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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Snook v. Bowers (11/9/00) sp-5329

Snook v. Bowers (11/9/00) sp-5329

     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.


RUSSELL SNOOK, JR.,           )
                              )    Supreme Court Nos. S-8463/8464
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1KE-96-495 CI
WAYNE and SHEREE BOWERS,      )    O P I N I O N
               Appellees.     )    [No. 5329 - November 9, 2000]
                              )    Supreme Court No. 8633
In re the Heirs of JAMES      )    
SNOOK, Deceased.              )    Superior Court No.
______________________________)    1KE-92-1001 CI

          Appeal in Supreme Court Nos. S-8463/8464 from
the Superior Court of the State of Alaska, Third Judicial District,
Ketchikan, Michael A. Thompson, Judge.  Appeal in Supreme Court No.
S-8633 from the Superior Court of the State of Alaska, Third
Judicial District, Ketchikan, Thomas M. Jahnke, Judge.

          Appearances:  A. Fred Miller, Ketchikan, for
Appellant.  Michael W. Holman, Holman & Schulz, Ketchikan, for

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

          CARPENETI, Justice.

          In these consolidated appeals, Russell Snook, Jr.
challenges two decisions of the superior court.  First, Snook
appeals Judge Michael Thompson's grant of summary judgment to Wayne
and Sheree Bowers.  Judge Thompson decided that the Bowerses are
the sole owners of a piece of property originally owned by the
Shaan-Seet Native corporation and claimed by Snook.  Second, Snook
challenges Judge Thomas Jahnke's denial of his motion for relief
from a stipulated judgment regarding ownership of the parcel.  We
affirm the decisions of both courts.
          The piece of property at issue is located in Craig and 
is referred to as "Lot 82, as recorded on the Plat of Port St.
Nicholas Subdivision."  Before 1984, Lot 82 belonged to Shaan-Seet,
Inc., an Alaska Native corporation.  In 1984 Shaan-Seet conveyed
Lot 82 to "the heirs and devisees of James Snook, who died October
23, 1973."  James Snook had two sisters, Mary Snook Lauth and Edith
Snook Hanson; the former had affied in 1974 that she and her sister
were James Snook's only heirs.  Based apparently on this affidavit,
Shaan-Seet wrote to Edith Hanson's son, Peter Hanson and Lauth's
daughter, Marilyn Baumann in 1985 that they were the owners of Lot
82 (both Edith Hanson and Lauth had died; Peter Hanson had affied
that he was Edith's only heir).
          Some time before January 29, 1988, Peter Hanson expressed
to Shaan-Seet an interest in selling the lot.  Later that year,
Wayne and Sheree Bowers informed Shaan-Seet of their desire to
purchase a lot in the subdivision.  Shaan-Seet, knowing that
Baumann was interested in selling Lot 82, apparently contacted
either Baumann or Hanson, who then called the Bowerses in 1988 or
1989 and told them that the lot was for sale.  
          On March 16, 1989, Baumann (as well as her husband,
Eugene Baumann) and Hanson entered into an agreement with the
Bowerses regarding Lot 82.  Pursuant to this agreement, Baumann and
Hanson purported to sell "Lot #82" to the Bowerses for $18,000 --
$1,000 in earnest money and $17,000 to be paid "on acceptance of
title and delivery of deed or delivery of contract."  Under the
heading "further conditions," the agreement also provided that
Baumann and Hanson, upon the Bowerses' payment of the earnest
money, would "agree to allow the buyers to proceed with development
of the land." 
          The Bowerses exercised their rights under this last
clause immediately, moving their floathouse onto the property and
building a driveway in March 1989.  Wayne Bowers's uncontradicted
testimony is that they "spent nearly $50,000 improving the property
and converting the floathouse to a permanent structure." 
          Pursuant to the agreement -- which called for conveyance
of "good and sufficient deed free and clear of all liens and
encumbrances" -- a title insurance company was retained to insure
Baumann and Hanson's title to Lot 82.  The company issued a
"commitment to insure" on March 30, 1989; however it noted that
James Snook's "estate was never had" (presumably, this meant that
the heirs were never determined) and therefore refused to insure
against the rights of his heirs.  Most significantly, the title
company's investigation revealed that James Snook had a brother,
Russell Snook, who predeceased him. 
          Six months later, Baumann and Hanson's attorney wrote to
Shann-Seet, blaming it for the creation of this title cloud and
requesting Shaan-Seet's position on the matter.  Shaan-Seet then
conducted its own investigation, which revealed that Lauth's "sworn
affidavit that she and Mrs. Hanson were the sole heirs under Alaska
law of James Snook . . . was not correct" and that Peter Hanson's
affidavit that he was Edith Hanson's sole heir was likewise
incorrect.  Therefore, because James Snook's heirs -- including
Russell, who predeceased him -- and Edith Hanson's heirs were
entitled by Alaska intestacy law to a share of their respective
estates by right of representation, [Fn. 1] "the Lot 82 deed should
have been issued to . . . numerous persons other than just Marilyn
Baumann and Peter Hanson.  Thus, Shaan-Seet is simply not in a
position to give clear title to Lot 82 in favor of just Marilyn
Baumann and Peter Hanson." 
          In an effort to resolve the matter, Shaan-Seet filed an
interpleader complaint captioned "In re the Heirs of James Snook"
in September 1992.  All of the potential heirs were made parties,
including Russell Snook, Jr., Marilyn Baumann, and Peter Hanson. 
At the conclusion of the matter, a stipulation, drafted by Snook's
counsel and signed by all of the parties, was entered.  On the
basis of the stipulation, Judge Jahnke signed a litigation-ending
order.  The stipulation set out in exacting detail the relevant
family history and the ownership rights of each of James Snook's
successors in Lot 82.  It provided that Baumann and Hanson each
owned an undivided one-third share and that Snook owned an
undivided one-twelfth share.  The Bowerses were never made parties
to this action.  On August 28, 1997, Snook filed a motion for a
nunc pro tunc order to amend the stipulation.  Judge Jahnke denied
the motion.  Snook appealed.
          Snook had gotten wind of the Bowerses' possession and
development of Lot 82 in 1989, when Baumann told him that she
planned to sell it to the Bowerses and to let them move onto the
property.  On November 12, 1996, he filed a complaint against the
Bowerses seeking, among other things, to cancel the agreement
between Baumann/Hanson and the Bowerses and to have himself
adjudged owner of Lot 82 (Snook had purchased the remaining heirs'
interests in Lot 82). 
          Both parties moved for summary judgment.  The trial court
granted summary judgment to the Bowerses, and ruled that they were
the sole owners of Lot 82.  Snook appealed.
     A.   Motion for Relief from Judgment (Nunc Pro Tunc)
          Judge Jahnke treated Snook's nunc pro tunc motion as a
motion for relief from judgment under Alaska Rule of Civil
Procedure 60(b).  We review a denial of a Rule 60(b) motion for
abuse of discretion. [Fn. 2]
     B.   Grant of Motion for Summary Judgment
          We review a grant of summary judgment using our
independent judgment [Fn. 3]:
          The court must determine whether any genuine
issue of material fact exists and whether the moving party is
entitled to judgment on the law applicable to the established
facts.  All reasonable inferences of fact from proffered materials
must be drawn against the moving party and in favor of the
nonmoving party.  In reviewing an order of summary judgment, this
court must reverse the order if the pleadings and evidence
presented reveal either the existence of any genuine issues of
material fact or that the moving party is not entitled to summary
judgment as a matter of law.[ [Fn. 4]]

