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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Estate of Selma Smith v. Spinelli (9/18/2009) sp-6414

Estate of Selma Smith v. Spinelli (9/18/2009) sp-6414, 216 P3d 524

     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

THE ESTATE OF SELMA SMITH, )
WILLIAM P. INGRIM, Individually ) Supreme Court No. S-13128
and as Personal Representative of the )
Estate of Selma Smith, WALLACE A. ) Superior Court No. 3AN-06-04048 CI
SMITH, WESLEY C. MONSON, )
THELMA INGRIM WALSTON, and )
ELIZABETH JENKINS, ) O P I N I O N
)
Appellants, ) No. 6414 September 18, 2009
)
v. )
)
CHARLES SPINELLI, CLARK )
RUSH, LORANE OWSICHEK- )
CUPPLES, DAVID SCHMID, )
VICTORIA BLOWER, DAVID )
WHITE, MATTHEW FINK, )
PATRICIA LEFEVRE, and )
CORBETT MOTHE, )
)
Appellees. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Michael Spaan, Judge.

          Appearances: Calvin R. Jones, Jones & Colver,
          LLC,  Anchorage, for Appellants.  Richard  W.
          Maki,  David  H.  Shoup,  Tindall  Bennett  &
          Shoup,   P.C.,   Anchorage,   for   Appellees
          Spinelli,  Rush,  Owsichek-Cupples,   Schmid,
          Blower, White, and Mothe.

          Before:   Fabe,   Chief  Justice,   Eastaugh,
          Carpeneti, Winfree, and Christen, Justices.

          FABE, Chief Justice.


