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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Shay Hurd v Larry E. Henley (12/31/2020) sp-7497
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SHAY HURD, )
) Supreme Court No. S-17104
Appellant, )
) Superior Court No. 3KN-16-00584 CI
v. )
) O P I N I O N
LARRY E. HENLEY, )
) No. 7497 - December 31, 2020
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Kenai, Anna Moran and Lance Joanis,
Judges.
Appearances: Andy L. Pevehouse and Noah H. Mery,
Gilman &Pevehouse, Kenai, for Appellant. Larry E. Henley,
pro se, Soldotna, Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices. [Stowers, Justice, not participating.]
BOLGER, Chief Justice.
I. INTRODUCTION
Shay Hurd appeals the superior court's determination that his adjoining
neighbor, Larry Henley, adversely possessed a portion of his land. Hurd and Henley
share a boundary line that Henley first encroached on by building a shed and then by
building a larger shop. Hurd sued, and the superior court ultimately awarded the area
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originally occupied by Henley's shed and the area surrounding it to Henley, but not the
larger area with the shop.
The superior court did not err when it found that Henley regularly graveled
and parked vehicles in the area granted to him as adversely possessed. Henley's
activities on that area were sufficient to constitute adverse possession. The superior
court adequately defined the area adversely possessed by referencing landmarks with
locations readily ascertainable from the record. We interpret the "good faith but
mistaken belief" required for adverse possession by AS 09.45.052(a) to require only
subjective good faith; therefore, the superior court did not clearly err by determining
Henley occupied the former shed area due to a good-faith belief the land was his. We
thus affirm the superior court's decision awarding title to the former shed area to Henley.
II. FACTS AND PROCEEDINGS
A. Facts
Henley and Hurd are neighbors who live on Skyline Road in Soldotna:
Henley on Lot 6-A to the north and Hurd on adjacent Lot 6-B to the south. Henley
received his lot as a gift in 2001. At that time, Henley's Lot 6-A was a treed lot with no
improvements, and Hurd had not yet purchased his Lot 6-B.
Henley hired Hall Quality Builders to construct a home on the lot later in
2001. As part of the project, Henley quitclaimed his interest in the property to Hall
Quality Builders, who quitclaimed the property back to Henley after the home was built.
No as-built survey was provided to Henley. Improvements to the lot included excavating
an eastern portion of Henley's lot and removing trees. When he took possession back,
Henley assumed Hall Quality Builders knew the location of the boundaries of his
property and had cleared and excavated within those boundaries. Henley later testified
that he located three boundary markers in the ground after retaking possession of the lot
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but provided inconsistent testimony whether he found a marker on the southeastern
corner of his property.
In 2003 Henley built a 12-by-16-foot shed on skids in the contested area.
The shed lay across the southern border from Henley's property, on the northern edge
of Lot 6-B. In a deposition, Henley stated he had "eyeballed" the boundary of his
property before placing his shed, noting that "if there is a problem, I can move it because
it's on skids." At trial Henley testified to his state of mind when building the shed: "I
thought I was on my land. So if I was off, I figured it wasn't very much." Henley said
he believed the shed was on his land because he assumed that Hall Quality Builders
would not have excavated and cleared beyond the property boundaries.
Henley also made use of the disputed area near the shed, storing items
inside and outside the shed, placing a picnic table alongside the structure, and building
a deep-pit barbeque. Henley graveled, installed portable carports, and parked vehicles,
boats, and trailers in the area leading up to the shed.
In 2009 Hurd purchased Lot 6-B directly to the south of Henley's Lot 6-A.
Henley's shed had already been built on Hurd's property. Hurd walked his lot with the
previous owner and was unsure where the northeast corner of his property precisely lay.
In 2011 Hurd approached Henley to tell Henley he was planning on
building his own shed. During the conversation, Henley suggested they build a privacy
fence and proposed surveying the property line in preparation for it. No fence was built,
and no joint property line survey was conducted.
In 2012 Henley began constructing a detached shop, again relying on the
excavation work by Hall Quality Builders to estimate the property dividing line. He
began excavating a foundation for a 36-by-64-foot shop. He installed a large gravel pad
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extending from the shed area to the eastern boundary of his lot to serve as a foundation.
The pad straddled the true south/north property line between his and Hurd's property.
Concerned about potential encroachment, Hurd tried to locate the
northeastern border between his and Henley's properties with the help of a visiting friend
who conducted surveys for the State of Minnesota. Even with the aid of a metal detector,
Hurd and his friend could not find any rebar pin or stake marking the northeast/southeast
boundary between the two properties. Using a hundred-foot tape and compass, they
assessed where the demarcation pin should have been and determined a significant
portion of Henley's gravel pad foundation encroached on Hurd's property. However,
instead of contacting Henley, Hurd simply stuck a makeshift spruce stake with his name
on it where he and his friend assessed the property boundary marker should have been.
Hurd testified that he thought Henley would see the stake and approach him to talk about
the issue. Hurd also testified that once construction began again, he had doubts that he
was correct about the real property line and decided not to bring it up with Henley.
In 2015 Henley finished erecting his shop. In April and May 2016 Hurd
had the property professionally surveyed and discovered Henley's shop significantly
encroached on his property. He filed suit soon after.
B. Proceedings
Hurd filed an action against Henley in August 2016 for trespass,
negligence, slander of title, and to quiet title to his property. Henley counterclaimed to
quiet title to the contested property, asserting that he had adversely possessed the
disputed area.