     A.   The Trial Court Correctly Denied Snook's Rule 60(b)

          Snook argues that the trial court improperly denied his
motion to correct the 1995 stipulation "nunc pro tunc."  He asserts
that the court should have granted the motion pursuant to Civil
Rule 60(b), which provides for relief from judgment.  The rule
provides several permissible circumstances under which such relief
is allowed:
          On motion and upon such terms as are just, the
court may relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following reasons:
          (1)  mistake, inadvertence, surprise or
excusable neglect;
          (2)  newly discovered evidence which by due
diligence could not have been discovered in time to move for a new
trial . . .;
          (3)  fraud . . .;
          (4)  the judgment is void;
          (5)  the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; 
          (6)  any other reason justifying relief from
the operation of the judgment.

          Rule 60(b) further provides that "[t]he motion shall be
made within a reasonable time, and for reasons (1), (2) and (3) not
more than one year after the date of notice of the judgment."  In
this case, the judgment was entered on November 27, 1995 and mailed
to counsel on November 29.  Snook filed his nunc pro tunc motion on
September 17, 1997.  Thus, Snook did not move within one year of
notice of the judgment.
          Snook argues that his motion falls under reason (6),
because "there exists [sic] 'extraordinary circumstances'" that
justify relief.  If this were so, the one-year time limit would not
apply and Snook would merely have had to have brought his motion
"within a reasonable time."
          However, as the trial court pointed out, "clause (6) is
to be employed only when grounds other than those specified in the
preceding clauses (1) through (5) have been demonstrated." [Fn. 5] 
Snook's motion was a quintessential clause (1)/(2) motion; he
alleged that he "erroneously believ[ed]" that Baumann and Hanson
each owned one-third of the property when his attorney signed the
stipulation.  Snook further states that he seeks to "correct the
error" in the 1995 stipulation.  This language places the basis for
Snook's motion squarely under the categories of "mistake [or]
inadvertence" (clause (1)) or "newly discovered evidence" (clause
(2)).  In short, Snook's claim that his motion is a clause (6)
motion appears to be nothing more than an impermissible attempt to
circumvent Rule 60(b)'s time limits. [Fn. 6]  Judge Jahnke
correctly denied Snook's motion.
     B.   The Trial Court Correctly Granted Summary Judgment in
Favor of the Bowerses.

