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Fitzgerald v. Puddicombe (4/26/96), 918 P 2d 1017
NOTICE: This is subject to formal 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
JOANNE FITZGERALD, )
) Supreme Court No. S-6579
) Superior Court No.
v. ) 3PA-91-391 CIV
CRAIG PUDDICOMBE and ) O P I N I O N
JOHN DUNHAM, )
Appellees. ) [No. 4340 - April 26, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Brian C. Shortell, Judge.
Appearances: JoAnne Fitzgerald, pro se,
Wasilla. Patricia R. Hefferan, Kopperud and
Hefferan, Wasilla, for Appellees.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices.
COMPTON, Chief Justice.
Craig Puddicombe and John Dunham filed an action to
quiet title to property they owned. Joanne Fitzgerald and
Michael Connor claimed a right to use a trail through the
property. After a bench trial, the superior court denied
Fitzgerald's and Connor's claims, quieted title in and awarded
partial attorney's fees to Puddicombe and Dunham. Fitzgerald
appeals. We reverse.
II. FACTS AND PROCEEDINGS
Puddicombe and Dunham own United States Survey 5265
(USS 5265), located on the Knik River near Metal Creek. They
acquired the property in 1983 from Joanne Roberts. Roberts had
acquired the property f rom Doug Sumner, who homesteaded the
Sumner entered the property in 1965. He testified that
when he first visited the area, there were a number of narrow
trails going from Metal Creek onto his homestead. Using a
bulldozer, Sumner built a driveway on the property. He
testified that the driveway did not precisely follow, but may
have roughly paralleled, one or more of the existing trails. He
placed a cable across the entrance to the driveway and posted no
trespassing signs on the property.
Sumner obtained a patent to the property in 1979. The
patent reserved no easements or rights-of-way for the general
public or for private individuals.
In 1978 Connor and Fitzgerald staked mining claims in
the Metal Creek area. Since then, Connor and Fitzgerald
consistently have gained access to their claims through USS 5265.
In 1990, to more carefully limit access to USS 5265,
Dunham and Puddicombe installed a more permanent, locking cable
across the driveway. Puddicombe offered Connor a key to the
cable and an easement across the property. Connor refused the
offer and asserted that he did not need permission to pass
through the property. Puddicombe and Dunham filed suit to quiet
title to the property, naming, inter alia, Connor and Fitzgerald
as defendants.1 Defendants claimed a right to pass
through USS 5265 on the basis of both private and public
prescriptive easements, and on the basis of a public right-of-way
pursuant to former 43 U.S.C. section 932, Revised Statute (RS)
2477. The superior court rejected all their claims, quieted
title in Puddicombe and Dunham, and ordered Connor and Fitzgerald
to pay thirty percent of Puddicombe's and Dunham's attorney's
fees. Fitzgerald filed a motion for a new trial under Alaska
Civil Rule 59, on the ground of newly discovered evidence. The
superior court denied the motion without comment.
Fitzgerald claims the superior court erred (1) in its
determination that no RS 2477 public right-of-way through USS
5265 exists, (2) in denying her motion for a new trial, and (3)
in assessing attorney's fees against her.
The superior court's determination that no RS 2477
right-of-way through USS 5265 exists was based on factual
findings about the use of the property and legal conclusions
about whether that use was sufficient to establish an RS 2477
right-of-way. We review factual findings under the clearly
erroneous standard. See Oaksmith v. Brusich, 774 P.2d 191, 195
(Alaska 1989); Fairbanks North Star Borough v. Tundra Tours, 719
P.2d 1020, 1024-25 (Alaska 1986). We review de novo the
application of law to the relevant facts. See Luedtke v. Nabors
Alaska Drilling, Inc., 834 P.2d 1220, 1223 (Alaska 1992).
