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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 (02/03/2006) sp-5983

Price v. Eastham (02/03/2006) sp-5983, 128 P3d 725

     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- 11647
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. 5983 - February 3, 2006]
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 )
OMALLEY, JOE OMALLEY, )
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. Price,  Jr.,  Homer,
          pro se, Appellant.  Michael Hough, Homer, for
          Appellees.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.

I.   INTRODUCTION
          In  Price  v. Eastham (Price I), we held that a  public
prescriptive easement had been established and remanded the  case
to the superior court for a determination of the easements scope.1
In  Price  I, we discussed the question of scope in some  detail,
remarking that [c]ourts have restricted the scope of prescriptive
easements  significantly  to limit the  burden  on  the  servient
estate2 and suggesting that the superior court was free to impose
restrictions  upon the easement consistent with  the  Restatement
(Third) [of Property: Servitudes] . . .  including . . . limiting
          use to certain seasons, prescribing the width of the easement,
and specifying the precise uses that may be made of the easement.3
          Upon remand, the superior court issued an order stating
that the easement was to be sixteen feet in width and including a
corresponding  legal description.  Because  the  order  does  not
satisfy  Alaska Rule of Civil Procedure 52(a) and therefore  does
not  permit meaningful review,4 we remand for a determination  of
the  precise scope of the easement in light of this opinion.   We
additionally affirm the superior courts refusal to condition  the
scope  of the easement upon approval of a modification to  Prices
Farm Conservation Plan.
II.  FACTS AND PROCEEDINGS
          This  case  concerns the scope of an easement  along  a
seismic  trail  crossing the property of Thomas  E.  Price.   The
trail  was used without incident for many years (since  at  least
1956)  until the late 1990s when trail traffic increased  to  the
point  of  interfering with Prices quiet enjoyment of  his  land.
Price posted the trail with No Trespassing signs in the winter of
1998-99.  He replaced the signs each time unknown persons removed
them.   A  group of snowmachine drivers eventually sued Price  to
settle the dispute.5
          In  its  February 9, 2000 decision, the superior  court
found  that a right-of-way existed under 43 U.S.C.  932,  Revised
Statute  (RS)  2477 and, in the alternative, that a  prescriptive
easement  existed over Prices property.6  The RS 2477  issue  had
not been raised by the parties at trial.7  Regarding the scope of
the  RS  2477  right-of-way, the superior court stated  only  the
general direction of the trail; clarified that it may be used for
any purpose consistent with public travel; and declared its width
to be that width established by the traditional use of the trail,
but in no place is the right of way narrower than is safe for two
snowmachines  to  pass each other, nor wider  than  the  original
width of the seismic trail.
          In Price I, we held that the superior courts failure to
give  the parties notice and an opportunity to be heard at  trial
on the RS 2477 issue violated due process rights and we therefore
reversed the superior courts finding of an RS 2477 right-of-way.8
But  we  concluded that a public prescriptive easement  had  been
established  over  Prices  property.9  Since  the  only  relevant
discussion of the easements scope by the superior court concerned
the RS 2477 right-of-way, we remanded the case to the trial court
to  establish  the scope of the prescriptive easement.10   In  so
doing,  we  cited  to  sections 4.1 and 4.10 of  the  Restatement
(Third)  of Property: Servitudes, discussed the range of relevant
factors, and provided case law to guide the inquiry upon remand.11
          After  the hearing on remand, the superior court issued
an  order  consisting  of  a  single sentence  stating  that  the
easement  was  to  be  sixteen feet wide and containing  a  legal
description of its general direction including the start and  end
points.  Price now appeals.
III. DISCUSSION
          The most important of Prices arguments on appeal is his
complaint  that  the  trial  court  failed  to  comply  with  the
requirement  of Civil Rule 52(a) that the superior  courts  order
contain  specific  findings of fact and  conclusions  of  law  to
permit  meaningful  review.12   A superior  courts  findings  are
sufficiently  clear and explicit to satisfy Civil Rule  52(a)  if
they  resolve all critical areas of dispute in the case  and  are
sufficiently detailed to allow for meaningful appellate review.13
In   particular,   the  superior  court  must  provide   findings
sufficient  to  give a clear understanding of  the  grounds  upon
which it reached its decision.14
          In  our  conclusion in Price I, we suggested  that  the
superior  court was free to impose restrictions on  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
use  that may be made of the easement.15  The order issued by the
superior court makes no reference to any limitations to be placed
on the easement nor does it explain its reasoning in these terms.
          Appellees  argue  that a common sense  reading  of  the
record  supports  the superior courts order and  that  a  precise
delineation of the easement was in fact provided by the  superior
court  in  its provisions as to width and length of the easement.
But  in  Price I we provided guidance on the types of limitations
to  be  considered  by  the superior court.   Unfortunately,  the
conclusory  nature of the superior courts finding is insufficient
for  us  to  determine  whether the superior  court  meaningfully
considered restrictions on the easement scope.  Moreover,  Prices
evidentiary showing in the hearing on remand raises the  question
whether appellees are attempting to change the way they are using
the  easement.   Because a change in the use  of  a  prescriptive
easement could significantly affect the scope of the easement, we
now  discuss the legal principles and types of facts required  to
determine whether appellees present use of the trail is  in  line
with  the use that established the prescriptive easement  in  the
first place.16
     A.   It  Was  Error for the Superior Court To Fail  To  Make
          Findings Sufficient To Allow Meaningful Review  of  its
          Reasoning Concerning the Precise Scope of the Easement.
          