I.   INTRODUCTION
          This  dispute  centers  around a  3.38-acre  parcel  of
coastal  land in the Turnagain area of Anchorage.  Prior  to  the
1964 Alaska Earthquake, this parcel consisted of a steep, eroding
bluff and tidal mudflats.  The powerful earthquake collapsed  the
bluff,  spreading  it out over the mudflats and transforming  the
once unusable parcel into gently sloping, potentially developable
coastal  property.  Uncertainty regarding this parcels  ownership
arose forty years later when the Municipality of Anchorage sought
to construct sewage facilities on it.
          The  appellants  are  heirs of the children  of  Rasmus
Simonson, whose 147-acre 1920s homestead encompassed the disputed
parcel, and heirs of his daughter Selma Smith, who subdivided and
sold  the  homestead  in  the 1940s and  50s  (collectively,  the
Simonson   heirs).   The  Simonson  heirs  contend  that   Smiths
subdivision  plat  shows  that she did not  sell  the  bluff  and
mudflats when she subdivided the Simonson homestead and that they
thus  retain title to the developable land now located where  the
bluff  and  mudflats once stood.  The appellees are  the  current
owners  of  eight lots in the Simonson subdivision that  directly
abut the disputed parcel (collectively, the lot owners).  The lot
owners  argue that Smith did not intend to retain the  bluff  and
mudflats when she subdivided the Simonson homestead and that  the
superior court correctly awarded them the disputed parcel.   They
also  contend that the superior courts decision can  be  affirmed
based on the strip and gore doctrine, which creates a presumption
against  a grantors retention of small, useless strips  of  land,
and  on  Alaskas Earthslide Relief Act, which provides procedures
for determining property boundaries following an earthslide.
          Because  the subdivision plat is ambiguous and  because
the  superior  court did not clearly err in concluding  that  the
evidence surrounding Smiths sale of the Simonson homestead  shows
that  she did not intend to retain the disputed parcel, we affirm
the  superior courts decision to award the disputed parcel to the
lot  owners.  We do not reach the questions whether the strip and
gore  doctrine  and the Earthslide Relief Act are  applicable  to
this case.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          In  1927 homesteader Rasmus Simonson obtained 147 acres
of  coastal land from the federal government in what is  now  the
Turnagain area of Anchorage.  The northern (seaward) boundary  of
the Simonson homestead was the pre-earthquake mean high tide line
of  Knik Arm, as established by a 1916 General Land Office  (GLO)
survey.  Following  the  deaths of Simonson  and  his  wife,  the
Simonson  homestead  passed to six of their  children,  including
Selma  Smith.  In 1946 Smiths siblings deeded the entire property
in  trust  to Smith, empowering her to plat, subdivide, and  sell
it, with the proceeds to be split equally among the children.
          Smith  proceeded  to  plat and subdivide  the  Simonson
homestead, recording several different plats, the last  of  which
was   Plat  P-48B,  recorded  in  1949.   Smith  sold  the  eight
northernmost (seawardmost) lots in the subdivision,  depicted  as
Lots  1-8 in Block C of Plat P-48B, between 1949 and 1952.  These
eight  lots, which have since changed hands many times,  are  now
owned  by  the appellees and are currently vacant. The  appellees
and  their predecessors in interest purchased these lots with the
understanding  that  they were buying oceanfront  property.   The
appellees deeds describe their lots with reference to Plat P-48B.
          Plat  P-48B  depicts  the  northern  boundary  of   the
appellees  eight lots with a solid line drawn at what before  the
1964 earthquake was the upper edge of a steep, eroding 50-70 foot
bluff  with  tidal mudflats below.  That is, in Plat  P-48B,  the
northern  boundary of the Simonson subdivision was drawn  not  at
the  northern  boundary of the Simonson homestead (the  1916  GLO
survey mean high tide line), but rather closer inland, along  the
upper  edge  of  the bluff.  Plat P-48B thus left  unplatted  and
undemarcated  the largely unusable parcel of bluff  and  mudflats
that  was  located between the subdivision boundary and the  mean
high  tide line.  Evidence at trial showed that a plat containing
such a deficiency could not be recorded under modern standards.
          Fifteen  years  after  Plat  P-48B  was  prepared,  the
violent  1964 Alaska Earthquake triggered soil liquefaction  that
caused  the  bluff to collapse and spread out onto the  mudflats,
destroying  the  houses that had been located on appellees  eight
lots,  pushing the mean high tide line seaward, and changing  the
previously  unusable,  unplatted  parcel  into  gently   sloping,
potentially developable1 land.
          The  ownership of the unplatted parcel went  unexamined
for  some  forty  years  following the earthquake.   Neither  the
Simonson  heirs  nor the owners of the eight abutting  lots  paid
property taxes on the parcel or attempted to build on it or  sell
it.   No Simonson heir took any action to suggest that they owned
the  parcel,  and  several later testified that  they  never  had
reason  to believe they had any interest in the parcel until  the
present  controversy arose.  Smith died in 1984.   There  was  no
evidence  that she ever conveyed the parcel back to her  siblings
for  whom she had held the Simonson homestead in trust,  and  the