          1.   Baumann's interest and Hanson's interest

          With one exception, the same analysis applies to
Baumann's interest and Hanson's interest.  Therefore, the two are
discussed together.
               a.   The trial court correctly decided that Snook
was collaterally estopped from re-litigating issues that were part
of the 1995 stipulation.

          The trial court ruled that Snook was collaterally
estopped from re-litigating whether and to what extent Marilyn
Baumann and Peter Hanson owned interests in Lot 82.  The court
based this ruling on the 1995 stipulation signed by, among others,
Snook's counsel.  Snook argues that this was error.  We hold that
the trial court's ruling in this regard was correct.
                    (1)  The 1995 stipulation
          The parties to the stipulation empowered the court to
"make and enter findings of fact and conclusions of law, as well as
an order adjudicating the heirs at law of [James Snook] for the
purposes of determining their respective interests in" Lot 82. 
Further, the stipulation was to "constitute a full and complete
settlement and compromise by all parties involved herein regarding
all issues involved herein."  Snook's counsel not only signed the
stipulation, but drafted it as well. 
                    (2)  Purpose and elements of collateral

          Collateral estoppel "bars a second suit between the same
parties on the same subject matter resolving the same issues
between the parties. . . ." [Fn. 7]  Its aim is to preclude
relitigation of decided issues. [Fn. 8]  We have laid out three
elements that must be met for collateral estoppel to be applied
against a party:
          1.   The plea of collateral estoppel must be
asserted against a party or one in privity with a party to the
first action;
          2.   The issue to be precluded from re-
               litigation by operation of the doctrine
must be identical to that decided in the first action;
          3.   The issue in the first action must have
been resolved by a final judgment on the merits.[ [Fn. 9]]
We have, at times, enunciated a fourth element:
          4.   The determination of the issue must have
been essential to the final judgment.[ [Fn. 10]]

          Snook does not dispute that the "party identity,"
"identity of issue," or "essential to the judgment" elements are
satisfied here.  And he properly acknowledges that although cases
which are resolved by settlement do not involve actual litigation,
they can nonetheless have preclusive effects.  In such cases, "the
judgment may be conclusive . . . with respect to one or more
issues, if the parties have entered an agreement manifesting such
an intention." [Fn. 11]
          Snook asserts that the issue of Baumann's and Hanson's
ownership of Lot 82 was not "litigated," and therefore not
"resolved" for collateral estoppel purposes, because he never
intended the agreement to determine his rights vis--vis Baumann
and Hanson.  Snook argues that 
          [i]n entering the Stipulation and Order,
          Russell Snook's purpose and intent was only to
determine his rights and entitlements with regard to the other
heirs of Russell Snook, Sr., not the heirs of Mary Snook Lauth or
Edith Snook Hanson. . . .  This Stipulation and Order did not
manifest an intent to resolve any of the issues presented by the
present litigation. 

          However, the language of the settlement does not support
Snook's argument.  It is captioned "In re the heirs of James
Snook," and provides that it was "adjudicating the heirs at law of
[James Snook] for the purposes of determining their respective
interests in . . . Lot #82."  Further, the stipulation was to
"constitute a full and complete settlement and compromise by all
parties involved herein regarding all issues involved herein." 
Snook presents no evidence beyond the naked allegations quoted
above that any of the parties intended otherwise.  In short,
whatever Snook's post hoc subjective understanding of what the
agreement entailed, it explicitly manifested an intent to
conclusively adjudicate the interests of all of James Snook's heirs
to Lot 82, including Baumann and Hanson.
          Therefore, the trial court correctly decided that
collateral estoppel barred Snook from re-litigating Baumann and
Hanson's ownership of Lot 82.
               b.   The Bowerses own Baumann's interest via her

          It is undisputed that Baumann validly quitclaimed her
interest in Lot 82 to the Bowerses in November 1991.  Because Snook
is collaterally estopped from arguing otherwise, the trial court
correctly ruled that this deed transferred a one-third undivided
interest in Lot 82 to the Bowerses. 
               c.   The earnest money agreement endowed the
Bowerses with equitable title to Hanson's interest.

