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Interior Trails Preservation Coalition v. Swope (06/24/2005) sp-5916
Interior Trails Preservation Coalition v. Swope (06/24/2005) sp-5916
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
INTERIOR TRAILS )
PRESERVATION COALITION, ) Supreme Court No. S-11323
)
Petitioner, ) Superior Court No.
) 4FA-03-1008 CI
v. )
)
GREG SWOPE and DONNA ) O P I N I O N
SWOPE, )
) [No. 5916 - June 24, 2005]
Respondents. )
)
Petition for Review from the Superior Court
of the State of Alaska, Fourth Judicial
District, Fairbanks, Randy M. Olsen, Judge.
Appearances: Michael C. Kramer, Cook
Schuhmann & Groseclose, Inc., and David F.
Leonard, Law Office of David F. Leonard,
Fairbanks, for Petitioner. Peter J.
Aschenbrenner, Aschenbrenner Law Offices,
Inc., Fairbanks, for Respondents.
Before: Bryner, Chief Justice, Eastaugh,
Fabe, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
BRYNER, Chief Justice.
I. INTRODUCTION
The Interior Trails Preservation Coalition brought an
action against Greg and Donna Swope claiming a public
prescriptive easement over the Swopes property for recreational
use. The superior court dismissed the action, concluding as a
matter of law that the Coalition was incapable of prevailing on
its claim because it had not been in existence for ten years
the minimum time required to establish its continuing use of the
alleged easement. We reverse, holding that because the Coalition
claimed a public easement, it was not required to prove its own
continuous use of the land and could instead establish its claim
by evidence showing continuous public use.
II. FACTS AND PROCEEDINGS
Greg and Donna Swope bought a parcel of land near the
Skyline Ridge Trail in Fairbanks in 1997. After seeing a number
of people cross their land, the Swopes posted a no trespassing
sign and erected a barrier to keep trespassers off. But some
people apparently continued to cross over the land.
In 2002 several Fairbanks area residents created the
Interior Trails Preservation Coalition, a non-profit corporation
established to keep local recreational trails open to the public.
The Coalition filed a complaint in the superior court, seeking to
establish a public prescriptive easement over the Swopes
property. The complaint alleged that a pathway leading to the
Skyline Ridge Trail passes through the Swopes property and has
been used by the public since the 1950s.
The Swopes moved to dismiss the complaint, contending
that the Coalition lacked standing to claim a prescriptive
easement and that it could not prove its claim in any event,
since the Coalition had not been in existence long enough to meet
the ten-year period of continuous use necessary to establish a
prescription. The superior court granted the Swopes motion,
concluding that the Coalition lacked standing because it had
neglected to allege that any of its members could maintain the
action on their own and because it had been in existence for less
than ten years. The Coalition moved for reconsideration,
submitting an affidavit of one of its members who claimed to have
used the trail for many years. The superior court declined to
reconsider its ruling, and the Coalition petitioned for review.
We granted the petition and now reverse the order of dismissal.
III. DISCUSSION
The main issue presented for our review is whether a
corporate organization like the Coalition can maintain an action
for a public prescriptive easement even though the organization
has not been in existence long enough to engage in the ten-year
period of continuous use needed to establish a prescriptive
easement.1 Stated differently, the question is whether the
Coalition must establish the prescriptive easement by proof of
its own continuous use.
Obtaining rights in anothers property by prescription
is similar to obtaining rights by adverse possession.2 Both
doctrines permit acquisition of property rights through the
passage of time, if certain conditions are met, but prescription
is applied to servitudes while adverse possession is applied to
possessory estates.3 Thus, the focus in a prescriptive easement
claim is on use, whereas the focus in an adverse possession case
is on possession.4
The two doctrines differ slightly in other respects as
well.5 To acquire an interest through adverse possession, the
claimant ordinarily must prove ten years of adverse and exclusive
possession.6 In contrast, while a prescriptive easement
similarly requires ten years of continuous use,7 [t]he use need
not be, and frequently is not, exclusive for prescription.8
Prescriptive easements may be obtained either by
private individuals or by the general public.9 The required
elements are the same for public and private prescriptive
easements. The only difference is that a public prescriptive
easement requires qualifying use by the public, while a private
prescriptive easement requires qualifying use only by the private
party.10 A prescriptive easement obtained by a private person
gives only that person the right to continued use,11 whereas a
prescriptive easement obtained by the general public gives the
right of use to the public at large.12
Alaska courts have long recognized prescriptive
easement claims brought on behalf of the general public as well
as private individuals.13 To succeed on a prescriptive easement
claim, a claimant must show that (1) the use was continuous and
uninterrupted for the same ten-year period that applies to
adverse possession; (2) the claimant acted as an owner and not
merely as a person having the permission of the owner; and (3)
the use was reasonably visible to the record owner.14 The
claimant must prove each element by clear and convincing
evidence.15
Here, the Coalition contends that the public has used a
pathway that runs through the Swopes property since the 1950s to
gain access to the Skyline Ridge Trail, and that this use
established a prescriptive easement in the 1960s that continues
today. In dismissing the Coalitions complaint, the court noted
that [t]he association has not as an entity used the trail.
