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Methonen v. Stone (7/18/97), 941 P 2d 1248
NOTICE: This opinion 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) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MARCUS METHONEN, individually )
and as Trustee of the ) Supreme Court No. S-7403
METHONEN TRUST, )
) Superior Court No.
Appellant, ) 3AN-94-6808 CI
v. ) O P I N I O N
RICK STONE and ROBERT TALMAGE,) [No. 4851 - July 18, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Thomas A. Meacham, Anchorage,
for Appellant. Lawrence A. Pederson, Paul J. Nangle & Associates,
Anchorage, for Appellees.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
This appeal involves a dispute over property rights
pertaining to a water well which is located on one subdivision lot
and has been used as a source of water by owners of other lots in
II. FACTS AND PROCEEDINGS
In 1970 Howard and Daniel Hede subdivided eleven lots
within Tract Five of Siefker Subdivision No. 3. The Hedes retained
Lot 10, drilled a well there, constructed a well house, and
installed water lines which supplied water to Lots 1 through 10.
The subdivision plat which the Hedes recorded indicates the
location of the well but does not disclose that it services the
When the Hedes sold Lot 10 to Fermo Albertini in October
1974, the Hedes and Albertini executed an agreement (Water
Agreement) to continue the water service. In part the Water
Agreement provided that "[t]he Party of the First part [the Hedes]
has previously agreed to furnish water to any owner of [Lots 1
through 10]." This Water Agreement was not recorded until 1985.
In November 1974, Albertini conveyed Lot 10 to Dennis Oney. In
June 1975, Oney sold Lot 10 to Kathryn Ostrosky. Finally, in
January 1976, Ostrosky conveyed Lot 10 to Marcus and Gwendolyn
Methonen. The statutory warranty deed by which Methonen took title
contained the following provision:
SUBJECT TO easements, restrictions, reserva-
tions and exceptions of record, and well site
as delineated on the subdivision plat.
When Methonen purchased the property, he was aware of the
pipes running from the well on his property to other lots in the
subdivision. [Fn. 1] However, he asserts that the real estate
agent who sold him Lot 10 "led me to understand that I did not need
to worry about maintaining the water system or providing water to
anyone."Shortly after taking title, Methonen learned that the
owners of the other lots in the subdivision believed that he was
legally obligated to provide them with water. Indeed, he "accepted
money for the water system from system users when they provided it
However, Methonen refused to acknowledge an obligation to
supply water to the other lots, and in February 1985 shut off the
water supply to the others. Settlement negotiations ensued and
service was restored. During this period, the 1974 Hedes-Albertini
Water Agreement (recognizing the original community water
agreement) was recorded. Also, in February 1985 the Hedes,
Albertini, and Ostrosky signed an "Acknowledgment of Water Well
Agreement." This document contains the statement that Albertini,
Ostrosky, and Methonen were all "aware of the [Hede-Albertini]
Water Well Agreement and of the need to serve the lots in the
subdivision with water."
Appellees Rick Stone and Robert Talmage purchased Lots 3
and 4 respectively in November 1985 and October 1991. Methonen
continued to deny any obligation to provide water and discontinued
service again in July 1994. Stone and Talmage then instituted suit
against Methonen, contending they had an easement for water from
the well on Methonen's property. They sought a judgment perma-
nently enjoining Methonen from "any further interference with the
water supply"as well as damages.
On cross motions for summary judgment, the superior court
determined that Methonen's deed created an easement in favor of
Stone and Talmage. [Fn. 2] The superior court based its ruling on
the provision in Methonen's deed stating that he took subject to
recorded easements and the well site delineated on the subdivision
plat. The superior court also relied on the 1985 "Acknowledgment
of Water Well Agreement"signed by the Hedes, Albertini, and
Ostrosky. [Fn. 3]
Methonen now brings this appeal.
