U.S. Survey 1755 and his field notes,
as well as Plat 75-11, prior to beginning his survey. He instructed his survey crew to
follow U.S. Survey 1755 as closely as possible, including searching for the monuments
to which Dahlquist's field notes referred. According to Johnson, his crew began by
measuring the bearing and distance given in Dahlquist's field notes from USLM 1285
to Meander Corner 1. Johnson indicated that his crew "had no problem finding" a rock
engraved with a cross and the letters "WCMC1 S1755," which they took to be WCMC1.
They determined this monument to be 3,813.49 feet from USLM 1285, at a bearing of
N31º24'42"E. This bearing matched the bearing calculated according to Dahlquist's
field notes; the distance is roughly one foot off. Starting from this point, R&M's crew
located the Halls' lot based on information in Plat 75-11. Johnson stated that Plat 75-11
on its own was not sufficient to locate any specific subdivision lot because it did not
record any monuments being set; it had to be used in conjunction with U.S. Survey 1755.
Based on this survey, R&M filed a record of survey, Plat 2012-32. The
boundaries of Lot 15 on Plat 2012-32 are roughly 20 feet west and 16 feet south of where
Bean's 2009 survey placed them. Based on the Plat 2012-32 boundaries, both the
outhouse and shop are fully within the Halls' lot and sit at least 15 feet from the
boundary with the Collinses' lot.
6. Plats 2014-46 and 2015-37
In July 2014 the Collinses filed suit against the Halls. Shortly afterward,
they requested another survey from Bean. He filed a record of survey, Plat 2014-46,
confirming the boundaries he had set in 2009. Bean did not go back to look for Meander
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Corner 1 or WCMC1 while creating Plat 2014-46, though he did compute a location for
WCMC1 and mark it on the record of survey.
The following year Bean amended Plat 2014-46 and recorded the
amendment as Plat 2015-37. For the amended survey, Bean's point of beginning was
a monument he placed at a location he believed to be Meander Corner 1. He based this
determination on his continued assumption that the rock with the faint "X" he had
located in the 1970s was WCMC1. The amended plat showed a slightly different bearing
for Meander Corner 1 than Plat 2014-46 and included an icon marking Bean's assumed
WCMC1, but did not change the boundary between Lot 14 and Lot 15 as determined by
Plat 2014-46. The Collinses assert that this is the correct boundary. According to
Plat 2015-37, Meander Corner 1 is 3,841.62 feet from USLM 1285 at a bearing of
7 This bearing closely coincides with that given in the field notes to U.S.
S31º13'04"W.
Survey 1755, S31º13'W, but the distance is about 22 feet longer. There are also
discrepancies between Plat 2015-37 and Plat 75-11 in the bearings and distances of the
meander lines between Meander Corner 1 and Lot 14.
B. Proceedings
1. Pretrial proceedings
The Collinses filed their complaint for quiet title and trespass against the
Halls in superior court in July 2014. They also sought declaratory judgments to: (1)
confirm the boundary lines they claimed Bean had monumented in 2009 and (2) find the
Halls in violation of the restrictive covenants imposing setback restrictions and sewage
disposal requirements. They alleged that the Halls' shop and outhouse encroached onto
7 Plat 2012-32 and Plat 2015-37 use slightly different conventions for giving
bearings. Plat 2012-32 records the bearing looking northeast from USLM 1285 to
WCMC1, while Plat 2015-37 records the bearing looking southwest from its purported
Meander Corner 1 to USLM 1285.
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Lot 14 and that the outhouse dumped sewage "directly into a hole in the ground" instead
of into a holding tank as required by the covenants. They based their trespass claim both
on the Halls' outbuildings and on an allegation that the Halls had personally trespassed
onto the Collinses' land.
TheHalls filedan answer thefollowing month,denying that their structures
encroached on the Collinses' land, alleging that Bean had never surveyed or
monumented the property boundaries, and raising a number of affirmative defenses. The
Halls counterclaimed alternatively that Plat 2012-32 established the correct boundaries
and that they were entitled to possession of the disputed land by adverse possession.
Finally, they sought declaratory judgments that they had not violated the restrictive
covenants governing set-backs and sewage disposal based on "inconsistent compliance"
by other lot owners in the subdivision. The Collinses answered the Halls' counterclaims
in September 2014, raising various affirmative defenses.
2. Independent review of surveys
In late 2015, in the course of settlement negotiations, the parties arranged
to have another surveyor, John Bennett, independently review the relevant documents
and provide a written opinion on the boundary location. Bennett worked for R&M
Consultants, an Anchorage-based company that is separate and independent from R&M
Engineering, which produced Plat 2012-36. Despite later disputes about the scope of
Bennett's work and whether either party could call him as an expert at trial, he was
eventually permitted to testify.