Following a bench trial the superior court concluded Henley had adversely
possessed a portion of Hurd's land and defined that portion as the "area from where
[Henley's] well is located to where [Henley's] shed used to stand." The court noted that
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although Henley had moved his shed prior to the suit, Henley had provided many photos
to the court to "aid in determining the location of the shed." The superior court
mentioned that it had a survey of the encroachment only as of 2016, making it difficult
to accurately map out the then-current state of the adversely possessed area. The
superior court added that the adversely possessed area "includes a small portion of the
land north of the shed where the picnic table was located" and ordered the land be
surveyed in order to correctly define the space. The superior court attached a drawing
to aid the parties in locating the adversely possessed portion, with its eastern edge
anchored on the southeast corner of Henley's garage.
The superior court also found that Henley had believed in good faith that
the contested area was his property. In the court's view, Henley's "good faith mistake"
was relying on Hall Quality Builder's excavation of the area to demarcate his property
boundaries when he built his shed. The superior court noted that this finding of good
faith on Henley's part was supported by Hurd's own testimony that even he was
uncertain where the property line lay, and he therefore did not approach Henley to
express concern about the location of the shed or the shop during their construction.
The superior court also determined Henley had met all the other
requirements of adverse possession for this portion of the property. He had "openly and
continuously used" the area "bordered on the south from Henley's well to a few feet past
where [Henley's] shed was located" for at least ten years beginning in 2003 when he
built the shed. The superior court described a number of Henley's activities in this area
that, when taken together, constituted open and continuous use: building the shed,
storing items inside and outside the shed, placing a picnic table alongside the shed,
"repeatedly park[ing] his cars, boats and trailers," installing a carport, and "regularly
put[ting] down new gravel." All of these facts together, according to the superior court,
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were "synonymous with open and notorious conduct that was exclusive and hostile to
Hurd and his predecessor's interest in the land."
In contrast, the superior court determined Henley did not satisfy the
requirements of adverse possession for the entire area where his 2,300-foot shop was
located. The superior court determined that Henley's "occasional use of this area to park
vehicles" was not "sufficiently visible, open and hostile to put Hurd or his predecessor
in title on notice that Henley was asserting a continuous adverse possessory interest."
The superior court noted that the majority of the photo exhibits demonstrated "Henley
mainly parked his vehicles and boat in the area near the shed," rather than in the
southeastern corner of his property where the shop would eventually be located. The
court noted that although Henley claimed he used part of this area for a garden, a fire pit,
and a barbeque pit, no photographs documented the location of these activities.
The superior court awarded Henley the area where his shed used to stand
as "roughly depicted" in a drawing by the court which was to be followed by a property
survey. The court simultaneously found that Henley had not adversely possessed the
larger area occupied by the shop and quieted title in favor of Hurd. The court determined
Henley "was negligent in not having the land surveyed before he built his shop" and that
the shop trespassed on Hurd's property, but awarded Hurd only nominal damages.
Noting that Hurd had taken four years to notify Henley of the encroachment, the court
gave Henley three years to move his shop.
III. DISCUSSION
A. The Superior Court Did Not Clearly Err By Determining Henley
Regularly Put Down Gravel And Repeatedly Parked Vehicles In The
Disputed Area.
When concluding that Henley continuously and openly used the original
shed area, the superior court noted that Henley "repeatedly parked his cars, boats and
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trailers" and "regularly put down new gravel" in the area Henley adversely possessed.
Hurd argues that, according to the record, these factual findings are plainly erroneous.
We review the superior court's factual findings for clear error. "It is the
trial court's function, and not that of a reviewing court, to judge the credibility of
1 Therefore, we will not disturb these
witnesses and to weigh conflicting evidence."
findings of fact unless they were clearly erroneous.2
Hurd argues that from 2003 when Henley built the shed until 2012 when
Henley built a gravel pad to serve as a foundation for his shop, the record demonstrated
that Henley regularly graveled and parked only on "his own driveway," north of the
southern property boundary, rather than in any part of the contested area. In support of
his argument, Hurd points to testimony from Henley's longtime girlfriend, who said that
Henley graveled the contested area only sometime after 2007. But at a different point,
Henley's girlfriend testified that he brought in gravel to an area including the shed and
south of the well during or before 2007. Hurd also highlights testimony from Henley
that when he graveled the area in 2008 he was "still concentrating on the driveway in the
front of [his] house." However, the superior court may have reasonably interpreted this
to mean that while he concentrated on graveling his own driveway, he spread gravel to
the area around the shed as well.
Regardless, the superior court had other testimony on which to rely for its
findings of repeated graveling and parking in the contested area. Henley testified that,
1 Penn v. Ivey , 615 P.2d 1, 3 (Alaska 1980).
2 Reeves v. Godspeed Props., LLC , 426 P.3d 845, 849 (Alaska 2018), reh'g
denied in part (July 13, 2018) (quoting HP Ltd. P'ship v. Kenai River Airpark, LLC, 270
P.3d 719, 726 (Alaska 2012)).
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between 2003 and 2012, he graveled five times and parked vehicles including cars and
a boat in the area immediately adjacent to the shed.
Hurd points to a number of photo exhibits he believes demonstrate the
gravel was not present and cars were not parked in the contested area throughout the
statutory period. However, Henley testified that he had to gravel the area repeatedly
because the gravel kept sinking down into the clay and being covered over by grass.