parcel  was  not  included in her estate.   The  parcel  remained
undeveloped except insofar as the Municipality of Anchorages Tony
Knowles  Coastal Trail was built across a portion of  it  in  the
1980s.
          Many decades after the earthquake, while preparing  for
the  possible construction of sewage facilities in the area,  the
Municipality  of Anchorage discovered that the parcels  ownership
was  uncertain.  In 2005 a title company identified  the  parcels
owner   as   Selma  Smith,  Trustee.   Smith  having  died,   the
Municipality sent a tax bill for the parcel to Smiths son William
Ingrim,  who paid it.  The Municipality returned the  tax  money,
however, when it learned that Ingrims ownership of the parcel was
contested by the lot owners.
     B.   Proceedings
          In  early  2006  the owners of five of the  eight  lots
          abutting the disputed parcel filed suit against a number of
parties potentially claiming an interest in the parcel, including
Smiths  son Ingrim.  The lot owners sought to quiet title to  the
disputed  parcel  in  their  names, arguing  that  it  should  be
considered  part  of  their lots, which they purchased  with  the
understanding  that they were buying oceanfront  property.   They
also  alleged  claims under the Earthslide Relief  Act2  and  the
adverse possession statute.3
          The  Municipality  of Anchorage, the  Estate  of  Selma
Smith,  Ingrim  (individually and as personal  representative  of
Smiths  estate), and some individual Simonson heirs  appeared  to
defend  their  claims to the disputed parcel,  though  there  was
initially  some  controversy about who was participating  in  the
lawsuit  given  the  large number of Simonson  descendants.   The
Simonson heirs brought the owners of the remaining three  of  the
eight lots abutting the disputed parcel into the litigation.
          The  interests  of  the Municipality were  resolved  by
settlement  in  November  2007.   The  Municipality  obtained  an
easement across the disputed parcel for the Tony Knowles  Coastal
Trail4  as  well as title to all land located north (seaward)  of
the  1916  GLO  mean high tide line that had formed the  northern
boundary of the original Simonson homestead.5
          The  lot  owners  and the Simonson heirs  filed  cross-
motions  for  summary  judgment.   The  lot  owners  motion   was
procedurally based, focusing on the fact that Smiths  estate  had
been  closed  for  many  years.  The Simonson  heirs  motion  was
grounded  in a strict interpretation of Plat P-48B, in which,  as
described above, the northern boundary of the lot owners property
was  drawn  inland  of the disputed parcel.  The  Simonson  heirs
argued  based  on the plat that Smith clearly did  not  sell  the
disputed  parcel when she subdivided the Simonson  homestead  and
thus  that  they  retained  title to it.   Superior  Court  Judge
Michael  Spaan  denied  the  parties  cross-motions  for  summary
judgment and held a bench trial in January 2008.
          Following  the trial the superior court concluded  that
the  owners of Lots 1-8 are the rightful owners of the  strip  of
land  north  of their lots with ownership extending to  the  mean
high  water line.  The superior court found that Plat  P-48B  was
ambiguous  as  to whether Smith intended to convey  the  disputed
parcel along with Lots 1-8 and that the surrounding circumstances
established that Smith did in fact intend to convey the  disputed
parcel  rather  than retain it.  The superior court alternatively
reached  the  same result by way of the presumption contained  in
the  strip  and gore doctrine, which allows a court  to  award  a
narrow  strip  of land, with little value of its  own,  that  was
mistakenly  reserved from a conveyed tract of land to  the  party
that  purchased the larger associated tract.  The superior  court
rejected the lot owners adverse possession claim based on a  lack
of evidence of continuous, open and notorious use of the disputed
parcel, and it declined to reach the lot owners Earthslide Relief
Act claim.
          The Simonson heirs appeal.
III. STANDARDS OF REVIEW
          The  Simonson  heirs  contend that the  superior  court
          erred in denying their motion for summary judgment.  But the
superior court denied the motion due to the existence of  genuine
issues of material fact, and an order denying summary judgment on
factual grounds is not reviewable on appeal following a trial  on
the   merits.6   Accordingly,  we  address  the  Simonson   heirs
arguments  in  the  context of determining whether  the  superior
court  erred in rendering its final judgment in favor of the  lot
owners, rather than whether it erred in denying the heirs  motion
for summary judgment.
          The   Simonson  heirs  challenge  the  superior  courts
conclusion  that Plat P-48B, which is incorporated into  the  lot
owners  deeds,  is ambiguous.  Whether a deed is ambiguous  is  a
question  of  law,7  and  [w]e review legal  questions  de  novo,
adopt[ing]  the rule of law that is most persuasive in  light  of
precedent,  reason,  and  policy.  8   The  Simonson  heirs  also
question  the  superior courts factual determination  that  Smith
intended  to convey the disputed parcel along with Lots 1-8  when
she  subdivided  the Simonson homestead.  Conclusions  about  the
parties  intent  drawn  by  the trial  court  after  sifting  and
weighing . . . evidence [extrinsic to a deed] are conclusions  of
fact  that we review for clear error.9  We will reverse the trial
