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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Williams v. Fagnani (11/23/2007) sp-6205

Williams v. Fagnani (11/23/2007) sp-6205, 175 P3d 38

     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
                                

LEE WILLIAMS, )
) Supreme Court No. S- 12192
Appellant, )
) Superior Court No. 3AN-02-12541 CI
v. )
) O P I N I O N
LARRY FAGNANI, )
) No. 6205 - November 23, 2007
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Hal P. Gazaway, Anchorage,  for
          Appellant.    Randall  Simpson   and   Cheryl
          Mandala,  Jermain, Dunnagan  &  Owens,  P.C.,
          Anchorage, for Appellee.

          Before:    Matthews,  Eastaugh,  Bryner,  and
          Carpeneti,  Justices.  [Fabe, Chief  Justice,
          not participating.]

          EASTAUGH, Justice.

I.   INTRODUCTION
          Lee Williams and Larry Fagnani own adjacent parcels  of
land,  which  were  originally  owned  by  Charles  Harrison,   a
homesteader.  To obtain access to a nearby public road,  Harrison
and  other homesteading families constructed a small private road
from what is now Williams's property through part of a parcel now
owned  by Fagnani.  Although this road begins on a public section
line  easement, a significant portion of it is on Fagnani's land.
No  written easements grant Williams the right to use the portion
of  the  road on Fagnani's land.  After Fagnani claimed that  the
portion  of  the road on his land belonged to him, Williams  sued
for  access,  claiming an easement under various legal  theories.
The  superior  court concluded after trial that Williams  has  no
easement.  Williams appeals.  We conclude that because  the  road
was  the only route to the Williams parcel when it was originally
severed  from  Harrison's  estate, Williams  is  entitled  to  an
implied easement.  We therefore reverse.
II.  FACTS AND PROCEEDINGS
          Lee Williams and Larry Fagnani each own parcels of land
that  were  once  part  of a Wasilla-area  homestead  settled  by
Charles  Harrison in 1959 and patented in 1964.1   Williams  owns
what  is  now known as tax parcel C3 and Fagnani owns tax parcels
C5,  C6,  C7,  and C8.2  In 1960, to obtain practical  access  to
their   homesteads,   Harrison  and  several  other  homesteading
families  hired William Elkins to improve and widen  an  existing
wagon  trail  to  make it drivable; as thus improved,  this  road
connected their properties to a trail that became Hollywood Road.
Part  of  the  disputed road was built on a public  section  line
easement, but as Elkins later testified at trial, part was  built
on  Harrison's land because a steep ridge along the section  line
prevented  the  entire  road  from  following  the  section  line
easement  exactly.  Elkins also testified that Harrison  and  the
other families knew that part of the road was on Harrison's land.
Following  trial, the superior court found that "[t]he  road  was
built  on  Harrison's property with his permission and  with  the
clear intent that all of the original homesteaders would use  the
road.   At  the  time  the road was built, all  involved  in  its
construction  recognized the road as the only  practical  way  to
access the homesteads."
          In  March  1964 Harrison sold parcel C3 to the Blisses.
In  1997  the Blisses sold C3 to the Brookses, and in  2000,  the
Brookses sold it to Williams.  Harrison sold the rest of his land
(parcels C5, C6, C7, and C8) to the VanRyswyks in 1970.   Fagnani
acquired  C6 in 1978, C5 and C7 in 1992, and C8 in 1998.   Parcel
C3  (the Williams parcel) is located north of C5, C6, C7, and  C8
(Fagnani's  land).   The disputed road runs due  south  from  the
southwest  corner of C3 along the section line  easement  on  the
western  border  of  C5,  and to the east  of  the  section  line
easement near the southern extent of C5 and for almost the entire
length of C8 until it connects to Hollywood Road.
          Appendix  A  depicts the lots, the public section  line
easement,  and  the disputed road.  Lots 6,  7,  and  8  are  tax
parcels C6, C7, and C8.  The curved, dotted line across parcel C8
represents the disputed road.
          In  2002 Fagnani asserted that he owned the portion  of
the  disputed  road  that was located on his  property.   Fagnani
offered to give Williams and other neighbors temporary access  to
the  road  if they would sign a written easement agreement.   Two
months  after  Fagnani offered him a written  easement,  Williams
sued for access to the road.
          Following  a  four-day  trial in  September  2005,  the
superior  court determined that Williams was not entitled  to  an
easement  across Fagnani's land.  The superior court  found  that
when  the disputed road was built in 1960, "all involved  in  its
          construction recognized the road as the only practical way to
access  the  homesteads," but concluded  that  Williams  was  not
entitled  to  an  implied easement because his  parcel  "is  not"
landlocked.   (Emphasis in original.)  The  superior  court  also
concluded  that  Williams  was not  entitled  to  a  prescriptive
easement, an oral easement by estoppel, an easement by necessity,
or  an  easement  based  on  public  dedication  under  RS  2477.
Williams moved unsuccessfully for a new trial.
          Williams appeals.
III. DISCUSSION
     A.   Standard of Review
          The dispositive question here - whether Williams has an
implied  easement for the part of the disputed road on  Fagnani's
property  - presents a question of law.  "We review questions  of
law de novo and adopt the rule of law most persuasive in light of
precedent, reason, and policy."3
     B.    Williams Is Entitled to an Implied Easement To Use the
Disputed  Road Across Fagnani's Property.