And as cars are mobile by nature, photos showing vehicles parked north of the property
line do not preclude their being parked south of the property line at other points during
the same time frame. Moreover some of these photos do show Henley graveled and
parked his boat on areas that appear to be south of the true property line. Others were
taken after the shop foundation gravel pad was laid in 2012, and show the same extent
of graveling in the area between the well and the shed that appears in earlier pictures.
Several photos Henley introduced at trial support the superior court's
findings of fact. Photos taken before Henley installed the gravel pad in 2012 show
gravel in areas south of the true boundary between Henley's and Hurd's properties: to
the east of the shed, up to the door of the shed, and considerably south of Henley's well.
Another photo, taken in 2003 or 2004, may show indications of graveling right up to the
door of the shed. Other photos identified as taken before the gravel pad installation show
a boat parked considerably south of Henley's well, by a distance estimated at over 15
feet. The boat appears parked approximately as far south in that picture before Henley
laid the gravel pad as in a picture taken afterwards, casting doubt on Hurd's claim that
the parking moved south across the property line only after Henley installed the gravel
pad. While the photo exhibits alone do not clearly establish that Henley graveled and
parked in the entirety of the adversely possessed area throughout the statutory period,
they do support a finding that he did so in part of that area.
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Hurd arguesthat sincethecourt never determinedpreciselywhereHenley's
shed was originally located, Henley could not have conclusively established that he
graveled and parked in the area bordered by the shed. But many photo exhibits from
numerous angles show where the shed stood in reference to key landmarks including
Henley's well, Henley's shop and the gravel pad underneath it, and the southeast corner
of Henley's garage, as well as where parking and graveling took place in relation to those
landmarks. Multiple witnesses testified to and diagramed the original location of
Henley's shed. The court had sufficient evidence from which to make a reasonable
conclusion about where the shed originally stood and where the activities of parking and
graveling took place in relation to that location.
At times, the testimony and pictures of the property provided admittedly
conflicting and confusing evidence for the court to assess. However, faced with this
difficult determination, the superior court reasonably judged the credibility of the
witnesses and weighed conflicting evidence, appropriately determining the facts under
thecircumstances. Becausetestimony andphotographs admittedintoevidencesupported
the superior court's determination that Henley regularly graveled and repeatedly parked
vehicles in the contested area, that factual finding was not clearly erroneous.
B. Henley's Activities On The Land Were Sufficient To Constitute
Adverse Possession.
Whether Henley's activities on disputed land were sufficient to constitute
3 We disturb a superior court's
adverse possession presents issues of both law and fact.
4 However,
findings of fact underlying its conclusion only if they are clearly erroneous.
3 See id., (applying analogous standard of review for easements by
prescription).
4 Id.
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the application of law to these facts is a question of law we review de novo, using our
independent judgment. 5
To acquire title by adverse possession under AS 09.45.052(a), the claimant
must prove possession of the land that was continuous for the statutory period, open and
notorious, and exclusive and hostile to the true owner.6 The statutory period for a
claimant acting on the basis of a good-faith mistake that the disputed land lies within the
boundaries of the claimant's own property is ten years.7 An adverse possessor must meet
each of these requirements by clear and convincing evidence.8 "Continuity, notoriety,
and exclusivity of use . . . are 'not susceptible to fixed standards,' but rather 'depend on
the character of the land in question.' "9 Exclusivity is not destroyed by occasional
permissive use by the claimant's guests or even trespassers.10 Hostility is not destroyed
by a claimant's mistaken belief of holding title to the land, so long as the claimant's use
of the land is without the record owner's consent.11 The underlying purpose of these
5 P.3d 387, 391 (Alaska 2004) (discussing
See id.; Glover v. Glover, 92
hostility).
6 Prax v. Zalewski, 400 P.3d 116, 120 (Alaska 2017).
7 AS 09.45.052(a).
8 Curran v. Mount, 657 P.2d 389, 391-92 (Alaska 1982).
9 Vezey v. Green, 35 P.3d 14, 20 (Alaska 2001) (quoting Nome 2000 v.
Fagerstrom, 799 P.2d 304, 309 (Alaska 1990)).
10 See Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 831
(Alaska 1974) ("[A] claimant's 'possession need not be absolutely exclusive; it need
only be a type of possession which would characterize an owner's use.' " (quoting
Norgard v. Busher, 349 P.2d 490, 496 (Or. 1960))).
11 See id. at 832 ("Peters believed his right to possession derived from his
uncles, not from any acquiescence, consent or permission of the [record owners]." ).
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requirements is "to put the record owner on notice of the existence of an adverse
12
claimant."
Evenifindividual actions maybeinsufficientto constitutepossession when
considered separately, in combination those actions may "demonstrate continuous and
uninterrupted possession."13 For instance, in Alaska National Bank v. Linck , we affirmed
the trial court's determination that "clear[ing] part of the land, buil[ding] and
maintain[ing] barricades, and ke[eping] the property clean" were sufficient to constitute
continuous, hostile, and notorious possession.14
In finding that Henley continuously and openly used the adversely
possessed area between a few feet south of Henley's well to where the shed stood, the
superior court noted Henley built and frequently used the interior and exterior of the
shed, had a picnic table alongside the shed, erected a carport near the shed, and
"repeatedly parked his cars, boats and trailers" and "regularly put down new gravel" in
that contested area. Hurd argues these activities are insufficient to constitute adverse
possession.