courts  factual findings only when, after a review of the  entire
record,  we are left with a definite and firm conviction  that  a
mistake has been made. 10  We review the record with the knowledge
that  it  is  the province of the trial court to judge  witnesses
credibility and weigh conflicting evidence.11
IV.  DISCUSSION
          The   lot   owners  deeds  and  the  deeds   of   their
predecessors  in interest incorporate Plat P-48B by  reference.12
The issue before us is thus the proper interpretation of Plat  P-
48B  with  respect  to the disputed parcel, which,  as  discussed
above,  consisted of a steep bluff and mudflats at the  time  the
plat was prepared in 1949. The Simonson heirs argue that Plat  P-
48B clearly demarcates Lots 1-8 such that they do not include the
disputed parcel, meaning that the disputed parcel was retained by
Smith  after  she  subdivided and sold the rest of  the  Simonson
homestead.  The lot owners counter that the plat is ambiguous and
that  the  evidence surrounding the subdivision of  the  Simonson
homestead shows that Smith did not actually intend to retain  the
disputed parcel, meaning that it was conveyed as part of Lots  1-
8.
          The  superior  court  determined  that  Plat  P-48B  is
ambiguous and vague as to whether Smith conveyed all of the  land
owned  by  her in trust to the original purchasers of  Lots  1-8.
The  superior  court then examined extrinsic evidence  of  Smiths
intent  when she sold Lots 1-8, finally concluding that  she  did
not intend to retain the disputed parcel.
          The   Simonson  heirs  now  argue  primarily  that  the
superior court erred in finding that Plat P-48B is ambiguous, and
that  because the plat is unambiguous, the superior court  should
not have inquired further into Smiths intent.  The Simonson heirs
also  contend that insofar as the superior court did inquire into
Smiths  intent, its conclusion that she did not intend to  retain
the disputed parcel was erroneous.
     A.   Our Three-Step Approach to Deed Interpretation
          [T]he  touchstone of deed interpretation is the  intent
of the parties,13  and where possible, . . . the intentions of the
parties  [will  be]  given effect.14  We have instructed  that  a
three-step analysis should be employed in interpreting a deed.15
          The  proper first step in deed construction is to  look
to  the  four  corners of the document to see if it unambiguously
presents the parties intent . . . .16  If a deed when taken as  a
whole  is  open  to  only  one  reasonable  interpretation,   the
interpreting  court  need go no further.17   Whether  a  deed  is
ambiguous is a question of law.18
          Once  a court determines that a deed is ambiguous,  the
next step in determining the parties intent is a consideration of
the facts and circumstances surrounding the conveyance.19  We have
noted  that  this inquiry can be broad, looking at   all  of  the
facts and circumstances of the transaction in which the deed  was
executed, in connection with the conduct of the parties after its
execution. 20  Conclusions about the parties intent drawn by  the
trial  court  after sifting and weighing such extrinsic  evidence
are conclusions of fact, which we review for clear error.21
          Finally, only if the parties intent cannot be discerned
after  an  examination  of  the deed  itself  and  the  extrinsic
evidence surrounding its creation should a court resort to  rules
of construction.22  The purpose of rules of construction . . . is
not  to  ascertain the intent of the parties to the  transaction.
Rather,  it  is  to  resolve  a  dispute  when  it  is  otherwise
impossible to ascertain the parties intent. 23
     B.   Step One: Ambiguity.  The Superior Court Did Not Err in
          Determining that Plat P-48B Is Ambiguous.
          The  proper first step in deed construction is to  look
to  the  four  corners of the document to see if it unambiguously
presents the parties intent . . . .24  Both sides suggest that we
consider  various pieces of evidence outside the four corners  of
Plat  P-48B in making this initial ambiguity determination.   The
lot  owners  assert  by analogy to contract  interpretation  that
[e]xtrinsic  evidence may be considered in  assessing  whether  a
deed  is  ambiguous.  But our approach to deed interpretation  is
not identical to our approach to contract interpretation.
          In  the  context  of contract interpretation,  we  have
departed from the cumbersome traditional parol evidence  rule  by
allowing  the use of extrinsic evidence without the  need  for  a
preliminary  finding  that  a contract is  facially  ambiguous.25
Thus,  extrinsic evidence may be consulted in determining whether
a  contract is ambiguous as well as in resolving any ambiguity.26
But,  as  we  have  recognized, our three-step approach  to  deed
interpretation  differs  from  our  more  flexible  approach   to
contract  interpretation and does not allow the use of  extrinsic
evidence in making the threshold determination whether a deed  is
ambiguous.27  We therefore decline to consider extrinsic evidence
in  reviewing  the  superior courts conclusion that  Plat  P-48B,
which  is part of the lot owners deeds, is ambiguous.  A deed  is
unambiguous if, looking within the four corners of the  document,
the  words  of the deed taken as a whole are capable of  but  one
reasonable interpretation.28
          The superior court found that [l]ooking within the four
