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[F] Keener v. State (2/17/95), 889 P 2d 1063
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)
264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
KEVIN C. KEENER and )
SHERRILL L. KEENER, ) Supreme Court No. S-5650
Appellants, ) Superior Court No.
) 4FA-89-1854 CI
STATE OF ALASKA, ) O P I N I O N
Appellee. ) [No. 4168 - February 17,
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial
Richard D. Savell, Judge.
Appearances: Robert John, Law Office of
William R. Satterberg, Jr., Fairbanks,
for Appellants. Paul R. Lyle, Assistant
Attorney General, Fairbanks, and Charles
E. Cole, Attorney General, Juneau, for
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton,
Justices, and Bryner, Justice, pro tem.*
I. FACTS AND PROCEEDINGS
In this case, the State asserts a fifty-foot right
of way over property owned by Kevin and Sherrill Keener.
The property at issue is located at the intersection of
University Avenue and Davis Road in Fairbanks, Alaska. In
1952, the United States government leased the property to
Patrick Henry Erwin pursuant to the Small Tract Act of 1938.
In 1955, the United States issued Erwin a patent for the
property. The patent reserved a thirty-three-foot right of
way for roadway and public utility purposes.
The width of the right of way reserved in Erwin's
patent was affected by two occurrences: the construction of
Davis Road in 1951, and an order issued by the Department of
the Interior (D.O. 2665) establishing a fifty-foot right of
way for local roads, also in 1951. The occurrence of these
two events prior to the issuance of Erwin's patent in 1955
established a fifty-foot right of way across Erwin's land
despite the specific provision in his patent reserving a
thirty-three-foot right of way. See State v. Alaska Land
Title Ass'n, 667 P.2d 714 (Alaska 1983), cert. denied, 464
U.S. 1040 (1984); State, Dep't of Highways v. Green, 586
P.2d 595 (Alaska 1978).
Kevin and Sherrill Keener purchased the property
in 1980. Based on the seller's representations, the Keeners
believed the property was subject to a thirty-three-foot
right of way. The Keeners did not know that the State owned
a fifty-foot right of way.
On November 3, 1989, the State condemned three
parcels of the Keeners' property for a project upgrading
Davis Road. One of the parcels was a 4,769 square-foot
strip adjacent to Davis Road. The State claimed it already
owned this parcel as it was part of the fifty-foot right of
way granted by D.O. 2665. The State moved for summary
judgment to confirm its ownership of the right of way. The
Keeners opposed the motion and moved for summary judgment to
establish that the right of way was only thirty-three feet.
The superior court granted the State's motion for summary
judgment.1 The Keeners appeal that ruling.2
On appeal, the Keeners do not challenge the
validity of the fifty-foot easement.3 Instead, the Keeners
argue that the State is barred from asserting its right to
use the property by the statute of limitations and the
doctrines of laches and quasi estoppel. The Keeners
maintain that if the State wants to use the fifty-foot right
of way it must pay them just compensation.
A. The statute of limitations
The Keeners argue that AS 09.10.2304 and AS
09.10.1205 bar the State from asserting its right to a fifty-
foot right of way across their property. We addressed a
question with respect to the federal statute of limitations
in Alaska Land Title Ass'n. The federal statute of
limitations requires all "[s]uits by the United States to
vacate and annul any patent"to be brought within six years
after the date of the issuance of such patent. Alaska Land
Title Ass'n, 667 P.2d at 726 n.19 (quoting 43 U.S.C. 1166
(1986)). In Alaska Land Title Ass'n, we held that the
statute of limitations did not apply because the land was
taken subject to a previously existing right of way;
therefore, no suit to vacate or annul the patent was
necessary. Id. at 726-27.
The Keeners argue that our reasoning in Alaska
Land Title Ass'n does not apply in this case because AS
09.10.230's prohibition against the State's claim is broader
than that of 43 U.S.C. 1166. The Keeners rely on the
language barring suits that attempt to "set aside, cancel,
annul, or otherwise affect a patent to land." AS 09.10.230
(emphasis added). However, this court's holding in Alaska
Land Title Ass'n that the land was taken subject to a
previously existing right of way defeats the Keeners' claim.
Since the original patent reserved a fifty-foot right of
way, the State's current suit does not seek to affect the
patent in any way. Therefore, AS 09.10.230 does not apply.
