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Price v. Eastham (8/15/2003) sp-5727
Price v. Eastham (8/15/2003) sp-5727
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
THOMAS E. PRICE, JR., )
) Supreme Court No. S-10418
Appellant, )
) Superior Court No.
v. ) 3HO-99-00066 CI
)
MIKE EASTHAM, VELDON ) O P I N I O N
"SPUD" DILLON, LORRAINE )
TEMPLETON, BRUCE ) [No. 5727 - August 15, 2003]
TURKINGTON, LEE KRUMM, )
LA VELLE DILLON, BOB FENEX, )
CAROL FENEX, BRUCE )
WILLARD, LINDA WILLARD, )
BUTCH BULLARD, GORDON )
GREBE, DIANE GREBE, ERIC )
OVERSON, SAM MATTHEWS, )
NANCY MATTHEWS, RAY )
KRANICH, EILENE WYTHE, JACK )
ALEXANDER, SUE ALEXANDER, )
RICK ALEXANDER, REED )
ALEXANDER, DAVE SANDERS, )
SHIRLEY SANDERS, GREG )
McCULLOUGH, LLOYD MOORE, )
PENNY MOORE, TAMMY )
HAGAN, CHUCK HAGAN, KATE )
MITCHELL, BEN MITCHELL, )
RONNIE MORRISON, BARB )
HRENCHIR, MIKE HRENCHIR, )
GUS WEBER, RITA WEBER, BOB )
SIMCOE, MARK JACOBS, BARB )
JACOBS, SHARON THOMPSON, )
RICK THOMPSON, FRED )
THOMPSON, CONNIE THOMPSON, )
MIKE DEVANEY, RICK )
ANDERSON, DAVE WEBER, )
MARK ROBL, TERRY ROBL, )
TORAS FISK, DAVE BOONE, )
MARASHA BOONE, GEORGE )
ESCHIN, JIM BILLS, MIKE )
O'MALLEY, JOE O'MALLEY, )
BILL MARKEL, GORDON BERG, )
FLOYD NEWKIRK, KARL HORST, )
ROBERT PELKY, ROBERT )
PLYMIRE, DON BLACKWELL, )
VALDA ZIEMELIS, RANDY )
WHITEHORN, CONNIE )
WHITEHORN, WILLIE BISHOP, )
HANS ALBERTSON, BILL )
SAMPSON, MIKE ARNO, ALLEN )
ENGLEBRETSON, RODNEY )
McLAY, JIM SPENCER, JIMMY )
SPENCER, JOE WRIGHT, JASON )
KINNARD, AMY KINNARD, SAM )
WRIGHT, PAUL BUDGE, BRIAN )
BELLAMY, RICK WISE, NATHAN )
WISE, JOHN WISE, JACOB WISE, )
MARTY WISE, JAKE ELLYSON, )
CAROL ELLYSON, BILL )
SHELDON, LEROY CABANA, SR., )
DORIS CABANA, LARRY )
CABANA, DAWN CABANA, )
and SCOTT CONNELLY, )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Homer,
Harold M. Brown, Judge.
Appearances: Thomas E. Meacham, Anchorage,
for Appellant. Michael Hough, Homer, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Mike Eastham and ninety-one plaintiffs claimed a right
to a prescriptive easement over a portion of Thomas Price's land
near Homer. The superior court found that a right-of-way existed
under 43 U.S.C. 932, Revised Statute (RS) 2477, commonly known
as an RS 2477 right-of-way, over Price's property. The superior
court held, alternatively, that a prescriptive easement existed
over Price's property. Price appealed. Because the parties did
not have an opportunity to address the RS 2477 issue at trial, we
reverse the superior court's ruling on that ground. Although we
affirm the superior court's finding of a prescriptive easement,
we remand for a precise determination of the easement's scope.
II. FACTS AND PROCEEDINGS
A. Factual History
1. The trail
Snomads, Inc., a group of snowmachiners, originally
filed this case against Thomas Price in May 1999, seeking a
prescriptive easement over a trail located on Price's property.
