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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vezey v. Green (11/16/2007) sp-6202
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
| ALLEN VEZEY, | ) |
| ) Supreme Court No. S- 11353 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-95-01383 CI |
| ) | |
| ANGELA GREEN, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6202 - November 16, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: John J. Connors, Law Office of
John J. Connors, PC, Fairbanks, for
Appellant. Joe P. Josephson, Josephson &
Associates, PC, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
PER CURIAM.
CARPENETI, Justice, with whom BRYNER, Chief
Justice, joins, dissenting.
I. INTRODUCTION
In an earlier decision on appeal in this case, we
concluded that Angela Green had established title by adverse
possession to land to the north, south, and east of a cabin she
had built near Fairbanks, but we remanded the issue of the extent
to which she had adversely possessed land to the west of her
cabin. On remand, the superior court determined that Green had
acquired title to all of the land up to 300 feet west of her
cabin primarily because she had cleared and improved a western
trail leading to the property.
Allen Vezey appeals this determination, raising two
claims. First, he argues that the trial court erred in denying
his Alaska Civil Rule 60(b) motion to set aside its original
judgment, in which he claimed that his discovery of new aerial
photographs and alleged misrepresentations by Green to one of the
owners of the property justified vacating the original judgment.
Second, he contends that the superior court erred in concluding
that Green proved that she had adversely possessed the land to
the west of her cabin. Because the Rule 60(b) motion was not
timely, we affirm the superior court's decision on that issue.
However, because the evidence only supports granting Green the
land forty feet to the west of her cabin, we reverse the decision
of the superior court awarding Green all land up to 300 feet west
of the cabin.
II. FACTS AND PROCEEDINGS
The underlying facts of this case are set out in our
earlier decision, Vezey v. Green (Vezey I).1 In brief, in 1982
Angela Green's grandmother, Billie Harrild, gave Green a piece of
the family's land on Shaw Creek Bluff. The gift was not
recorded. Between 1982 and the mid-1990s, Green constructed a
cabin and cultivated grounds on the property. In the winter of
1994-1995, Allen Vezey bought a two-thirds interest in a parcel
of land that included Green's property.2 After Vezey purchased
the property, Green brought suit to establish her right to a
portion of the land. She sued Vezey, the estates of Billie
Harrild and Billie's husband, Elden, as well as Billie and
Elden's son, John, who owned the remaining one-third interest.
Only Vezey defended. Green maintained that Billie Harrild had
orally promised her the property to build a cabin and that Green
had acquired title over the property by adverse possession,
having made open and exclusive use of the land since 1982 that
included clearing the land, building a cabin, and making other
improvements to the property.3
At the first trial in 1999, the superior court held
that Green had acquired title to the entire bluff area, noting
that Green had proven use of the land from 1982 until 1993.4 The
superior court concluded that the relevant parcel was roughly
rectangular, and was bounded by the lot boundary to the north,
Old Richardson Highway to the south, Shaw Creek to the east, and
a line 300 feet from the cabin to the west. Vezey appealed, and
we affirmed in every respect except one: We remanded for further
findings on the extent of Green's possession of the property to
the west of her cabin.5 In considering Green's adverse
possession claim, we examined the period between the summer of
1983 and the summer of 1993 because it was during this time span
that "Green presented the most evidence of consistent use."6
On remand, Vezey moved for relief from the original
trial judgment under Alaska Civil Rule 60(b)(2) and (3). Vezey's
Rule 60(b)(2) argument was based on "newly discovered"
photographic evidence which, according to Vezey, belied Green's
testimony and demonstrated that she had not made sufficient use
of the land during the prescriptive period. Vezey's Rule
60(b)(3) argument contended that Green had misled John Harrild
about the size of her claim when she asked him to sign an
"appearance and waiver" in her first action. In a one-page
order, the superior court rejected Vezey's motion on the ground
that Green's opposition created "[g]ood cause" to do so. Vezey
appeals this decision.
Following the second trial in 2003, the superior court
determined that Green had proven that she had adversely possessed
the entire western section of the property. The superior court
began by noting that its inquiry was limited to determining the
western boundary of Green's claim. It found that in 1982 Green
started renovating the westerly trail by creating a turnaround
for cars and clearing away underbrush and larger trees. The
court also determined that Green and her friends and employees
had used and cleared the western trail from 1982 onwards and
noted that her use of the access trail predated her use of the
land on which she built her cabin.