          In its decision of February 9, 2000, the superior court
acknowledged  the basic question that drives this case:  what  is
the  proper  response  when  a public  prescriptive  easement  is
properly  established by a relatively small number of people  but
is  subsequently subject to a dramatic increase in the numbers of
those who wish to use it?
          This  question  implicates two separate inquiries:  (1)
how  to  delineate the scope of a prescriptive  easement  at  the
moment of perfection; and (2) whether a given change or expansion
in  the scope of that easement is permissible.  The two inquiries
are  inseparable because the original scope of the easement  must
be  fully  understood before the second inquiry may  begin.   The
second  inquiry  requires a comparison be made between  the  uses
made  of the easement when it was perfected and the proposed  new
          use.17
          In  Price I, we provided guidance to the superior court
on both inquiries.18 We began by noting that [b]ecause 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.19   In  citing  this
language,  we  echoed  the  language  of  section  4.10  of   the
Restatement  that urges a delicate balance be struck between  the
needs  of  the easement beneficiary and the owner of the servient
estate.20
          Regarding  the  first inquiry, the Restatement  directs
that  a prescriptive easements scope should be determined by  the
nature  of the adverse use that led to its creation in the  first
place.21  In Price I, we cited the Restatement provision  stating
that  the  focus of the inquiry should be placed on the  servient
estate  owners  reasonable expectations.22   In  particular,  the
inquiry  must  consider  what the servient  estate  owner  should
reasonably  have  expected to lose by failing  to  interrupt  the
adverse use before the prescriptive period had run.23
          Once  the  original  use  and  purpose  for  which  the
easement  was  created is understood, the second inquiry  begins.
The  second inquiry must compare the new uses to the old uses  of
the  easement.24   The  comparison is undertaken  to  answer  the
question  whether a new or challenged use of the  easement  falls
within the purpose for which the easement was originally created.25
In  this  inquiry, the Restatement urges courts  to  balance  the
interests of the servient and dominant estate holders as well  as
take  conservation  and neighborhood preservation  concerns  into
account.26  When a change in the use of a prescriptive easement is
involved,  the  Restatement stresses caution,  stating  that  the
degree  of  change  permitted  for  a  prescriptive  easement  is
generally less than that for an expressly created easement.27
          In  making this second inquiry, the Restatement further
notes that conflicts between the original and new uses frequently
present  factual issues as to how broadly or narrowly the purpose
should  be  defined,  whether the proposed change  is  reasonably
necessary,  whether  it  is of the sort  that  should  have  been
contemplated  by the parties, how much damage or interference  is
likely to ensue, and whether it is reasonable.28
          At  the evidentiary hearing below and on appeal,  Price
has attempted to address these factors.29  Prices main argument is
that  when  compared with previous uses, the establishment  of  a
parking  lot and the sudden increase in snowmachines combined  to
create  a  use  of  the  trail  well outside  of  his  reasonable
expectations.  In the hearing on remand, Price tried  to  present
evidence  concerning the establishment of a new parking lot  near
the  trail.  The superior court stopped Price, stating  that  the
goal  of  the hearing was to determine the scope of the  easement
and,  crucially,  refused  to consider  the  motivations  of  the
appellants  in  changing  the  use  of  the  easement.   But  the
Restatement (Third) does direct the courts to include an  inquiry
into  the  motivations behind any change proposed by the easement
holder in the use of the easement.30
          Prices argument depends in large part on the date  this
          easement was perfected.  The emphasis in the inquiry is on
whether  the  challenged use can be shown to have been  conducted
continuously for at least ten years.  In this case, the  ten-year
period  should be measured back ten years from the first  attempt
to  block  its  use.   Since  Price  posted  the  trail  with  No
Trespassing  signs  in  the  winter  of  1998-99,  the  date   of
perfection (in retrospect) is 1988-89.  According to the two-step
analysis  of  the  Restatement, the  superior  court  must  first
examine the uses of the easement made in 1988-89 and then proceed
to compare them with later uses of the trail.
          Prices argument therefore hinges on the factual inquiry
as  to whether the use of the trail changed dramatically in 1996.
In  the  record  before  us,  there  is  evidence  to  suggest  a
significant change in use.  In its opinion of February  9,  2000,
the   superior  court notes that evidence in the record  suggests
that  the  trail was used only occasionally for many years  by  a
small number of people.  It is uncontroverted that a parking  lot
was  subsequently established in 1996 near the trailhead  of  the
easement  and a new trail linking the parking lot to the original
trail  was established soon thereafter.  Price  provides evidence
to  show  that before the establishment of the parking  lot,  the
public  had  used  other  trails  to  access  the  Caribou  Hills