They alleged that they and others - dog team mushers, hunters,
and campers - had used the trail since approximately 1956 to
access recreational areas near Price's property. The trail
bisects the southern boundary of Price's land and runs toward the
northeasterly corner of his property. Although Price became
aware of the trail in 1979 or 1980, he first attempted to prevent
the public's use of the trail by posting "no trespassing" signs
in November 1998. In January 1999 Price complained to the state
troopers about the snowmachiners trespassing on his land. This
was the first time he publicly complained about the trail's use.
2. Price's property
Price's parcel of land is located at the head of
Kachemak Bay, near Homer, and is approximately 160 acres in size.
The nature of Price's ownership interest in the land is
significant to his arguments regarding the validity of the
superior court's grant of an easement across his property. In
July 1978 Price purchased the agricultural interest in the land
from the state. The contract for the sale defined "agricultural
interests" as the "surface estate in fee simple subject to the
conditions subsequent and covenants relating to agricultural use
and development set out in 11 AAC 67.162(b)." Under the
contract, Price agreed to develop and use the land according to
approved farm development and farm conservation plans. He paid
$33,000 for the land, divided into ten yearly payments. The
property that Price bought was subject to several preexisting
interests including three easements and an oil and gas lease.
The state granted the surface estate in fee simple to
Price, subject to certain restrictions, in a land patent dated
January 1988. Specifically, the grant was subject to a condition
subsequent limiting Price's use of the land: "[I]f the property
is used for purposes other than agricultural purposes, then the
Grantor may enter the property and terminate the estate conveyed
herein." The grant included a related covenant that Price would
use the property for agricultural purposes
only, which may include personal residential
use incidental to farm operations on the
property, and [would] operate in accordance
with a Farm Conservation Plan approved by
Grantor and further agrees that these
covenants shall run with the land and shall
be binding upon the Grantee and all other
persons and parties claiming through the
Grantee.
On December 1, 1981, Price granted to Louise Crane an
easement that allowed Crane access to her property. Price sent
the easement agreement to the State Department of Natural
Resources for approval on January 20, 1982. The easement was
recorded in April 1982.
B. Procedural History
Snomads, Inc. filed suit against Price in May 1999,
claiming that it had perfected a prescriptive easement over
Price's property. Snomads alleged that the trail was established
in approximately 1956 and that they and other recreational users
had used the trail continuously since then. Price filed an
answer, disputing the claim of entitlement to a prescriptive
easement and asserting several counterclaims. Primarily, Price
asked the court for injunctive relief to keep the plaintiffs off
his land. Snomads denied all counterclaims.
Snomads as an entity did not survive this litigation.
Because the recreational group only incorporated in 1992, and
because it takes ten years of use to show a prescriptive
easement, Snomads, Inc. was not a viable plaintiff in a 1999
action. Consequently, Mike Eastham, a Snomads member, amended
the complaint deleting Snomads as a party and substituting ninety-
one individual plaintiffs. These plaintiffs are referred to as
"Eastham."
The case went to trial in January 2000 before Superior
Court Judge Harold M. Brown in Homer. Judge Brown concluded that
the trail at issue was an RS 2477 right-of-way. Because the
court found that an RS 2477 right-of-way existed, it declined to
decide whether a public or private easement was created.
Price then moved for reconsideration of the trial
court's order, arguing that an RS 2477 right-of-way could not
have been created on his land. In denying Price's motion for
reconsideration, the court supplemented its earlier ruling by
determining that Eastham had established that a public
prescriptive easement existed across Price's land, in addition to
the RS 2477 right-of-way. Price filed a second motion for
reconsideration of the prescriptive easement holding, which the
court denied.
The court denied relief to Price on all of his
counterclaims and entered judgment in October 2001. Costs and
attorney's fees were awarded to Eastham. Price appeals the trial
court's decision.