The superior court discounted the testimony of Raymond
Kreig, Vezey's photographic expert, who testified that clearing
of the trail was not apparent before 1986 because Kreig admitted
that improvements visible on the ground might not be visible in
the photos. Instead, the court credited the testimony of Green
and other witnesses that the trail had been improved in 1982 and
1983.
The superior court also found that Green had placed
chains or cables at the end of her western access road: she
placed one cable at the end of the road where it connected to the
telephone road, one on the trail roughly 300 feet west of her
cabin, and one near her house. The court noted that two of
Green's neighbors testified to seeing chains and flagging tape at
various places and that one of them stated that she understood
the flagging to show that the property belonged to Green. The
court also noted that this witness testified that she had seen
the flagging two to three years before Green's cabin was
constructed.
While the superior court found that Green had made use
of the land west of her cabin by putting a chain over the
entrance to the renovated trail to the bluff, planting trees in
the area, and keeping turkeys and chickens there, it declined to
factor these activities into the adverse possession analysis
because they occurred after 1983. Furthermore, the court
recognized that Green's testimony at the 2003 trial differed in
some respects from her 1999 testimony: Green gave differing dates
for when she placed her camper on the site and could not recall
selling rock from the land prior to 1985. But the court did not
accord these discrepancies any legal effect because they were
relevant only to portions of the property outside our remand
order. It reasoned that these discrepancies went to findings
that were unassailable because the status of everything other
than the western portion of the property had been settled by our
affirmance of the superior court's 1999 decision on those issues.
Finally, the court concluded that Green had established
by clear and convincing evidence that her widening, clearing, and
continual use of the trail supported her adverse possession claim
to the entire portion of land 300 feet to the west of her cabin.
Vezey appeals.
III. STANDARD OF REVIEW
Denial of a Civil Rule 60(b) motion is reviewed for
abuse of discretion.7 We will conclude that a court has abused
its discretion only if we come to the "definite and firm
conviction, after reviewing the whole record, that the trial
court erred in its ruling."8
The trial court's factual findings are reviewed for
clear error9 and are rejected only when we are "left with a
definite and firm conviction on the entire record that a mistake
has been committed."10 Further, we grant especially strong
deference to a trial court's factual findings when the findings
require weighing the credibility of witnesses and conflicting
oral testimony.11 However, the trial court's legal analysis is
reviewed de novo,12 and in answering legal questions we apply "the
rule of law that is most persuasive in light of precedent,
reason, and policy."13
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion in
Denying Vezey's Civil Rule 60(b) Motion.
Vezey renews his Civil Rule 60(b) arguments on appeal,
arguing that the trial court abused its discretion in denying his
motion and failing to grant him relief from the 1999 judgment.
However, we need not reach the merits of Vezey's claim because
his motion was untimely. Alaska Civil Rule 60(b) requires that
motions claiming relief under Rule 60(b)(1), (2), and (3) be
filed within one year of final judgment. Although the final
order challenged by Vezey was filed in November 1999, Vezey's
Rule 60(b) motion was not filed until August 2002. Vezey seems
to argue either that he is exempt from the one-year requirement
or that it was somehow tolled during his appeal of the first
judgment, and he notes that he filed his Rule 60(b) motion within
one year of our decision on the appeal. However, in Farrell v.
Dome Laboratories, Inc.,14 we noted that courts may not expand the
one-year period for Rule 60(b)(1)-(3) motions,15 and held that
"the pendency of an appeal does not extend the one-year limit
under any of the first three clauses of Rule 60(b)."16
Accordingly, we determined in Farrell that a Rule 60(b) motion
was untimely because it was filed more than one year after the
original judgment.17 Because the rule in Farrell is applicable to
this case and because Vezey offers no substantive reason why his
untimely motion should be accepted,18 we decline to reach the
merits of Vezey's Rule 60(b) arguments and conclude that the
superior court did not abuse its discretion in denying his
motion.
B. It Was Error To Determine that Green Acquired Title to
Land 300 Feet West of Her Cabin by Adverse Possession.