          Williams advances various theories to support his claim
that  he  is entitled to an easement across Fagnani's  land.   He
argues,  among  other  things, that  because  the  disputed  road
provided  the only access to his property when Harrison sold  the
parcel  to  the  Blisses in 1964, he is entitled  to  an  implied
easement.   Fagnani seems to argue in response that the  easement
was  never  "reasonably necessary" to the enjoyment of Williams's
property.  Fagnani also argues that "the easement ceased to exist
when  other  means  of accessing the property arose,"  and  cites
Methonen v. Stone as support for this proposition.4
           This  case  is resolved by our analysis of  Williams's
claim of implied easement.  An implied easement arises when there
is  "(1)  a  quasi-easement at the time of contract  of  sale  or
conveyance,  (2) which is apparent, (3) reasonably necessary  for
the  enjoyment of the land retained or the land conveyed, and (4)
continuous in nature."5  Addressing the first and third elements,
Fagnani asserts that "there was no quasi-easement at the time  of
the sale to Bliss," and that even if there was an easement at one
time, it was extinguished by the time Williams purchased the land
"because it was no longer `reasonably necessary.' "  Fagnani does
not dispute the existence of the second and fourth elements of an
implied  easement, so we will address only the  first  and  third
elements.
          As  to the first element, a quasi-easement arises if  a
person  "make[s] use of one part of his land for the  benefit  of
another  part."6  Williams argues that Harrison created a  quasi-
easement  because Harrison could only access the land that  later
became  the Williams parcel by using the disputed road.  Williams
also  argues that a quasi-easement arose because Elkins used  the
road  to  clear what is now the Williams parcel for  Harrison  to
qualify  for  his  homestead.  Fagnani responds  that  no  quasi-
easement  existed when Harrison sold the parcel to  the  Blisses.
To  support  that  assertion, Fagnani argues that  Patrick  Bliss
asked  one of Harrison's successors in interest in parcel C8  for
permission to use the disputed road.
          The  superior court resolved the quasi-easement dispute
by concluding that "[t]here was no evidence presented of any .  .
. quasi-easement granted by Harrison to Bliss."
          We disagree with that legal conclusion.  We do so based
on  our  review  of the superior court's factual  findings.   The
superior  court  made two critical findings:  that  when  it  was
built,  the disputed road was "the only practical way  to  access
the  homesteads," and that the Blisses used the disputed road  as
"their  route  of  travel to the road and highway  system."   The
court  made  no  finding that, as of 1964, there  was  any  other
practical means of accessing the parcel (C3) that was sold to the
Blisses  in  that  year.    The court's  only  other  potentially
relevant  findings  regarding access do not  imply  that  between
1960, when the disputed road was built, and 1964, when the parcel
was  sold to Williams's predecessor, there was any additional way
to gain practical access to the homesteads.7
           Based  on  the superior court's factual  findings,  we
conclude  that a quasi-easement existed as a matter of  law  when
Harrison  sold the parcel to the Blisses in 1964 at a  time  when
the  disputed  road  provided the only practical  access  to  the
Blisses' parcel.  This case is controlled by Freightways Terminal
Co.  v.  Industrial & Commercial Construction, Inc., in which  we
held that the landowner, by building a road over one part of  his
land  so that another part of his land was connected to the  road
system, had created a quasi-easement.8
           That  Bliss  may  have sought permission  to  use  the
disputed road, as Fagnani contends, is irrelevant.  Assuming that