Bennett submitted his report in December 2015. He opined that because
Plat 75-11 did not reflect a monumented field survey but rather adopted the bearings and
distances of U.S. Survey 1755, the boundaries of Lots 14 and 15 depended on U.S.
Survey 1755. He concluded that Plat 2012-32, which surveyor Johnson had created at
the Halls' request, "most accurately represents the record location of the boundaries for
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Lot 15, Area 1 according to the Colt Island subdivision (Plat 75-11)." He determined
that the monuments Bean set in 2009 did not meet the requirements for original
subdivision monuments and thus could not control. He also concluded that the
8 adverse
boundaries in Plat 2014-46 had not been established by acquiescence,
possession,9 or estoppel.10
3. Bench trial
A bench trial was held over four daysin lateNovember and early December
8 See Lee v. Konrad , 337 P.3d 510, 520 (Alaska 2014) ("[A] boundary line
is established by acquiescence where adjoining landowners (1) whose property is
separated by some reasonably marked boundary line (2) mutually recognize and accept
that boundary line (3) for seven years or more."). Bennett concluded that this doctrine
did not apply because there was no mutual acceptance of the boundary line Bean set in
2009 and in any case the required time period had not run.
9 AS 09.45.052(a) provides:
The uninterrupted adverse notorious possession of real
property under color and claim of title for seven years or
more, or the uninterrupted adverse notorious possession of
real property for 10 years or more because of a good faith but
mistaken belief that the real property lies within the
boundaries of adjacent real property owned by the adverse
claimant, is conclusively presumed to give title to the
property except as against the state or the United States.
Bennett determined that adverse possession did not apply because Bean's boundary had
only been marked since 2009, less than seven years.
10 See Beecher v. City of Cordova, 408 P.3d 1208, 1214 (Alaska 2018)
("Equitable estoppel requires proof of three basic elements: (1) 'assertion of a position
by conduct or word,' (2) 'reasonable reliance thereon,' and (3) 'resulting prejudice.' "
(quoting Jamison v. Consol. Utils., Inc., 576 P.2d 97, 102 (Alaska 1978))). Bennett
concluded that estoppel could not apply because the Halls had never asserted that the
Bean monuments reflected the correct boundary, and so the Collinses could not have
been prejudiced by reliance on such an assertion.
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2016. Much of the testimony at trial centered on the various surveyors' attempts to
locate the monument that Dahlquist had designated as WCMC1 in 1927. The court heard
testimony from Bean and Johnson, as well as from Randal Davis, another surveyor who
had been hired in August 2008 to survey a lot near the Collinses' and Halls' lots.
Various other property owners on Colt Island also testified, stating that if
the court determined the lot boundaries according to R&M's Plat 2012-32, it might cloud
their title and require them to move their buildings, accesses, and trails. They testified
that they had never seen the inscribed rock that Johnson used as WCMC1 until a few
years prior to trial, apparently suggesting that the monument had been planted or carved
more recently than 1927. The court also heard testimony from the Halls' predecessor in
title, George Fisher, who stated that he was unsure of the exact boundaries of Lot 15
when he bought it and built his cabin.
In December 2016 the court issued a decision on the record in favor of the
Halls, followed by written findings and conclusions in July 2017. The court found that
Bean's surveys contained "significant discrepancies" and that he had identified the
wrong point of beginning as WCMC1 in the 1970s. After finding that R&M's Plat 2012-
32 used the correct point of beginning - "a monument engraved with a cross and the
letters 'WCMC1 S1755' - the court found that Plat 2012-32 "accurately depicts the
boundary between Lots 15 and 14."
Thecourt also concluded that theCollinseshadnot establishedany grounds
for adopting their Plat 2014-46 in contradiction of the written descriptions on Plat 75-11
and U.S. Survey 1755. Applying a clear and convincing evidence standard, the court
concluded that no boundary had been established by acquiescence, and that "[no] other
equitable doctrine . . . would warrant altering the property boundaries." Finally, the
court found that the restrictive covenants governing setbacks and sewage disposal had
effectively been abandoned, as other property owners had maintained outhouses and
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built structures less than 20 feet from their lot boundaries. The court concluded that it
would therefore be inequitable to enforce the covenants against the Halls.