          Given the above, only one issue remains to be resolved
regarding Hanson's interest in Lot 82.  That is, did the earnest
money agreement between Hanson and the Bowerses create equitable
title in the Bowerses which was still valid at the time of trial? 
This issue is pertinent because, unlike Baumann, Hanson never
actually deeded his interest to the Bowerses.  To the contrary,
Hanson quitclaimed his interest to Snook in December 1995. 
          The trial court granted summary judgment to the Bowerses
on this issue because it found that Snook's "mere accusation that
the agreement expired is not sufficient to show a genuine issue of
material fact."  Accordingly, the court ruled that the Bowerses
"have equitable title to Hanson's one third interest in lot #82
which will ripen into a legal title upon payment of the fair market
value of this portion of lot #82."  In a later "memorandum to
clarify order," the court specified that the Bowerses "have a right
to Peter Hanson's or his assignee's 1/3 interest in lot #82 upon
payment of $6,000, 1/3 of the agreed upon purchase price of
$18,000, plus interest at the legal rate." 
          Snook argues that this ruling was erroneous.  First, he
vigorously accuses the Bowerses of having "unclean hands," which
would render a specific performance remedy improper.  The Bowerses'
hands are unclean, Snook asserts, because "[a]fter they signed the
Earnest Money Receipt with Marilyn Baumann and Peter Hanson, they
became aware that the other heirs of James Snook had an interest in
the property."  This argument is unpersuasive.  The cleanliness or
lack thereof of the Bowerses' hands vis--vis the "other heirs" to
whom Snook refers -- i.e., Russell Snook, Sr.'s successors in
interest -- has no bearing on the Bowerses' right to receive
specific performance of Hanson's agreement to sell his interest to
them.  As Corbin has made clear, "The dirt upon [the party's] hands
must be [the party's] bad conduct in the transaction complained of. 
If [the party] is not guilty of inequitable conduct toward the
defendant in that transaction, [the party's] hands are as clean as
the court can require." [Fn. 12]
          Snook next argues that the Bowerses' "failure to pay
either Marilyn Baumann or Peter Hanson for their interests or to
get a deed from Peter Hanson shows that they did not believe that
the Earnest Money Receipt was a valid agreement to the purchase of
the Subject Property from Marilyn Baumann and Peter Hanson." 
However, after the Bowerses learned that Baumann's and Hanson's
title to Lot 82 was clouded, it was reasonable for them not to make
further payments to Baumann or Hanson until the matter was
resolved.  The Bowerses' failure to make these payments does not
render the agreement invalid. 
          Finally, Snook argues that "granting of specific
performance presumes the existence of a valid contract."  This is
surely true. [Fn. 13]  However, Snook offers no more than a naked
allegation (both at trial and on appeal) that "the Earnest Money
Receipt is of no force or effect." [Fn. 14]  Without any support,
this does not suffice to raise any question about the validity of
the contract or to suggest that the trial court erred in ordering
Snook to convey Hanson's interest to the Bowerses.
          It is well established law that prior purchasers like the
Bowerses will gain equitable title to the land, enforceable against
subsequent purchasers like Snook:
          Where a contract vendor of land violates his
contract and conveys to a third party, the rights of the contract
vendee to obtain title depend on the knowledge of the third party
transferee.  If the transferee took title in good faith without
knowledge of the outstanding contract executed by his vendor, he
may keep the land.  But if he acquired title with notice, actual or
constructive, the third party will be deemed a constructive trustee
for the contract vendee and may be required to convey the title to
[the contract vendee] as the equitable and rightful owner under the
outstanding contract of which the third party grantee had notice.[[Fn. 15]]

Snook admitted that he knew of the agreement and the Bowerses'
possession since 1989.  Therefore, the trial court's decision to
require Snook, on payment of the prorated share of the contract
price, to convey Hanson's interest to the Bowerses was not an abuse
of discretion.
          2.   The trial court correctly decided that the Bowerses
gained title to the remaining interest in Lot 82 by adverse
possession under color of title.

          Finally, the trial court decided that the Bowerses had
gained title to the remaining one-third interest in Lot 82 -- that
portion which was originally owned by Russell Snook, Sr.'s
successors in interest -- by adverse possession under color of
title.  Snook argues that this decision was erroneous as well. 
               a.   Lot 82 was not exempt from adverse possession
as Alaska Native Claims Settlement Act (ANCSA) land.

          As a preliminary matter, Snook argues that the Bowerses
"cannot obtain the Subject Property through adverse possession
because it is ANCSA land."  He cites 43 U.S.C. sec. 1636 (d)(1)(A)
support this contention.
          This statute provides that "all land and interests in
land conveyed in Alaska by the Federal Government pursuant to
[ANCSA] to a Native individual or Native Corporation . . . shall be
exempt, so long as such land and interests are not developed or
leased or sold to third parties[,] from . . . adverse possession."
[Fn. 16]  It is not disputed that Lot 82 is "ANCSA land."  However,
Lot 82 was "developed" within the meaning of the statute, and
therefore Snook's argument fails.  
          We dealt with the question of when ANCSA land is
"developed" at length in Kenai Peninsula Borough v. Cook Inlet
Region, Inc. [Fn. 17]  After examining the relevant statutory
language and legislative history, we held that acts like those
taken regarding Lot 82 amounted to "development":
          The definition of developed in [ANCSA] is
broad enough to include subdivided land which is ready for sale. 
Subdividing is legally a purposeful modification of property, for
it enables separate parts of the property to be sold.  Similarly,
as a sale of property is a use, a subdivision which suffices to
permit sales effects a gainful and productive condition.[ [Fn. 18]]

Here, Lot 82 was part of a subdivision; Shaan-Seet recorded the
Port St. Nicholas subdivision in 1983.  Therefore, as of that date,
Lot 82 was "developed" for ANCSA purposes and not exempt from
adverse possession.  The trial court's ruling on this score was
accordingly free of error.
               b.   The trial court correctly found that the
Bowerses had color of title.