III. STANDARDS OF REVIEW
Grants of summary judgment are reviewed to determine
whether genuine issues of material fact exist, drawing all
reasonable inferences in favor of the opposing party, and whether
any party is entitled to judgment as a matter of law. Newton v.
Magill, 872 P.2d 1213, 1215 (Alaska 1994) (citing Sea Lion Corp. v.
Air Logistics of Alaska, Inc., 787 P.2d 109, 116 (Alaska 1990)).
As an initial matter, we note that Stone and Talmage in
moving for summary judgment failed to demonstrate that Methonen had
either actual or constructive [record] notice of a community water
agreement at the time he purchased Lot 10 from Ostrosky. In
granting summary judgment in favor of Stone and Talmage, the
superior court held that an easement for water was created by the
"subject to"provisions of the 1976 deed from Ostrosky to Methonen
and the 1985 Acknowledgment of Water Well Agreement. We conclude
that the superior court erred in granting summary judgment to Stone
and Talmage on these grounds.
It is well established that the intention to create a
servitude must be clear on the face of an instrument; ambiguities
are resolved in favor of use of land free of easements. Martinez
v. Martinez, 604 P.2d 366, 368 (N.M. 1979); Wing v. Forest Lawn
Cemetery Ass'n, 101 P.2d 1099, 1103 (Cal. 1940); Berryman v. Hotel
Savoy Co., 117 P. 677, 681 (Cal. 1911). Neither the Ostrosky deed
to Methonen nor the subdivision plat identifies an easement for a
community water system based on the well located on Lot 10.
Neither document indicates that the owner of Lot 10 is obligated to
supply water to any of the remaining subdivision lots. In short,
these documents did not provide either actual or constructive
notice to Methonen of the existence of a community water system
agreement at the time he purchased Lot 10 in 1976.
Nor can notice be inferred from the post-hoc
"Acknowledgment of Water Well Agreement." This 1985 document was
neither signed by Methonen nor recorded when Methonen purchased Lot
10 in 1976. As such, it cannot bind him of its own force. Nor can
the unverified assertions contained in the Acknowledgment serve as
evidence that Methonen was aware of the community water system
agreement at the time he purchased Lot 10. The statements as to
Methonen's knowledge contained in the Acknowledgment are unsworn,
and thus cannot support a ruling on a motion for summary judgment.
Jenning v. State, 566 P.2d 1304, 1309-10 (Alaska 1977). A holding
that Methonen is bound to supply water to Stone and Talmage must
find its rationale in some basis other than the Ostrosky deed, the
plat of the subdivision, and the 1985 Acknowledgment of Water Well
Although we conclude that the superior court erred in
ruling that Stone and Talmage were entitled to summary judgment, we
further hold that on this record Methonen is not entitled to the
entry of summary judgment on his cross motion for summary judgment.
For in our view Stone and Talmage have raised genuine issues of
material fact as to two separate potential grounds for establishing
an easement for water from the well located on Methonen's Lot 10.
These separate theories are those of inquiry notice and implied
easement. [Fn. 4]
A. Inquiry Notice
The basis for our conclusion that genuine issues of
material fact are presented by this record resides in the fact that
at the time of his purchase of Lot 10, Methonen was aware of the
existence of the well on the property and the water lines running
from the well to the adjoining lots in the subdivision. These
facts are sufficient to place Methonen on inquiry notice as to the
existence of the community water system agreement.
It is well established that a purchaser will be charged
with notice of an interest adverse to his title when he is aware of
facts which would lead a reasonably prudent person to a course of
investigation which, properly executed, would lead to knowledge of
the servitude. Miebach v. Colasurdo, 685 P.2d 1074, 1078-79 (Wash.
1984); Cohen v. Thomas & Son Transfer Line, Inc., 586 P.2d 39, 40
(Colo. 1978); Putnam v. Dickinson, 142 N.W.2d 111, 122 (N.D. 1966);
Helle v. Markotan, 137 N.E.2d 715, 719-20 (Ohio Com. Pl. 1955);
Holly Lumber & Supply Co. v. Friedel, 261 N.W. 70, 72 (Mich. 1935);
Belt v. Matson, 252 P. 80, 82-83 (Or. 1927) (quoting 2 Robert
Thomas Devlin, Devlin on Real Estate 1342 (3d ed. 1911)); Brooks v.