RS 2477 was a congressional grant of rights-of-way
which provided: "[T]he right of way for the construction of
highways over public lands, not reserved for public uses, is
hereby granted." 43 U.S.C. '932, repealed by Pub. L. No. 94-579,
Title VII, ' 706(a), 90 Stat. 2793 (1976), quoted in Hamerly v.
Denton, 359 P.2d 121, 123 (Alaska 1961). The grant was self-
executing; an RS 2477 right-of-way would have come into existence
automatically if a public highway was established across public
land in accordance with the law of Alaska. Shultz v. Dep't of
Army, 10 F.3d 649, 655 (9th Cir. 1993). Although RS 2477 was
repealed in 1976, it nevertheless governs this case since the
claimed right-of-way would have existed at the date of repeal.
See Dillingham Commercial Co. v. City of Dillingham, 705 P.2d
410, 413 (Alaska 1985).
In order to have completed the grant there must have
been "'either some positive act on the part of the appropriate
public authorities of the state, clearly manifesting an intention
to accept a grant, or . . . a public user for such a period of
time and under such conditions'"as to indicate that the grant
had been accepted. Id. at 413-14 (quoting Hamerly, 359 P.2d at
RS 2477 granted rights-of-way over "public lands"only.
Once the land had passed into private hands, the grant could no
longer be accepted. Hamerly, 359 P.2d at 123. Homesteads pass
from the public domain to the private as of the date of entry.
See Id. ("When a citizen has made a valid entry under the
homestead laws, the portion covered by the entry is then
segregated from the public domain. . . . Consequently, a highway
cannot be established under the statute during the time that the
land is the subject of a valid and existing homestead claim.");
see also Dillingham, 705 P.2d at 414. Sumner entered the
property in 1965. Therefore, to prove the existence of an RS
2477 right-of-way, Fitzgerald must prove acceptance of the grant
Fitzgerald argues that public dedication acceptance of
the RS 2477 grant is demonstrated by the use of government money
to improve the trail. The superior court found that "Sumner has
not been shown to have used government money to build his trail."
This finding is fully supported by the record.
Fitzgerald also argues that public acceptance of the
grant is manifested by the fact that the trail was "surveyed,
platted and described in field survey notes."2 The superior
court determined that Fitzgerald had not proven that the
statutory grant was accepted by the State. We agree with this
We disagree, however, with the superior court's
determination that Fitzgerald did not show pre-entry use
sufficient to establish public-use acceptance of the RS 2477
The extent of public use necessary to establish
acceptance of the RS 2477 grant depends upon the character of the
land and the nature of the use. See Shultz, 10 F.3d at 655 ("Our
decision must take into account the fact that conditions in
Alaska present unique questions . . . What might be considered
sporadic use in another context would be consistent or constant
use in Alaska."); Ball v. Stephens, 158 P.2d 207, 211 (Cal. App.
1945) ("The travel over the road . . . was irregular but that was
due to the nature of the country and to the fact that only a
limited number of people had occasion to go that way.").
Although "infrequent and sporadic"use is not sufficient to
establish public acceptance of the grant, Hamerly, 359 P.2d at
125, continuous use is not required. Shultz, 10 F.3d at 656; cf.
McGill v. Wahl, 839 P.2d 393, 397 (Alaska 1992) (requiring proof
of continuous use to establish prescriptive easement). Nor does
the route need to be significantly developed to qualify as a
"highway" for RS 2477 purposes; even a rudimentary trail can
qualify. See Dillingham, 705 P.2d at 414; Shultz, 10 F.3d at 656-
In Hamerly, the court rejected an RS 2477 claim where
the evidence showed that a total of four individuals used the
route on a limited number of occasions during the time when the
property through which it passed was open to the public.
Hamerly, 359 P.2d at 124-25. It noted that the nature of the
road belied public highway status:
The road could not be considered as something
that was either necessary or convenient for
the accommodation of the public. Where there
is a dead end road or trail, running into
wild, unenclosed and uncultivated country,
the desultory use thereof . . . does not
create a public highway.
Id. (footnote omitted).