development.   Prices  witness in  the  hearing  on  remand  also
expressed  his opinion that the only reason the trail goes  where
it does is because of the new parking lot.
          Price   also  complains  that  his  estate   is   being
unreasonably  burdened by the present use of the  trail.   During
the  hearing  on remand, the superior court first mistook  Prices
presentation  of  evidence  showing increased  use,  erosion  and
environmental damage to his estate as an attempt to  dispute  the
establishment of the easement  and then questioned the  relevance
of  his  evidence on environmental erosion.  But Prices  evidence
concerning environmental damage to his estate is germane  to  the
issue  of  easement scope.  The Restatement approach directs  the
courts   to   take  conservation  and  neighborhood  preservation
concerns  into  account  when  balancing  the  interests  of  the
dominant  and  servient  estate holders.31   Prices  evidence  of
erosion damage occurring in recent years could also suggest  that
the  change in use has been both significant and unexpected  when
compared to previous uses.
          To  address the Restatements emphasis on the reasonable
expectations of the landowner,32 Price points out that he did not
feel  the  need  to dispute the use of the trail  prior  to  1998
precisely  because  that use was sporadic and did  not  interfere
with  his operations on the land.  To forestall any argument that
he sat on his rights with regard to this new use of the easement,
Price  also takes pains to point out that he protested  the  non-
consensual   increase  in  use  of  the  trail  (by  posting   No
Trespassing signs) within two years of the establishment  of  the
parking lot and well within the ten-year prescriptive period.
          In short, Prices position is that the purpose for which
the  trail  was  expanded (and marked and groomed for  the  first
time)  after  1996 was to accommodate the increased traffic  from
the  parking lot.  He argues that this purpose is quite different
          from the purpose for which the original easement was established,
that   is,  occasional  recreational  use  and  access  to  three
residences.  He places particular emphasis on how the trail  went
from a normal trail to a snowmachine superhighway quite suddenly.
Prices argument echoes the analysis in several cases in which  an
increase   in   intensity,   frequency,   and   manner   of   use
particularly a sudden increase in traffic33  on an easement due to
circumstances beyond the reasonable expectations of the  servient
estate-owner was held to be impermissible.34
          In  response  to Prices arguments, Eastham  provides  a
list of  people who over the last forty years have used the trail
for  various  purposes,  including for  access  to  Caribou  Lake
residences  as well as for recreational uses.  But  Eastham  does
not  cite to evidence in the record that would demonstrate a lack
of  change  in  the  type or intensity of use  of  the  easement.
Eastham  also  fails to argue or point to evidence  supporting  a
conclusion  that even if the uses are new, they are substantially
similar to previous uses and, therefore, fall well within  Prices
expectations.35
          On  the  other  hand, Eastham does  point  to  evidence
concerning the variety of the trails uses that go to the issue of
seasonality  as well as to evidence indicating the present  width
of  the  trail  and industry standards concerning  the  width  of
snowmachine  trails.   In response to Prices  argument  that  the
snowmachiners can use a different trailhead, one that is  in  the
process  of  being  established  by  the  Homer  Soil  and  Water
District,  Eastham cites to evidence showing that the trail  over
Prices  land  leads to three other trails and  allows  access  to
different  directions.  Eastham uses this evidence to argue  that
the  trail over Prices land is therefore distinct from and serves
different  purposes  from the proposed trailhead.   Eastham  also
refers  us  to  evidence to show that this proposed trailhead  is
three  miles  away from the present parking lot  and,  as  it  is
illegal  to drive snowmachines along the road, is not  useful  to
the snowmachiners.
          It  is of course the function of the superior court  to
judge witness credibility and weigh conflicting evidence.36   If,
as  in  this case, most of the evidence is oral testimony, or  if
the  superior  courts factual determinations  depend  largely  on
conflicting  testimony, then the superior courts greater  ability
to assess witness credibility requires deferential review by this
court.37   But  the  superior  court must  nonetheless  make  its
findings with sufficient specificity that we may review both  the
grounds  for its decision and its application of the law  to  the
facts.
          We therefore remand the case for a determination of the
scope  of  the  easement  in light of the analysis  contained  in
sections  4.1  and 4.10 of the Restatement and our discussion  in
Price I.  The analysis should also examine changes in the use  of
the  easement  since 1988-89.  In undertaking this analysis,  the
superior   court  may,  in  its  discretion,  conduct  additional
evidentiary   hearings  concerning  the  changes  in   frequency,
intensity, and manner of use of the easement.38
     B.   The  Superior  Court  Did Not Err When  It  Refused  To
     Condition  the  Scope  of  the  Prescriptive  Easement  upon
          Approval of Appellees Application for a Modification of
          Prices Farm Conservation Plan.
          