Reynolds, 132 P. 1091, 1092 (Okla. 1912); Rankin Mfg. v. Bishop, 34
So. 991, 992 (Ala. 1903); Gaines v. Saunders, 7 S.W. 301, 302 (Ark.
1888) (citing William Pratt Wade, Notice, sec. 17, c.5 (2d ed.
The purchaser is considered apprised of those facts obvious from an
inspection of the property. Kutschinski v. Thompson, 138 A. 569,
571-72 (N.J. Ch. 1927); Heck v. Morgan, 106 S.E. 413, 418 (W.Va.
1921). Cf. Sanborn v. McLean, 206 N.W. 496, 498 (Mich. 1925). [Fn.
Lack of diligence in the prosecution of a required
inquiry creates a conclusive presumption of knowledge of those
facts which reasonable inquiry would have revealed. Wapa Oil &
Dev. Co. v. McBride, 201 P. 984, 987 (Okla. 1921); McBee v.
O'Connell, 145 P. 123, 124-25 (N.M. 1914); Bigelow v. Brewer, 70 P.
129, 132 (Wash. 1902); Betts v. Letcher, 46 N.W. 193, 197 (S.D.
1890) (quoting Pomeroy); Montgomery v. Keppel, 19 P. 178, 179-80
(Cal. 1888) (rule is "well settled"). Generally, a proper
investigation will include a request for information from those
reasonably believed to hold an adverse interest. Should these
sources mislead, the purchaser is not bound. Kelly v. Fairmount
Land Co., 33 S.E. 598 (Va. 1899); Yates v. Hurd, 8 P. 575, 576
(Colo. 1885). Reliance on the statements of the vendor, or anyone
who has motive to mislead, is not sufficient. Corn Belt Trust &
Sav. Bank v. May, 196 N.W. 735, 738 (Iowa 1924); W.L. Moody & Co.
v. Martin, 117 S.W. 1015, 1016-17 (Tex. Civ. App. 1909). But see
Simpson v. Hinson, 7 So. 264, 266 (Ala. 1890).
Methonen did allegedly receive misleading information
from the real estate agent who sold him the property. However,
reliance on this source would not satisfy his duty to investigate.
Since Methonen was on notice of a possible obligation to supply
water to neighboring lots, the proper object of his inquiry was the
owners of those lots. Should those adjoining owners have misled
Methonen, he would not be bound. [Fn. 6]
Given the record before the superior court when it ruled
on the parties' cross-motions for summary judgment, we conclude
that there are genuine issues of material fact as to whether Stone
and Talmage can establish that Methonen was on inquiry notice as to
the existence of a prior agreement to a community water system that
was intended to run with the land.
B. Implied Easement
As noted above, we are also of the opinion that the
record shows the presence of genuine issues of material fact as to
whether an easement for water can be established under an implied
easement theory. The fact that the well and water lines running
from Lot 10 to the adjoining lots were visible and permanent at the
time Methonen purchased Lot 10 might give rise to an easement by
An easement will be implied upon the severance of an
estate when the use made of the servient parcel is manifest,
continuous and reasonably necessary to the enjoyment of the
dominant parcel. [Fn. 7] Demoski v. New, 737 P.2d 780, 783-84
(Alaska 1987); Freightways Terminal Co. v. Indus. & Commercial
Constr., Inc., 381 P.2d 977, 982-84 (Alaska 1963). See also Woods
v. Houle, 766 P.2d 250, 253 (Mont. 1988) (separation of unified
estate required); Pogue v. Collins, 80 P. 623, 624 (Cal. 1905)
(same); Alrich v. Bailey, 630 P.2d 262, 264 (Nev. 1981) (use must
be continuous and manifest); Civilian Defense Inc. v. Ross, 152
N.E.2d 160, 161 (Ohio 1958) (same); Ovard v. Cannon, 600 P.2d 1246,
1247 (Utah 1979) (use must be reasonably necessary to enjoyment of
dominant parcel); Rightsell v. Hale, 18 S.W. 245, 246 (Tenn. 1891)
(same). See also Hutcheson v. Sumrall, 72 So. 2d 225, 227 (Miss.