In the most analogous case of ours cited by Hurd, Tenala, Ltd. v. Fowler,
we concluded claimants' activities of building a shed and an addition to a cabin
straddling thepropertyboundary weresufficientto establish adversepossession for those
12 Id. at 830.
13
Alaska Nat'l Bank v. Linck, 559 P.2d 1049, 1052 (Alaska 1977).
14
Id. at 1052-53 (footnotes omitted); see also Peters, 519 P.2d at 828-29, 832
(claimant's activities of living on contested land during seal hunting season, scrapingseal
hides, repairing boats there, digging clams, and planting garden sufficed to establish the
elements of adverse possession).
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15
areas where the structures slightly extended over the boundary. But in the areas where
the Tenala claimants' activities consisted only of using the adjoining portion of disputed
land as an unimproved driveway to access the cabin and shed, park cars, and store
garbage cans, these activities were insufficient to "give[] notice to the true owners that
16 We explained that
[they] were claiming a possessory interest" in that portion of land.
the Tenala claimants "never placed any permanent improvements on [that section] and
never fenced or posted the area as their own."17
In contrast to the Tenala claimants, Henley used the land from south of his
well to where his shed stood as if he owned it, rather than to pass through to gain access
to another part of his property. His activities included making and maintaining
improvements to the land. In addition to demarcating the land as his own by repeatedly
laying down gravel, Henley built and conspicuously used a 12-by-16-foot shed that -
in contrast to the merely slightly encroaching buildings in Tenala - stood entirely on
18 These activities were at least as extensive as the
Hurd's side of the true property line.
15 921 P.2d 1114, 1118-19 (Alaska 1996). Hurd cites two other cases of ours
which are not analogous. The first relates to extinguishment of easements by
prescription, rather than adverse possession. See Reeves v. Godspeed Props., LLC , 426
P.3d 845, 854 (Alaska 2018), reh'g denied in part (July 13, 2018). The second
establishes that a claimant, by merely excavating a foundation that straddled a property
line and then vacating the property for years without maintaining that foundation, did not
demonstratesufficiently continuous possession of the land excavated. Walshv.Emerick ,
611 P.2d 28, 30-31 (Alaska 1980).
16 Tenala, Ltd., 921 P.2d at 1118-20.
17 Id. at 1119.
18 Id. at 1118-19.
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Alaska National Bank claimants', which sufficed to demonstratecontinuous, hostile, and
19
notorious possession.
Cases from other jurisdictions provide support for our determination that
Henley's actions, which included building and using his shed as well as laying down and
maintaining his gravel driveway, were sufficient to notify Hurd of the hostile nature of
Henley's possession. Connecticut claimants, by building and using a metal shed for
storage on the true owner's property, demonstrated sufficiently exclusive use of that land
to establish adverse possession.20 Missouri claimants, through adverse possession,
obtained an area where they put down gravel, mowed and raked the grass, and near
which they built a garage only reachable through that gravel driveway; these activities
sufficed to show actual, hostile, open and notorious, exclusive, and continuous
possession even though the claimants allowed others, including therecordowners, to use
the driveway when necessary.21
Henley's activities on the land under and near the shed were sufficient to
establish the requirements of adverse possession for the statutory period. Henley built
and used his shed himself, and nothing in the record indicates that Hurd ever had access
to the shed, let alone used the contested portion of land in any way. Henley's shed, even
if built on skids, was a sufficiently permanent structure to meet the requirements of
19 See Alaska Nat'l Bank v. Linck, 559 P.2d 1049, 1052-53 (Alaska 1977)
(noting claimants had "cleared part of the land, built and maintained barricades, and kept
the property clean"); see also White v. Lambert, 332 S.E.2d 266, 268-69 (W. Va. 1985)
(determining as sufficient to constitute adverse possession claimants' activities of using
the property as their lawn, planting shrubs and trees, burying a waterline, and building
a shed).
20 Woycik v. Woycik, 537 A.2d 541, 544 (Conn. App. 1988).
21 Trokey v. R.D.P. Dev. Grp., L.L.C., 401 S.W.3d 516, 526-28 (Mo. App.
2013).
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adverse possession because the presence of a shed is sufficient to provide notice to a
22
landowner of exclusive and hostile possession.
Henley built and used his gravel
driveway extending over the property line near the shed in a similar manner, to park cars,
boats, and trailers in the area he used as his own over a long stretch of time. By erecting
and using a shed as well as graveling and using a driveway on the contested area for ten
years, Henley engaged inactivitiessufficiently openandnotorious, exclusiveand hostile,
23
and continuous and uninterrupted to satisfy the elements of adverse possession.
C. The Superior Court Adequately Defined The Area Adversely
Possessed By Henley.
Hurd argues both that the superior court erred by not describing the area it
granted to Henley with sufficient precision and that Henley failed to meet his burden of
providing a description of the land he claimed to have adversely possessed with
sufficient particularity. However, Henley originally claimedto haveadverselypossessed
a larger area (the entire area occupied by his shop) than the parcel the trial court
eventually awarded him (the smaller area where his shed used to stand). For this reason
we focus on the sufficiency of the superior court's description of the area granted to
Henley.
22 See Woycik , 537 A.2d at 544.
23 See Alaska Nat'l Bank, 559 P.2d at 1052-53 (adverse possessors had
"cleared part of the land, built and maintained barricades, and kept the property clean");
see also Trokey, 401 S.W.3d at 526-28.
