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Simon v. State (3/3/00) sp-5244

     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.


husband and wife, d/b/a       )    Supreme Court No. S-8801
Little Nelchina Farms,        )
                              )    Superior Court No.
               Appellants,    )    3AN-95-7554 CI
     v.                       )
                              )    O P I N I O N       
ASPHALT PAVING, INC.,         )    
                              )    [No. 5244 - March 3, 2000]
               Appellees.     )

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        Sen K. Tan, Judge.

          Appearances: Hal P. Gazaway, Hal P. Gazaway,
P.C., Anchorage, for Appellants.  Ross A. Kopperud, Thomas M.
Dillon, Assistant Attorneys General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellees.

          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.

          PER CURIAM.

          Herbert and Jacqueline Simon, d/b/a Little Nelchina
Farms, sued the State of Alaska, Department of Transportation and
Public Facilities and its contractor, Quality Asphalt Paving, Inc.,
for damages that the defendants allegedly caused while rebuilding
a strip of the Glenn Highway that crosses the Simons' property on
an easement reserved for highway purposes.  The superior court
granted partial summary judgment to the state, entering final
judgment against the Simons on three counts relating to the state's
use of lands within the highway easement.  The Simons appeal that
          On August 10, 1949, Public Land Order (PLO) 601 withdrew
public land in Alaska for the Glenn Highway.  After the highway's
completion, Congress enacted Public Law 892, providing for disposal
of public lands within the original Alaska highway withdrawals
"subject to appropriate easements" by the Secretary of the
Interior. [Fn. 1]  In accordance with PL 892, the Department of the
Interior issued PLO 1613, which revoked PLO 601's withdrawal of
lands surrounding the Glenn Highway but reserved a 300-foot
easement for highway purposes extending 150 feet from each side of
the center line of the Glenn Highway.  PLO 1613 further provided
that lands within this easement "shall not be occupied or used for
other than the highways . . . except with the permission of the
Secretary of the Interior or his delegate . . . ."  
          At statehood, the federal government conveyed all rights
and interest in Alaska's highway lands to the state. [Fn. 2]  In
1983 the federal government patented the land currently owned by
the Simons to their predecessor, Calvin Gilcrease, who transferred
it to the Simons in 1987.  The patent reserved the highway easement
that ran across it, as established by PLO 1613. 
          In 1995 the state decided to rebuild and improve the
portion of the Glenn Highway running through the Simons' land;
Quality Asphalt contracted with the state to perform the job. 
Quality Asphalt straightened and leveled the roadbed; in doing so
it removed gravel, topsoil, and sod from certain areas and shifted
them to other areas.  All of these changes occurred within the 300-
foot easement reserved by PLO 1613.
          The Simons filed a superior court action against the
state and Quality Asphalt, claiming that the construction project
had damaged their land, their water supply, and their farming
business.  The Simons alleged breach of duty, trespass, waste,
conversion, inverse condemnation, and various torts.  They argued
that the easement created by PLO 1613 only allowed the state to
improve the Glenn Highway within its existing roadbed and did not
expressly allow it to expand or alter the course of the highway or
to use or dispose of any subsurface materials. 
          The superior court rejected this argument.  Finding PLO
1613's language ambiguous as to the precise scope of the easement,
the superior court turned to this court's decision in Andersen v.
Edwards. [Fn. 3]  In Andersen we held that an ambiguous highway
easement allowed use of the designated right of way only to the
extent reasonably necessary to serve the easement's intended
purpose. [Fn. 4]  Relying on Andersen, the superior court ruled
that as long as the state's changes were reasonably necessary to
improve the Glenn Highway, PLO 1613 allowed it to relocate the
highway anywhere within 150 feet of the centerline of the original
roadbed and to use any subsurface materials in the rebuilding
process. Finding undisputed evidence that the improvements were
reasonably necessary, the court granted partial summary judgment to
the state, dismissed three counts of the complaint that were
affected by its ruling, and entered final judgment against the
Simons under Alaska Civil Rule 54(b) as to those counts. 
          The Simons appeal, contending that the superior court
misinterpreted the scope of the state's easement.  They insist that
the easement did not allow the state to alter the highway's course
or to move or use subsurface materials.  We disagree.  
          The Simons do not dispute the superior court's finding
that the scope of the PLO 1613 easement is ambiguous, but they
contend that this ambiguity must be resolved in their favor.  Their
argument fails under Andersen, however, which makes reasonable
necessity the applicable measure.  The superior court's finding of
reasonable necessity is not clearly erroneous.  We adopt the
superior court's analysis on this point and set forth as an
appendix the relevant portion of its decision. [Fn. 5]
          We therefore AFFIRM the judgment. 


Footnote 1:

     Pub. L. No. 892, 70 Stat. 898 (1956).

Footnote 2:

     See Alaska Omnibus Act of June 25, 1959, Pub. L. No. 86-70, 73
Stat. 141, 145.

Footnote 3:

     625 P.2d 282 (Alaska 1981).

Footnote 4:

     Id. at 286-87.