To prove adverse possession Green must show that she
possessed the land for ten consecutive years.19 To acquire title
by adverse possession, she must provide clear and convincing
evidence that she used the land for the statutory period in a
"continuous, open and notorious" manner that was "exclusive and
hostile to the true owner."20 In determining whether a party's
use was continuous, open and notorious, and sufficiently
exclusive, we apply a "flexible standard" that takes into account
Alaska's geography and climate and the character of the land in
question.21 Our inquiry into these separate requirements involves
some overlap because these requirements all serve the same goal
of putting the record owner on notice of the existence of an
adverse claimant.22
Vezey argues that Green did not prove by clear and
convincing evidence that she used the property for the statutory
period. However, much of his briefing addresses portions of the
property not subject to the remand order: Vezey reargues issues
previously decided by the trial court in 1999 and affirmed by
this court in our previous decision.23 Because the remand order
only directed the superior court to make determinations regarding
Green's adverse possession of property to the west of her cabin,24
we discuss only those arguments that deal with this portion of
the property.
Vezey claims that Green did not make significant
improvements to the western property before September 1984.
Thus, Vezey challenges Green's possession of the western
property, arguing that her claim must fail because she failed to
use and possess the property continuously during the ten-year
period between 1983 and 1993, referenced in our prior decision.25
Vezey relies on our statement that "[w]hile evidence from later
years is relevant to continuity of use, the adverse possessor may
not rely on evidence from later years to expand the boundaries of
her claim."26 His argument is that there is insufficient evidence
in the record to support a conclusion that Green used all of the
land west of her cabin for ten years.
Because Vezey purchased an interest in the land "in the
winter of 1994-1995,"27 adverse possession cannot be established
by uses of the land beginning after the winter of 1984-1985.28
And in order to gain title to any of the western land at issue,
Green must show actual possession of the area awarded.29 As this
is not a color of title case, Green cannot gain possession of the
entire western land simply by possession of some portion of the
land.30 Green can therefore only gain title to land which she
possessed in a "continuous, open and notorious" manner during the
relevant statutory period.31 Although the trial court found that
Green had acquired title to the entire western parcel, land that
extends 300 feet west of her cabin, a careful review of the
evidence presented to the trial court only supports a finding
that Green has acquired title to land forty feet west of her
cabin.
Green testified that in 1983 she began clearing out the
smaller trees and underbrush in the woods to the west of the
cabin site for aesthetic and fire safety reasons; she noted that
she wanted to clean up the land but did not wish to take it too
far from its natural state. We consider the natural
characteristics of the land when determining whether a party's
use of the land was sufficient to establish adverse possession32
and conclude that Green's use comports with the sort of use a
reasonable owner would make of a wooded area on the outskirts of
her property.33 The improvements that Green made before the
winter of 1984-198534 included making space for a cabin and
clearing an area twenty feet to the west of the cabin site. Her
use of the land therefore establishes title to the cabin site and
the land twenty feet to the west of it. Green cleared an
additional twenty-foot portion at the recommendation of the fire
department, "either in `84 or `85," according to Green's
testimony on remand.35 The addition of this evidence is
sufficient to establish Green's claim to the land forty feet to
the west of the cabin, but not to the rest of the land 300 feet
west of the cabin. Notably, Green testified that even by 1988
she had only cleared some seventy-five feet to the west of her
cabin.
Two of Green's neighbors, Jan Fairbanks and William
Ridder, testified that they saw flagging along the western edge
of Green's property. Fairbanks testified that she would drive
dogsleds through the area along the western boundary in 1982,
1983, and 1984, and recalled seeing flagging at the entrance to
the renovated trail. The superior court described Fairbanks's
testimony as stating that she first saw the flagging two to three
years before the cabin was built. Ridder also testified to
seeing flagging "[a]ll through the woods" along what he deemed to
be the "property line." However, the area where Fairbanks
indicated she saw the flagging was to the west of the 300-foot
boundary line. And Ridder's testimony was inconclusive as to
where and when he saw the flagging. Ridder testified:
Q Okay. Where did you recall seeing a
flagging of a tree?
A All through the woods. You asked me if
I've ever seen a flag on a tree, and I said,
oh, yeah, lots. And here I don't recollect
seeing any - oh, there might have been some
flags along here, maybe through here. It's
hard for me, just . . . .
Q For the record, when you say maybe
through there, what are you talking about?
A Property line.
Because Ridder indicated that he believed the property line to be
west of the 300-foot boundary, his testimony is inconclusive and
does not establish that Green flagged her western boundary.