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Whether a trial court's description of adversely possessed land is
sufficiently precise and definite is a question of law. Although we have not addressed
what standard of review we apply to this issue in the adverse possession context, we
24 Accordingly we
generally review the sufficiency of superior court findings de novo.
apply our independent legal judgment and review de novo the adequacy of the superior
court's description of the land awarded to Henley.25
The superior court described the area it awarded to Henley as the "portion
of Hurd's property . . . bordered on the south from Henley's well to a few feet past where
[Henley's] shed was located." This included "a small portion of the land north of the
shed where the picnic table was located." The court provided the parties with a drawing
to help themunderstand where the area adversely possessed by Henley was, "based upon
the location of [the] southeast corner of Henley's garage." The superior court noted that
although it had a survey of the encroachment as of 2016, it did not have a survey of
Henley's property current as of the time of trial. Therefore, the court determined the land
must be surveyed before a final determination was made.
Hurd argues that the superior court erred by describing the area adversely
possessed by Henley with insufficient precision. In particular, Hurd contends the
superior court's description is inadequate because it defines the area's boundaries using
24 See Horne v. Touhakis , 356 P.3d 280, 282 (Alaska 2015) ("Whether there
are sufficient findings for informed appellate review is a question of law." (quoting
Hooper v. Hooper , 188 P.3d 681, 685 (Alaska 2008))); Alvarez v. Ketchikan Gateway
Borough, 28 P.3d 935, 938 (Alaska 2001) ("Whether . . . findings are sufficient to permit
appellate review is a legal question that we decide by exercising our independent
judgment.").
25 See Inserra v. Violi, 679 N.W.2d 230, 235 (Neb. 2004) (applying de novo
review to the entirety of an adverse possession action, including sufficiency of
description).
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anow-invisible landmark: the original location ofHenley's shed, whichhad been moved
prior to trial.
Our only case considering how precisely a court need define an adversely
possessed area is Vezey v. Green , in which we upheld a superior court's use of landmarks
26 In Vezey the superior court described the adversely possessed
to delineate boundaries.
area as a "rectangular" parcel defined by "a telephone line to the north, Shaw Creek to
the east, Old Richardson Highway to the south, and a line 300 feet from the house to the
west."27 On appeal the original landowner argued the superior court's reliance on
"natural boundaries" to define the property was without legal precedent.28 We rejected
this argument, determining the superior court's description of the adversely possessed
area with reference to landmarks posed no "legal problem" because "[n]atural barriers
29
. . . may serve as boundaries in adverse possession cases."
Vezey thus confirms the superior court may use landmarks, rather than
metes and bounds, to describe the boundaries of adversely possessed parcels. But Vezey
leaves open whether the superior court may use the previous locations of landmarks later
moved to delineate those boundaries. We therefore turn to other jurisdictions for
guidance on this point.
The Wisconsin Supreme Court ruled that a trial court's property
description, based on the location of a fence no longer standing, was insufficiently
definite to support an adverse possession judgment; the court thus recommended a
26 35 P.3d 14, 24 (Alaska 2001).
27 Id.
28 Id.
29 Id.
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30
description by metes and bounds. However there is no indication the trial court in
31
question had reference to photo exhibits showing the fence's previous location.
Indiana courts find descriptions sufficient for quiet title actions when the
complainant describes the premises such that a "sheriff, with the aid of a surveyor, can
find the real estate and determine its boundaries."32 The Indiana Supreme Court
determined one complainant's property description sufficient despite its reliance on a
fence's previous location: "[W]e think [the parcel described] could be found with the
assistance of a competent surveyor, aided by one having knowledge of the former
location of the fence referred to."33
In Illinois an adverse possession claimant must "establish with reasonable
certainty the location of the boundaries of the tract" claimed under adverse possession.34
Under this standard the Illinois Supreme Court reversed a decision granting title to
claimants where the proposed boundary was defined by a fence long since removed and
30 Brockman v. Brandenburg , 221 N.W. 397, 398 (Wis. 1928) ("It seems to
us that the strip should be described by metes and bounds, if there is to be a permanent
settlement of the controversy.").
31 See id.
32 Morgan v. White, 56 N.E.3d 109, 117 (Ind. App. 2016) (quoting Gilbert v.
Lusk, 106 N.E.2d 404, 410 (Ind. App. 1952) (en banc)).
33 Brown v. Anderson, 90 Ind. 93, 95 (Ind. 1883) (considering sufficiency of
claimant's property description rather than trial court's property description).
34 Schwartz v. Piper, 122 N.E.2d 535, 538 (Ill. 1954); see also Brosie v.
Borrowman, 332 N.E.2d 129, 130 (Ill. App. 1975) ("The boundaries of the parcel
awarded to plaintiff are susceptible of specific and definite location with reasonable
certainty . . . [which] is sufficient.").
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the only evidence of the fence's prior location was testimony that was "vague, indefinite
and conflicting." 35
The superior court here relied on 6 days of testimony and 125 exhibits -
mostly of photographs of the land - to establish the original location of Henley's shed
and the other boundaries. Many photo exhibits from numerous angles show where the
shed stood in reference to key landmarks including Henley's well, Henley's shop and the
gravel pad underneath it, as well as the southeast corner of Henley's garage, which
served as the basis for the court's drawing and all of which still stood at the time of trial.