In July 2017 the court issued a final judgment quieting title in the Halls'
favor according to the boundaries in their Plat 2012-32. The Collinses moved for
reconsideration, arguing that the court had ignored a legal doctrine from an 1878
Michigan case stating that survey monuments that had been set and relied upon should
11 They argued that under this
govern, even if the original survey was erroneous.
doctrine, Bean's use of the rock with the faint "X," when he was creating Plat 75-11 in
the 1970s, should control the location of the subdivision lots. The court denied
reconsideration shortly afterward, stating that the theory the Collinses relied on was in
fact a version of the doctrine of boundary by acquiescence, which the court had already
concluded did not apply.
The Collinses appeal.
III. STANDARD OF REVIEW
"[W]e review legal questions de novo" and adopt "the rule of law that is
most persuasive in light of precedent, reason, and policy."12 "Whether a deed or plat is
11 Diehl v. Zanger , 39 Mich. 601, 605 (1878) (Cooley, J., concurring) ("The
question is not how an entirely accurate survey would locate these lots, but how the
original stakes located them."). Justice Cooley's concurring opinion stated that a
subsequent surveyor's task was therefore to attempt to find the original monuments, and
if they were "no longer discoverable," attempt to derive their original location from "the
practical location of the [boundary] lines," for instance by considering fences or visible
markers. Id.
12 Estate of Smith v. Spinelli, 216 P.3d 524, 528 (Alaska 2009) (quoting
Pastos v. State, 194 P.3d 387, 391 (Alaska 2008)).
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13
ambiguous is a question of law" reviewed de novo. We review factual findings for
clear error, reversing the trial court's findings "only when, 'after a review of the entire
14
record, we are left with a definite and firm conviction that a mistake has been made.' "
"[T]he determination of a disputed boundary often presents a compound issue involving
15 While the "relative weight of different types of
questions both of law and fact."
evidence of disputed boundaries ordinarily presents a question of law, . . . the credibility
of witnesses, including the weight given the opinions of surveyors, the location or
existence of physical markers, and the timing of events, are questions of fact."16 We
accord the superior court's factual findings "particular deference . . . when they are based
primarily on oral testimony, because the trial court, not this court, performs the function
of judging the credibility of witnesses and weighing conflicting evidence."17 "Whether
there are sufficient findings for informed appellate review is a question of law."18
IV. DISCUSSION
A. The Superior Court Did Not Err By Concluding That The Boundaries
Recorded In Plat 2012-32 Were Correct.
The Collinses argue that this case turns on "the choice the trial court made
about which surveyor's work product" deserved priority in setting boundary lines: the
13 Reeves v. Godspeed Props., LLC, 426 P.3d 845, 849 (Alaska 2018).
14 Lee v. Konrad, 337 P.3d 510, 517 (Alaska 2014) (quoting Peterson v. Ek,
93 P.3d 458, 463 (Alaska 2004)).
15 Id.
16 Id.
17 Safar v. Wells Fargo Bank, N.A., 254 P.3d 1112, 1117 (Alaska 2011)
(quoting Wee v. Eggener, 225 P.3d 1120, 1124 (Alaska 2010)).
18 State v. Schmidt, 323 P.3d 647, 655 (Alaska 2014) (quoting Hooper v.
Hooper, 188 P.3d 681, 692 (Alaska 2008)).
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"original 1975 subdivision plat" Bean created or Plat 2012-32, which the Collinses claim
"shift[s] the entire subdivision boundaries." They argue that in adopting Plat 2012-32
- and its point of beginning, the rock inscribed with "WCMC1 S1755" - the superior
court effectively selected "a new survey point of beginning over three decades after the
boundaries on Colt Island were established." They contend that the property deeds
should control; the deeds' references to Plat 75-11, they argue, require the court to adopt
the actual point of beginning Bean used when creating Plat 75-11. They also argue that
the court should follow "long-established surveying principles" giving priority to
boundaries set by the original surveyor; they contend that Bean "is the original surveyor
of the Colt Island subdivision" because he prepared Plat 75-11. They point to the "actual
creation and use of access trails . . . [and] construction of cabins on the lots established
by Plat 75-11" as evidence of both their own and the Halls' reliance on Bean's
boundaries and imply that this would have put a subsequent surveyor on notice of the
point of beginning Bean used in the 1970s.
The Halls respond that the Collinses' claim rests not on the deeds but on
"an unrecorded error in the 1970s." They argue that the point of beginning for Plat 75-
11 is meant to be the witness corner Dahlquist monumented in 1927, as established by
"overwhelming" evidence at trial, including Bean's own testimony. They contend that
the superior court correctly determined this rock to be the rock inscribed with "WCMC1
S1755" used by Johnson's crew. They argue that Bean's use of the rock with the faint
"X" was an error that cannot be controlling on future surveyors because it was not
recorded; subsequent surveyors could not have known just based on Plat 75-11 that Bean
had used a different rock than Dahlquist. And they point out that the superior court
considered the location of Totem Pole Trail but did not find it sufficient to establish the
lot boundaries.