The Keeners also argue that the State's challenge
to the patent is barred by AS 09.10.120. As we discuss
below, the State's cause of action did not begin to accrue
until the State was notified of the Keeners' challenge to
the right of way. Therefore, AS 09.10.120 does not bar the
B. The doctrine of laches
The Keeners' second argument is that the State's
suit is barred by the doctrine of laches. The trial court
has broad discretion to sustain or deny a defense based on
laches. Young v. Williams, 583 P.2d 201, 204 (Alaska 1978);
Moore v. State, 553 P.2d 8, 15 (Alaska 1976). We will not
overturn the trial court's decision unless we have a firm
and definite conviction that a mistake has been made.
Young, 583 P.2d at 204; Moore, 553 P.2d at 15. In order
for the defense of laches to succeed, the court must find
that the plaintiff unreasonably delayed seeking relief and
that prejudice to the defendant resulted from the
plaintiff's delay. McGill v. Wahl, 839 P.2d 393, 398
(Alaska 1992); Bibo v. Jeffrey's Restaurant, 770 P.2d 290,
293 (Alaska 1989); Pavlik v. State, Dep't of Community &
Regional Affairs, 637 P.2d 1045, 1047 (Alaska 1981). The
Keeners have not established either element in this case.
1. Unreasonable delay
The Keeners argue that the State had notice that
the patent reserved only a thirty-three-foot right of way in
1955 when the patent was recorded. The Keeners contend that
waiting thirty-four years to file suit to establish the
fifty-foot right of way is an unreasonable delay and
satisfies the first element of a laches defense. The period
of delay for laches begins to run when the party discovers
or could have discovered the wrong of which he complains,
Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 767 (Alaska 1977),
or where, in light of any resulting prejudice to the
defendant, it became reasonable to expect the plaintiff to
act upon the wrong. McGill v. Wahl, 839 P.2d at 398. The
Keeners argue that this occurred in 1955 when Erwin recorded
his patent. However, their argument ignores our previous
holdings in Green and Alaska Land Title Ass'n. Under these
cases, a fifty-foot right of way was established when D.O.
2665 was issued. The landowner was held to have
constructive notice of the right of way. Alaska Land Title
Ass'n, 667 P.2d at 726. Therefore, the challenge to the
right of way rather than the issuance of the 1955 patent
began the period of delay.
Furthermore, the State does not have to sue to
establish its ownership of the right of way simply because
problems might arise. The Oregon courts have held that
[a] property owner who has record notice
of "possible problems"with the owner's
title may, but is not required to bring
an action to eliminate those problems.
When a property interest is actually
repudiated or challenged, or an adverse
claim is asserted against that interest,
the property owner is obligated to act
within a reasonable time to protect the
owner's interests. In the face of such
a challenge, an action unreasonably
delayed is time barred, because to allow
it would result "in injury, prejudice or
disadvantage"to the party against whom
the action is brought.
Association of Unit Owners v. Far West Federal, 852 P.2d
218, 222 (Or. App. 1993) (citations omitted); see also
Oliphant v. French, 472 P.2d 275 (Or. 1970) (holding that
suit by landowner twenty years after he had constructive
notice of possible problems with his title was not time
barred because partner never disputed his interest in the
property and property was managed according to landowner's
understanding of his interests in it).
In this case, the State may have had notice of
possible problems with its title; however, assuming without
deciding that it may be required to bring an action to
eliminate those problems at some point, this requirement
does not accrue until the landowner challenges its property
right. The State's current suit to confirm its ownership
was filed five months after the Keeners challenged the
State's interest. Five months is not an unreasonable delay.
Therefore, laches does not prevent this suit.
2. Prejudice to defendants
The Keeners also argue that they have been
prejudiced by the State's delay because they spent money to
purchase the property. The Keeners maintain that if the
State had filed suit to establish its right of way in 1955,
or within a reasonable time thereafter, they would not have
paid as much for the property when they purchased it in
1981. Prejudice arises when money or valuable services will
be wasted as a result of the unreasonable delay. Bibo, 770
P.2d at 293. The prejudice must be a result of the delay.
Pavlik, 637 P.2d at 1047.