Footnote 5:

          Since the Simons do not dispute the superior court's
finding of ambiguity, we assume the finding to be correct for
purposes of this decision.  But we note that it is arguable that
PLO 1613 unambiguously allows the state to use the entire right of
way and all surface and subsurface materials within its limits for
purposes of rebuilding the Glenn Highway.  See Myers v. United
States, 378 F.2d 696, 700 (Ct. Cl. 1967) (barring owners of land
subject to a similar easement from recovering damages for a
rebuilding project's alteration of the Wasilla-Big Lake Road's
original course and for the project's use of subsurface gravel). 
Absent ambiguity, the Andersen reasonable-necessity standard would
not apply. 

                     A P P E N D I X  [Fn. 1]



Husband and Wife, d/b/a LITTLE     )
NELCHINA FARM,                     )
               Plaintiffs,         )
                                   )    CASE NO. 3AN-95-7554 CI
     v.                            )
ASPHALT PAVING, INC.,              )
               Defendants.         )


          . . . .
          The issue here is, does the easement provided by PLO 1613
provide the State with the right to use or discard subsurface
materials within the easement for the reconstruction of the Glenn
Highway or to lower the elevation of the highway.  Determination of
this issue depends upon whether PLO 1613 contains express or
ambiguous terms.
          While the Alaska Supreme Court has not faced the discrete
issue before this court, it has reached determinations which
provide this court with guidance.  It has held that, as a general
rule, where specific parameters of an easement have been expressly
set forth, such as width and length, "the easement is specific and
definite," and its terms control.  Andersen, 625 P.2d at 286,
(quoting Aladdin Petroleum Corp. v. Gold Crown Properties, 561 P.2d
818, 822 (Kan. 1977)).  Conversely, where the terms of the easement
are ambiguous, then the holder of the easement is only entitled to
use the property within reason.  Andersen, 625 P.2d at 286-87. [Fn.
          The meanings of the phrases "for highway purposes" and,
more particularly, "over and across" are relevant to this analysis. 
Neither the plaintiffs nor the defendants believe the terms of
PLO 1613 are ambiguous.  Rather, each group believes that the
relevant terms expressly support their respective positions.
          For instance, the plaintiffs argue that "over and across"
means that the easement was limited to the right to repair or widen
the existing road, but not to alter the subsurface in any
significant way. [Fn. 3]  Thus, the plaintiffs argue, the easement
does not give the State the right to lower the elevation of the
road 20 or 30 feet or to extract plaintiffs' gravel.  Plaintiffs
cite no authority in support of their assertion.
          Conversely, defendants argue that, when read in context,
the phrase "over and across" does not limit the easement to a
surface easement only.  The context within which the defendants
interpret the phrase is: the phrase does not expressly prohibit the
State from taking subsurface materials; there is no manifest
intention within the language of the easement; and other
jurisdictions have found that similar easements include the right
to subsurface materials for the purpose of road building. 
Accordingly, the defendants argue, PLO 1613 necessarily includes
the right of the State to use subsurface materials and to alter the
road's elevation for the purpose of the highway. [Fn. 4]
          In Andersen, the court was asked to interpret
AS 19.10.010, which provides the State in certain places with a
right of way 100 feet wide for use as public highways.  The
language of AS 19.10.010 is similar to that of PLO 1613. [Fn. 5] 
In Andersen, the court found that, although the statute provided
for a specific right-of-way, 100 feet on either side of the center
line, the term "width" was ambiguous.  The court reasoned that, the
express terms of the statute suggest that the legislature intended
that only that amount of area within the express easement which was
necessary for use as public highways be dedicated.  Andersen, 625
P.2d at 286-87.  Since the court found that the relevant term,
"width," was ambiguous, it applied the reasonable use analysis. 
Id. at 287.
          I find that the term "over and across" set forth in
PLO 1613 is no more clear than the term "width" is in AS 19.10.010. 
The use of the term "for highway purposes" suggests that the intent
of the federal government when it drafted PLO 1613 was that the
easement provide more than just the right to repair or widen the
existing road. [Fn. 6]  Accordingly, I find that the terms of
PLO 1613 are ambiguous so that the State is entitled to reasonable
use of the property.  
          Was the State's use of the property reasonable?
          Courts consistently find that an easement gives the
holder the right to use the land to the extent necessary to serve
the purpose of the easement.  Id. at 285-87 (finding that it was
not reasonable for the developer to clear the full 100 foot width
of easement when he didn't need to in order to construct the
roadway); Buhl v. U.S. Sprint Communications Co., 840 S.W.2d 904,
909 (Tenn. 1992), (citing Railway Co. v. Telford's Executors, 14
S.W. 776 (1890) (finding that the rights of one having an easement
in the lands of another are measured and defined by the purpose and
character of the easement), (citing Kansas Central Railway Co. v.
Allen, 22 Kan. 285 (1879) (a railroad easement gives the holder the
right to use as much of the property above and below the surface as
may be needed)); see also Energy Transp. Sys., Inc. v. Union Pac.
R. Co., 606 F.2d 934, 938 (10th Cir. 1979), (citing Energy Transp.
Sys., Inc. v. Union Pac. R.R. Co., 456 F. Supp. 154, 162-63
          This right includes the right to use the subsurface land
or materials to the extent necessary for the purpose of the
easement.  Energy Transp. Sys., 456 F. Supp. at 162-63 (finding
that the fee owner could make use of or convey the land below the
surface of the area subject to the railroad's easement only if it
didn't interfere with the construction, maintenance or operation of
the railroad); Buhl, 840 S.W.2d at 909-11 (finding that the
easement did not extend rights to subsurface materials beyond those
necessary for the construction, maintenance, or operation of the
railroad so that the railroad could not agree to grant rights to
the subsurface area to another for a use inconsistent with the
above purposes).
          I find that lowering the elevation of a road and using or
disposing of excavated materials [is] necessary for the purpose of
the easement, in this case, constructing a highway over and across
the easement.  Indeed, I find that it would defeat the purpose of
this easement to say that it gives no right to use of the
subsurface materials to maintain and improve the road.  To do so
would disable the State from reasonable use of the easement.
          For these reasons, I conclude that the State acted within
its rights set forth in PLO 1613.  Accordingly, this court need not
reach plaintiffs['] alternate theory of relief, based upon the
statute of limitations set forth in AS 09.10.230. [Fn. 7]
          IT IS SO ORDERED this 8th day of June, 1998.