Green's own testimony as to the flagging is also
inconclusive. Green testified that she hired a surveyor in 1984
but that he never finished the survey. In the 1999 trial, Green
testified:
Q So is it - did you ever go out and say,
"Okay. I'm going to plot out the areas of my
land where I went out to the outhouse, where
I put the chicken coop . . . ."
A I marked it. I flagged it. I walked
with [the surveyor].
It is not clear what Green was referring to when she said she
flagged "it." Green did testify to walking out on the property
after the original action was filed "to look for the flags that
had been put up on the Dora Robinson side, on the west side."
But there is no evidence about when the flags were put up or by
whom. Vezey testified that he had put flagging on what he
thought was the boundary of his property in 1993 when he bought
the Carter property. The testimony as to the flagging is thus
inconclusive. However, even if Green had put up flagging along
the line 300 feet to the west of her cabin, this act alone is not
enough to establish her ownership of the entire parcel 300 feet
to the west of her cabin. As we stated in Vezey I, "[e]vidence
of actual possession must be sufficient to alert a reasonably
diligent owner to the possessor's exercise of dominion and
control. Visible evidence of use, such as occupation, fencing,
and construction of permanent improvements, provides particularly
compelling evidence of actual possession."36 Flagging is a non-
permanent marker and without more permanent indications of use,
such as clearing of land or erecting permanent improvements, the
flagging alone is not sufficient to support finding a boundary
line 300 feet to the west of Green's cabin. For these reasons,
we conclude that the evidence at trial supports only the
conclusion that Green established possession of the land forty
feet west of her cabin.
C. Green's Fee Simple Interest in the Trail Is
Limited.
Vezey also maintains that there is insufficient
evidence to support the superior court's determination that Green
established title to the trail. The superior court found that
Green's use of the trail began in 1982, when she and her friends
and employees "widened the trail, cut saplings, and cleared a
turnout about one-fourth of the way in." Both Green and one of
her associates, John McTaggert, testified that they widened the
trail and created the turnaround, and the court noted that
Green's and McTaggert's testimony was "substantially similar" on
this issue.
Vezey attacks Green's and McTaggert's testimony on
credibility grounds, pointing to discrepancies in Green's
testimony and the fact that McTaggert took medication for memory
problems. But these questions involve the credibility of
witnesses and interpretations of their testimony, and the
superior court's factual findings based on this testimony do not
give rise to a firm and definite conviction that the trial court
made a mistake.37
Vezey also posits that his photographic evidence
disproves the superior court's factual findings, and he suggests
that this evidence ought to be preferred over the testimony of
Green and her witnesses because of its "objective" nature.
However, as the superior court noted, Vezey's photographic expert
admitted that some of Green's improvements might not be visible
on the aerial photographs, and various witnesses testified to
noticeable improvements in the trail. Thus, Vezey's photographic
evidence does not undermine the superior court's findings that
Green made improvements to the trail.
Green stipulated at trial that the path from the
telephone road to her cabin was "a longstanding public trail."
Vezey argues that improvements to a longstanding trail do not
constitute adverse possession. Given that the road leading to
Green's cabin was a "longstanding public trail," Green cannot
claim title to the trail through adverse possession. Adverse
possession is a doctrine that applies only to private property,
and Green cannot make a public asset private through the use of
the doctrine.38 Although Green has fee simple title to the land
forty feet to the west of her property, including the trail, her
property is subject to an easement where the trail passes through
her property. And because the easement similarly runs the entire
length of the public trail, Green will have use of the trail
pursuant to the trail easement that crosses Vezey's land.
V. CONCLUSION
Because Vezey's Rule 60(b) motion was not timely filed,
we AFFIRM the superior court's decision denying that motion. The
evidence presented at trial supports a finding that Green
adversely possessed the trail leading to her property and forty
feet to the west of her cabin, but not all of the land 300 feet
to the west. Therefore, the superior court's decision on that
issue is AFFIRMED as to the forty feet to the west of Green's
cabin but REVERSED as to the remainder of the 300 feet to the
west and REMANDED to the superior court for entry of judgment
consistent with this opinion.
CARPENETI, Justice, with whom BRYNER, Chief Justice, joins,
dissenting.