The superior court drew its guiding diagram on a survey of the encroachment on which
the surveyors had clearly marked the location of Henley's well, and multiple witnesses
had drawn the original location of Henley's shed on that same survey. The original
location of the shed was therefore ascertainable with reasonable certainty from evidence
in the record.36
The superior court's task in an adverse possession case is to clarify
boundaries, not create further confusion. Yet adverse possession claims resulting from
a good-faith but mistaken belief are often confusing by their very nature. And a statutory
period of ten years means the trial court will often be charged with mapping activities
long since completed and structures that may have changed over time. Hurd asserts the
superior court here had no adequate means to determine the location of the area Henley
adversely possessed. But Henley provided significant supporting documentation,
including many photographs of the relevant landmarks. Given the challenging task
35 Schwartz, 122 N.E.2d at 539-40 ("[W]here the location of a boundary is
marked by a monument at the inception . . . of the period of adverse possession, but such
monument is lost or destroyed, the location of such boundary or the monument marking
the same must be susceptible of definite proof in any action . . . of adverse possession.").
36 See id.; Brosie, 332 N.E.2d at 130.
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before it, the superior court did not err by describing the area adversely possessed with
reference to landmarks which are still standing and a landmark whose location is readily
ascertainable with reasonable certainty from the record.
D. The Superior Court Could Reasonably Conclude That Henley Acted
In Good Faith.
Alaska Statute 09.45.052(a) requires that to gain title under adverse
possession, a claimant must have engaged in possessory activities "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." Hurd contends the superior court erred by
determining Henley had acted with a good-faith belief that the contested property was
his.
Whether Henley acted in "good faith" under the meaning of AS 09.45.052
involves questions of both law and fact. "[T]he interpretation of . . . controlling statutes
37
. . . is a legal question which we review de novo."
However, the superior court's
determination that Henley acted in "good faith" is a finding of fact which we review for
clear error because we interpret AS 09.45.052 to require only subjective good faith,
38
without a showing of objective reasonableness.
37 Moody v. Royal Wolf Lodge , 339 P.3d 636, 638 (Alaska 2014).
38 SeeEnders v. Parker, 125 P.3d 1027, 1029-31 (Alaska2005) (stating "[t]he
good faith inquiry requires a factual determination of intent that we review for clear
error" when analyzing "good faith" in the context of will contests); Air Logistics of
Alaska, Inc. v. Throop , 181 P.3d 1084, 1097 n.57 (Alaska 2008) ("[T]he determination
regarding subjective good faith is generally factual and reviewed for clear error [while]
the determination regarding objective reasonableness 'involves applying the proper
interpretation of the [federal statute] and supporting regulations to uncontested facts, a
primarilylegal determination,' which should be reviewed de novo." (quoting Bratt v. Cty
of L.A., 912 F.2d 1066, 1072 (9th Cir. 1990))).
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1. Alaska Statute 09.45.052(a) requires only subjective good faith.
Adverse possession in Alaska is primarily governed by AS 09.45.052,
which sets forth the substantive elements a claimant must prove to acquire title by
adverse possession, while AS 09.10.030 limits when a person may bring related actions
39
to recover real property.
As amended in 2003, AS 09.45.052(a) limits the availability
of gaining title through adverse possession to two types of claimants: adverse claimants
who acted "under color and claim of title" and adverse claimants who acted "because of
a good faith but mistaken belief that the real property lies within the boundaries of
40
adjacent real property owned by the adverse claimant."
Our previous cases do not address whether AS 09.45.052(a)'s prescription
of a "good faith but mistaken belief" requires that this belief be objectively reasonable.
This case thus presents a question of first impression: whether AS 09.45.052(a)'s good-
faith provision requires that the claimant's beliefof ownership be reasonably held as well
as sincerely held. We conclude that it does not.
Thelegislature's2003amendmentstoAlaska's statutory schemeofadverse
possession - previously contained in both AS 09.45.052 and AS 09.10.030 - were
intended "to eliminate bad faith adverse possession claims."41 Specifically, the
legislature "modified AS 09.10.030 with the intent of abolishing adverse possession in
cases where the claimant does not have color of title."42 But instead of entirely
eliminating adverse possession claims by individuals without color of title, "the
39 See Cowan v. Yeisley, 255 P.3d 966, 972 (Alaska 2011).
40 Id. at 972-73 (quoting AS 09.45.052(a), as amended by ch. 147, § 3, SLA
2003).
41 Prax v. Zalewski, 400 P.3d 116, 119 (Alaska 2017).
42 Cowan, 255 P.3d at 973 (footnote omitted).
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43
legislature relocated the doctrine (with some alterations) to AS 09.45.052." These
alterations permitted adverse possession claims for claimants without color of title only
when the claimant engages in "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
44 Together, these modifications "limit Alaskans' adverse possession claims
claimant."
to cases where the claimant had either color of title or a good faith but mistaken belief
that the claimant owned the land in question."45
Legislativehistorydemonstratesclearlegislativeintent toeliminateadverse
possession claims by trespassers in "bad faith," or "squatters."46 But the bill's drafters
43 Prax, 400 P.3d at 120.
44 Cowan, 255 P.3d at 972-73 (emphasis added) (quoting AS 09.45.052(a),
as amended by ch. 147, § 3, SLA 2003).
45 Id. at 973 (emphasis added); see also Hansen v. Davis, 220 P.3d 911, 916
n.7 (Alaska 2009) ("To prevail under the amended adverse possession law, claimants
must now show that they believed in good faith that the disputed land lies within the
boundaries of their property. . . .").