                                   SEN K. TAN
                                   Superior Court Judge

                       FOOTNOTES (Appendix)

Footnote 1:

     We have edited the superior court's decision to conform to our
technical rules.

Footnote 2:

     As plaintiffs note, the purpose of this doctrine is "to avoid
needless destruction of property by insuring the construction of a
roadway to be accomplished with care."  See Memorandum at 3,
(citing Andersen, 625 P.2d at 287).

Footnote 3:

     Plaintiffs also say that PLO 1613 was intended only to protect
the Glenn Highway as it existed in 1958, when the PLO was issued. 
Reply at 3.  This assertion is unpersuasive, though, since
plaintiffs also admit that the state could have widened the Glenn
Highway pursuant to the easement, which would have extended the
highway beyond its 1958 parameters.  Reply at 4.

Footnote 4:

     Alternatively, defendants argue that, even if the term is
ambiguous, the only reasonable and logical meaning to give to it is
that proffered by the defendants.  Plaintiffs reply that such a
clause should not be construed broadly, to give the easement holder
additional rights.  But, the case upon which plaintiffs rely is
inapposite.  In McDonald v. Board of Mississippi Levee Comm'n, 646
F. Supp. 449, 465-66 (N.D. Miss. 1986), the court held that an
easement "to build and repair" a levee did not divest the property
owner of his interest in the land, including the right to graze
cattle in the easement area.  Here, the state is not seeking rights
beyond those necessary to reconstruct the Glenn Highway.

Footnote 5:

     AS 19.10.010 provides, "[a] tract [of land] 100 feet wide
between each section of land owned by the state, or acquired from
the state, and a tract four rods wide between all other sections in
the state, is dedicated for use as public highways.  The section
line is the center of the dedicated right-of-way.  If the highway
is vacated, title to the strip inures to the owner of the tract of
which it formed a part by the original survey."

Footnote 6:

     Notably, the phrase "for highway purposes" in PLO 1613 is very
similar to the phrase "for use as public highways" in [AS]
19.10.010.  New construction is clearly permissible under the right
of way set forth in AS 19.10.010.  See Andersen, 625 P.2d at 285.

Footnote 7:

     Citing AS 09.10.230, which provides a 10-year statute of
limitations for bringing actions to cancel or annul a patent, the
plaintiffs assert that the defendants are time-barred from
attempting to amend or vacate the patent rights of the Simons'. 
Since the defendants have not moved to amend or vacate patent
rights of the Simons', and since they would not need to in light of
this court's ruling, this argument need not be addressed.          
 In the Supreme Court of the State of Alaska

Herbert & Jacqueline Simon,     )
                                )        Supreme Court No. S-08801
                   Appellants,  )
                   v.           )                 Order
State of Alaska and             )
Quality Asphalt Paving, Inc.,   )                     
                   Appellees.   )Date of Order: 3/3/2000
Trial Court Case # 3AN-95-07554CI

     Before: Matthews, Chief Justice, Eastaugh, Fabe, Bryner, and 
Carpeneti, Justices.

     On consideration of the motion to publish the memorandum opinion
judgment No. 0951,
issued on January 19, 2000,

     It is Ordered:

     1.   The motion to publish is Granted.
     2.   Memorandum Opinion and Judgment No. 0951, issued on 
January 19, 2000, is
Withdrawn and Opinion No. 5244 is issued in its place.

     Entered at the direction of the court.

                                   Clerk of the Appellate Courts

                                   Marilyn May
cc:  Supreme Court Justices
     Trial Court Judge Tan
     Trial Court Appeals Clerk

     Hal P Gazaway 
     Attorney at Law 
     8620 Boundary Avenue 
     Anchorage AK 99504 

Thomas M. Dillon 
Attorney General Office 
1031 W. Fourth Avenue, Suite 200 
Anchorage AK 99501 

David J Schmid 
Law Office of David J Schmid 
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