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1. The deeds unambiguously define the subdivision lots according
to U.S. Survey 1755.
To determine what land was conveyed to the Collinses and the Halls, we
must first look at the deeds. The intent of the parties is "[t]he touchstone of deed
19
interpretation" and will be given effect where possible. We apply a three-step analysis
20
to interpret deeds.
First, we "look at the four corners of the document to see if it
21
We "need go no further" if the deed
unambiguously presents the parties' intent."
22
" 'taken as a whole' is o pen to only one reasonable interpretation." However, if the
deed is ambiguous, the second step is to consider " 'the facts and circumstances
23
surrounding the conveyance' to discern the parties' intent." Finally, if we cannot
discern the parties' intent, we turn to rules of construction.24
The Collinses are correct that the deeds are unambiguous and should
control, but they are incorrect to conclude that the boundaries established in the deeds
are those Bean set and eventually recorded in Plat 2014-46; rather, the boundaries
depend on the monuments associated with U.S. Survey 1755. The Collinses' deed -
like the Halls' - expressly identifies their lot "according to Plat No. 75-11, U.S. Survey
No. 1755." And Plat 75-11, which established no permanent monuments of its own,
specifically refers to U.S. Survey 1755 for its point of beginning.
19 Estate of Smith v. Spinelli, 216 P.3d 524, 529 (Alaska 2009) (quoting
Norken Corp. v. McGahan, 823 P.2d 622, 625 (Alaska 1991)).
20 McCarrey v. Kaylor, 301 P.3d 559, 563 (Alaska 2013).
21 Id. (quoting Estate of Smith, 216 P.3d at 529).
22 Estate of Smith, 216 P.3d at 529 (quoting Norken Corp., 823 P.2d at 626).
23 McCarrey, 301 P.3d at 563 (quoting Estate of Smith, 216 P.3d at 529).
24 Id.
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The superior court did not explicitly conclude whether the deeds or the
recorded surveys to which they referred were ambiguous, but its analysis of the deeds
and surveys reflects an implicit conclusion that they were not:
Property lines are determined by the property descriptions
contained in the deeds, and the instruments referenced in the
deeds. In this case, those instruments are Plat 75-11 and U.S.
Survey 1755. Because Plat 75-11 does not establish any
monuments, the property lines created by Plat 75-11 flow
from WCMC1 established by U.S. Survey 1755.
In its factual findings the court elaborated:
The correct point of beginning for Plat 75-11 . . . is a
monument created by U.S. Survey 1755 called "Witness
Corner to Meander Corner 1" ("WCMC1"). Plat 75-11 is a
"paper plat" that establishes no monuments, but it is an
accurate representation of U.S. Survey 1755. Therefore,
monuments established by U.S. Survey 1755 are used to
locate lots created by Plat 75-11. U.S. Survey 1755
established only one monument, WCMC1. Therefore,
WCMC1 is the correct point of beginning for Plat 75-11.
Taken together, the superior court's findings and conclusions reflect a determination that
the deeds unambiguously describe the lots based on WCMC1, which in turn can be
unambiguously identified by bearing, distance, and description from U.S. Survey 1755.
We agree: the deeds are unambiguous. The court therefore did not err when it turned,
not to extrinsic evidence of the parties' intent, but to the factual question of which rock
was the witness corner identified in U.S. Survey 1755.
2. The superior court did not clearly err by finding that the rock
marked "WCMC1 S1755" was the witness corner identified in
U.S. Survey 1755.
The superior court concluded that "[t]he monument used by R&M
Engineering [to create Plat 2012-32] is the monument created by U.S. Survey 1755 and
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therefore the correct point of beginning for Plat 75-11." Although there was somewhat
conflicting evidence at trial, the court's finding is amply supported by the record.
First, Bean testified that when he surveyed Colt Island in the 1970s, he
could not locate a rock marked as Dahlquist had described, with the inscription
"WCMC1 S1755"; Bean eventually found a rock with a "fine X" that he concluded was
WCMC1, in part because it lay along the correct bearing from USLM 1285 as given in
U.S. Survey 1755. He extrapolated a location for Meander Corner 1 based on his
assumption that the rock with the faint "X" was WCMC1 and used that point to start his
survey. But while the bearing from USLM 1285 to Bean's Meander Corner 1 closely
matches the bearing recorded in U.S. Survey 1755, the distance between them does
not - it is about 22 feet longer than Dahlquist's field notes record. And Bean admitted
that while conducting an unrelated survey in 2002, he saw a rock with the letters
"WCMC1 S1755" vertically inscribed, located approximately 22 feet from the rock with
the faint "X," which he believed he had missed earlier because the inscription had not
been chalked.