          The Bowerses first entered Lot 82 in March 1989.  Snook
filed his complaint on November 8, 1996. 
          The trial court found that the Bowerses possessed Lot 82
under color of title, and therefore decided this case under AS
09.45.052.  That statute provides:
          The uninterrupted adverse notorious possession
of real property under color and claim of title for seven years or
more is conclusively presumed to give title to the property . . .

A threshold question, then, is whether the court's finding that the
Bowerses had color of title was erroneous.
          Under Alaska law, three conditions must be met for an
individual to establish color of title.  First, the claimant must
show the existence of "a written instrument which purports, but
which may not be effective, to pass title to the claimant." [Fn.
19]  Second, the "supposed conveyance must accurately describe the
land claimed." [Fn. 20]  Finally, "the good faith of the claimant
is a prerequisite to the establishment of his [or her] claim under
color of title." [Fn. 21]
                    (1)  The Bowerses' executory land-sale
contract was a written instrument purporting to convey title.

          The trial court found that the earnest money agreement
between the Bowerses and Baumann/Hanson satisfied the first aspect
of the color-of-title test.  The court stated that the $1,000
earnest money paid by the Bowerses 
          gave them equitable title to the property. 
Additionally the earnest money agreement allowed [the Bowerses] to
move onto the property and begin making improvements[,] which they
did immediately.  These facts make it clear that the earnest money
agreement here purported to pass title, at least equitable title,
to the [Bowerses] who in response moved onto the property and began
making investments in improving it.

Snook waited until his reply brief to argue that this aspect of the
test was not met.  He has by that failure waived the argument. [Fn.
22]  Therefore, the Bowerses meet the first element of the color-
of- title test.
                    (2)  The instrument accurately described the
land claimed.

          As the trial court noted, there is no dispute that this
requirement has been met; the earnest money agreement described the
property, and neither party has ever challenged the accuracy of
this description.  Therefore, this element is met as well.
                    (3)  The Bowerses obtained color of title in
good faith.

          Of the three elements, this is the most vigorously
challenged by Snook.  He argues that "[t]he Bowers[es] have not
acted in good faith to establish their claim to the Subject
Property.  Almost immediately after they signed the Earnest Money
Receipt with Marilyn Baumann and Peter Hanson, they became aware
that the other heirs of James Snook had an interest in the
          Snook's argument fails for a basic reason.  The relevant
time period for determining a claimant's good faith for color-of-
title purposes is when the claimant obtains color of title.  Since
Snook does not dispute that the Bowerses acted in good faith when
they (1) made the agreement with Baumann/Hanson, (2) paid the
earnest money, and (3) entered into possession of Lot 82, his
argument on this point is unavailing, as an examination of the
relevant case law shows. 
          In Lott, we announced for the first time that "the good
faith of the claimant is a prerequisite to the establishment of his 
claim under color of title." [Fn. 23]  However, because of the
facts of that case, we declined to "pass upon the details of what
constitutes good faith, nor do we have occasion to discuss exactly
what would constitute bad faith under AS 09.25.050." [Fn. 24]  In
a footnote, we added that "[i]n the present case, it must be noted
that there has been no allegation made by appellant of fraud or bad
faith on the part of Bernie Garland in obtaining color of title."
[Fn. 25]  We thus established that the relevant time to examine a
claimant's good faith was at the time he or she obtained title.
          Fourteen years later, in Ault v. State, [Fn. 26] we had
occasion to apply the Lott good-faith requirement.  There we held
that "as to state adverse possession claims under color of title,
we believe that good faith should be defined as an honest and
reasonable belief in the validity of the title." [Fn. 27]  In so
holding, we followed the lead of several jurisdictions which had
"held that the claimant must have had an honest belief based on
reasonable grounds that he  had valid title to the land when he
entered it in order to establish a good faith claim." [Fn. 28]
          The relevant time at which to examine the claimant's good
faith under both Lott and Ault is when the claimant, state or
private, obtained title to or took possession of the property, not
throughout the period of possession.
          Using this standard, the Bowerses possessed the requisite
good faith.  At trial, Snook's counsel himself conceded that "we
don't dispute that the Bowers[es] moved on that property in good
faith thinking that Baumann and Hanson were the owners."  As Snook
states in his brief, it was "[a]fter they signed the Earnest Money
Receipt with Marilyn Baumann and Peter Hanson [that the Bowerses]
became aware that the other heirs of James Snook had an interest in
the property."  (Emphasis added.)
          Accordingly, the trial court correctly decided that the
Bowerses met this part of the test, and that they had color of
title to Lot 82. 
               c.   Elements of adverse possession
          This court has enunciated three requirements for adverse
possession, elaborating on the three adjectives contained in AS
09.45.052:  uninterrupted, adverse, and notorious.
          These represent the three concepts underlying
the law of adverse possession: (1) the possession must have been
continuous and uninterrupted; (2) the possessor must have acted as
if he [or she] were the owner and not merely one acting with the
permission of the owner; and (3) the possession must have been
reasonably visible to the record owner.[ [Fn. 29]]