46 Jennie Morawetz, Note, No Room for Squatters: Alaska's Adverse
Possession Law, 28 ALASKA L.R EV.341, 359-69 (2011); Minutes, H. Judiciary Standing
Comm. Hearing on S.B. 93, 23rd Leg., 1st Sess. (May 18, 2003) (testimony of Senator
Wagoner) (stating that the proposed bill "would not . . . abolish all aspects of adverse
possession; instead, its purpose is to eliminate the possibility that a landowner will lose
property to a squatter who has no claim to the property"); Senator Thomas Wagoner,
S. Judiciary Comm., S.B. 93 Sponsor Statement, 23rd Leg., 1st Sess. (2003),
http://www.akrepublicans.org/wagoner/23/spst/wago_sb093.php ("[The amendments]
would repeal the Doctrine of Adverse Possession in the case of 'bad faith' trespassers,
giving private property owner's [sic] security in knowing their property cannot be taken
by squatters.").
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made no statements explicitly characterizing the "good faith" requirement as either
objectively reasonable or subjectively held. 47
Legislative committee minutes suggest an intent to preserve adverse
possession claims by individuals whobelievethey knowtheir properties' boundaries and
inadvertently encroach upon their neighbors' properties. In committee,thebill's sponsor
deferred questions about the proposed bill's effect to Jon Tillinghast, legal counsel to the
corporation that had drafted the bill.48 Tillinghast told legislators that adverse possession
in "bad faith" occurs when one "moves onto a piece of property and builds a squatter's
cabin," whereas adverse possession in "good faith" occurs when one "with a deed for a
piece of property [who] thinks he knows the boundaries . . . ends up inadvertently using
the adjacent property."49 As an example of a simple good-faith boundary dispute,
Tillinghast offered a hypothetical landowner with "a fence that was one foot on his
neighbor's property" for 11 years; he explained that the landowner could successfully
50
gain title over the strip of land, but only if the trespass were unintentional.
The drafter's word choices provide no explicit guidance, as the terms
"inadvertently" and "unintentional" are legally imprecise with respect to the
47 S e e g e n e r a l l y S . B . 9 3 L e g i s l a t i v e H i s t o r y ,
http://www.akleg.gov/basis/Bill/Detail/23?Root=SB%20%2093.
48 See Minutes, S. Judiciary Standing Comm. Hearing on S.B. 93, 23rd Leg.,
1st Sess. at 9 (Apr. 16, 2003) (testimony of Senator Wagoner) (stating "Sealaska
Corporation asked him to introduce this bill"); see also id. at 10 (testimony of Jon
Tillinghast) (stating that Sealaska drafted the proposed bill).
49 Id. at 10 (emphasis added) (testimony of Jon Tillinghast).
50 Minutes, S. Judiciary Standing Comm. Hearing on S.B. 93, 23rd Leg., 1st
Sess. at 13 (Apr. 30, 2003) (emphasis added) (testimony of Jon Tillinghast).
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51
reasonableness of a belief. And the bill's legislative history demonstrates the drafters
and legislators did not answer all of the complex legal questions that were likely to
52
arise. Even so, the drafter's language describing the good-faith neighbor - one who
made an unintentional, inadvertent trespass because he believes the land is his, even
53
without color of title - supports an interpretation that "good-faith" in this context is
subjective.
Our previous cases interpreting similar statutory requirements also support
reading AS 09.45.052(a)'s requirement of "a good-faith but mistaken belief" to require
a subjectively held, rather than an objectively reasonable, belief. We have never
explicitly characterized this formulation as objective or subjective, but our reasoning has
previously equated the phrase with a subjective belief, as has reasoning from the court
of appeals.
In Sheldon v. City of Ambler we equated a "good faith mistake" with a
54
We explained that "[b]ecause
subjective standard in the context of qualified immunity.
51 See, e.g. , Pall Corp. v. Micron Separations, Inc. , 66 F.3d 1211, 1221 (Fed.
Cir. 1995) ("The boundary between unintentional and culpable acts is not always bright,
for the facts often include subjective as well as objective elements." (citations omitted)).
52 Infact, even themisplaced fencehypothetical scenariodescribedabovewas
subject to some confusion. See Minutes, S. Judiciary Standing Comm. Hearing on S.B.
93, 23rd Leg., 1st Sess. at 13 (Apr. 30, 2003) (testimony of Jon Tillinghast) (explaining
he had initially "misadvised" the committee that the fence example was adverse
possession under color of title when the example would actually qualify as good faith).
53 Thepre-2003 statutory scheme already benefitted thoseadversepossessors
with a certain type of objective good faith; those who possess the land under "color of
title" were permitted to file a claim after possessing the land for only seven years. See
Prax v. Zalewski, 400 P.3d 116, 119 (Alaska 2017).
54 178 P.3d 459, 465 (Alaska 2008) (quoting Samaniego v. City of Kodiak,
(continued...)
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objective reasonableness is required, officers do not enjoy immunity on account of their
55
subjective good faith alone."
And we clarified that "[a] police officer might make a
good faith mistake in believing that his action is legal; this does not, however, prevent
56 Our analysis
that same belief from being unreasonable for that officer to hold."
therefore reflected an understanding that a "good faith mistake" refers to a subjective
belief, which in turn can be either objectively reasonable or objectively unreasonable.
