Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Safeway, Inc. v State Department of Transportation and Public Facilities (11/02/2001) sp-5492

Safeway, Inc. v State Department of Transportation and Public Facilities (11/02/2001) sp-5492

     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.


SAFEWAY, INC.,                )
                              )    Supreme Court No. S-9009
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-7188 CI
FACILITIES,                   )
             Appellee.        )    [No. 5492 - November 2, 2001]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                   Michael L. Wolverton, Judge.

          Appearances:  Michael W. Price, Sabrina E.L.
Fernandez, Price & Price, Anchorage, for Appellant.  Susan L. Urig,
Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney
General, Juneau, for Appellee.

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

          MATTHEWS, Justice.

          After being dedicated to the public, a strip of land is
accepted by the local government as a public street and later
included on a highway right-of-way map by the State of Alaska. 
When the local government subsequently vacates the street, does the
State retain an interest in the land?  Because the State accepted
the dedication by mapping the land as part of a highway right-of-
way, and because local governments do not have the power to vacate
the State's rights in land acquired for highway purposes, we
conclude that the local government's action did not vacate the
State's interest in the land.
          In 1951 Hubert McCutcheon acquired a 120-acre parcel of
land south of Tudor Road in Anchorage.  McCutcheon and his wife
deeded the western portion of their land to Modern Electric in
1959.  The McCutcheons and Modern Electric then jointly conveyed a
sixty-foot-wide strip of land running 2,607 feet along their common
boundary "unto the public at large [as] a permanent easement and
right-of-way for use by the public as a public road."[Fn. 1]  
          In 1963 the McCutcheons deeded most of the land they had
retained (the eastern portion of the original property) to Calais
Company, Inc. ("Calais").  In 1964 the Greater Anchorage Area
Borough approved plat number 64-50, which subdivided a portion of
the Calais property and noted the "existing 60' street"along its
western edge, now called Becharof Street.  In 1967 the Borough
approved plat number 67-136, which subdivided more of the Calais
property and again noted the existence of Becharof Street. 
          In the 1960s the State of Alaska's Department of Highways
began work on the design of the New Seward Highway.  Becharof
Street lay within the State's right-of-way, as designated on the
Highway Department's right-of-way map. [Fn. 2]  To fill out the
remainder of the designated right-of-way, the State acquired most
of Modern Electric's property, including all the land bordering the
west side of Becharof Street.  From Calais, the State acquired two
pieces of land bordering the east side of Becharof Street:  the
southwest corner of the Calais property and the northwest corner. 
The triangular piece of land in the northwest corner was acquired
for a planned interchange between Tudor Road and the New Seward
Highway.  Maps recorded with the declarations of taking showed
Becharof Street included within the State's right-of-way.  
          Acknowledging that Becharof Street lay within the State's
right-of-way, Calais received permission to construct and maintain
a roadway along Becharof Street.  The City of Anchorage also
acknowledged the inclusion of Becharof Street within the State's
right-of-way, and agreed to subordinate its utility easements to
the State's interest in the right-of-way and move its power lines. 
Although the subordination agreement, like the State's declarations
of taking, was recorded in the late 1960s, the State did not record
the actual right-of-way map for the New Seward Highway until 1988. 
          In 1983 Stephen Noey (apparently a lessee of Calais)
petitioned the Municipality of Anchorage [Fn. 3] to vacate part of
the northern portion of Becharof Street. [Fn. 4]  The State
Department of Transportation initially indicated that it would not
oppose the vacation, but amended its response on March 2, 1983, to
note that the vacation request would "be denied by [the Department]
pending the definition of a project to upgrade the Tudor
Interchange." The Municipal Platting Authority did not receive the
State's amended response until March 4.  The previous day the
platting authority had passed a resolution approving the vacation
of Becharof Street. 
          Although the Department of Transportation reiterated its
opposition to the planned vacation, the Municipal Assembly
nonetheless passed an ordinance conveying and relinquishing the
Municipality's "interests in the [sixty-foot] right-of-way [along
the west property line of Tract 2, Bancroft Subdivision, Addition
No. 1] to those parties receiving the benefits of the said vacation
under the terms of AMC 21.15.130." The conveyance was to be
"accomplished by, and effective upon, the recording of the approved
final plat depicting the subject vacation in accordance with the
requirements of the subdivision regulations." Plat 84-221, which
depicted the vacation, was recorded in 1984. 