III. STANDARD OF REVIEW
A superior court's determination that an RS 2477 right-
of-way exists is based upon factual findings about property use
and legal conclusions about whether the use was sufficient to
establish an RS 2477 right-of-way.1 We review factual findings
under the clearly erroneous standard and will disturb those
findings only when "we are left with a definite and firm
conviction on the entire record that a mistake has been made,
even though there may be evidence to support the finding."2 We
review the application of law to facts de novo.3
Price's arguments concerning whether a prescriptive
easement can exist on his property raise a legal issue, rather
than a factual one. " `The content of a particular legal
doctrine, and what the facts of this case establish under such
doctrine is [at] issue' " in the prescriptive easement claim.4
We are not bound by the lower court's view when deciding
questions of law.5
IV. DISCUSSION
A. The Trial Court Erred in Determining that Price's
Property Is Subject to a Public Right-of-Way Under
Former 43 U.S.C. 932, Revised Statute (RS) 2477.1.
Background on RS 2477
The superior court held that a public right-of-way
existed over Price's property under 43 U.S.C. 932, Revised
Statute (RS) 2477. Congress enacted this provision, commonly
referred to as RS 2477, in 1866 as part of the Lode Mining Act.6
Under RS 2477, the federal government granted rights-of-way,
providing: "[T]he right of way for the construction of highways
over public lands, not reserved for public uses, is hereby
granted."7 The grant was self-executing, meaning that an RS 2477
right-of-way automatically came into existence "if a public
highway was established across public land in accordance with the
law of Alaska."8 Although Congress repealed RS 2477 in 1976, the
statute governs this case because the claimed right-of-way would
have existed before then.9
We have noted that "[t]he operation of 932 is not
obvious from its terms."10 Indeed, the statute itself is simply
an offer to dedicate land to public use.11 To effect the grant of
a right-of-way, either the public or the appropriate state
authorities must take positive action.12 Specifically, the public
must use the land "for such a period of time and under such
conditions as to prove that the grant has been accepted," or
appropriate public authorities of the state must act in a way
that clearly manifests their intention to accept the grant.13
RS 2477 specified that it provided for the construction
of highways over federal "public lands, not reserved for public
uses."14 "Public lands" means lands open to settlement or other
disposition under federal land laws.15 Therefore, a valid RS 2477
claim could only have been made on the land in question before
December 29, 1959, when the State of Alaska filed a land
selection application with the Bureau of Land Management for
lands encompassing Price's land. As soon as the state filed its
application, the lands it selected were "segregated from all
applications and appropriations under the public land laws." We
therefore must determine whether the trial court erred in holding
that an RS 2477 right-of-way existed prior to 1959.
To determine whether sufficient public use exists to
establish an RS 2477 right-of-way, courts usually consider two
factors: evidence of use and evidence of the route's definite
character.16 However, a preliminary issue in this case makes it
unnecessary for us to reach the merits of the RS 2477 claim.
Neither of the parties raised the issue of an RS 2477 right-of-
way at the trial court level. Rather, the trial court -
declining to rule upon the prescriptive easement claim Eastham
presented - found on its own that an RS 2477 right-of-way existed
over Price's land. This lack of notice raises serious due
process concerns.
The Alaska Constitution provides that "[n]o person
shall be deprived of life, liberty, or property, without due
process of law."17 We have held repeatedly that "[p]rocedural due
process under the Alaska Constitution requires notice and
opportunity for hearing appropriate to the nature of the case."18
Parties must have notice of the subject of proceedings that
concern them "so that they will have a reasonable opportunity to
be heard."19 "A hearing is required in order to give the parties
an opportunity to present the quantum of evidence needed [for the
court] to make an informed and principled determination."20
Because Price did not have notice that an RS 2477 right-
of-way was at issue, his due process rights were violated.
Here, Price did not have an opportunity to be heard on the RS
2477 matter; in fact, he reasonably believed that RS 2477 was not
at issue. Accordingly, we hold that the trial court's failure to
give Price notice and an opportunity to be heard and to present
evidence on the RS 2477 issue at trial violated his due process
rights, and we therefore reverse the superior court's finding of
an RS 2477 right-of-way on Price's land.
B. A Prescriptive Easement Exists Across Price's Land
.
Although Eastham claimed entitlement to a prescriptive
easement in his complaint, the superior court initially declined
to rule on that claim, finding instead that an RS 2477 right-of-
way existed across Price's property. Later, however, in denying
Price's motion for reconsideration on the RS 2477 ruling, the
superior court held that a prescriptive easement existed over the
land, finding that "the public at large has been using the trail
in a continued and uninterrupted manner for at least the ten
years prior to the filing of this suit." Price moved for
reconsideration of the prescriptive easement ruling. The court
denied his motion.