corners of the document Plat P-48B is ambiguous because there  is
no express demarcation or reservation of any land north of Lots 1-
8  and  the location of the Mean High Water Line is not expressly
represented.   The  superior court noted that Plat  P-48B  leaves
indeterminate the distance between the mean high water  line  and
the boundary of Lots 1-8 by demarcating it with a squiggled line,
thus   making  it  unclear  whether  the  mean  high  water  line
intersects with any portion of the boundary.  For these  reasons,
the  superior  court concluded that Plat P-48B  is  vague  as  to
whether  Smith conveyed all of the land owned by her in trust  to
the original purchasers of Lots 1-8.
          The Simonson heirs contend that any ambiguity in Plat P-
48B  relating  to the area and boundaries of the disputed  parcel
does  not affect the non-ambiguous area of each of Lots 1 through
8  that  were conveyed which [have] boundaries [that] are clearly
defined.    They  point  out  that  the  lot  owners  and   their
predecessors  in interest have always been aware  of  the  square
footages of their lots, which are shown on Plat P-48B and do  not
include the disputed parcel.  But we have said that a deed should
be  examined  as  a  whole in determining  ambiguity,29  and  the
entirety of Plat P-48B is incorporated into the lot owners deeds.
Accordingly,  Lots  1-8 cannot be viewed in  isolation.   As  the
superior  court concluded, Plat P-48Bs failure to  demarcate  and
reserve the disputed parcel or specify the exact location of  the
mean  high tide line creates ambiguity regarding Lots 1-8 despite
their seemingly well-defined boundaries.
          The  Simonson  heirs also argue that it is  clear  that
Lots  1  through 8 were not shown on Plat 48-B as having riparian
rights.30   They  point out that there is nothing  to  prevent  a
separation  of such interest resulting in one person  owning  the
riparian  rights and privileges associated thereto,  and  another
person   owning  the  uplands.   They  argue  that   Plat   P-48B
unambiguously severs the riparian rights from Lots 1-8.  But Plat
P-48B does not unambiguously sever the riparian rights from  Lots
1-8,  as  it does not reserve or demarcate the land lying between
the lots and the tidelands and leaves unclear and unspecified the
relationship  between the northern boundary of the lots  and  the
mean  high tide line.  Moreover, the lot owners counter that  the
property line was platted as close as reasonably possible to  the
waters  edge, giving rise to a presumption that title  passed  to
the  abutting tidelands in the absence of an express  reservation
to  the  contrary.31  And the fact that the lots were platted  so
close to the waters edge, without any developable land separating
them   from   the   tidelands,  supports  the   superior   courts
determination that Plat P-48B is ambiguous as to whether the lots
were intended to have riparian rights.
          Finally,   the  Simonson  heirs  assert  that  platting
standards were loose in early times and it was not normal to name
remnants outside a plat, meaning that the superior courts finding
of  ambiguity  wrongfully imposes current platting and  surveying
standards  on Plat P-48B.  But this argument focuses on extrinsic
evidence  that may not be considered in the course of making  the
preliminary determination whether Plat P-48B is ambiguous, so  we
          decline to consider it.
          Accordingly,  we conclude that the superior  court  did
not err in determining that Plat P-48B is ambiguous.
     C.   Step  Two: Intent.  The Superior Court Did Not  Err  in
          Determining that Smith Intended to Convey the  Disputed
          Parcel Along with Lots 1-8.
            Once a court determines that a deed is ambiguous, the
next step in determining the parties intent is a consideration of
the  facts and circumstances surrounding the conveyance.32  After
finding  Plat  P-48B ambiguous, the superior court  examined  the
facts and circumstances surrounding the sale of Lots 1-8 by Selma
Smith  and found that it was the intent of Smith, as trustee  for
herself  and  her  siblings,  to convey  the  disputed  strip  of
property  as  part  of  Lots 1-8.  The Simonson  heirs  primarily
contend,  as discussed above, that Plat P-48B is unambiguous  and
thus that the superior court should not have inquired into Smiths
intent,  but  they also argue that the superior  court  erred  in
concluding  that  Smith  did not intend to  retain  the  disputed
parcel.  Conclusions about the parties intent drawn by the  trial
court  after  sifting and weighing . . . extrinsic  evidence  are
conclusions of fact[, which] [t]his court will not disturb . .  .
unless they are clearly erroneous . . . .33
          In  determining that Smith did not intend to retain the
disputed  parcel, the superior court made a number  of  findings:
(1)  the disputed parcel would have been surveyed and platted  if
Smith  had intended to reserve it, especially if, as the Simonson
heirs  argued below, she feared liability and intended to reserve
the  parcel  to  create a buffer zone to protect  Lots  1-8  from
erosion  of  the bluff; (2) Smith never reconveyed  the  disputed
parcel to her siblings as she would have been obligated to do had
she  retained  it, given that she held the Simonson homestead  in
trust;  (3) no Simonson heir ever attempted to sell the  disputed
parcel even after its value was increased by the earthquake;  (4)
the  disputed  parcel was not included in Smiths  probate  estate