Bliss  did  ask  for  permission to use  the  disputed  road  and
assuming that doing so reflected his subjective belief he had  no
right  of  passage, that subjective belief would not  defeat  his
legal  right  to an implied easement.          As  to  the  third
element  of  the  implied easement test,  the  easement  must  be
"reasonably  necessary  for the enjoyment  of  the  land  .  .  .
conveyed."9   Williams  argues that the easement  was  reasonably
necessary when Harrison sold the land to the Blisses because  the
disputed road "provided the only route of travel" to what  became
the  Williams  parcel.  Fagnani responds that, according  to  our
holding  in Methonen, an implied easement only continues as  long
as  it is "reasonably necessary."10  In his reply brief, Williams
argues that Norken Corp. v. McGahan should control.11  In Norken,
we  held that "[h]aving once arisen, the implied easement is  not
extinguished  merely because the reasonable necessity  ceases  to
exist."12
           We  agree  with  Williams that Norken  controls  here.
Although Methonen is more recent than Norken, it is not on point.
It  addressed an easement for access to a well, not  an  easement
needed  for access to a landlocked parcel.13  Norken concerned  a
road  that  provided  access to a parcel  that  might  have  been
landlocked when the parcel was originally sold.14  In  Norken,  a
landowner  named  McGahan had used the disputed  road  to  access
working  gravel pits on his homestead.15  Based on the record  in
Norken, we concluded that the parcel McGahan retained might  have
been landlocked when he sold the rest of his land.16  Because the
superior court, reasoning that the property was not landlocked at
the  time  of  trial, had denied McGahan an implied easement,  we
remanded so the superior court could determine whether the parcel
had  been landlocked at the time of severance.17  We held: "[T]he
existence of reasonable necessity is determined as of the time of
severance,  because it is at that time that the implied  easement
either  does or does not arise.  Having once arisen, the  implied
easement  is  not  extinguished  merely  because  the  reasonable
necessity ceases to exist."18
           Here, the superior court found that the disputed  road
was  the  practical means of access to the homesteads,  including
what  became  parcel C3, in 1960 and did not find any  change  in
access  as  of  1964, at the time of severance.19   We  therefore
conclude  that  the  easement was "reasonably necessary"  to  the
enjoyment of the land.
          Because   the  first  and  third  elements  have   been
established,  and  the  second  and  fourth  elements   are   not
contested,  we  hold that it was error to conclude that  Williams
did  not  have  an implied easement permitting  him  to  use  the
portion of the disputed road on Fagnani's property.  Having  held
that  Williams  is  entitled  to an  implied  easement  based  on
undisputed  facts,  we  need not consider  whether  he  would  be
entitled to an easement under any of the other legal theories  he
advances.
          Although the issue was not briefed, Williams's attorney
conceded at oral argument on appeal that the easement was limited
to  thirty  feet.  Williams's attorney also stated  at  argument:
"He's not entitled to a bigger easement.  He's not entitled to an
easement  that allows him more intensive use than  he  now  has."
Having  concluded that Williams was not entitled to an  easement,
the  superior  court  did not consider what  scope  any  easement
should  have.   We will therefore not address the  scope  of  the
implied easement here.20
IV.  CONCLUSION
          Because  we  conclude that Williams is entitled  to  an
implied  easement over the disputed road, we REVERSE  and  REMAND
for     entry     of     judgment    in     Williams's     favor.