Today's Opinion looks only to a portion of the evidence
supporting the superior court's factual finding that Angela Green
had adversely possessed the land in question, and then concludes
that the evidence is insufficient. But if one looks at all of
the evidence before Judge Savell, it is clear that there was
sufficient evidence to support his conclusion. For that reason,
I would affirm his decision. Accordingly, I dissent.
The Opinion begins by characterizing Judge Savell's
decision as resting "primarily" on the fact that Green had
cleared and improved a western trail leading to the property.
While it is true that Judge Savell put some weight on this
evidence, there was much more evidence on which he relied,
including evidence that Green blocked the road at the point that
"her property" began, that she cleared the western portion of the
property, that she flagged the property along the line marking
its western boundary, and that her neighbors considered the
western portion of the land to be "her property." The evidence
supporting the superior court's decision includes the following:
1. Green did substantial work along the trail, in
effect turning it into a road, and she chained it off at the
point that corresponded to what she claimed as her land - about
300 feet to the west of her cabin. Green testified, "it's a
claim this is my property, keep out, so I put a sign up." Her
testimony was corroborated by her near neighbor William Ridder's
description of where her driveway began. Even granting that by
its previous use the trail had become public, and that one cannot
adversely possess public land (and that at most she therefore
shares in an easement over the road), her chaining off of the
road is strong evidence of the extent of her claim to the land
that the road crosses.
2. In addition to clearing around the cabin site and
working on the road, Green did clearing "under the canopy." She
testified that in 1983 "instead of just focusing on the road I
started clearing out the - between the trees there, and so I
wouldn't say it looks - would look park-like, but so that there
wouldn't be a fire hazard from old, old trees that were lying
around or whatever." As she testified, in addition to clearing
for the cabin and doing work on the road, she did "clearing out
the west end under the tree canopy, the smaller ones, and the
other end, so . . . ." (Emphasis added.) When asked why the
smaller ones were taken out, she responded: "Well, because I
thought it looked better and it made it less of a fire hazard.
I didn't want to just look from the house and, bam, there was the
ugly woods, you know. I wanted it to be pretty." This testimony
about clearing out the west end under the tree canopy supports
the trial judge's findings that "[b]ecause Green was using and
clearing the trail and western portion . . . , she necessarily
occupied the western land [for the requisite period]." (Emphasis
added.)
3. Responding to Vezey's attorney's question whether
it was true that "nothing else" was being done to the property
other than the house construction, Green said no, "[t]here was
always work going on in the woods, all, all around that property;
there was always work." (Emphasis added.) It is true that this
answer was to a question as to 1986, but Green constantly
distinguished between work on "the road to the west" and "the
area to the west" in describing the work.
4. The clearing work in the woods need not have been
extensive. As we made clear in our earlier decision in this
case, whether the claimant's physical acts are enough depends on
the character of the land in question.39 For remote rural land,
three weeks of sheep grazing during the entire year was deemed to
be enough to establish adverse possession in Cooper v. Carter Oil
Co.,40 a case we cited with approval in Nome 2000 v. Fagerstrom.41
Surely for the land in question in this case, about which a
witness at the first trial testified, "[i]t'd take a fool to live
up there in the cold winter months,"42 it was enough to make major
improvements to the access road, block off that road so as to
make it - as a neighbor testified - a "driveway" on the property,
flag the edge of the property, and do some clearing under the
canopy of trees on the property.
5. We have relied on "community repute" to support a
finding of adverse possession.43 In this regard, probably the
strongest evidence in Judge Savell's estimation was provided by
two witnesses called by Vezey: Janice Fairbanks and her husband,
William Ridder. They were Green's near neighbors, and both
testified to their understanding that Green's "property line" was
the flagged line that they saw on the western boundary of the
cabin. Fairbanks referred to the trail/road as "Angela's
driveway." In describing what she meant by "her [Green's]
property," Fairbanks stated, "I know where her property started
on the drive that went to her house. There was some kind of
markings there on the trees." Fairbanks marked with a red X on a
trial exhibit44 the point where she believed Green's property
began, which the court noted was to the west of the 300-foot
line. She twice confirmed that was where she believed the Green
property line to be. Ridder was asked about seeing flags on
trees in the area. He answered: "[H]ere I don't recollect seeing
any - oh, there might have been some flags along here, maybe
through here. It's hard for me, just . . . ." When asked what
he meant by "maybe through there," Ridder responded: "Property
line." At that point, the following exchange occurred:
Judge Savell (referring to the proposed
property line 300 feet to the west of the
cabin) asked if he was referring to an area
to just west of "[t]hat red line that goes up
and down?"[45] Answer: "Correct."