          Price  also argues that the superior court should  have
conditioned  the  use  of the prescriptive easement  on  Easthams
first  securing approval from the relevant regulatory authorities
for  a  modification to Prices Farm Conservation Plan.39  Eastham
argues  that  this is a new argument and therefore  impermissible
upon appeal.
          We  have stated that we will not consider on appeal new
arguments which (1) depend on new or controverted facts; (2)  are
not  closely  related to appellants arguments at trial;  and  (3)
could  not have been gleaned from the pleadings, unless  the  new
issue  raised establishes plain error.40  On the other  hand,  we
have also noted that the pleadings of pro se litigants should  be
held to less stringent standards than those of lawyers41 and have
explained  that  the briefs of pro se litigants are  to  be  read
generously.42
          In  this case, Price did not make his Farm Conservation
Plan argument at the trial court level or upon appeal in Price  I
and  failed to raise this issue at the remand hearing  after  our
decision in Price I.  Thus, he has failed to preserve this  claim
on appeal.43  Moreover, even if Price had mentioned this argument
during  the hearing on remand, his failure to raise the  argument
in  Price  I would still preclude him from raising the issue  for
the  first  time in this appeal.44  As we have noted,  an  appeal
should narrow the issues in a case, not expand them.45
IV.  CONCLUSION
          The evidence presented in the record is well suited  to
answer  the  question presented in Price I, that is,  whether  an
easement over Prices land existed in the first place.  But it  is
presently not in a form proper to the precise delineation of  the
scope of the easement in light of the direction provided by us in
Price I or by the Restatement (Third).
          To  determine  the  scope  of the  public  prescriptive
easement  on Prices land,  the superior court must make  specific
factual  findings  regarding the dates  to  be  ascribed  to  the
prescriptive  period;  the  original  purpose  and  use  of   the
easement;  any  changes that have been made in  the  use  of  the
easement; and, finally, the reasonableness of that change, taking
into  account  such factors as the speed of the changes  in  use,
damage  to  the  estate, and the reasonable expectations  of  the
servient  landowner.   Therefore,  we  REMAND  the  case  to  the
superior court for such findings and both parties should  prepare
to address the factors at issue.
          As  Price failed to raise his third issue in Price I or
during  the  hearing  on remand, we AFFIRM  the  superior  courts
decision  to  refuse to condition the prescriptive easement  upon
approval  of appellees application for a modification  of  Prices
Farm Conservation Plan.
_______________________________
     1    75 P.3d 1051, 1059 (Alaska 2003).