Price argues that the superior court erred in holding
that a prescriptive easement exists over a corner of his
property. His argument hinges upon AS 38.95.010 which provides:
No prescription or statute of limitations
runs against the title or interest of the
state to land under the jurisdiction of the
state. No title or interest to land under
the jurisdiction of the state may be acquired
by adverse possession or prescription, or in
any manner except by conveyance from the
state.
Price asserts that because he only owned the agricultural
interests in his land during the relevant time period21 and
because the state retained all other interests, any claim of a
prescriptive easement across his land violates AS 38.95.010.22
Because a prescriptive easement may be obtained where
the holder of the servient property does not own the property in
fee simple, but rather holds a lesser interest in the property,23
Eastham's easement claim does not violate AS 38.95.010. A
prescriptive easement may be claimed against an individual who
holds less than a fee simple interest in the land, such as a
leaseholder.24 The Superior Court of New Jersey addressed this
issue in Ludwig v. Gosline.25 In Ludwig, the Gosline family
claimed that they had acquired a prescriptive easement over a
portion of their neighbors' property.26 Both the Goslines and
their neighbors leased their properties.27 In holding that the
easement existed, the court noted that the servient property
holder need not own the fee.28 "An easement by prescription may
be obtained against the holder of a present interest subject to
divestment if and when the property passes to the holder of a
future interest."29
Price, like the Goslines, did not own his land in fee
simple; he only owned the agricultural interest in the land. The
land patent that the state conveyed to Price in 1988 contained
the condition subsequent that if Price used the property for non-
agricultural purposes, the state could enter Price's property and
terminate the estate it granted to him. Even though he did not
own the land in fee simple, Ludwig shows that Eastham's
prescriptive easement claim is valid, but only against Price's
ownership interest. The trial court considered the limits of
Price's ownership interest in its order denying reconsideration
of the easement holding.
Judge Brown held that although the patent requires that
the land be used for agricultural purposes, "the court sees no
inconsistency between the requirement of agricultural use and the
kind of recreational use at issue in this case." Whether the use
of an easement is inconsistent with the servient owner's use of
his land is a question of fact.30 Judge Brown's conclusion that
recreational use of the trail is not inconsistent with Price's
agricultural use of his land was not clearly erroneous.
The Supreme Court of Virginia addressed a similar issue
in Preshlock v. Brenner. In Preshlock, Janet Brenner owned land
subject to a municipal storm sewer easement.31 The Preshlocks
owned the lot next to Brenner. A driveway ran from the street,
over a corner of Brenner's property to the Preshlocks' property.
The Preshlocks claimed a prescriptive easement over the portion
of driveway on Brenner's land. One of Brenner's predecessors in
title had conveyed to the city an easement for a storm sewer
located under the part of Brenner's lot in which the Preshlocks
claimed an easement. The trial court held as a matter of law
that the Preshlocks could not acquire a prescriptive easement in
the land because "no prescriptive right can be acquired in
property affected with a public interest or dedicated to a public
use."32 The Virginia court reversed this ruling, holding that the
Preshlocks could acquire a prescriptive easement in the land,
despite the presence of the city's easement.33 The court reasoned
that Brenner could make any use of her property that did not
unreasonably interfere with the city's easement and that she
could grant this right to a third party.34 The court noted that
the Preshlocks conceded that their prescriptive rights would be
subject to the city's rights and could not interfere with the
city's easement.35
As with Brenner, Price owns land subject to government
interests. Eastham, like the Preshlocks, does not claim a
prescriptive easement against those government interests, but
against Price.36 While Price must use his property for
agricultural purposes, as long as he satisfies that condition of
his patent he can presumably make any other use of his property.
Price could grant an easement or alternatively have a
prescriptive easement granted against him, that does not
interfere with his mandate to use the land for agricultural
purposes. Accordingly, we affirm the superior court's finding
that a public prescriptive easement exists over Price's land.