                    (1)  The Bowerses' possession was continuous
and uninterrupted.

          The Bowerses moved onto Lot 82 in March 1989.  Their
possession was uninterrupted until Snook filed his complaint in
November 1996.  Therefore, this element is met.
          It might be argued that the litigation regarding Lot 82
should have tolled the statute of limitations, preventing it from
running while litigation regarding title to the lot was pending
(i.e., from September 1992 -- when Shaan-Seet filed its
interpleader complaint -- to November 1995 -- when the stipulation
was entered). However, only "litigation to which claimant is a
party suspends the running of limitations." [Fn. 30]  The Bowerses
were never made parties to Shaan-Seet's interpleader action. 
Litigation must also involve the right to possession to toll the
running of the statute, [Fn. 31] which the Shaan-Seet interpleader
did not; it dealt merely with the issue of ownership.  Therefore,
the running of the statute was not tolled during the litigation.
[Fn. 32]
                    (2)  The Bowerses acted as if they were the
owners and not merely as if they were there with the permission of
the owners.

          It is undisputed that the Bowerses brought their
floathouse onto the property and built a driveway.  Snook himself
vigorously asserted at trial, and asserts on appeal, that these
improvements were made without his consent.  These actions, coupled
with Snook's lack of consent, are "inconsistent with and hostile
to" Snook's rights as the true owner. [Fn. 33]  Therefore, this
element is satisfied.
                         (a)  Snook waived the issue of whether
the Bowerses have met the requirements for adverse possession
against cotenants.
          Snook argues that the Bowerses "cannot claim ownership of
the entire subject property through adverse possession because they
have not met the necessary requirements to adversely possess
against co-tenants."  However, Snook argues this for the first time
in his reply brief; this argument is accordingly waived. [Fn. 34]
                         (b)  Assuming Snook did not waive the
issue, Hanson and Baumann's conveyance to the Bowerses amounted to
ouster of the remaining co-tenants.

          Even assuming that Snook did not waive this argument, it
is nonetheless unavailing.  A large body of jurisprudence stands
for the proposition that Snook and the other cotenants were ousted
by the actions of Baumann, Hanson, and the Bowerses:
          [A]n entry under a bond for title is a
sufficient ouster of the cotenants of the grantor to set in motion
the statute of limitations against them, although the purchaser
does not acquire the legal title until long after entry, and that
a purchaser may acquire title by adverse possession as against
cotenants under an executory agreement by one cotenant to convey
the whole.[ [Fn. 35]]

This rule of law rests on a basic premise of cotenancy, namely that
one cotenant's conveyance of the whole estate to a third party who
enters into possession amounts to ouster of the other cotenants:
          An ouster of cotenants of the grantor will
ordinarily be presumed when the grantor conveys the entire property
to a stranger who takes possession under the deed claiming sole
ownership.  In considering this question, the principle that one
who enters on land is presumed to enter under the title that his
deed purports on its face to convey, as respects both the extent of
the land and the nature of his interest, is applied.  Therefore, in
such case, a sale of the whole tract is in effect such assertion of
claim to the whole as to be incompatible with an admission that the
other cotenant has any right whatever; and it follows that acts of
ownership on the part of such grantee must necessarily be adverse
to any other part owner, even in the absence of actual notice to
the other cotenant of the adverse character of the possession.[[Fn. 36]]

We agree with the vast majority of jurisdictions which have held
that entry by a vendee under an executory land-sale contract from
the owner of an undivided share purporting to convey the whole
constitutes ouster of the cotenants.  Such behavior by the cotenant
and his or her vendee is entirely incompatible with the rights of
the cotenants, and serves to oust them.  Thus, the Bowerses
successfully adversely possessed against Snook and the other
                    (3)  The Bowerses' possession was reasonably

          We have held that for a possession to be "notorious" it
must be such that "if the owner visits the property, he would be
put on notice and be able to assert his rights.  The owner need not
actually know about the presence of an adverse possessor; what a
duly alert owner would have known the owner is charged with
knowing." [Fn. 37]
          Here, Snook does not dispute that a duly alert owner
would have noticed the presence of a floathouse and driveway on
this parcel of land.  In fact, Snook had actual notice of the
Bowerses' possession from 1989.  Accordingly, the trial court
correctly found that this requirement was fulfilled and correctly
ruled that the Bowerses had gained title to this one-third interest
in Lot 82 by adverse possession.
               d.   Snook may not enforce Shaan-Seet's right of
first refusal.

