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McDonald v. Harris (4/9/99), 978 P 2d 81


     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

DENISE McDONALD,              )
                              )    Supreme Court No. S-8197
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3HO-96-30 CI
                              )
SYLVIA HARRIS,                )    O P I N I O N
                              )
             Appellee.        )    [No. 5103 - April 9, 1999]
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Homer,
                     Harold M. Brown, Judge.


          Appearances: Keith A. Christenson, Eagle
River, for Appellant.  Virginia Espenshade, Homer, for Appellee.


          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices. [Carpeneti, Justice, not
participating.] 


          FABE, Justice.


I.   INTRODUCTION
          When Denise McDonald discovered that Sylvia Harris's
driveway encroached on McDonald's property, McDonald blocked
Harris's use of the driveway.  As a result, Harris sought a
prescriptive easement, and the superior court found that Harris met
the three requirements of a prescriptive easement -- continuity,
hostility, and notoriety -- for the required period of ten years. 
On appeal, McDonald argues that the trial court used the wrong
dates for determining the required period of continuity and that
both McDonald's and Harris's lack of knowledge of the encroachment
negated the hostility and notoriety elements.  Because we conclude
that the superior court correctly determined that Harris satisfied
the requirements for a prescriptive easement, we affirm.
II.  FACTS AND PROCEEDINGS
          Sylvia Harris and Denise McDonald own adjacent lots of
real property in Mountain Glacier Estates about fifteen miles east
of Homer.  David Truss previously owned a larger parcel that
included both the Harris and McDonald lots, as well as a gravel
pit.  Truss sold the lot now owned by McDonald to a predecessor in
title in 1978.
          The Harrises bought their lot from Truss in November
1982. [Fn. 1]  The bill of sale, recorded in February 1983, did not
reserve an easement to Truss; it only provided that the Harrises
would pay the $30,000 purchase price by performing construction
work for the gravel pit on Truss's property.  The Harrises then
selected the exact site for their log home on the lot in late 1982
or early 1983. 
          Although Donald Harris did not complete construction of
the log home until October 1985, he built a driveway to the
property in the spring of 1983.  Donald then erected a barbed wire
fence on the side of the driveway that was thought to abut the lot
later purchased by Denise McDonald.  The Harrises have maintained
and used the driveway year-round from 1983 to the present.  In
addition to posting "no trespassing"and "private drive"signs,
Donald put logs across the access road behind the house in
approximately 1986 to block public traffic.
          While Donald and his workers occasionally used the
driveway as a way to access the gravel pit when doing construction
work for Truss, the public did not generally use the driveway.  For
the three months out of the year that the gravel pit was in use,
alternative routes existed to access the pit.  In fact, Donald had
supervised the construction of Mossberry Avenue in 1985, which was
intended to provide alternate access to the gravel pit.
          When Denise McDonald bought her property in April 1986,
she did not have a survey performed; instead, she relied on a rough
sketch of the property that did not correctly identify its
boundaries.  When, approximately nine and a half years later, she
commissioned a formal site survey, she discovered that the Harris
driveway encroached on her property.  She then blocked the
driveway.
          Because of the disputed driveway, Harris sought a
prescriptive easement.  After a bench trial on the matter, Superior
Court Judge Harold Brown awarded the prescriptive easement to
Harris.  McDonald appeals.
III. DISCUSSION
          Harris claims a prescriptive easement for the portion of
the driveway that encroaches onto the McDonald property.  The
elements of a prescriptive easement are essentially the same as the
elements of adverse possession, [Fn. 2] except that adverse
possession focuses on possession rather than use. [Fn. 3]  To be
entitled to a prescriptive easement, a party must prove (1)
continuity -- that the use of the easement was continuous and
uninterrupted; (2) hostility -- that the user acted as the owner
and not merely one with the permission of the owner; and (3)
notoriety -- that the use was reasonably visible to the record
owner. [Fn. 4]  A claimant must prove each element by clear and
convincing evidence. [Fn. 5]  Finally, a claimant must have engaged
in the adverse use for at least ten years. [Fn. 6]
     A.   Standard of Review
          The question of whether a claimant has satisfied the
elements of a prescriptive easement is factual in nature. [Fn. 7] 
We will overturn such factual findings "only if they are clearly
erroneous and there exists a definite and firm conviction that a
mistake has been made."[Fn. 8]
     B.   Harris Has Proved the Elements of a Prescriptive
          Easement.