          In 1996 a representative of Safeway, Inc., met with Keith
Morberg, a representative of the Department of Transportation. 
Safeway planned to lease Tract 2 of Bancroft Subdivision, Addition
No. 1.  Believing that Becharof Street had been vacated (and had
thus reverted in part to Calais), Morberg indicated that the
Department of Transportation would probably be willing to sell the
now-isolated adjoining state-owned section of land in the far
northwest corner of the (former) Calais property.  Safeway
ultimately entered into a long-term lease with Calais for the
Bancroft Subdivision property. 
          When the Department of Transportation researched title to
the land, however, it discovered that the vacation of the
Municipality's interests in Becharof Street might not have
eliminated the State's easement over the land.  Safeway then filed
this action against the State seeking to quiet title to Becharof
Street.  The trial judge granted summary judgment in favor of the
State, concluding that the State had taken over control of the
easement granted "to the public"by including it within the New
Seward Highway right-of-way, that the Municipality of Anchorage
lacked the power to vacate the State's interest in the property,
and that Morberg's comments did not estop the State from claiming
an interest in the Becharof Street easement.  Safeway appeals.
          In reviewing a grant of summary judgment, this court
"must determine whether a genuine issue of material fact exists and
whether the moving party is entitled to judgment as a matter of
law."[Fn. 5]  All reasonable inferences of fact must be drawn in
favor of the non-moving party. [Fn. 6]  The trial court's decision
on a motion for summary judgment may be upheld "on any ground
which, as a matter of law, would support the result reached."[Fn.
     A.   Did the State Lose Its Interest When Becharof Street Was
Vacated by the Municipality?
          The basic dispute between the parties is whether the
State lost its interest in the land when Becharof Street was
vacated by the Municipality.  Safeway argues that Becharof Street
was vacated by the Municipality's action in 1983 because Alaska law
gives municipalities the exclusive power to vacate streets.  The
State contends that Alaska law gives the Department of
Transportation authority over the highway system, and that the
Municipality did not have the power to divest the State of its
interests in a highway right-of-way.  
          Safeway's argument that a municipality has exclusive
power to vacate a street is unavailing if the State acquired a
right-of-way that included the street.  While Alaska law permits
city streets to be vacated with the consent of the city council,
[Fn. 8] land or rights in land acquired for State highway purposes
can only be vacated by the Department of Transportation and Public
Facilities. [Fn. 9]  If the State had acquired a right-of-way over
Becharof Street for the New Seward Highway, then the State's right-
of-way would not have been eliminated when the Municipality
abandoned its rights to Becharof Street. [Fn. 10]  
          The parties do not dispute that the Municipality accepted
the dedication of Becharof Street.  The question is whether the
State also accepted the dedication, and thus acquired its own
right-of-way over the land.  Title 19, governing state highways,
does not provide a specific procedure for accepting a dedication of
land.  Instead, it provides the Department of Transportation with
general authority to acquire rights-of-way for present or future
use. [Fn. 11]  This court has previously considered the
circumstances under which the State can accept a dedicated street,
however, and has held that the State may accept land dedicated to
the public "through a formal official action."[Fn. 12]   
          By including Becharof Street on the right-of-way map that
served as the basis for the acquisition of the right-of-way for the
New Seward Highway, the State engaged in "a formal official action"
showing that it was assuming control over the land for highway
purposes. [Fn. 13]  The City of Anchorage acknowledged the State's
assumption of control over the right-of-way by subordinating its
utility easements to the State's interest as shown on the
right-of-way map.  So did Calais, the owner of the land underlying
the State's right-of-way, when Calais requested the State's
permission to construct and maintain a roadway along Becharof
           Safeway contends that the State could not have accepted
the dedication in the 1960s by including Becharof Street on the
right-of-way map for the New Seward Highway, as the right-of-way
map was not recorded until 1988.  But the purpose of the recording
statutes is to protect innocent purchasers against unrecorded deeds
to third parties. [Fn. 14]  The only parties who could possibly
have been prejudiced by the State's failure to record are Calais,
which owns the land, and Safeway, which leased it.  But Calais has
had actual notice that Becharof Street lay within the right-of-way
for the New Seward Highway since the 1960s.  And Safeway did not
enter into its long-term lease until 1996, well after the State's
right-of-way map had been recorded.  Any delay in recording the
right-of-way map was thus harmless. 
     B.   Is the State Estopped from Claiming an Interest in
          Becharof Street?

