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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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
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     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


PRESERVATION COALITION,		)	Supreme Court No. S-11323
               Petitioner,			)	Superior Court No.
                              			)	4FA-03-1008 CI
          v.				)	
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.


          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.


          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.


          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


          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
          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


          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

     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.