     2    Id.

     3    Id.

     4     Civil  Rule  52(a) states in pertinent part:   In  all
actions  tried upon the facts without a jury or with an  advisory
jury,  the  court  shall  find  the  facts  specially  and  state
separately its conclusions of law thereon . . . .

     5     The  plaintiff in the trial court was  originally  the
organization  Snomads, Inc.  Michael Easthams  amended  complaint
substituted ninety-one individual plaintiffs for the Snomads.

     6     To  clarify,  the  trial court  did  not  discuss  the
prescriptive  easement or its scope in its  initial  decision  of
February  9,  2000.   However, it did hold  that  a  prescriptive
easement existed over Prices land in its denial of Prices  motion
for  reconsideration on the original RS 2477 ruling.   Price,  75
P.3d at 1053.

     7    Id.

     8    Id. at 1056.

     9    Id. at 1056-57.

     10    Id. at 1058-59.

     11    Id.

     12    Alaska R. Civ. P. 52(a); cf. Fyffe v. Wright,  93 P.3d
444,  456  (Alaska 2004); Ilardi v. Parker, 914  P.2d   888,  892
(Alaska 1996).

     13    Mapco Express, Inc. v. Faulk, 24 P.3d 531, 537 (Alaska
2001).

     14    Ilardi, 914 P.2d at 892.

     15    Price, 75 P.3d at 1059.

     16     In Murray v. Murray, we faced a situation similar  to
the  procedural facts in Price.  856 P.2d 463 (Alaska 1993).   In
Murray  I,  a divorce case, we remanded the case to the  superior
court  to make findings sufficient to distinguish between marital
and  separate property.  The trial courts subsequent opinion  did
not set out the analysis regarding the categorization of property
called  for  in  Alaskan case law, but named certain  assets  and
deemed  them  separate property in a conclusory  fashion.   As  a
result, we remanded the case a second time.  Id. at 466.  In  our
decision,  we  provided guidance as to the kinds of findings  the
superior  court  would  need  to make  in  order  to  answer  the
questions raised by the case.  Id. at 466-68; see also H.C.S.  v.
Cmty.  Advocacy Project of Alaska, Inc. ex rel. H.L.S.,  42  P.3d
1093,  1101 (Alaska 2002) (court also finds trial court  findings
insufficient and gives guidance as to what facts must be found to
answer the inquiry).

     17     Price,  75 P.3d at 1058 n.40; Restatement (Third)  of
Prop.: Servitudes  4.10 cmt. d (2000).

     18    Price, 75 P.3d at 1058-59.

     19    Id. at 1058 (citing Wright v. Horse Creek Ranches, 697
P.2d 384, 388 (Colo. 1985)).

     20    Restatement (Third) of Prop.: Servitudes  4.10 cmt.  b
(2000).

     21    Id.  4.1 cmt. a.

     22    Price, 75 P.3d at 1058 n.39 (citing Restatement (Third)
of Prop.: Servitudes  4.10 cmt. d (2000)).

     23     Price, 75 P.3d at 1058 (citing Restatement (Third) of
Prop.: Servitudes  4.10 cmt. d (2000)).

     24    Restatement (Third) of Prop.: Servitudes  4.10 cmt.  h
(2000).

     25    Id.  4.10 cmt. c (2000); see also Andersen v. Edwards,
625 P.2d 282 (Alaska 1981).

     26    Restatement (Third) of Prop.: Servitudes  4.10 cmt.  h
(2000).  Comment  h  states:  Although  generally  easements  are
permitted  to  evolve along with the properties they  serve,  the
outcome in individual cases may depend on how fast the transition
is  taking place in the area and whether the easement was created
by  grant or prescription.  The degree of change permitted for  a
prescriptive  easement  is  generally  less  than  that  for   an
expressly  created easement.  In balancing the interests  of  the
dominant   and   servient   estate  holders,   conservation   and
neighborhood preservation concerns should be relevant as well  as
developmental concerns.