when  she  died in 1984; (5) no Simonson heir ever  attempted  to
develop  the  disputed parcel after 1978 when development  became
permissible;  (6) no Simonson heir ever thought  they  owned  any
land  around the disputed parcel until the instant dispute arose;
and  (7)  platting standards at the time Plat P-48B was  recorded
were  less  rigorous  than they are today,  and  the  lot  owners
experts  testimony that the northern boundary  of  Lots  1-8  was
probably  drawn  along  the  top of the  bluff  as  a  matter  of
convenience was more credible than the contrary testimony of  the
Simonson  heirs  expert.  The Simonson heirs contend  that  these
findings  are  not  sufficient  to support  the  superior  courts
ultimate  conclusion  that Smith did not  intend  to  retain  the
disputed parcel.
          The  Simonson  heirs contend that the fact  that  Smith
never   reconveyed  the  disputed  parcel  to  her  siblings   is
irrelevant  to  Smiths  intent  because  no  one  kn[e]w  of  the
existence of the parcel.  They further point out that the  parcel
was  not included in Smiths probate estate because her son Ingrim
did  not  know about the parcel.  But the fact that none  of  the
Simonson  heirs was ever told about the parcel seems  to  support
          the superior courts conclusion that Smith did not intend to
retain the parcel, rather than undermining it.
          The  Simonson heirs also argue that the fact that Smith
and  her siblings never attempted to sell or develop the disputed
parcel is not indicative of her intent because in 1978, when  the
disputed  parcel became legally developable after the earthquake,
Smith  was  seventy-five years old and most of her siblings  were
dead.  The heirs also note that the lot owners never attempted to
develop the disputed parcel either. But while these points  weigh
in  the  heirs favor, they are not sufficient to engender a  firm
and  definite conviction34 that the superior court made a mistake
in  ultimately concluding, based on all of the facts, that  Smith
did not intend to retain the disputed parcel.
          Finally,  the Simonson heirs assert that Smith reserved
a  right-of-way to the disputed parcel, evidencing an  intent  to
retain it.  However, as the lot owners persuasively counter, this
assertion  is  founded on a misreading of the  plat  and  ignores
pertinent  testimony.  It is clear that there is no  right-of-way
reserved  within the Simonson homestead extending to the disputed
parcel  the right-of-way the Simonson heirs refer to is a part of
a  neighboring  subdivision and is beyond the  Simonson  property
line.  Moreover, the testimony the Simonson heirs reference  does
not  appear to support their position  the testimony of  the  lot
owners expert recognizes that the right-of-way is not part of the
Simonson  subdivision  and the testimony of  the  Simonson  heirs
expert is not focused on the right-of-way issue and seems founded
in a misreading of the plat.
          The  superior courts determination that Smith  did  not
intend  to  retain the disputed parcel was not clearly erroneous.
Accordingly, we affirm the superior courts interpretation of Plat
P-48B and its consequent decision to award the disputed parcel to
the lot owners.35
          The  superior court found [a]lternatively that  through
the  operation of the legal presumption embodied by the strip and
gore  doctrine, the [disputed] strip of land was intended by  the
grantor, Selma Smith, to pass to the [lot owners] predecessors in
interest.   The  strip and gore doctrine, which as  the  superior
court noted is primarily associated with Texas,36 provides that
          unless  the grantor explicitly reserves  with
          plain and specific language in the deed a fee
          in  a  narrow  strip  of land  adjoining  the
          conveyed land, it is presumed that a  grantor
          has  no  intention of reserving a  fee  in  a
          narrow,  adjoining strip  of  land  when  the
          strip  ceases to be of use by virtue  of  the
          conveyance.[37]
          According  to  the Texas Supreme Court, the  strip  and
gore doctrine developed because separate ownership of long narrow
strips of land, distinct from the land adjoining on each side, is
a  fruitful  source of litigation and disputes.38   Additionally,
[w]hen  a  small parcel of land adjoins a main tract and  has  no
particular  value  apart from the main tract, parties  ordinarily
would expect it to pass with the grant.39
          The  strip  and gore doctrine is best understood  as  a
          rule of construction that is meant to apply where the parties
intent  cannot be discerned by other means.40  We apply rules  of
construction as the last step in the deed interpretation process,
but   [o]nly  if  [the  first]  two  steps  do  not  resolve  the
controversy  .  . . .41  In this case, the first two  steps  have
resolved  the  controversy  we have determined that  Selma  Smith
intended to convey the disputed parcel along with Lots 1-8  so we
need  not  reach the question whether the strip and gore doctrine
is applicable here.42  We also need not reach the question whether
the Earthslide Relief Act43 is applicable to this case.
V.   CONCLUSION
          For  the  foregoing  reasons, we  AFFIRM  the  superior
courts decision in favor of the lot owners.
_______________________________
     1     The  parcel was not truly developable until 1978  when
building restrictions on land created by the 1964 earthquake were
lifted.