          Snook's final argument is that Baumann and Hanson
improperly deprived Shaan-Seet of its right of first refusal to
repurchase Baumann's and Hanson's interests in Lot 82.  Shaan-Seet
did retain a right of first refusal to Lot 82 as a restrictive
covenant, as set forth in the Port St. Nicholas subdivision
declaration.  The record does not show that Baumann or Hanson, as
required by Article III, section 3.4 of the declaration, offered
Lot 82 "to Shaan-Seet on terms identical to the terms the owner has
offered to or has received from" the Bowerses. 
          This argument fails, however.  It is true that a section
of the declaration provides that "[a]ny owner of property subject
to this Declaration shall have the right to enforce the covenants
contained in this Declaration."  However, Snook lost this right
when he lost his share in Lot 82 by adverse possession in March
1996 and was no longer an owner of property subject to the
          The Bowerses gained title to Baumann's one-third interest
in Lot 82 by Baumann's quitclaim deed to them; to Hanson's one-
third interest by specific performance of their agreement with
Hanson to convey his interest to them; and to the remaining one
third by adverse possession under color of title.  Finally, the
court properly denied Snook's Rule 60(b) motion to amend the 1995
stipulation.  The superior courts' opinions are accordingly


Footnote 1:

     See former AS 13.11.015.

Footnote 2:

     See Johnson v. Doris, 933 P.2d 1139, 1142 (Alaska 1997)
(citing Gravel v. Alaskan Village, Inc., 423 P.2d 273, 277 (Alaska

Footnote 3:

     See Taranto v. North Slope Borough, 909 P.2d 354, 355 (Alaska

Footnote 4:

     Id. at 355-56 (citations and internal quotation marks

Footnote 5:

     Norman v. Nichiro Gyogyo Kaisha, Ltd., 761 P.2d 713, 715
(Alaska 1988).

Footnote 6:

     See Village of Chefornak v. Hooper Bay Const. Co., 758 P.2d
1266, 1270 (Alaska 1988) ("Chefornak is entitled to 60(b)(6) relief
only if the circumstances are 'extraordinary'; it cannot rely on
Rule 60(b)(6) in order to circumvent the time limit if the
circumstances actually amount to a 60(b)(1) claim.").

Footnote 7:

     State v. Baker, 393 P.2d 893, 896 (Alaska 1964) (citation

Footnote 8:

     See id. at 897.

Footnote 9:

     Borg-Warner v. Avco Corp., 850 P.2d 628, 634 (Alaska 1993)
(citing Murray v. Feight, 741 P.2d 1148, 1153 (Alaska 1987)).

Footnote 10:

     See Johnson v. Alaska Dep't of Fish & Game, 836 P.2d 896, 906
(Alaska 1991) (citing Restatement (Second) of Judgments sec. 27

Footnote 11:

     Jackinsky v. Jackinsky, 894 P.2d 650, 655 (Alaska 1995)
(quoting Restatement (Second) of Judgments sec. 27 cmt. e (1982)).

Footnote 12:

     5A Arthur Linton Corbin, Corbin on Contracts sec. 1168 n.52
(1964) (quoting Smith v. Neely, 380 P.2d 148 (Ariz. 1963) (internal
quotation marks omitted)).

Footnote 13:

     See Hall v. Add-Ventures, Ltd., 695 P.2d 1081, 1087 (Alaska

Footnote 14:

     In the context of his argument regarding adverse possession,
Snook does expand on this statement in his reply brief.  However,
"where a point is given only a cursory statement in the argument
portion of a brief, the point will not be considered on appeal." 
Adamson v. University of Alaska, 819 P.2d 886, 889 n.3 (Alaska
1991) (citations omitted).

Footnote 15:

     11 Samuel Williston & Walter H. E. Jaeger, A Treatise on the
Law of Contracts sec. 1418A (3d ed. 1968).

Footnote 16:

     43 U.S.C. sec. 1636(d)(1)(A).

Footnote 17:

     807 P.2d 487 (Alaska 1991).

Footnote 18:

     Id. at 498.

Footnote 19:

     Ayers v. Day and Night Fuel Co., 451 P.2d 579, 581 (Alaska
1969) (footnote and citation omitted).

Footnote 20:

     Hubbard v. Curtiss, 684 P.2d 842, 847 (Alaska 1984) (citation

Footnote 21:

     Lott v. Muldoon Rd. Baptist Church, Inc., 466 P.2d 815, 818
(Alaska 1970) (citations omitted).

