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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.