     2    AS 09.45.800.880.

     3    AS 09.45.052.

     4     Prior  to settlement, the Municipality argued that  it
had  obtained  an  easement  across the  parcel  by  prescription
because  the Coastal Trail had been in place and openly  used  by
the public for more than the statutory period.

     5     Because the earthquake pushed the mean high tide  line
seaward, it created some usable land located beyond the 1916 mean
high  tide  line  that had formed the northern  boundary  of  the
Simonson homestead; because that land had never been part of  the
homestead, it was found to belong to the Municipality.

     6     Larson v. Benediktsson, 152 P.3d 1159, 1169-70 (Alaska
2007).

     7     Norken  Corp.  v. McGahan, 823 P.2d 622,  626  (Alaska
1991).

     8     Pastos  v.  State,  194 P.3d 387,  391  (Alaska  2008)
(footnote  omitted and alteration in original) (quoting  Guin  v.
Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).

     9    Norken, 823 P.2d at 626.

     10    Peterson v. Ek, 93 P.3d 458, 463 (Alaska 2004) (quoting
Demoski v. New, 737 P.2d 780, 784 (Alaska 1987)).

     11    Id.

     12    See 26A C.J.S. Deeds  226 (2001) (A map, plat, plan, or
survey,  by  virtue of apt reference thereto in a  deed,  may  be
treated  as  part  of, and may be construed  with,  the  deed  in
determining the property conveyed.).

     13    Norken, 823 P.2d at 625.

     14    Shilts v. Young, 567 P.2d 769, 773 (Alaska 1977).

     15    Ashley v. Baker, 867 P.2d 792, 794 (Alaska 1994).

     16    Norken, 823 P.2d at 626.

     17    Id.

     18    Id.

     19    Id.

     20    Id. at 629 (quoting Rizo v. MacBeth, 398 P.2d 209, 211-
12 (Alaska 1965)).

     21    Id. at 626.

     22    Id.

     23    Id. at 625 (quoting 6A R. Powell & P. Rohan, Powell on
Real Property  899[3], at 81A-108 (1991)).

     24    Id. at 626.

     25     See  Alyeska Pipeline Serv. Co. v. OKelley, 645  P.2d
767,  771  n.1  (Alaska  1982) (rejecting the  unduly  cumbersome
approach whereby resort to extrinsic evidence can take place only
after  a  preliminary finding of ambiguity  in  a  contract,  and
approving  of  an  approach  that initially  turns  to  extrinsic
evidence  for  such  light  as  it may  shed  on  the  reasonable
expectations  of the parties); see also Restatement  (Second)  of
Contracts   212 cmt. b (1981) (stating that because  meaning  can
almost never be plain except in a context, [a]ny determination of
meaning  or  ambiguity should only be made in the  light  of  the
relevant  evidence of the situation and relations of the parties,
the  subject  matter of the transaction, preliminary negotiations
and  statements made therein, usages of trade, and the course  of
dealing between the parties); Ferdinand S. Tinio, Annotation, The
Parol  Evidence Rule and Admissibility of Extrinsic  Evidence  to
Establish and Clarify Ambiguity in Written Contract, 40  A.L.R.3d
1384,  at   4 (1971) (listing Alaska among the states  that  have
tended   to   move  away  from  the  traditional  and  mechanical
complete-on-its-face  approach, and to  accept  evidence  of  the
parties   negotiations  and  of  other  relevant   and   external
circumstances in order to ascertain whether a written contract is
ambiguous (footnote omitted)).

     26     Wessells v. State, Dept of Highways, 562  P.2d  1042,
1046  (Alaska  1977) (An ambiguity exists [in  a  contract]  only
where  the  disputed  terms are reasonably subject  to  differing
interpretation  after viewing the contract as  a  whole  and  the
extrinsic evidence surrounding the disputed terms.).

     27     Ashley v. Baker, 867 P.2d 792, 794 n.1 (Alaska  1994)
(noting that the seemingly rigid three-step formulation [for deed
interpretation] may be out of step with our approach to  contract
interpretation, which do[es] not require a threshold  finding  of
ambiguity before considering extrinsic evidence).