Similarly, in Mount Juneau Enterprises, Inc. v. City &Borough of Juneau,
we used the phrase "good-faith but mistaken belief" to mean a subjective belief.57 The
case involved an "inverse condemnation," defined as "when a governmental entity takes
private property for public purposes under the good-faith but mistaken belief that the
taking does not require the exercise of eminent domain."58 A simple title search would
have revealed the City's reliance on an easement was mistaken by showing that the entity
that granted the City an easement lacked authority to do so. But we held "the City's
reliance on [the] easement" was nevertheless consistent "with a good-faith but mistaken
belief that there was no need to exercise eminent domain powers."59
54 (...continued)
2 P.3d 78, 84 (Alaska 2000)).
55 Id. (alteration in original) (emphasis added).
56 Id. (emphases added).
57 923 P.2d 768, 773 (Alaska 1996).
58 Id. (emphasis added) (citing State of Alaska, Dep't of Highways v. Crosby,
4 10 P.2d 724, 728-29 (Alaska 1966)).
59 Id . Although we could have emphasized that the City's belief was
objectively reasonable, in addition to being subjectively held, we did not. We instead
simply rejected the appellant's argument that the City was required to conduct a title
(continued...)
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In Wahl v. State the court of appeals implicitly equated "a defendant's
subjective belief in the existence of a sentencing agreement" with "a defendant's reliance
on a mistaken but good faith belief that a sentencing agreement has been made . . . even
if the mistaken belief is unilateral." 60
In each of these cases, we or the court of appeals used terminology similar
to the language at issue from AS 09.45.052(a) - "a good faith but mistaken belief" -
and implicitly characterized it as a subjective standard. Furthermore, neither the
statutory text nor the legislative history indicates that the phrase specifically requires an
objective standard of good faith. Therefore we construe "a good faith but mistaken
belief" in AS 09.45.052(a) to require only subjective good faith.
2. The superior court did not err in determining Henley acted in
subjective good faith.
An adverse possessor must demonstrate by clear and convincing evidence
that statutory requirements are met, including the requirement that the possessor act
under a good-faith belief that the disputed land was within the possessor's property
boundaries.61
The superior court found that Henley did possess a good-faith belief that
the contested area was part of his property. The superior court reasoned that Henley's
reliance on Hall Quality Builders' excavation led him to this belief, noting Henley's
testimony that he relied on the excavation performed by Hall Quality Builders when
determining what he thought his property boundaries were. The superior court also
59 (...continued)
search to verify that the entity granting the easement held the land rights the City
sincerely believed the entity held. Id.
60 691 P.2d 1048, 1052 (Alaska App. 1984).
61 Curran v. Mount, 657 P.2d 389, 391-92 (Alaska 1982).
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pointed to Hurd's testimony admitting he had been unsure enough of the precise
boundary to not bring his concern up to Henley, even after Hurd attempted his own
informal survey with the aid of a compass, hundred-foot tape, metal detector, and friend
who conducted surveys professionally.
Hurd argues the superior court erred in concluding Henley had a good-faith
belief that the contested property belonged to him. Hurd first points to a conversation
during which, after Henley had built his shed, Henley told Hurd that they should get a
survey done so that they could build a privacy fence.
When Henley suggested performing a property survey before building a
fence that would precisely demarcate the boundary between his and Hurd's property,
Henley did reveal he was uncertain exactly where the boundary lay between the two
properties. However, his admission of uncertainty as to the precise boundary does not
negate the sincerity of his belief that the area on which he had already built his shed was
on his side of that boundary.
Hurd next suggests Henley's inconsistent testimony on whether and where
he found property markers contradicts the superior court's finding that Henley built his
shed on Hurd's land because of a good-faith belief the land was his. Henley testified at
trial that when he received the property in 2001, before he built his shed, he found a
white stake near the southeast corner of his property; this testimony clearly contradicted
what Henley had said in the deposition, as the superior court pointed out in its findings
of fact.
Hurd's argument finally relies on Henley's own testimony, which indicates
Henley knew there was a possibility he was encroaching on his neighbor's property by
building the shed. Henley testified about his state of mind when constructing the shed:
"I thought I was on my land. So if I was off, I figured it wasn't [by] very much."
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Henley explained: "[I]f there is a problem, I can move [the shed] because it's on skids
. . . I could have just put a strap around it and just tugged it forward a couple feet."
But "[i]t is the trial court's function, and not that of a reviewing court, to
judge the credibility of the witnesses and to weigh conflicting evidence. This is
62
especially true where the trial court's decision depends largely upon oral testimony."
The superior court acknowledged that Henley's testimony about the stakes was
inconsistentbut still determined,in reliance on other portions ofHenley's oraltestimony,
that Henley believed when he built his shed that the land underneath was his in reliance
on Hall Quality Builders' excavation of that area.
We conclude that AS 09.45.052(a)'s requirement of good faith requires
only subjective good faith; the adverse claimant's belief of possessing land need only be
sincerely rather than reasonably held. As a result, the record contains sufficient evidence
to support the trial court's determination that Henley hada good-faith but mistaken belief
that the "contested area" was part of his property.
IV. CONCLUSION
We therefore AFFIRM the superior court's judgment.
62
Kessler v. Kessler, 827 P.2d 1119, 1119 (Alaska 1992) (quoting Penn v.
Ivey, 615 P.2d 1, 3 (Alaska 1980)).
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