_______________________________
     1     Harrison's homestead is described in the  findings  of
fact as follows:

                Seward  Meridian,  Township  17  North,
          Range  2 West, of the Southeast 1/4 Southeast
          1/4  (SE  1/4 SE 1/4) of Section 20  and  the
          North  1/2  Southwest  1/[4]  Southwest   1/4
          Northwest 1/4 (N 1/2 SW 1/4, SW 1/4  NW  1/4)
          of Section 21.
          
     2     Williams's parcel, C3, is described in a deed  to  the
prior owners as follows:

                The  Southwest one-quarter (SW 1/4)  of
          the Northwest one-quarter (NW 1/4) of Section
          Twenty-one  (21),  Township  Seventeen   (17)
          North,  Range Two (2) West, Seward  Meridian,
          Alaska.
          
               Fagnani's property is described in the findings of
fact as including tax parcels C5-C8 "of Section 21, Township 17N,
Range 2W."

     3     Enders  v.  Parker, 125 P.3d 1027, 1029 (Alaska  2005)
(citation omitted).
     4     Methonen  v. Stone, 941 P.2d 1248, 1253 (Alaska  1997)
(stating that implied easement runs with the land "so long as  it
.  .  .  remains  reasonably necessary" where  landowner  claimed
easement for water well) (citations omitted).
     5     Demoski  v.  New, 737 P.2d 780, 783-84  (Alaska  1987)
(holding  that  superior  court did not err  by  concluding  that
implied  easement existed where road was reasonably necessary  to
enjoyment of homestead) (citations omitted).
     6      Freightways  Terminal  Co.  v.  Indus.  &  Commercial
Constr., Inc., 381 P.2d 977, 983 (Alaska 1963).
     7    See infra note 19.
     8      Freightways  Terminal  Co.  v.  Indus.  &  Commercial
Constr., Inc., 381 P.2d 977, 983, 985 (Alaska 1963).
     9    Demoski, 737 P.2d at 784.
     10    Methonen, 941 P.2d at 1253.
     11    Norken Corp. v. McGahan, 823 P.2d 622 (Alaska 1991).
     12    Id. at 631.
     13    Methonen, 941 P.2d at 1249.
     14    Norken, 823 P.2d at 630-31.
     15    Id. at 624-25, 630-31.
     16    Id. at 631.
     17    Id.
     18    Id.
     19    Although the superior court did not expressly find that
the disputed road was the "only" practical means of access to the
parcel  at  the  time  of severance in 1964, this  conclusion  is
implicit because the court found that the disputed road  was  the
Blisses'  "route of travel to [Hollywood] road and [the]  highway
system."   The  court's findings describe  the  other  routes  to
access  the Williams parcel, including the "Elkins Road," in  the
present  tense  -  there is no finding that  these  other  routes
existed  at  the time of severance in 1964.  Two of these  routes
are easements, not roads, the third was built well after 1964 (in
2000 or 2001), and the fourth was Elkins Road, a road to the east
of the disputed road.  Fagnani never argued at trial or on appeal
that Elkins Road existed in 1964 or that it gave practical access
to  the Williams parcel in 1964, and Williams argued at trial and
on  appeal  that the Elkins road did not provide  access  to  his
land.
     20     We  previously addressed the issue of  the  scope  of
implied easements:

                 Easements   appurtenant  are   readily
          apportionable  upon  a  subdivision  of   the
          original dominant tenement.  This means  that
          each   part  of  the  dominant  tenement   is
          entitled to claim the benefit of the easement
          for the service of his special segment.  Some
          increase  in  burden  can  result  from   the
          increase  in  the number of users,  but  such
          increase  in burden is kept within limits  by
          the  fact  that any easement appurtenant  has
          its  total extent defined by the needs of the
          dominant estate.
          
      Laughlin  v.  Everhart,  678 P.2d 926,  932  (Alaska  1984)
(adopting  3 Richard Powell & Patrick J. Rohan, The Law  of  Real
Property   418, at 34-218 (rev. ed. 1979)). See also  Restatement
(Third)   of  Prop.:  Servitudes   4.10  (2000);  R.W.  Gascoyne,
Annotation,  Right  of  Owners  of Parcels  Into  Which  Dominant
Tenement  Is or Will Be Divided to Use Right of Way, 10  A.L.R.3d
960 (1966).

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