     28     Norken,  823  P.2d at 626 (holding that  a  deed  was
ambiguous  where it warranted quiet enjoyment but  also  reserved
gravel  rights  because  quiet possession  of  the  premises  and
removal  of the gravel are mutually exclusive); see also  Ashley,
867 P.2d at 793-94 (holding that deed granting a 1/2 interest  in
lot 13 . . . specifically the 1 acre lot with apt C located on it
was   open   to  three  possible  interpretations  and  therefore
ambiguous);  Ault  v.  State, 688 P.2d  951,  955  (Alaska  1984)
(noting  that the phrase in addition to existing highway  created
ambiguity in a deed); Dimond v. Kelly, 629 P.2d 533, 540  (Alaska
1981)  (noting  that a deed conveying title to various  buildings
was  ambiguous  regarding what land was conveyed along  with  the
buildings);  Shilts v. Young, 567 P.2d 769, 773-74 (Alaska  1977)
(noting  that  a  deed was ambiguous where it described  property
with reference to a survey map that could not be located).

     29     Norken, 823 P.2d at 626; see also 9 Thompson on  Real
Property  82.13(b)(2), at 668 (David A. Thomas ed., 2d ed.  1999)
(The  intent  of  parties  must be  ascertained  from  the  whole
instrument and not from isolated portions thereof.).

     30    The parties use the word riparian to discuss rights to
the  tidelands in this case, though that term is usually used  to
refer  to rights to streams or rivers.  See Blacks Law Dictionary
1352  (8th ed. 2004) (defining riparian as [o]f, relating to,  or
located on the bank of a river or stream (or occasionally another
body of water, such as a lake)).

     31    See, e.g., Olde Severna Park Improvement Assn, Inc. v.
Gunby, 936 A.2d 365, 373 (Md. 2007) (When waterfront property  is
conveyed,  there  exists  a  presumption  that  the  property  is
accompanied by the riparian rights to those waters.);  McAdam  v.
Smith,  350  P.2d  689,  692-93 (Or. 1960)  (recognizing  that  a
conveyance of the upland passes title to land in the bed  of  the
river  or  way  and  applying  this  presumption  to  conveyances
involving  abutting tideland as well); see also 78  Am.  Jur.  2d
Waters   44  (2002) (discussing the presumption  arising  from  a
conveyance of the upland).

     32    Norken, 823 P.2d at 626.

     33    Id.

     34    Id. (internal quotation marks omitted).

     35     The Simonson heirs argue that in order to prevail the
lot owners must demonstrate by clear and convincing evidence that
their  deeds  should be reformed so as to encompass the  disputed
parcel.   See  Groff v. Kohler, 922 P.2d 870, 874  (Alaska  1996)
([A]  party  will be able to obtain reformation of an  instrument
only  if  that party can clearly and convincingly show that  both
parties had an identical intention as to the terms to be embodied
in  the  proposed written conveyance and the writing executed  by
them  is  materially  at variance with that intention.  (internal
quotation marks, emphasis, and alterations omitted)).  Because we
find  that  Plat  P-48B  is ambiguous, we  do  not  think  it  is
necessary  that  the clear and convincing standard  required  for
reformation be met.

     36     See  Robert G. Natelson, Modern Law of Deeds to  Real
Property  8.23, at 217 (1992) (Some courts . . .  notably but not
exclusively  those  of Texas  apply a presumption  known  as  the
strip and gore doctrine . . . . (footnote omitted)).

     37    Moore v. Energy States, Inc., 71 S.W.3d 796, 799 (Tex.
App.  2002).  The phrase strip and gore doctrine also appears  to
be  used  at  times  to  refer to narrower, related  presumptions
regarding  strips  of land along highways or railroad  rights  of
way.   See, e.g., Blendu v. United States, 79 Fed. Cl.  500,  507
n.7  (Fed. Cl. 2007); 9 Thompson on Real Property, supra note 29,
82.13(e), at 682-83.

     38     Cantley v. Gulf Prod. Co., 143 S.W.2d 912, 915  (Tex.
1940).

     39    Natelson, supra note 36,  8.23 at 218.

     40    See Miller v. Crum, 314 S.W.2d 389, 395 (Tex. Civ. App.
1958) (The strip and gore doctrine is a rule of construction of a
deed  based on public policy to discourage separate ownership  of
narrow  strips  of  land  and applies only  to  ambiguous  deeds,
whether the ambiguity is found in the deed itself or arises  from
an attempt to apply the description on the ground.).

     41    Norken, 823 P.2d at 626.

     42    We note in passing that the superior courts decision to
grant the disputed parcel to the lot owners seems consistent with
the strip and gore doctrine.

     43    AS 09.45.800.880.

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