In Dillingham, we held that a road running across
private property from the city docks to the town was subject to
an RS 2477 right-of-way because roughly the same route had been
used in the 1920's and 30's, before the property was withdrawn
from the public domain. Dillingham, 705 P.2d at 413-14. The
observation, from Hamerly, that a public highway must be "either
necessary or convenient for the accommodation of the public" was
expressed as a requirement that the claimed right-of-way must
have "definite termini." Id. at 414; see also Shultz, 10 F.3d at
657 ("Trails 'running into wild, unenclosed and uncultivated
country' do not meet the minimum standard of definiteness (they
lack one terminus) nor do they suggest sufficient public use."
(citing Dillingham, 705 P.2d at 414)). However, we also held
that "[i]f there is a public road on [the property], it may be
used for any purpose consistent with public travel." Dillingham,
705 P.2d at 415.
With regard to the existence of a trail across the
property, the superior court found:
There is a trail, a well established
trail . . . that proceeds approximately 22
miles along the Knik River to the general
area of the Sumner property. However, that
trail has not been shown on any evidentiary
standard to have gone through the
That finding notwithstanding, it is clear that there
were trails through the property before 1965. Sumner, the
entryman, testified that there were several trails across USS
5265 when he originally homesteaded the property, at least one of
which was several decades old. Al Frey testified that a well-
defined trail existed in 1954. James Hermon testified that
there was "really a good trail"through the property in the
1940's. Although a single trail may not have predominated prior
to entry, a fair reading of Sumner's testimony reveals that he
generally followed the trails' established route in constructing
Ms. Hefferan: Now, did you put this driveway
on existing road or trail or was there
anything there when you built your driveway?
Mr. Sumner: There could have been a trail
there that I might have crossed two or three
times, all of the trails didn't go straight
up the hill. They just wandered around the
easiest way. I basically just put the road,
driveway up straight as I could.
Ms. Hefferan: So you didn't follow any
existing trail when you built your driveway?
Mr. Sumner: I didn't set out to follow any
trail, I might have went right over one and
off of one to the side but I went the easiest
way, same as the trails.
. . . .
The Court: Is that the trail as you
blazed it or did it exist before you?
Mr. Sumner: Yes, I put it in. It is
fairly close since I put it in.
The Court: What existed at the mine [sic]
before you blazed it?
Mr. Sumner: There was a partial trail that
I basically followed, not exactly, but I put
in the trail a lot closer and a lot
With regard to the use of the trail, the superior court
[I]t may legitimately be concluded that some
miners, hunters, and other wilderness
travelers crossed the parcel on various
occasions over a period of fifty to sixty
years. However, the evidence regarding pre-
1960 use of this parcel of land and the
surrounding area is vague. It has not been
shown that any particular trail was used
during the pre-1960 years, either on or off
US 5265 in such a way as to show the RS 2477
grant was accepted by the public. Jim Hermon
prospected in the area and trapped there from
1942 to the early 1960's. The trail he used
for trapping was not the trail Sumner cut out
in the 1960's. He used a "good" walking
trail from Metal Creek which Sumner later
built a cabin across. Hermon testified that
he knew of approximately six other persons
who used the same trail in the 1930's, 1940's
and 1950's, "at one time or another". Hermon
himself didn't use the trail after 1960. The
trail Hermon used "went along the bank". It
was not for the most part located along the
trail cut by Sumner across his parcel.
Before the 1930's the evidence does not show
a specific location for any trail across the
parcel. Hermon's testimony is the only
credible basis for a finding of specific use
of a trail that actually crossed the parcel.
That trail was used by less than ten persons
in vaguely-described circumstances over a
period of three decades prior to Sumner's
entry on the land. . . . The use described by
Hermon is not only vague, it can be
accurately described as "infrequent and
sporadic" . . . Thus, although I find that
some persons used a trail (or trails) across
the Sumner property prior to his entry, their
use did not constitute public acceptance of
These findings are not an accurate summary of the
testimony. Hermon testified that he and all his "brothers,
neighbors, and relatives"regularly used the trail for hunting in
the spring and fall between 1942 and 1960. He regularly used the
trail in the winter for trapping during those years, and
occasionally saw others on the trail when running his trap lines.