          1.   Continuity
          To meet the requirement of continuity, Harris must show
continuous and uninterrupted use for at least ten years prior to
December 1995, when McDonald interrupted the adverse use of the
encroachment.  We explained this concept, in the context of adverse
possession, in Alaska National Bank v. Linck: [Fn. 9]
          The nature of [possession or use] sufficient
to meet this requirement depends on the character of the property. 
One test is whether the adverse possessor has used and enjoyed the
land as "an average owner of similar property would use and enjoy
it."  An interruption of possession caused by the record owner or
third parties, or abandonment by the possessor, tolls the running
of the statute of limitations.[ [Fn. 10]]

We have applied this test in determining the existence of
prescriptive easements as well. [Fn. 11]  To establish interruption
of use, the record owner or third party must usually do more than
merely post signs against trespassing; the owner or party
ordinarily needs to physically block access to the easement. [Fn.
12]
          The superior court found that the commencement date for
the required period of adverse use was in early or mid 1983, when
Donald Harris built the driveway to the building site of his new
home.  But because Truss and others used this driveway as an access
to Truss's gravel pit, McDonald argues that the Harrises' use was
not exclusive and thus cannot be characterized as continuous and
uninterrupted from the time of the driveway's construction.
McDonald maintains that the Harrises' easement rights did not begin
to accrue until Donald physically blocked Truss's access to the
gravel pit in 1986. [Fn. 13]
          While McDonald acknowledges our holding in McGill v. Wahl
[Fn. 14] that "[e]xclusivity of use is not generally a requirement
for a prescriptive easement,"[Fn. 15] she relies on McGill for her
argument that exclusivity of use should be considered as "a factor
in determining whether a use was under a claim of right."[Fn. 16] 
In that case, the claimant and other adjacent lot owners had
continuously used a roadway through the record owner's adjacent
property as an access to their lots. [Fn. 17]  The roadway existed
before the owner of the adjacent property had come to the property,
[Fn. 18] and it was the sole automobile access to the claimant's
house. [Fn. 19]  The other adjacent lot owners eventually used a
newly constructed highway to access their properties, but the
claimant continued to use the disputed road. [Fn. 20]  We rejected
the suggestion that nonexclusive use of the road precluded a
prescriptive easement. [Fn. 21]
          Here, both Harris and Truss used the driveway as an
access to their properties.  Like the roadway in McGill, the
disputed driveway existed before McDonald purchased her property. 
While the other lot owners in McGill had ceased their use of the
roadway, Truss may have continued to use the driveway as access to
the gravel pit.  Still, as long as the Harrises were the "primary
and only consistent users of the [driveway],"[Fn. 22] a third
party's occasional use of the driveway will not defeat the
Harrises' claim for easement rights based on their use of the
driveway as private access.
          In accordance with this view, the trial court found that
the Harrises maintained and continuously used the driveway
throughout each year beginning in early or mid 1983 to the present. 
The Harrises built the driveway in its present location soon after
they began living on the property.  The Harrises continued to use
the driveway as private access to their homesite, and later their
completed home, until McDonald blocked that access in 1995.  The
trial court's finding that the requisite ten years of continuous
use had elapsed before McDonald interrupted the adverse use was
thus not clearly erroneous.
          2.   Hostility
          McDonald contends that the element of hostility requires
that the claimant of an easement have some knowledge that her use
is in derogation of another's rights.  The hostility requirement,
however, is "determined by application of an objective test which
simply asks whether the possessor acted toward the land as if he
owned it, without the permission of one with legal authority to
give possession."[Fn. 23]
          Still, we will presume that the use of land by an alleged
easement holder was permissive unless a claimant proves "a distinct
and positive assertion of a right hostile to the owner."[Fn. 24] 
But this presumption does not arise if "a roadway was not
established by the owner of the servient estate for its own use but
was for many years the only means of passage to the dominant
estate."[Fn. 25]
          Here, the general presumption of permission does not
arise.  McDonald did not construct the driveway nor did she use it; 
the driveway existed when she first bought the property and there
is no indication that her predecessors in title built or used the
driveway.  Moreover, the driveway was the only viable means of
passage to the actual site of the Harris home.  Thus, this case
qualifies as an exception to the general presumption.
          Even if the presumption did arise, Harris's actions
objectively asserted a right hostile to McDonald's.  A claimant's
use is adverse or hostile "if the true owners merely acquiesce, and
do not intend to permit a use."[Fn. 26]  The key difference
between acquiescence and permission is that "a permissive use
requires the acknowledgment by the possessor that he holds in
subordination to the owner's title."[Fn. 27]
          As McDonald admits, neither she nor Harris had any
knowledge of the encroachment of the driveway.  Therefore, McDonald
could not have intended to permit the Harrises to use that portion
of the driveway.  Moreover, because the Harrises had no knowledge
of the encroachment, they could not have acknowledged that McDonald
was the rightful owner of that portion.  In fact, the Harrises used
and maintained the driveway as if it were their own.  Thus, the
superior court correctly found that the Harrises met the
requirement of hostility.          
          3.   Notoriety
          Finally, McDonald argues that although the disputed
driveway was visible, the lack of actual knowledge by any party of
the encroachment defeats the prerequisite of notoriety.  But this
claim is not supported by our case law.  To the contrary, the
adverse user need not demonstrate that the record owner had actual
knowledge of the adverse party's presence. [Fn. 28]  The adverse
user must show only that a duly alert owner would have known of the
adverse presence. [Fn. 29]  In particular, "a landowner is
responsible for knowing the physical encumbrances on and the
boundaries of the owner's land."[Fn. 30]  Harris thus only needs
to show that her continued use of the driveway was open, not that
the use was open and known by McDonald to be on her land. [Fn. 31]
          The superior court found that McDonald, as a duly alert
and reasonably diligent owner, should have known that a portion of
the Harrises' driveway encroached on her property.  McDonald
observed the driveway when she bought her property and knew that
the Harrises and their invitees used it.  At the time of her
purchase, McDonald had walked the corners of the property and saw
no visible stakes.  Instead of ordering an actual survey of the
property, however, "she relied on a drawing that was undated,
unsigned and failed to identify which way is north as assurance
that the driveway did not encumber her property."  Because McDonald
bore the responsibility of knowing the boundaries of her property,
we uphold the superior court's finding on the element of notoriety.
IV.  CONCLUSION
          Because the superior court's findings are not clearly
erroneous, we AFFIRM its decision to grant Harris a prescriptive
easement.