As discussed above, the State was not required to
bring suit to establish the right of way in 1955. At most
the State was required to bring suit within a reasonable
time of the Keeners' challenge. The Keeners challenged the
right of way in June 1989. The State filed this action to
enforce its rights five months later. The Keeners did not
suffer any prejudice during this time period.
C. The doctrine of quasi estoppel
The Keeners argue that the doctrine of quasi
estoppel also bars the State's assertion of a fifty-foot
right of way. We have stated that "[q]uasi estoppel
'precludes a party from taking a position inconsistent with
one he [or she] has previously taken where circumstances
render assertion of the second position unconscionable.'"
Dressel v. Weeks, 779 P.2d 324, 329 (Alaska 1989) (quoting
Jamison v. Consolidated Utils., Inc., 576 P.2d 97, 102
(Alaska 1978)); see also Wright v. State, 824 P.2d 718, 721
(Alaska 1992) (recognizing doctrine of quasi estoppel). In
applying the doctrine of quasi estoppel, we will consider
"whether the party asserting the inconsistent position has
gained an advantage or produced some disadvantage through
the first position; whether the inconsistency was of such
significance as to make the present assertion
unconscionable; and whether the first assertion was based on
full knowledge of the facts." Jamison, 576 P.2d at 103.
The Keeners allege that the State made two
assertions which are inconsistent with its current position
that it owns a fifty-foot right of way. First, the Keeners
claim that the public plats issued prior to 1988 and the
plat for the University Avenue project, which showed a
thirty-three-foot right of way for Davis Road, constitute
representations as to the width of the Davis Road right of
way. The State argues that the depiction of a thirty-three-
foot right of way in the University Avenue plat does not
rise to the level of a representation because the focus of
the plat was University Avenue; inclusion of the Davis Road
right of way on the plat was incidental to the purpose of
the plat. While we believe that the State has made a good
argument that these depictions do not rise to the level of a
representation, it is not necessary to resolve the issue
because the Keeners have failed to show any of the other
elements of quasi estoppel.
The Keeners have not shown that the State gained
an advantage or produced a disadvantage to them by depicting
the Davis Road right of way at thirty-three feet rather than
fifty feet. Although Kevin Keener may have reviewed the pre-
1988 plats at some point and concluded that the State had a
thirty-three-foot right of way across the property, he
stated that when he purchased the property in 1980 he relied
on the sellers' representations as to the width of the right
of way in determining a fair purchase price. It is also
clear that the Keeners did not rely on the plats in
improving the property as the property remains vacant and
The Keeners have also failed to show that the
State had full knowledge of the width of the right of way.
The State claims it was uncertain as to the width of the
right of way until it prepared the official plans for the
Davis Road project in 1988. Thus, the "assertions"
contained in the pre-1988 plats were not based on a full
knowledge of the facts. Even if constructive knowledge is
enough to establish full knowledge, as the Keeners argue,
the defense fails because the Keeners also had constructive
knowledge of the width of the right of way. Therefore, they
could not have been disadvantaged by the State's incorrect
representation of the right of way.
The Keeners' second argument is that the State
implicitly represented that the right of way was only thirty-
three feet in its prior dealings with the Keeners. In 1983
the State purchased property from the Keeners for the
expansion of University Avenue. The Keeners argue that when
the State purchased that property it did so "with the
understanding that the State claimed only a 33-foot right-of-
way along Davis Road." The Keeners claim that in doing so
the State received the benefit of a quick and expeditious
settlement with respect to the property necessary for the
University Avenue project.
At best, however, the record establishes only a
mutually shared assumption on the part of Kevin Keener and
the State that the right of way was thirty-three rather than
fifty feet. Kevin Keener's affidavit states:
That, it should also be noted that,
with respect to the University Avenue
extension, the State of Alaska when
acquiring property for that extension
purchased 17 feet for the extension from
me in the mid-1980's. At the time, both
myself and the State of Alaska were in
agreement that the right of way was 33
foot and not 50 foot on either side of
the center line for both Davis Road and
Lacking is any indication that this mutual mistake produced
an advantage to the State or a disadvantage to the Keeners.