Hermon testified that prospectors, at least six of whom he could
name, used the trail to access their claims. Al Frey also
testified that prospectors had used the trail. The "at one time
or another"quote in the superior court's findings is used out of
context. In response to a question about how many people were
mining on Metal Creek, Hermon testified, "I suppose that all
those people around Matanuska there at one time or another were
up there trying to find some gold in there."
The court's finding that "[t]he trail Hermon used 'went
along the bank'" also is misleading to the extent that it
suggests that the trail he used was not on USS 5265. On
rebuttal, Hermon did testify that the trail he used didn't start
in the same place as Sumner's driveway. However, he also
testified that the trail he remembered began on the parcel,
continued on the property to where Sumner built his cabin, and
may have connected with the driveway at some point along the
In any event, it is not necessary, as the trial court
appears to suggest in its findings, that the precise path of the
trail be proven. It is enough for one claiming an RS 2477 right-
of-way to show that there was a generally-followed route across
the land in question. See Shultz, 10 F.3d at 655. That much
Fitzgerald has shown.
The conclusion that the property was used regularly
before 1965 to gain access to the lands beyond it gains even
greater vitality in light of the testimony from Hermon and Frey,
as well as the defendants, that the route through the property
was the only practical way to reach these lands.3
In our view, Fitzgerald has shown public use "for such
a period of time and under such conditions as to prove that the
grant has been accepted." The facts here are considerably more
compelling than those presented in Hamerly. This is not a case
of "infrequent and sporadic"or "desultory"4 use of a "dead end
road or trail". Hamerly, 359 P.2d at 125. Rather, the evidence
demonstrates the public regularly used the trail to travel from
the river bed to Metal Creek and to the lands and mining claims
(definite termini) beyond USS 5265. In the parlance of
precedent, the trail was "necessary or convenient for the
accommodation of the public." Id.
Fitzgerald has demonstrated that the public accepted
the statutory grant of right-of-way prior to entry. Therefore,
we hold that there is a public right-of-way through USS 5265.
Accordingly, we REVERSE the superior court on this issue, VACATE
the court's award of attorney's fees, and REMAND the case to the
superior court for a determination of the precise location and
extent of the right-of-way.5
1 The other defendants settled before trial.
2 Fitzgerald's argument is based on testimony given by
Loretta Fitzsimons, a land law examiner for the B.L.M.:
The Court: Does that mean to you that this
file doesn't show anything regarding whether
or not there is a public trail through the
Ms. Fitzsimons: The field examination and
the survey indicate that there is. But we
had no authority to put it in the patent
under [sic]. In other words a reservation
has to be put in the patent pursuant to some
law and we did not have a law to put it under
See Appellant's Reply Brief at 15-16 (emphasis is Appellant's).
As Fitzsimons' testimony makes clear, the B.L.M. could include in
the survey only those rights-of-way established prior to the
survey; it had no authority to dedicate the trail. Moreover, the
survey was done in 1974 or 1975, ten years after the date of
entry. The presence of trails through the property at the date
of survey is not relevant to the RS 2477 determination.
3 Connor and Dennis Illies on one occasion when they were
prevented by force of arms from passing through USS 5265, did
travel up to their claims using a different route. Although the
plaintiffs referred to this route as an alternative access,
Connor's and Illies' testimony was that they used the route only
once, that it was dangerous, and that they could not use it to
travel back down to the bottom of the trail.
4 "Desultory: 1. Marked by lack of order or planning:
disconnected 2. Occurring haphazardly: random." Webster's II
New Riverside University Dictionary (1984).
5 Because of our holding, we do not address Fitzgerald's
claim for a new trial.