Indeed, from the affidavits filed by the parties, the Swopes
barricaded and prevented public use of their property before the
association was incorporated. (Emphasis in original.) Because
the Coalition could not have engaged in ten years of continuous
use, the court concluded that it could not establish its
prescriptive easement claim.
The Coalition argues that the trial courts ruling
confuses claims for private prescriptive easements, which seek to
establish individual rights of use, with claims for public
prescriptive easements, which seek to establish public rights.
The Coalition contends that if continuous use by one user were
required to establish public prescriptive easements, then public
easements could never be obtained, because the individual user
could always claim a private easement instead. Because of the
settled principle that the scope of a prescriptive easement is
limited to the manner in which it was established,16 the Coalition
contends, the court would be obliged to limit the easement to the
individual user, thus effectively eliminating any chance of
recognizing a public prescriptive use.
The Swopes respond by citing the case relied on by the
superior court: our recent opinion in Price v. Eastham.17 In the
Swopes view, Price settles this issue by holding that an
organization cannot bring a public prescription claim if it has
not been in existence for the ten-year period required to
establish continuous adverse use. But the Swopes misread Price.
In Price, a group of snowmachiners asserted that
recreational users had used a trail over Prices property since
approximately 1956, and thus had established a prescriptive
easement over Prices land.18 On appeal, we held that the
snowmachiners had presented sufficient evidence to support the
trial courts finding that the public had established a
prescriptive easement over Prices land.19 In the opening part of
our opinion, we described the procedural history of the case,
noting that the complaint was originally filed by a corporation
called Snomads, Inc., which was subsequently replaced by
individual plaintiffs:
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.[20]
In the present case, the superior court interpreted
this description as a holding; that is, it viewed Price as
actually having decided that Snomads, Inc., had to be replaced by
individual plaintiffs because a public prescriptive easement
could only be established through proof of an individual users
continuous use. But Price did not rule on this proposition. The
issue did not arise in Price, and we did not purport to resolve
it in our opinion. Although it certainly might have been more
clearly stated, Prices description of procedural history was just
that a description and signified nothing more.
On appeal, the Swopes cite no other authority holding
that a plaintiff cannot establish a public prescriptive easement
by relying on evidence of continuous use by other members of the
general public. We have found no cases that support this
conclusion; in fact, case law points to the opposite conclusion.
In Elmer v. Rodgers,21 for example, an individual plaintiff
brought suit claiming that the public had acquired a prescriptive
easement over a churchs property. The New Hampshire Supreme
Court found that evidence showing twenty years of general public
use of the churchs land to gain access to a nearby beach was
sufficient to establish a public prescriptive easement, even
though the individual plaintiff failed to prove sufficient
personal use to establish a private easement. In other words,
the New Hampshire Supreme Court held, the plaintiff was not
precluded from relying on and asserting the prescriptive right of
the general public.22
The situation here is analogous to the one at issue in
Elmer v. Rodgers. To establish a public prescriptive easement,
the Coalition was required to prove continuous use by the public
in general, not use by the organization itself or by any
individual member.23 Like the individual plaintiff in Elmer, the
Coalition was not precluded from relying on and asserting the
prescriptive right of the general public.24
We thus hold that it was error to dismiss the
complaint on the ground that the Coalition had not been in
existence for ten or more years.25
IV. CONCLUSION
For these reasons, we REVERSE the superior courts order
of dismissal.