          Even if the State's interest in Becharof Street was not
vacated by the Municipality's action, Safeway argues that the State
is equitably estopped from claiming an interest in Becharof Street
because Keith Morberg allegedly told Safeway that the State had
accepted the Municipality's decision to vacate Becharof Street and
would be willing to sell the now-isolated northwest corner of the
(former) Calais property. 
          In Dressel v. Weeks, we held that when applied to
preclude the assertion of title in real property, equitable
estoppel requires:
          first, that the party making the admission by
his declaration or conduct, was apprised of the true state of his
own title; second, that he made the admission with the express
intention to deceive, or with such careless and culpable negligence
as to amount to constructive fraud; third, that the other party was
not only destitute of all knowledge of the true state of the title,
but of the means of acquiring such knowledge[;] and fourth, that he
relied directly upon such admission, and will be injured by
allowing its truth to be disproved.[ [Fn. 15]]

          Safeway concedes that Morberg believed that the State's
interest in Becharof Street had been vacated by the Municipality in
1983.  But we have held that the Municipality's 1983 ordinance did
not vacate the State's interest in the land.  Because Morberg was
not apprised of the true state of the State's title, the first
element of the Dressel test is thus not met.  
          Nor is the third element.  The State's title was derived
from its inclusion of Becharof Street within the right-of-way for
the New Seward Highway.  Not only had the State's right-of-way map
been recorded at the time that Safeway met with Morberg,  but
Calais, from whom Safeway was planning to lease the property, had
actual notice that the street lay within the State's right-of-way. 
Safeway was thus not "destitute . . . of the means of acquiring
. . . knowledge [of the true state of the title]."[Fn. 16] 
Because at least two of the four elements of the Dressel test have
not been met, we conclude that equitable estoppel will not bar the
State from claiming an interest in Becharof Street.
     C.   Does Quasi-Estoppel Bar the State from Asserting an
Interest in Becharof Street?

          Safeway also asserts that the State is barred by quasi-
estoppel from asserting an interest in Becharof Street.  Quasi-
estoppel "precludes a party from taking a position inconsistent
with one he [or she] has previously taken where circumstances
render assertion of the second position unconscionable."[Fn. 17] 
In applying the doctrine of quasi-estoppel, we consider 
          whether the party asserting the inconsistent
position has gained an advantage or produced some disadvantage
through the first position; whether the inconsistency was of such
significance as to make the present assertion unconscionable; and
whether the first assertion was based upon a full knowledge of the
facts.[ [Fn. 18]]  

          Before the Municipality passed its 1983 ordinance, the
State asserted that it possessed a right-of-way over Becharof
Street.  That is the same position the State asserts today. 
Safeway contends that the State ultimately acquiesced to the
Municipality's 1983 decision to vacate the street by failing to
appeal the municipal ordinance effecting the vacation.  But we see
no reason to require the State to have appealed an ordinance that,
as we have concluded, had no effect on the State's interests in the
land in question.  The State's position today is thus no different
from what it was throughout the 1980s.
          The State may have asserted a different position from the
one it advances today in 1996, when Morberg indicated that the
State would probably not claim an interest in Becharof Street and
that the State would be willing to sell the northwest corner of the
(former) Calais property.  But Morberg did so under the false
impression that the State's interest in Becharof Street had been
lost when the Municipality vacated the street in 1983.  His
assertion was thus not based upon "full knowledge of the facts."
[Fn. 19]  If Safeway were to claim that Morberg had constructive
knowledge of the State's claim of title, moreover, Safeway would be
unable to show that it was harmed by Morberg's erroneous
representation, as Safeway had the same constructive knowledge --
through the recorded right-of-way map -- of the State's claim to
the land. [Fn. 20]  Under the circumstances of this case, we
decline to find the State's continued assertion of an interest in
Becharof Street unconscionable.
          For the reasons given above, we AFFIRM the superior
court's decision.