     27    Id.

     28    Id.  4.10 cmt. c.

     29    In Price I, we provided the superior court guidance in
the  application  of these principles in the  form  of  case  law
exemplifying the rule that subsequent uses of an easement must be
reasonably  related to uses made during the prescriptive  period.
Price  at  1058  nn.37, 40, 41, 42 and cases cited  therein.   In
several of these cases, section 478 of the Restatement (First) of
Property  is  relied upon as a guide for discussion.   See  e.g.,
Twin  Peaks  Land  Co. v. Briggs, 130 Cal. App.  3d  587,  593-95
(1982);  Wright  v. Horse Creek Ranches,  697  P.2d  384,  388-89
(Colo.  1985); Benner v. Sherman 371 A.2d 420, 422 (Maine  1977).
Section 478 states that in ascertaining whether a particular  use
is  permissible  under  an easement created  by  prescription,  a
comparison must be made between such use and the use by which the
easement   was  created  with  respect  to  (a)  their   physical
character, (b) their purpose, and (c) the relative burden  caused
by them upon the servient tenement.  Restatement (First) of Prop.
478  (1944) (Factors in Ascertaining Extent of Easements  Created
by  Prescription).  Price uses this terminology in his brief, but
we use the language of the Restatement (Third).

     30    Restatement (Third) of Prop.: Servitudes  4.10 cmts. f,
g, h (2000).

     31    Id.  4.10 cmts. f, h.

     32    Id.  4.1 cmt. h.

     33     Id.  4.10 cmt. f; see also Gibbens v. Weisshaupt, 570
P.2d 870, 876 (Idaho 1977) (holding that an increase in degree of
use due to commercial activities and additional residences on the
dominant  tenement is an unreasonable expansion  of  prescriptive
easement);  Gutcheon  v. Becton, 585 A.2d  818,  822  (Me.  1991)
(holding  that  increased  use did  not  burden  servient  estate
because  there  was  no  evidence of  increased  noise  or  other
effluence  associated with traffic); Leffingwell Ranch,  Inc.  v.
Cieri,  916  P.2d 751, 757 (Mont. 1996) (holding that subdivision
of ranch parcel into 174 units resulted in overburden of easement
created for access to three homesteads); Cote v. Eldeen, 403 A.2d
419,  420-21  (N.H. 1979) (holding that daily commercial  use  of
easement  by large trucks exceeded scope of prescriptive easement
since prior use was occasional and non-commercial).

     34     See Wright v. Horse Creek Ranches, 697 P.2d 384,  388
(Colo.  1985)  (holding  that development altering  the  physical
characteristics  of a road imposed additional and  non-consensual
burdens  on the estate and was an impermissible change  of  use);
Block  v.  Sexton, 577 N.W.2d 521, 525-26 (Minn.  1998)  (holding
that  extent  of  prescriptive easement should  not  be  enlarged
beyond objects originally contemplated); Hash v. Sofinowski,  487
A.2d 32, 35 (Pa. 1985) (noting that court should act with care in
determining the width of a prescriptive easement).

     35     If Eastham can show that snowmachiners were using the
trail  at  as  high  a  rate  as  they  now  use  it  before  the
establishment of the parking lot and for at least ten years, then
Price  cannot complain that the challenged use is outside of  his
expectations. If Eastham cannot make this showing, then Price  is
protected  from  an  invasive use of his land  because  he  acted
promptly and did not sit on his rights.  This balance between the
establishment  of  potentially  beneficial  new  uses   and   the
preservation  of the rights of landowners is exactly  that  which
the Restatement seeks to establish.  Cf.   Restatement (Third) of
Prop.: Servitudes  4.10 cmt. c (2000).

     36     In  re  Adoption of A.F.M., 15 P.3d 258, 262  (Alaska
2001).

     37    Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001).

     38    Murray, 856 P.2d at 466.

     39    Price owns only the agricultural interest in his land.
Price,  75 P.3d at 1057. Price argues that since he must  prepare
and  submit  a  proposed amendment to his Farm Conservation  Plan
whenever  he wishes to change his use of the land, the  users  of
the prescriptive easement should be forced to do the same.

     40    Krossa v. All-Alaskan Seafoods, Inc., 37 P.3d 411, 418-
19 (Alaska 2001).

     41    Breck v. Ulmer, 745 P.2d  66, 75 (Alaska 1987) (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972)).

     42    Hymes v. Deramus, 119 P.3d 963, 965 (Alaska 2005).

     43     See Sea Lion Corp. v. Air Logistics of Alaska,  Inc.,
787 P.2d 109, 115 (Alaska 1990).

     44     Cf. State, Comm. Fisheries Entry Commn v. Carlson, 65
P.3d  851,  873  (Alaska 2003); Univ. of Alaska v. Simpson  Bldg.
Supply Co., 530 P.2d 1317, 1323-24 (Alaska 1975).

     45    Carlson, 65 P.3d at 873-74.

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