The developer who hired Bean also testified that during their surveying
work in 1974, he found a piece of slate inscribed with a cross and the letters "U.S. 1755
WC." However, he described the letters as being written horizontally, not vertically.
The court believed it likely that the developer had "found the right rock but [wa]s
misremembering" the direction of the inscription.
Additionally, surveyor Davis testified that during his 2008 survey for the
owners of another nearby lot, he found a rock - likely the same one Bean had seen in
2002 - that he took to be WCMC1; it lay some distance from the rock with the faint
"X" and had "scribing perfectly and exactly matching [Dahlquist's] field notes." He
testified that he colored the inscription with a paint pen to make it more visible. The
exhibits include a photo of a rock marked as Davis described, with a cross and the letters
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"WCMC1 S1755" vertically inscribed. Davis measured the distance from this rock to
USLM 1285, and found it to be 1.12 feet off from the distance calculated according to
Dahlquist's field notes, a discrepancy he attributed to the fact that in 1927, Dahlquist
could not have physically measured the distance across water but would have had to
determine it mathematically, introducing some error. Davis testified that he did not
complete his survey because he found a number of temporary markers throughout the
subdivision that did not match the corners he had computed based on U.S. Survey 1755,
and he was reluctant to "convolute" the existing "confusion as to . . . where property
lines were."
Johnson testified that his crew "had no problem finding" the vertically
inscribed monument for WCMC1 when they performed their 2012 survey. They
recorded a distance of 3,813.49 feet between USLM 1285 and the rock they determined
to be WCMC1, which matches the distance Davis measured. Johnson maintained that
the R&M crew had computed the correct boundaries based on the monuments identified
in U.S. Survey 1755, even though R&M's boundaries were shifted north and east of
where Bean had located them. He acknowledged that accepting his crew's boundaries
for Lots 14 and 15 would imply different boundaries than Bean's for adjacent lots as
well. But he pointed out that Plat 75-11 contained at least one discrepancy aside from
the locations of Meander Corner 1 and WCMC1: the sum of the distances along the
meander lines on the western shore of the island - where the Halls' and Collinses' lots
are situated - differed from the sum of the lot lengths in that area by ten feet, though
they should have matched.
The superior court thoroughly evaluated all of this evidence, noting that the
distance and bearing fromUSLM1285 to therockJohnsonand Davis used corresponded
much more closely to those in Dahlquist's notes than the distance and bearing to Bean's
rock with the faint "X." The court explicitly considered - and rejected - the
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suggestion raised at trial that the rock used for Plat 2012-32 was not Dahlquist's
WCMC1, but had instead been inscribed much later. This suggestion was based on two
facts: (1) that a number of people had searched unsuccessfully for WCMC1 over the
years, and (2) that the engravings on the rock found by Johnson's crew were carved
vertically, not horizontally. The court found it unsurprising that people might fail to find
the inscription despite searching for it "given the growth of moss and the number of shale
rocks on Southeast Alaska beaches," especially before the inscription was marked with
chalk or paint. And the court reasoned that while it might seem odd for a surveyor to
carve the letters vertically rather than horizontally, "a forger would have no more reason
to make them vertical than the original surveyors did." Finally, the court found that the
discrepancies between Plat 75-11 and the plats Bean prepared in 2014 and 2015 made
his surveying work less credible overall. Based on these findings, the court determined
that the rock used for Plat 2012-32 was the WCMC1 in U.S. Survey 1755.
Given the superior court's thorough consideration of the evidence before
it and the deference we accord its credibility determinations on review, we conclude that
this finding was not clearly erroneous.
3. The superior court did not clearly err by finding that the
markers Bean placed in the 1970s were insufficient to control
future surveys.
The Collinses argue that even if the inscribed rock used for Plat 2012-32
is Dahlquist's WCMC1, Bean established sufficient markers and monuments when he
surveyed the subdivision in the 1970s that those boundaries should control. They further
argue that even if Bean's mid-1970s markers cannot be recovered, the location of cabins,
other structures on the island, and access trails such as Totem Pole Trail provide
evidence of the boundaries' location.
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The Collinses rely on Michigan Supreme Court Justice Thomas Cooley's
25
concurrence in the 1878 case Diehl v. Zanger .