Because the prescriptive easement was an alternative
ruling for the trial court, it did not discuss the easement's
scope. The scope of a prescriptive easement is defined narrowly
to include only the "use that created the easement and closely
related ancillary uses."37 "Because an easement directly affects
ownership rights in the servient tenement, judicial delineation
of the extent of an easement by prescription should be undertaken
with great caution."38 According to the Restatement (Third) of
Property, determining the extent of a prescriptive easement
should focus on the servient estate owner's reasonable
expectations: "The relevant inquiry is what a landowner in the
position of the owner of the servient estate should reasonably
have expected to lose by failing to interrupt the adverse use
before the prescriptive period had run."39 Although the use made
of a prescriptive easement may evolve beyond the original
prescriptive uses, new uses cannot substantially increase the
burden on the servient estate or change the nature and character
of the easement's original use.40
Courts have restricted the scope of prescriptive
easements significantly to limit the burden on the servient
estate. For example, courts have limited use of prescriptive
easements to specific times of the year41 and have limited the
width of prescriptive easements.42 In considering a prescriptive
easement for recreational purposes, the Supreme Judicial Court of
Maine limited the use of the easement to the "general
recreational purposes for which the road was used during the
period that the prescriptive easement was being created."43 The
court reversed the trial court's restriction of the easement to
travel for "recreational purposes" as overly broad, reasoning
that vaguely defined "recreational purposes" could lead to
excessive burdening of the servient estate.44 Therefore, the
court remanded the case for a more specific delineation of
permissible uses of the prescriptive easement.45
Because the superior court did not define the extent of
the prescriptive easement over Price's land, we remand for a
determination of the scope of this easement. The court is free
to impose restrictions upon the easement consistent with the
Restatement (Third) and this decision, including, for example,
limiting use to certain seasons, prescribing the width of the
easement, and specifying the precise uses that may be made of the
easement.
V. CONCLUSION
Because a prescriptive easement can be claimed against
a land holder who owns less than a fee simple interest in the
land, we AFFIRM the superior court's holding that a prescriptive
easement exists over Price's property and REMAND for a
determination of the easement's precise scope. Because the
parties did not have an opportunity to address the RS 2477 issue
at trial, it was error for the trial court to hold that an RS
2477 right-of-way existed. Accordingly, we REVERSE the trial
court's RS 2477 ruling.46
_______________________________
1Fitzgerald v. Puddicombe, 918 P.2d 1017, 1019 (Alaska 1996).
2Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979).
3Fitzgerald, 918 P.2d at 1019.
4Walsh v. Emerick, 611 P.2d 28, 30 (Alaska 1980) (quoting Peters
v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 833-34
(Alaska 1974)).
5Id.
6Leroy K. Latta, Jr., Public Access Over Alaska Public Lands as
Granted by Section 8 of the Lode Mining Act of 1866, 28 Santa
Clara L. Rev. 811, 811 (1988).
7Fitzgerald, 918 P.2d at 1019 (quoting 43 U.S.C. 932, repealed
by Pub. L. No. 94-579, Title VII, 706(a), 90 Stat. 2793 (1976),
quoted in Hamerly v. Denton, 359 P.2d 121, 123 (Alaska 1961)).
8Id.
9See id. (citing Dillingham Commercial Co. v. City of Dillingham,
705 P.2d 410, 413 (Alaska 1985)).
10Dillingham, 705 P.2d at 413.
11Id.
12Id. (citing Hamerly, 359 P.2d at 123).
13Id. at 413-14.
14Fitzgerald, 918 P.2d at 1019 (quoting 43 U.S.C. 932, repealed
by Pub. L. No. 94-579, Title VII, 706(a), 90 Stat. 2793 (1976),
quoted in Hamerly, 359 P.2d at 123); Humboldt County v. United
States, 684 F.2d 1276, 1280 (9th Cir. 1982).
15Hamerly, 359 P.2d at 123.
16Mitchell R. Olson, The RS 2477 Right of Way Dispute:
Constructing a Solution, 27 Envtl. L. 289, 301 (1997) (citing
Hamerly, 359 P.2d at 123-25; Dillingham, 705 P.2d at 414-15).