The Court: "And you just called that the property
line?"
Answer: "Right."
Shortly after that, Judge Savell interrupted the testimony and
convened the parties and counsel for an in-chambers conference.
Apparently addressing counsel for Vezey, he said: "These are your
witnesses. It's devastating. Two of them have now put the
property even farther west than we're fighting over today."
(Emphasis added.) He urged the parties to talk settlement: "You
guys are knowingly going into this without any consideration of
settlement . . . . This is turning into a blood bath." The
court today dismisses this obviously very important testimony as
follows: "Because Ridder indicated that he believed the property
line to be west of the 300-foot boundary, his testimony is
inconclusive and does not establish that Green flagged her
western boundary." But the fact that Ridder's testimony would
have established an even (slightly) larger tract that was
adversely possessed46 is hardly a reason to cut back the property
to substantially less than 300 feet.47 And, as we shall see,
there is sufficient evidence to support the finding that Green
flagged her property.
6. Judge Savell made the following findings:
Fairbanks considered that Green's
property started on the drive that
went to her house. She spoke of
that trail as "Angela's driveway"
and the property to the west of the
Green house as "Angela's place."
Assuming that Vezey's own
calculations are correct, the
"driveway" extends between 300 and
330 feet west of the house. In the
trail west of the house, at the
junction of the trail with the
route north to the telephone line,
there was also flagging tape, which
Fairbanks saw long before Green
built her house.
Judge Savell also found that Ridder saw flagging "at least a
couple of years before construction began." These findings are
abundantly supported by evidence. They are not clearly
erroneous.
7. The court twice concludes that the testimony about
flagging is "inconclusive," but this characterization ignores our
limited role as an appellate court reviewing the factual findings
of the trial court that heard the witnesses and saw the evidence.48
The court first finds "inconclusive" the testimony of William
Ridder about the western boundary of the property. As I have
noted above, the fact that the flagging seen by Ridder
established a slightly larger area than Green sought at trial did
not require the trial court to disregard his testimony. That is,
in effect, what this court does. The court also concludes that
Green's testimony as to the flagging is "inconclusive." But it
is sufficient to support the trial court's findings. Green
testified without contradiction: "I marked it. I flagged it. I
walked with [the surveyor]" in response to Vezey's claim during
the trial that Green flagged it only later, for purposes of the
lawsuit. She testified that she hired Oswald Jensen, a surveyor,
in 1984, who began but did not complete the survey process.
After saying "I marked it. I flagged it. I walked [it] with
Oswald," Green was asked, "[d]id you go out and say, `Okay.
Just for the purposes of this case, I'm going to kind of scope
out the areas that people - you know, that I occupied by clearing
and by brushing . . . .' " Green responded, "I did walk part of
one line to look for the flags that had been put up on the Dora
Robinson side, on the west side." (Emphasis added.) In sum,
Green testified that she brought a surveyor on to the property in
1984, that she marked it at that time, and that "for purposes of
this case" (which was filed in 1995) she walked part of the line
"to look for the flags that had been put up . . . on the west
side." Judge Savell appears to have accepted the inference from
this testimony that the flags seen on the west side of "Angela's
property" by Fairbanks and Ridder were the flags that had been
put there either by Green or at Green's behest,49 and that
inference is a reasonable one.50
In order to reverse the superior court's finding that
Green had adversely possessed the property to the west out to 300
feet from the cabin, it would be necessary to take for ourselves
the trial judge's role in determining the meaning of witnesses'
testimony, to judge the credibility of witnesses, to draw our own
inferences from the testimony (and decline to draw reasonable
inferences), and in general to substitute our judgment on the
facts for the trial judge's. We should not do that.51 For these
reasons, I respectfully dissent.
_______________________________
1 35 P.3d 14, 18-19 (Alaska 2001).
2 Id. at 19.
3 Id.
4 Id. at 20.
5 Id. at 28.
6 Id. at 20.
7 Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1248 (Alaska
2001).
8 Id. (quoting Buster v. Gale, 866 P.2d 837, 841 n.9
(Alaska 1994)).
