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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

Vezey v. Green (11/16/2007) sp-6202, 171 P3d 1125

     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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