The opposite, in fact, seems to have occurred, for the State
paid the Keeners for property it already owned. Further, as
discussed above, full knowledge on the part of the State was
lacking and both parties had constructive knowledge.6
D. Just compensation
Finally, the Keeners argue that the Alaska
Constitution requires the State to compensate them for any
taking beyond the thirty-three-foot right of way provided
for in the Keeners' patent. The Keeners argue that it is
"fundamentally unfair to require [them] to bear the burden
of the State's surprise assertion of a right-of-way directly
contrary to that contained in [their] patent." This
argument ignores the fact that the State already owns the
right of way. In this case, the State has not sought to
take a property interest which belongs to the Keeners.
Rather it has merely sought to confirm what it already owns.
The State does not have to pay a property owner for a
preexisting right of way; therefore, the Keeners' argument
must fail. See Green, 586 P.2d at 603 (not requiring
compensation when easement is validly promulgated prior to
issuance of patent).
On two prior occasions, in situations identical to
this one, we have determined that the State owns a fifty-
foot right of way for roadway purposes. The Keeners try to
avoid a similar result in this case by arguing that the
State can no longer assert its right to use the right of
way. We have concluded that none of the bases asserted by
the Keeners is sufficient to bar the State's claim.
Therefore, we AFFIRM the superior court's award of summary
judgment in favor of the State.
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 In March 1993, the parties reached a settlement
agreement regarding the remaining parcels. The superior
court entered a judgment incorporating the settlement
agreement on March 24, 1993. The agreement contained a
provision which allowed the Keeners to appeal the trial
court's summary judgment in favor of the State.
2 In reviewing a grant of summary judgment, this
court "must determine whether a genuine issue of material
fact exists and whether the moving party is entitled to
judgment as a matter of law." Saddler v. Alaska Marine
Lines, Inc., 856 P.2d 784, 787 (Alaska 1993). All
reasonable inferences of fact must be drawn in favor of the
non-moving party. Wright v. State, 824 P.2d 718, 720
3 In State v. Alaska Land Title Ass'n, 667 P.2d 714
(Alaska 1983), and State, Dep't of Highways v. Green, 586
P.2d 595 (Alaska 1978), we held that D.O. 2665 created a
fifty-foot right of way for local roads provided the patent
for the land was issued after construction of the road and
the date of the order. The facts in this case involving the
acquisition of the land are identical to those in Alaska
Land Title Ass'n and Green. Therefore, the property is
subject to a fifty-foot right of way.
4 AS 09.10.230 provides:
No person may bring an action for
the determination of a right or claim to
or interest in real property unless
commenced within the limitations
provided for actions for the recovery of
the possession of real property. But no
person may bring an action to set aside,
cancel, annul, or otherwise affect a
patent to land issued by this state or
the United States, or to compel a person
claiming or holding under a patent to
convey the land described in the patent
or a portion of the land to the
plaintiff in the action, or to hold the
land in trust for or to the use and
benefit of the plaintiff, or on account
of any matter, thing, or transaction
which was had, done, suffered, or
transpired before the date of the patent
unless commenced within 10 years from
the date of the patent. In an action
upon a new promise, fraud, or mistake,
the running of the time within which an
action may be commenced starts from the
making of the
new promise or the discovery of the fraud or mistake. This
section does not bar an equitable owner in possession of
real property from defending possession by means of the
equitable title. The right of an equitable owner to defend
possession in an action or by complaint for injunction is
not barred by lapse of time while an action for the
possession of the real property is not barred by the
provisions of this chapter.
5 AS 09.10.120 provides:
An action brought in the name of or
for the benefit of the state, any
political subdivision, or public
corporation may be commenced only within
six years of the date of accrual of the
cause of action. However, if the action
is for relief on the ground of fraud,
the limitation commences from the time
of discovery by the aggrieved party of
the facts constituting the fraud.
6 Contrary to the Keeners' assertion, State v.
Lewis, 785 P.2d 24 (Alaska 1990), and State v. 18,018 Square
Feet, More or Less, 621 P.2d 887 (Alaska 1981), do not
require the State to pay for the right of way. In each of
these cases, the State made specific promises which induced
the landowner to reach a settlement agreement. Lewis, 785
P.2d at 28 (settlement agreement gave landowner right of
access to highway); 18,018 Square Feet, More or Less, 621
P.2d at 890 (settlement agreement gave landowner and his
successors right of access to road extension). The Keeners
argue that like these landowners, they were induced to enter
the 1983 agreement by the State's promises regarding the
land at issue in this case. However, there is no evidence
that the State made any promises concerning the right of way
along Davis Road.