1954) (use is apparent if discoverable upon inspection). It is not
necessary that the parcels be contiguous. Freightways, 381 P.2d at
The majority of jurisdictions hesitate to imply an
easement in favor of a grantor; implied reservations in the grantor
must meet a higher threshold than implied grants from the
purchaser's estate. See Wheeler v. Taylor, 39 A.2d 190, 192 (Vt.
1944); Wiesel v. Smira, 142 A. 148, 149 (R.I. 1928). Alaska,
however, does not adhere to this distinction. We apply the same
standard, "regardless of whether the easement is one of implied
grant or implied reservation." Freightways, 381 P.2d at 984.
Once an easement is implied, it runs with the land and is
enforceable against subsequent purchasers of the servient estate so
long as it retains its continuous and apparent nature and remains
reasonably necessary to the enjoyment of the dominant estate.
Johnson v. Gustafson, 288 P. 427, 429 (Idaho 1930); Durante v.
Alba, 109 A. 796, 797 (Pa. 1920); Znamanacek v. Jelinck, 95 N.W. 28
(Neb. 1903); Quinlan v. Noble, 17 P. 69, 70 (Cal. 1888). Cf. Baker
v. Rice, 47 N.E. 653, 655 (Ohio 1897) (simultaneous conveyance of
both parcels implies easements in each under same rules as if other
were retained by grantor). Compare Dale v. Bedal, 25 N.E.2d 175,
176 (Mass. 1940) (no implied easement in severed estate against
subsequent owner of retained estate for use of underground septic
tank); Tredwell v. Inslee, 24 N.E. 651, 653 (N.Y. 1890) (easement
that was not implied for grantor also not enforceable by subsequent
purchaser of that estate).
Our review of the record persuades us that Stone and
Talmage have raised genuine issues of material fact as to whether
the use of water from Lot 10 to supply other lots in the
subdivision was manifest, continuous and reasonably necessary to
the enjoyment of the dominant parcels at the relevant times. [Fn.
8] Methonen is therefore not entitled to summary judgment in
regard to an implied easement theory.
The superior court's judgment entered in favor of Stone
and Talmage is REVERSED and VACATED. The case is REMANDED for
further proceedings not inconsistent with this opinion. Upon
remand among the issues remaining for determination are whether
Stone and Talmage are entitled to a water easement on either an
inquiry notice theory or an implied easement theory.
1 Methonen admits that at the time of purchase he was aware
of the well site, and that the water lines apparently ran from it
to other lots in the subdivision.
2 The superior court's Final Judgment states in part that
Stone and Talmage "are entitled to water service from the well on
[Methonen's] land under an easement contained in the deed from
Ostrovsky [sic] to Methonen."
3 In regard to this agreement the superior court observed
that "Ms. Ostrovsky [sic] acknowledges that the owner of lot 10
agrees to serve the other lots in the subdivision with water. In
exchange the lot owners are required to pay a fee."
4 Methonen notes that Alaska's recording statute protects
bona fide purchasers against unrecorded adverse interests unless
they have actual notice of that interest. AS 40.17.080 provides:
Effect of recording on title and rights;
constructive notice. (a) Subject to (c) and (d) of this section,
from the time a document is recorded in the records of the
recording district in which land affected by it is located, the
recorded document is constructive notice of the contents of the
document to subsequent purchasers and holders of a security
interest in the same property or a part of the property.