That case dealt with a dispute between
parties who had treated a fence between their properties as the boundary until a later
survey demonstrated that the fence - and other fences and buildings in the subdivision
26 The majority opinion emphasized that the evidence before
-were incorrectly located.
the trial court established that "the physical evidences of recognized and long admitted
bounds . . . were visible and apparent to everybody," and concluded that the trial court
should have given weight to these long relied upon physical markers even though the
subsequent survey had shown them to be placed in error.27 In his concurrence, Justice
Cooley stated that the original survey should control even if it contained errors and
outlined a two-step process for determining an original survey's boundaries.28 Under
Cooley's framework, a subsequent surveyor should:
direct[] his attention to the ascertainment of the actual
location of the original landmarks . . . , and if those [are]
discovered they must govern. If they are no longer
discoverable, the question is where they were located; and
upon that question the best possible evidence is usually to be
found in the practical location of the lines, made at a time
when the original monuments were presumably in existence
and probably well known.[29]
The superior court, however, found that Bean had not set any monuments
or recorded any work that would govern future surveys. Bean's own testimony supports
25 39 Mich. 601, 603-06 (1878) (Cooley, J., concurring).
26 Id. at 602 (majority opinion).
27 Id. at 602-03.
28 Id. at 605 (Cooley, J., concurring).
29 Id.
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this finding. He acknowledged that he did not put in any monuments in 1974, "[j]ust
reference points and control points." He noted that control points were usually not
intended to be references for future surveyors but were merely there to aid him in
completing the survey. He specifically distinguished them from monuments, which he
said had to be identifiable "with a name or description" and durable enough to "last a
certain amount of time."
The court also found that lot boundaries were not apparent from fences or
other markers but had in fact been unclear for decades. Crucially, the Halls' predecessor
in title to Lot 15, George Fisher, testified that he did not know the exact lot boundaries
at the time he purchased it. He was uncertain about the locations of his cabin and
outhouse relative to his property lines, though he believed he had complied with setback
restrictions. He testified that the corners of the lot were not permanently marked either
when he bought the property or when he sold it to the Halls. And he testified that the
only boundary marker present when he purchased Lot 15 - a stake marked with the lot
number at what he believed was the northeastern corner of the lot - "disappeared
somehow" by the time he sold it to the Halls.
Davis testified that he too encountered significant discrepancies during his
2008 survey. He stated that the markers identified by other property owners were not
consistent with where his survey would have located the boundaries of Lot 13, the lot he
was hired to survey. And he noted that none of the markers he saw had a surveyor's cap
or were sufficiently permanent to qualify as a survey monument.
Additionally, the evidence at trial suggested that Totem Pole Trail was not
a clear, unambiguous marker of the lot boundaries. Fisher testified that the trail had not
yet been cleared when he bought his lot in the mid-1970s; once it was cleared, he
assumed the trail boundary "approximately" demarcated one edge of his lot but stated
that "it may have been off a little bit." Multiple residents of Colt Island testified that the
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edges o f the trail did not exactly coincide with where they believed the lot boundaries
lay. And the developer who initially hired Bean testified that when he had Totem Pole
Trail logged, he specifically cleared the edges of the trail partially into the unsold lot
boundaries, meaning that the physical width of the trail did not coincide exactly with the
platted boundaries.
It was therefore not clearly erroneous for the superior court to find that
neither Bean's markers from the 1970s nor other property owners' use of their property
or the island's access trails had established the boundaries the Collinses sought to
enforce. Therefore, because the deeds and related plats are unambiguous, because the
record supports the court's finding that the rock used by Johnson's crew was WCMC1,
and because no other markers sufficed to establish new boundaries, we conclude that the
superior court did not err when it determined the boundaries in Plat 2012-32 to be
correct.
B. The Superior Court Did Not Err When It Concluded That No
Boundary Had Been Established By Acquiescence.
The Collinses argue that under the doctrine of boundary by acquiescence,
30
recently adopted in Lee v. Konrad, the superior court should have found that the
boundaries Bean set in 2009 and recorded in Plat 2014-46 were established either by the
parties or their predecessors. They argue that "active and continued use of Totem Pole
Trail and other obvious monumentation showing subdivision boundary lines for over
three decades" establishes the Halls' and their predecessors' acceptance of Bean's
boundary lines.
Lee v. Konrad set forth a three-element test for boundary by acquiescence:
"[A] boundary line is established by acquiescence where adjoining landowners (1) whose
30 337 P.3d 510, 520 (Alaska 2014).
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property is separated by some reasonably marked boundary line (2) mutually recognize
31
and accept that boundary line (3) for seven years or more."