9 Vezey I, 35 P.3d at 19-20.
10 Id. at 20 (quoting Alaska Foods, Inc. v. Am. Mfrs. Mut.
Ins. Co., 482 P.2d 842, 848 (Alaska 1971)).
11 Id.
12 Id.
13 Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979)).
14 650 P.2d 380 (Alaska 1982).
15 Id. at 384. Alaska Civil Rule 6(b) explicitly denies
courts the ability to enlarge Rule 60(b)'s one-year period:
Enlargement. When by these rules or by
a notice given thereunder or by order of the
court an act is required or allowed to be
done at or within a specified time, the court
for cause shown may at any time in its
discretion (1) with or without motion or
notice order the period enlarged if request
therefor is made before the expiration of the
period originally prescribed or as extended
by a previous order or (2) upon motion made
after the expiration of the specified period
permit the act to be done where the failure
to act was the result of excusable neglect;
but it may not extend the time for taking any
action under Rules 50(b), 52(b), 59(b), and
(e) and (f), and 60(b), except to the extent
and under the conditions stated in them.
16 Farrell, 650 P.2d at 384 (citing 7 J. Moore, J. Lucas &
J. Wicker, Moore's Federal Practice 60.28[2], at 397-400
(1979) and 11 C. Wright & A. Miller, Federal Practice and
Procedure 2866, at 233 (1973)).
17 Farrell, 650 P.2d at 384.
18 Subsection (6) of Civil Rule 60(b) does allow for some
claims to be brought after one year. However, to prevent parties
from effectively eliminating the one-year limit for sections (1),
(2), and (3), courts decline (b)(6) relief where the reasons for
relief could also fall under these subsections. Lacher v.
Lacher, 993 P.2d 413, 419 (Alaska 1999) ("[a] party can invoke
subsection (b)(6) only if none of the other five clauses apply
and extraordinary circumstances exist"); 11 C. Wright, A. Miller,
M. Kane, Federal Practice and Procedure 2864, at 357 (1995). We
do not consider whether this case involved extraordinary
circumstances because Vezey does not raise the issue or rely upon
Civil Rule 60(b)(6).
19 AS 09.10.030(a).
20 Vezey I, 35 P.3d at 20 (quoting Nome 2000 v.
Fagerstrom, 799 P.2d 304, 309 (Alaska 1990)).
21 Id. at 21.
22 See Peters v. Juneau-Douglas Girl Scout Council, 519
P.2d 826, 830 (Alaska 1974).
23 Vezey argues that his new evidence demonstrates that
Green's use of property, including her clearing of the trail, was
not sufficiently obvious to provide notice to the record owners.
However, we already noted that the Harrilds had actual notice of
Green's use and possession of the property. Vezey I, 35 P.3d at
22. Vezey also suggests that Green's use of the property was
insufficiently continuous given that she was absent for much of
the year. We already decided this issue as well and held that
the land was suited to seasonal use. Id. at 21-22.
24 See Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763
(Alaska 1977) ("The doctrine of the law of the case prohibits the
reconsideration of issues which have been adjudicated in a
previous appeal in the same case."). Law of the case is a policy-
based doctrine that prevents relitigation of already decided
issues. Id. at 763 n.5. We see no reason to depart from this
doctrine in this case.
25 Vezey I, 35 P.3d at 20.
26 Id. at 25.
27 Id. at 19.
28 AS 09.10.030. The statute provides, in relevant part:
"An action may not be maintained under this subsection for the
recovery [of real property] unless it appears that the plaintiff,
an ancestor, a predecessor, or the grantor of the plaintiff was
seized or possessed of the premises in question within 10 years
before the commencement of the action."
29 Vezey I, 35 P.3d at 24-25.
30 Nome 2000 v. Fagerstrom, 799 P.2d 304, 311 (Alaska
1990) ("Absent color of title, only property actually possessed
may be acquired by adverse possession." (internal citation
omitted)).
31 Vezey I, 35 P.3d at 20.
32 Nome 2000, 799 P.2d at 309.
33 In Vezey I, we noted that we have previously cited with
approval a Michigan case where regular visits and some timber
cutting were found to be sufficient to establish adverse
possession over wild and undeveloped property. 35 P.3d at 21
(discussing Monroe v. Rawlings, 49 N.W.2d 55, 56 (Mich. 1951)).