                            FOOTNOTES


Footnote 1:

     The original bill of sale technically conveyed the property
only to Donald Harris.  However, in October 1986, Donald Harris
executed a statutory warranty deed, conveying the property to
himself and Sylvia as tenants by the entirety.


Footnote 2:

     See McGill v. Wahl, 839 P.2d 393, 397 (Alaska 1992); Swift v.
Kniffen, 706 P.2d 296, 302 (Alaska 1985).


Footnote 3:

     See McGill, 839 P.2d at 397 n.8.


Footnote 4:

     See id. at 397; Swift, 706 P.2d at 303-04.


Footnote 5:

     See Swift, 706 P.2d at 302.


Footnote 6:

     See AS 09.10.030.


Footnote 7:

     See McGill, 839 P.2d at 397 n.10; Swift, 706 P.2d at 303.


Footnote 8:

     McGill, 839 P.2d at 397 n.10.


Footnote 9:

     559 P.2d 1049 (Alaska 1977).


Footnote 10:

     Id. at 1052 (citations omitted).


Footnote 11:

     See Swift, 706 P.2d at 303 (quoting Linck, 559 P.2d at 1052).


Footnote 12:

     See id.


Footnote 13:

     McDonald also argues that the required period did not start
running until 1989 because Harris had only furnished prospective
consideration and could not be the vested owner until the statute
allowing an action by Truss for breach of contract had run.  But

          [w]e will not consider new arguments on appeal
which were neither raised below nor included in the points on
appeal unless the new issues either establish plain error or 1) do
not depend on new or controverted facts; 2) are closely related to
the appellant's arguments at trial; and 3) could have been gleaned
from the pleadings.

Broeckel v. State, Dep't of Corrections, 941 P.2d 893, 897 (Alaska
1997) (quoting Arnett v. Baskous, 856 P.2d 790, 791 n.1 (Alaska
1993)).  McDonald did not raise this argument below, nor did she
include it in her points on appeal.  And none of the exceptions
apply here.


Footnote 14:

     839 P.2d 393 (Alaska 1992).


Footnote 15:

     Id. at 398.


Footnote 16:

     Id.


Footnote 17:

     See id. at 398.


Footnote 18:

     See id. 


Footnote 19:

     See id. at 395.


Footnote 20:

     See id. at 398.


Footnote 21:

     See id.


Footnote 22:

     Id.


Footnote 23:

     Nome 2000 v. Fagerstrom, 799 P.2d 304, 310 (Alaska 1990)
(citation and internal quotation marks omitted).


Footnote 24:

     McGill, 839 P.2d at 397 (quoting Dillingham Commercial Co. v.
City of Dillingham, 705 P.2d 410, 417 (Alaska 1985)); see also
Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1120 (Alaska 1996).


Footnote 25:

     McGill, 839 P.2d at 397-98.


Footnote 26:

     Tenala, 921 P.2d at 1120; see also Swift v. Kniffen, 706 P.2d
296, 304 (Alaska 1985).


Footnote 27:

     Tenala, 921 P.2d at 1120 (quoting Hubbard v. Curtiss, 684 P.2d
842, 848 (Alaska 1984)).


Footnote 28:

     See Swift, 706 P.2d at 304.


Footnote 29:

     See id.


Footnote 30:

     Weidner v. State, Dep't of Transp. & Pub. Facilities, 860 P.2d
1205, 1209-10 (Alaska 1993).


Footnote 31:

     See id. at 1210.