In that case the owner of
a subdivision lot set fence posts along the boundary with an adjacent lot, with his
32 He later
neighbors' permission and based on survey markers setting the boundary.
completed the fence; in the meantime his original neighbors and their successors in
interest "treated the boundary line marked by the fence posts as the true property line
without any dispute."33 The neighbors subsequently sold their lot "as-is" to a buyer,
making no representations that the fence did not reflect the correct boundary.34 Shortly
afterward, the buyer had her property surveyed and its corners marked; the owner who
had built the fence, believing that the surveyor had placed a marker incorrectly, filed for
a declaratory judgment to quiet title and affirm the fence as the correct boundary.35 We
adopted and applied the stated test for boundary by acquiescence and concluded that the
neighbors' history of mutual acceptance of the fence posts and fence as the property line
had established a boundary by acquiescence.36
Here, the superior court concluded that the evidence was not sufficient to
establish the boundary recorded in Plats 2014-46 and 2015-27 by acquiescence.37 The
31 Id.
32 Id. at 514, 521.
33 Id. at 514.
34 Id. at 514-15.
35 Id. at 515-16.
36 Id. at 520-21.
37 The superior court applied a clear and convincing evidence standard to the
test for boundary by acquiescence, concluding that the Collinses had failed to meet this
(continued...)
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court found that, because the Halls had not accepted the boundary set by Bean in 2009
and because fewer than seven years had passed between 2009 and the start of the lawsuit
in 2014, they had not acquiesced to Bean's boundaries. The record supports this finding:
Hall testified that when Bean placed the boundary markers in 2009, Bean removed stakes
that Hall had set in 1999. Hall estimated that his 1999 boundary and Bean's 2009
boundary differed by about ten feet. And it was 2012 when, according to Hall, the
Collinses first threatened to sue over the shop and outhouse, prompting the Halls to
obtain and record Plat 2012-32.
The superior court also found that no boundary by acquiescence had been
established prior to 2009. The record supports this finding as well: testimony by both
Fisher and Hall indicated that the boundary was not marked at all when the Halls bought
the property. Fisher was unsure of Lot 15's exact boundaries when he bought it, and
does not appear to have placed any boundary markers before selling it to the Halls. In
fact, the single boundary marker that existed when Fisher owned Lot 15 had been
removed by the time of the Halls' purchase: Hall testified that when he went to look at
the lot prior to buying it, he saw a single stake labeled "14" on one side and "15" on the
other, which he assumed marked the boundary; but the stake was gone by the time he
37 (...continued)
burden. Cf. Nome 2000 v. Fagerstrom, 799 P.2d 304, 309 (Alaska 1990) (requiring clear
and convincing evidence to prove adverse possession). We have not had occasion to
determine whether a party seeking to establish a boundary by acquiescence must meet
this heightened evidentiary burden, and we decline to do so here. Neither party's
arguments on appeal addressed the standard of proof, and we are reluctant to rule on an
issue without the benefit of adversarial briefing and argument. See State v. Ranstead,
421 P.3d 15, 23 n.53 (Alaska 2018) ("Appellate courts typically do not address issues
that the parties have not briefed."). In any case, given the extensive evidence at trial of
longstanding uncertainty over the correct boundaries, we are doubtful that the Collinses
would have been able to satisfy even a preponderance standard.
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bought his lot. Additionally, the Halls' outhouse, which allegedly encroaches onto the
Collinses' property, was built by Fisher; as the superior court noted, this either indicates
that the original boundary marker did not coincide with Bean's 2009 line or that Fisher
38 And none of the photos in evidence
did not recognize and accept the 2009 boundary.
appear to show a fence or other marker in the boundary area sufficient to constitute a
"reasonably marked boundary line."39
It was thus not error for the superior court to conclude that none of the
elements of the Konrad test had been met and that no boundary by acquiescence had
been established to alter the boundaries recorded in the deeds and associated plats.
C. The Superior Court Did Not Clearly Err By Finding That The
Restrictive Covenants Had Been Abandoned.
The Collinses argue that the superior court's findings and conclusions "did
not meaningfully address the issue of compliance with the covenant requirements" and
assert that this issue requires remand. They contend that adoption of Plat 2012-32 will
cause "additional problems regarding land use and covenant application," presumably
not only with regard to the Halls' outbuildings but also for other Colt Island property
owners. The Halls respond that the superior court's finding that the covenants at issue
had been abandoned was "well-supported by the record."
Contrary to the Collinses' assertion that the court failed to meaningfully
address the covenants, the court's findings of fact and conclusions of law explicitly
discuss them, albeit briefly. The court found that trial testimony established "that a
number of buildings on Colt Island are less than [20] feet from property lines and that
there are a number of other outhouses on the Island . . . [that] have never been the subject
38 See Lee, 337 P.3d at 520.
39 Id.
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of violation complaints." The court therefore determined that "[t]o the extent the[]
covenants would prohibit pit privies or require the Halls' outhouse and shop to be farther
from Lot 14, they have been abandoned." The court concluded that enforcing the
covenants against the Halls, given the other unchallenged and longstanding violations,
would be inequitable.