17Alaska Const. art. I, 7.
18Walker v. Walker, 960 P.2d 620, 622 (Alaska 1998) (internal
quotations omitted); see also Lashbrook v. Lashbrook, 957 P.2d
326, 328 (Alaska 1998); Siekawitch v. Siekawitch, 956 P.2d 447,
449 (Alaska 1998).
19Potter v. Potter, 55 P.3d 726, 728 (Alaska 2002) (citation
omitted).
20Walker, 960 P.2d at 622 (quoting Howlett v. Howlett, 890 P.2d
1125, 1127 (Alaska 1995)).
21We recognize that a September 1998 land patent changed Price's
ownership interest in the land and that he now owns the parcel in
fee simple, subject to "a perpetual covenant for the benefit of
all Alaskan residents [which] restricts the use of the land to
agricultural purposes only as defined in AS 38.05.321."
22Price does not dispute the trial court's findings on any of the
elements to establish a prescriptive easement. Because they are
not contested, we do not address them.
23Ludwig v. Gosline, 465 A.2d 946, 947 (N.J. Super. App. Div.
1983).
24Id.
25Id. at 946.
26Id. at 947.
27Id.
28Id.
29Id.
30Preshlock v. Brenner, 362 S.E.2d 696, 698 (Va. 1987).
31Id.
32Id.
33Id.
34Id.
35Id.
36Thus, if the state has occasion to terminate the estate that it
granted to Price, the prescriptive easement will also terminate.
37Restatement (Third) of Prop.: Servitudes 4.10 cmt. d (2000);
see also Wright v. Horse Creek Ranches, 697 P.2d 384, 388-89
(Colo. 1985); Benner v. Sherman, 371 A.2d 420, 422 (Me. 1977);
House v. Hager, 883 P.2d 261, 265 (Or. 1994); Widell v.
Tollefson, 462 N.W.2d 910, 914 (Wis. App. 1990).
38Wright, 697 P.2d at 388.
39Restatement (Third) of Prop.: Servitudes 4.1 cmt. h (2000).
40House, 883 P.2d at 264-65; see Twin Peaks Land Co. v. Briggs,
130 Cal. App. 3d 587, 595 (Cal. App. 1982) (reversing trial
court's broad description of easement - "[Easement] may be used
all hours of the day and all times of the year, and for many
purposes, including hunting, pasturing cattle and horses and
maintaining cabins, maintaining the roadway, entertaining guests,
cutting firewood and having picnics and barbeques" - and
remanding for modification consistent with rule that subsequent
use of easement must be reasonably related to use made during
prescriptive period).
41Block v. Sexton, 577 N.W.2d 521, 526 (Minn. 1998) (holding trial
court did not err in limiting scope of prescriptive easement to
ingress and egress from May to October reasoning that "the extent
of an easement depends upon the character and purpose of the
use"). Cf. Widell, 462 N.W.2d at 914 (reversing trial court's
decision to limit use of prescriptive easement to April to
October and remanding for findings on whether winter use would
unreasonably burden servient estate).
42Hash v. Sofinowski, 487 A.2d 32, 36 (Pa. Super. 1985) (holding
width of prescriptive easement limited to width of vehicles used
to make easement); Johnson v. Roy, 279 S.W.2d 20, 21 (Ky. App.
1955) (restricting easement width to fifteen feet where servient
estate owner had no notice of any use beyond fifteen feet in
width).
43Benner v. Sherman, 371 A.2d 420, 423 (Me. 1977).
44Id. at 422-23.
45Id. at 423.
46Because we affirm the trial court's finding of a prescriptive
easement, we decline to direct the trial court on remand to hold
a new trial on the RS 2477 issue. The plaintiffs requested a
prescriptive easement, and they neither pled nor presented
evidence on whether an RS 2477 right-of-way existed. However,
because the trial court raised sua sponte the RS 2477 issue in
the first instance, we leave to the trial court's discretion
whether to allow further development of evidence on this issue on
remand. If the trial court elects to do so, it should first
provide notice and an opportunity to be heard to the State of
Alaska.