(b) A conveyance of real property in the
state, other than a lease for a term of less than one year, is void
as against a subsequent innocent purchaser in good faith for
valuable consideration of the property or a part of the property
whose conveyance is first recorded. An unrecorded conveyance is
valid as between the parties to it and as against one who has
actual notice of it. In this subsection, "purchaser"includes a
holder of a consensual interest in real property that secures
payment or performance of an obligation.
Methonen's knowledge of the well, and even his actual or
constructive knowledge that a well was depicted on the subdivision
plat, or that a well site was referred to in his deed from
Ostrosky, technically is not "actual notice"of an easement.
However, courts have construed the actual notice exception in state
recording statutes to incorporate common law theories of
constructive notice. See, e.g., Johnson v. Bell, 666 P.2d 308, 310
(Utah 1983); Brooks v. Reynolds, 132 P. 1091, 1092 (Okla. 1912).
See also "actual notice,"Black's Law Dictionary 1061 (6th ed.
1990). Legislative enactments are presumed not to abrogate the
common law, except where the intent to do so is manifest. Boyd v.
United States, 116 U.S. 616 (1886); Follette v. Pacific Light &
Power Corp., 208 P. 295 (Cal. 1922). We therefore conclude that a
purchaser is bound by an unrecorded easement under AS 40.17.080's
actual notice provision when it would be valid against him under
the common law doctrines of implied easement or inquiry notice.
5 If a purchaser or incumbrancer, dealing con-
cerning property of which the record title
appears to be complete and perfect, has information of extraneous
facts, or matters in pais, sufficient to put him on inquiry
respecting some unrecorded conveyance, mortgage, or incumbrance, or
respecting some outstanding interest, claim, or right which is not
the subject of record, and he omits to make proper inquiry, he will
be charged with constructive notice of all the facts which he might
have learned by means of a due and reasonable inquiry.
Petrain v. Kiernan, 32 P. 158, 159 (Or. 1893) (quoting 2 John
Norton Pomeroy, Pom. Eq. Jur. sec. 613 (2d ed. 1892)).
6 If the purchaser has notice of an encumbrance to his
title, he is charged with knowledge of its extent and nature if
such were discoverable by reasonable inquiry. Kidder v. Flanders,
61 A. 675, 676 (N.H. 1905); Mayfield v. Turner, 54 N.E. 418, 421
(Ill. 1899). See also Fresno Canal & Irrigation Co. v. Rowell, 22
P. 53, 54 (Cal. 1889) (water rights). Misstatements by the vendor
as to the extent of the encumbrance do not lift the presumption of
knowledge; the purchaser is considered apprised of all facts
available by interrogation of the party adverse in interest. Wahl
v. Stoy, 66 A. 176, 179-80 (N.J. Ch. 1907); Ormes v. Weller, 52
S.W. 937, 938 (Ky. 1899).
7 See also 7 Thompson on Real Property sec. 60.03(b)(4)(i),
469 (David A. Thomas ed. 1994). There are authorities to the
effect that water pipes which supply one lot from another
constitute a manifest and continuous easement. See Berlin v.
Robbins, 38 P.2d 1047, 1049-51 (Wash. 1934) (artificial structures
such as pipes constitute apparent and continuous easements); German
Sav. & Loan Soc'y v. Gordon, 102 P. 736, 739-40 (Or. 1909) (water
spout is continuous); Larsen v. Petersen, 30 A. 1094, 1097-98 (N.J.
Ch. 1895) (use of artificial mechanism, such as pump, to create
water flow does not render easement non-continuous); Kelly v.
Dunning, 10 A. 276, 279-80 (N.J. Ch. 1887) (artificial watercourse
is apparent and continuous) (modified in other part by Dunning v.
Kelly, 22 A. 128 (N.J. 1890)).
8 To bind Methonen, the implied easement must have met
these criteria both upon the severance of the estates and at the
time of the conveyance of the servient parcel to Methonen.