We have held that "covenants will be deemed waived if the 'evidence
40 Failureto enforceacovenant against
reveals substantial and general noncompliance.' "
a single party or property is not sufficient to establish abandonment, but more
widespread lack of enforcement may be.41 Here, the record establishes that multiple
property owners on Colt Island had violated the setback restrictions and sewage disposal
requirements. One property owner, for instance, admitted that he had built a woodshed
"right along the edge of the property" and had not "thought about the setbacks at the
time." Another acknowledged that his cabin might be in violation of the setback
requirement. Multiple witnesses with property on the island testified that there were
other outhouses. The Halls' outhouse had in fact been built by Fisher years before the
Halls bought Lot 15. And, as the Halls point out on appeal, the declaration of protective
covenants entrusts enforcement to a homeowners' association - but no homeowners'
association was ever formed.
The record thus shows that neither the setback requirements nor the
prohibition on outhouses had been enforced against either the Halls or other property
owners violating them, prior to this lawsuit. It was not error for the superior court to find
40 Kalenka v. Taylor, 896 P.2d 222, 226 (Alaska 1995) (quoting B.B.P. Corp.
v. Carroll, 760 P.2d 519, 523-24 (Alaska 1988)).
41 See id.
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that the covenants had been abandoned and conclude that they were unenforceable
against the Halls.
D. We Remand For Findings And A Determination On The Collinses'
Physical Trespass Claim.
The Collinses argue that, even if the boundaries in Plat 2012-32 are
adopted, uncontroverted evidence at trial showed that the Halls trespassed on the
Collinses' property. They contend that they are therefore entitled at least to nominal
damages and imply that the trial court erred by failing to make findings on the trespass
claim.
42
A trespass is "an unauthorized intrusion or invasion of another's land."
Even a trespasser who does not cause any harm to the land may be liable for nominal
43
damages simply based on the fact of the intrusion. The Collinses raised two distinct
trespass claims. The first - that the Halls' shop and outhouse encroach onto their
land - is resolved by the adoption of Plat 2012-32's boundaries. But their second
trespass claim alleged that David Hall personally trespassed on their property in June
2013. The Collinses assert on appeal that this second claim does not depend on which
boundary line controls.
The superior court's findings and conclusions do not address this second
trespass claim at all, instead simply stating that the Collinses' "claims are denied in their
entirety." But the record contains evidence bearing on this claim: Ray Collins testified
at trial that he had twice found David Hall "underneath the building" on the Collinses'
property, "taking some building materials." Photo exhibits purport to show Hall on the
Collinses' land between the two families' cabins. And Hall admitted that he had walked
42 Lee v. Konrad , 337 P.3d 510 at 522 (quoting Mapco Express, Inc. v. Faulk ,
24 P.3d 531, 539 (Alaska 2001)).
43 Id. at 522 n.36.
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onto the Collinses' property without their permission in June 2013, apparently to return
items that the Collinses or their former co-owner had placed on the Halls' land. In
closing argument, the Collinses' counsel specifically distinguished the two trespass
claims and noted that the second did not depend on the boundary location:
[T]here [are] multiple claims of trespass. And I think there's
proof of an obvious trespass on the part of Mr. Hall. The
evidence, both by Mr. Collins and Mr. Hall, basically admits
that wherever you draw the line - whether it's the Bean line
[i.e., Plat 2014-46], Mr. Hall's self-survey line, or the R&M
line [i.e., Plat 2012-32] - he was on property belonging to
Ray and Carol Collins.
The Collinses sought nominal damages for this claim, proposing $5 as an appropriate
award.
Without the relevant findings or conclusions, we have no basis on which
to review the superior court's denial of this claim.44 We therefore remand specifically
for consideration of the Collinses' claim that David Hall physically trespassed onto their
property in June 2013. We express no opinion as to the merits of this claim.
V. CONCLUSION
Because the superior court's decision is supported by the record on the
issues of the location of the boundary line, boundary by acquiescence, and enforcement
of the covenants, we AFFIRM the court's decision on these issues. Because the superior
court's decision contained no findings or conclusions asto the Collinses' second trespass
claim, its denial of this claim is REVERSED and REMANDED.
44 See State v. Schmidt , 323 P.3d 647, 668 n.107 (Alaska 2014) ("[A] superior
court's order must contain specific findings of fact and conclusions of law to permit
meaningful reviewby this court."(alteration in original) (quoting Simpsonv. Murkowski ,
129 P.3d 435, 448 n.65 (Alaska 2006))).
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