Footnote 1:

     See Illustration C attached as Appendix A.

Footnote 2:

     See Illustration G attached as Appendix B.

Footnote 3:

     The Municipality of Anchorage is the entity that was created
when the Greater Anchorage Area Borough and the City of Anchorage

Footnote 4:

     The property vacation is reflected in Illustration I, attached
as Appendix C.  For simplicity's sake this is usually referred to
in this opinion as Becharof Street. 

Footnote 5:

     Saddler v. Alaska Marine Lines, Inc., 856 P.2d 784, 787
(Alaska 1993).

Footnote 6:

     See Keener v. State, 889 P.2d 1063, 1065 n.2 (Alaska 1995).

Footnote 7:

     Carlson v. State, 598 P.2d 969, 973 (Alaska 1979).

Footnote 8:

     See AS 29.40.140(b) ("Vacation of a city street may not be
made without the consent of the council.").

Footnote 9:

     See AS 19.05.070(a) ("The department may vacate land, or part
of it, or rights in land acquired for highway purposes, by
executing and filing a deed in the appropriate recording

Footnote 10:

          See Kroeger v. St. Louis County, 218 S.W.2d 118, 120 (Mo.
1949) (holding that statute giving city authority to vacate street
applies to streets and highways owned by city and does not apply to
county or state roads that run through city).  Cf. State Highway
Dep't v. MacDonald, 144 S.E.2d 363, 367 (Ga. 1965) (holding that
state highway department has full control over state highway
system, including right to close county roads where necessary);
Curtis v. Board of Sup'rs of Clinton County, 270 N.W.2d 447, 449-50
(Iowa 1978) (holding that only department of transportation, not
local board of supervisors, has authority to alter or vacate any
highway crossing in its system); Ex parte Com., Dep't of Highways,
291 S.W.2d 814, 815-16 (Ky. 1956) (holding that Department of
Highways has power to take over any county road and make it a part
of the state primary road system, and having done so, may by its
own order discontinue such road).

Footnote 11:

          AS 19.05.040(4).

Footnote 12:

     State v. Fairbanks Lodge No. 1392, 633 P.2d 1378, 1380 (Alaska

Footnote 13:

     See generally Roger Cunningham et al., The Law of Propertysec.
11.6 (2d ed. 1993) ("Much less formal behavior [than a formal
resolution] can also constitute an acceptance:  taking over of
maintenance or construction of improvements, cessation of property
taxation, or any other acts indicating the government's assumption
of control over the land."). 

Footnote 14:

     See Gregor v. City of Fairbanks, 599 P.2d 743, 745 n.9 (Alaska
1979) (per curiam).

Footnote 15:

     Dressel v. Weeks, 779 P.2d 324, 329 (Alaska 1989) (italics
omitted) (quoting Boggs v. Merced Mining Co., 14 Cal. 279, 367-68
(Cal. 1859)).

Footnote 16:


Footnote 17:

     Keener v. State, 889 P.2d 1063, 1067 (Alaska 1995) (quoting
Dressel v. Weeks, 779 P.2d 324, 329 (Alaska 1989) (quoting Jamison
v. Consolidated Utils., Inc., 576 P.2d 97, 102 (Alaska 1978))).

Footnote 18:

     Keener, 889 P.2d at 1067-68 (quoting Jamison, 576 P.2d at

Footnote 19:

     Keener, 889 P.2d at 1068.

Footnote 20:

     See id. at 1068 (holding that party possessing same
constructive knowledge as state could not have been disadvantaged
by state's incorrect representation).