34 In our prior decision, we used 1983-1993 as the
statutory period for determining whether Green had acquired title
by adverse possession. Vezey I, 35 P.3d at 20. However,
improvements made in 1984 still support Green's adverse
possession claim because Green can establish adverse possession
by showing use of the western property for the ten-year period
between 1984 and 1994. At the 1999 trial she testified that she
visited the bluff and the house for a week in 1994, thus
demonstrating use and possession, and Vezey did not have a claim
on the land until December 1994, when he purchased a warranty
deed from Elden Harrild. Thus, Green is not limited to proving
use between 1983-1993; she can also demonstrate her adverse
possession claim using the 1984-1994 period.
35 In order to improve her view, Green subsequently
cleared trees approximately eighty feet to the west of the cabin
site, but neither party alleges that this clearing occurred
before 1985.
36 35 P.3d at 25 (citations omitted).
37 See Alaska R. Civ. P. 52(a); Adrian v. Adrian, 838 P.2d
808, 811 (Alaska 1992) (explaining that a judge's decision to
accept witness's version of events is subject to the "clearly
erroneous" standard of review, and a judge's factual findings
shall not be overturned unless we are "left with a definite and
firm conviction on the whole record that the judge made a
mistake" (internal citations omitted)).
38 See, e.g., Price v. Eastham, 75 P.2d 1050, 1058 (Alaska
2003) (stating that a prescriptive easement may not burden
government interests); see also 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 other
manner except by conveyance from the state.
39 Vezey v. Green, 35 P.3d 14, 21 (Alaska 2001) (Vezey I).
40 316 P.2d 320, 323 (Utah 1957).
41 799 P.2d 304, 309 (Alaska 1990).
42 Vezey I, 35 P.3d at 21.
43 Id. at 21 n.13 (citing Alaska Nat'l Bank v. Linck, 559
P.2d 1049, 1054 (Alaska 1977)).
44 This exhibit, a photograph, is attached to this dissent
as Attachment A. The Attachment contains designations that I
have added to aid understanding of the exhibit and to compensate
for the lack of color in its reproduction.
45 The line that Judge Savell was referring to appears in
Attachment A as the "Proposed Western Boundary (vertical red
line)."
46 Judge Savell recognized that there was a plausible
claim for land slightly farther than 300 feet from the cabin,
based on Ridder's and Fairbanks's testimony, but he limited his
adverse possession ruling to the land 300 feet from the cabin.
47 This court's draconian reduction in the size of the
western portion of Angela Green's land - from 300 feet out from
the cabin down to forty feet - will have serious consequences for
her. Among other things, the outhouse on the property, which the
superior court found was 41.7 feet to the west of the cabin, now
apparently extends beyond her land.
48 Civil Rule 52(a) provides in relevant part: "Findings
of fact shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses."
49 Judge Savell found: "In the trail west of the house, at
the junction of the trail with the route north to the telephone
line, there was also flagging tape, which Fairbanks saw long
before Green built her house."
50 As recently as last month, we upheld a trial court
finding because it was "supported by the evidence and reasonable
inferences permissibly drawn from the evidence." Diblik v.
Marcy, 166 P.3d 23, 28 (Alaska 2007) (emphasis added).
51 In addition to the admonition of Civil Rule 52(a) to
give "due regard . . . to the opportunity of the trial court to
judge the credibility of the witnesses," we have long held that
the appellate court is not free to overturn a trial court's view
of the facts because of a mere difference in personal judgment:
That the trial court could
have viewed the facts differently,
or that we might perhaps have done
so, if we had been the initial
trier thereof, does not alone
entitle us to reverse. Under Rule
52(a) . . ., there must exist a
stronger basis for overthrowing a
finding of fact than a mere
difference in personal judgment.
Such evidentiary weight and such
convictional certainty must be
present that the appellate court
does not feel able to escape the
view that the trial court has
failed to make a sound survey of or
to accord the proper effect to all
of the cogent facts, giving due
regard, of course, to the trial
court's appraisal of witness
credibility where that factor is
involved.
Isaacs v. Hickey, 391 P.2d 449, 451 (Alaska 1964) (quoting
Nee v. Linglewood Sec. Co., 174 F.2d 434, 437 (8th Cir. 1949)).
Thus, we should uphold a trial court finding that is supported
by the evidence "and reasonable inferences permissibly drawn from
the evidence." Diblik v. Marcy, 166 P.3d 23, 28-29 (Alaska
2007).
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