_______________________________
1 A secondary issue arose from the superior courts
additional ruling that the Coalition failed to establish
associational standing under Alaskans for a Common Language, Inc.
v. Kritz, 3 P.3d 906 (Alaska 2000), because it neglected to offer
evidence that any of its members could sue for the prescriptive
easement in their own right. In moving for reconsideration,
however, the Coalition addressed this problem by submitting the
affidavit of a member professing to have used the trail across
the Swopes land for recreational purposes for many years. Hence,
although it is questionable whether an associational standing
requirement extends beyond the context of voting-rights cases
like the one at issue in Kritz, even if it does, the Coalition
has now cured the deficiency, and we find no need to address the
issue here.
2 See Restatement (Third) of Prop: Servitudes 2.17, cmt.
a (2000).
3 Id.
4 See McGill v. Wahl, 839 P.2d 393, 397 n.8 (Alaska 1992)
(Adverse possession however focuses on possession rather than
use. ).
5 Restatement (Third) of Prop: Servitudes 2.17, cmt. a
(2000).
6 See AS 09.10.030 (establishing ten-year period for
adverse possession absent color of title).
7 See McGill, 839 P.2d at 397 (noting that [t]he required
period of adverse use is ten years for an adverse possession
claim under AS 09.10.030, which is the same for prescription).
8 Restatement (Third) of Prop: Servitudes 2.17, cmt. a
(2000); see also McGill, 839 P.2d at 398 (Exclusivity of use is
not generally a requirement for a prescriptive easement as it is
for a claim of adverse possession.).
9 See Jon W. Bruce and James W. Ely, Jr., The Law of
Easements and Licenses in Land 5:24 (2004).
10 Brimstone Mining, Inc. v. Glaus, 77 P.3d 175, 181
(Mont. 2003) (internal citations omitted).
11 J.F. Gioia, Inc. v. Cardinal American Corp., 491 N.E.2d
325, 330 (Ohio App. 1985) (A landowner obtains an easement by
prescription for a specific use of his neighbors property when he
uses that property in that manner sufficient to satisfy the
elements of a prescriptive easement.).
12 See Elmer v. Rodgers, 214 A.2d 750 (N.H. 1965) (holding
that public established a prescriptive easement over churchs
property even where plaintiff, in his own right, would not be
able to satisfy requirements for prescription).
13 Compare McDonald v. Harris, 978 P.2d 81 (Alaska 1999)
(upholding a private prescriptive easement), with Price v.
Eastham, 75 P.3d 1051 (Alaska 2003) (upholding a public
prescriptive easement).
14 Dillingham Commercial Co., Inc. v. City of Dillingham,
705 P.2d 410, 416-17 (Alaska 1985) (citing Alaska Natl Bank v.
Linck, 559 P.2d 1049, 1052 (Alaska 1977)).
15 McDonald, 978 P.2d at 83.
16 See Restatement (Third) Prop.: Servitudes 4.10 cmt. d
(2000) (The scope of a prescriptive easement is defined
specifically so that only the use that created the easement and
closely related ancillary uses are included within the purpose.).
17 75 P.3d 1051 (Alaska 2003).
18 Id. at 1053.
19 Id. at 1059.
20 Id. at 1054.
21 214 A.2d 750 (N.H. 1965).
22 Id. at 752.
23 See Southeastern Pennsylvania Transp. Auth. v.
Pennsylvania Pub. Util. Commn, 505 A.2d 1046, 1049 (Pa. Commw.
Ct. 1986); see also Williams v. Harrsch, 681 P.2d 119, 122-23
(Or. 1984).
24 Elmer, 214 A.2d at 752. We note that Alaska law
generally treats corporations as having all the powers of a
natural person carrying out its business activities, including,
without limitation, the power to . . . sue and be sued in its
corporate name. AS 10.06.010(2).
25 The Swopes advance several alternative grounds for
affirming the superior courts order. For instance, they argue
that the doctrine of primary jurisdiction allows only the North
Star Borough Advisory Trail Commission to create trails within
the Fairbanks area and that, under article I, section 18 of the
Alaska Constitution, state courts cannot create public rights by
adverse possession without also paying just compensation. But the
superior court narrowly grounded its order of dismissal on the
Coalitions perceived lack of standing and inability to prove
continuity under Price v. Eastham. Because these were the only
issues raised in the petition and the only ones on which we
granted review, we decline to express any opinion on the
alternative grounds raised by the Swopes.