Footnote 22:

     See Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n.4 (Alaska

Footnote 23:

     Lott, 466 P.2d at 818 (citations omitted).

Footnote 24:

     Id. (footnote omitted).

Footnote 25:

     Id. at n.10 (emphasis added).

Footnote 26:

     688 P.2d 951 (Alaska 1984).

Footnote 27:

     Id. at 956.

Footnote 28:

     Id. (emphasis added) (citations omitted).

Footnote 29:

     Alaska Nat'l Bank v. Linck, 559 P.2d 1049, 1052 (Alaska 1977)
(citing 7 R. Powell, The Law of Real Property  1013-15 (1968)). 

Footnote 30:

     2 C.J.S. Adverse Possession sec. 153, at 869 (1972) (emphasis

Footnote 31:

     See id.; see also De Ridder's Unknown Heirs v. Belknap, 226
S.W.2d 948, 948-49 (Ky. App. 1950) ("[A]n unsuccessful action
leading to no change of possession does not arrest the running of
the statute of limitations.") (citation omitted).

Footnote 32:

     See also Welner v. Stearns, 120 P. 490, 495 (Utah 1911) ("It
is not true that the commencement of an action, under all
circumstances, arrests the running of the statute of limitations. 
It is settled law that in case new parties are brought into a
pending action as defendants the statute of limitations runs in
their favor up to the time they are brought into the case.")
(citation omitted).

Footnote 33:

     Linck, 559 P.2d at 1053 n.9 (quoting 3 American Law of
Property sec. 15.4, at 772 (A.J. Casner, ed.) (1952)).  Nothing in
record indicates that any of the other owners consented to the
Bowerses' occupation of Lot 82 either.

Footnote 34:

     See Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n.4 (Alaska

Footnote 35:

     3 Am. Jur. 2d Adverse Possession sec. 239 (footnotes and
citations omitted); see also Schauble v. Schulz, 137 F. 389, 395
(8th Cir. 1905) ("It is now the generally accepted rule that the
possession of a vendee who enters under an executory contract for
the sale of land, and subsequently receives a conveyance in
fulfillment thereof, is adverse from the time of entry to all the
world except the vendor.") (citations omitted); Welner, 120 P. at
493 ("One entering under an executory contract of purchase may, and
generally does, hold adversely as against all persons except his 
vendor.") (quoting 1 Encyclopedia of Law and Practice at 1049);
Simpson v. Sneclode, 53 N.W. 499, 500 (Wis. 1892) ("[W]here a
contract is made for the sale of land upon the performance of
certain conditions, and the purchaser enters into possession under
the contract, his possession from the time of entry is adverse to
all except the vendor. . . .") (citations and internal quotation
marks omitted); Avent v. Arrington, 10 S.E. 991, 996 (N.C. 1890)
(same); Lloyd v. Mills, 69 S.E. 1094, 1096 (W. Va. 1910) (same);
Ketchum v. Spurlock, 12 S.E. 832, 833 (W. Va. 1891) (same). 

Footnote 36:

     3 Am. Jur. 2d Adverse Possession sec. 236.  See also Hodgson
Federal Oil & Devel. Co., 274 U.S. 15, 20 (1927) ("Such holding
must be regarded as exclusive and hostile to all others and not in
any relationship of trust and confidence [with the cotenants].");
McNeeley, 44 S.E. at 515 ("[I]f one joint tenant convey the whole,
and the grantee takes possession under [the grantor's] deed,
claiming the whole, the conveyance is an ouster of the co-tenant,
and the possession adverse to [the cotenant], and the statute runs
against [the cotenant]."); Bowers v. Rightsell, 294 S.W. 21, 24
(Ark. 1927) (same); Unger v. Mooney, 63 Cal. 586, 594 (Cal. 1883)
(same); Morrison v. Byrd, 72 So. 2d 657, 658 (Fla. 1954) (same);
Waterman Hall v. Waterman, 77 N.E. 142, 143 (Ill. 1906) (same);
Clarke v. Dirks, 160 N.W. 31, 36 (Iowa 1916) (same); Rose v. Ware,
74 S.W. 188, 191 (Ky. App. 1903) (same); Monneson v. Alsofrom, 198
A.2d 783, 784-85 (N.J. Sup. 1964) (same); Jones v. Tate, 360 P.2d
920, 923 (N.M. 1961) (same); Kennedy v. Rinehart, 574 P.2d 1119,
1121-22 (Or. 1978) (same); Hood v. Cravens, 218 S.W.2d 71, 73
(Tenn. App. 1948) (same); Scramlin v. Warner, 416 P.2d 699, 700-02
(Wash. 1966) (same). 

Footnote 37:

     Linck, 559 P.2d at 1053 (citations and internal quotation
marks and brackets omitted).