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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Labrenz v. Burnett (10/16/2009) sp-6420

Labrenz v. Burnett (10/16/2009) sp-6420, 218 P3d 993

     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
     
JEFFREY LABRENZ, )
) Supreme Court No. S- 12770
Appellant, )
) Superior Court No. 4FA-05-1720 CI
v. )
) O P I N I O N
SHANE BURNETT and JILL )
BURNETT, ) No. 6420 October 16, 2009
)
Appellees. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Robert B. Downes, Judge.

          Appearances: Robert A. Sparks, Law Office  of
          Robert  A.  Sparks, Fairbanks, for Appellant.
          William  R.  Satterberg, Jr., Law Offices  of
          William  R.  Satterberg, Jr., Fairbanks,  for
          Appellees.

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

          FABE, Chief Justice.


I.   INTRODUCTION
          This appeal addresses a dispute between Jeffrey Labrenz
and  Shane and Jill Burnett over the use of land described in  an
easement.   Labrenz  has a driveway easement  over  the  Burnetts
land,  and in building his driveway, Labrenz installed decorative
rocks,  shrubs,  trees,  a fence, and  a  gate  on  the  Burnetts
property.  The superior court agreed with Labrenz that the  slope
of  the  Burnetts  land necessitated certain efforts  to  control
erosion, but it found that many of Labrenzs improvements  to  the
driveway  easement were cosmetic in nature and ordered that  they
be  removed.  In addition, the superior court ordered Labrenz  to
move  the  fence  and gate onto his own property.   The  superior
court also permitted the Burnetts to use the easement to build  a
driveway to access the lower portion of their lot.
          On  appeal,  Labrenz  challenges  the  superior  courts
findings  of  fact  as  clearly erroneous  and  argues  that  his
easement improvements were allowed under theories of contract and
estoppel.   He  also  contends that all of his improvements  were
reasonably  necessary to protect his driveway  from  erosion  and
vandals.   Because the evidence at trial supported  the  superior
courts  findings  and the superior courts legal conclusions  were
not  erroneous,  we affirm the superior courts  decision  in  all
respects.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Jeffrey Labrenz and Shane and Jill Burnett own adjacent
lots  in  the  Sherwood Forrest Subdivision  on  Chena  Ridge  in
Fairbanks.  Lot 13A is owned by Labrenz, who also has  an  access
easement  over  the  lower  portion of  Lot  14A,  owned  by  the
Burnetts.   Before the Burnetts owned Lot 14A, it  was  owned  by
Jeremy  Riddle.  The initial easement over Lot 14A was a  thirty-
foot-wide  strip  that was positioned during development  of  the
subdivision  by  driving  a  bulldozer  along  a  path  that  was
estimated,  by  eye,  to  be adequate for automobiles  to  access
Labrenzs property, Lot 13A.
          Labrenz  installed a driveway across  Lot  14A  to  his
property,  and in the process, excavated outside of the  driveway
easement  boundaries on Lot 14A.  After it became  apparent  that
Labrenz had over-excavated his easement, he and Riddle agreed  on
a  replat of their adjoining lots, which was completed on May  4,
2004.   Labrenz gave up a small portion of his lot  in  order  to
enlarge  the easement area.  In May 2004 Riddle sold Lot  14A  to
the Burnetts.
          In  addition to excavating his driveway easement  in  a
manner that provided erosion controls, Labrenz landscaped it with
light-colored  rocks,  shrubs, and  spruce  trees.  Labrenz  also
placed  a wire fence and gate on the easement, with a portion  of
the   fence  extending  outside  the  easement  on  the  Burnetts
property.  The Burnetts objected to Labrenzs landscaping  choices
and  the  placement of the fence and gate on their  property  and
requested that they be removed.  Labrenz refused and replaced the
wire  fence  with a white vinyl fence after he was  sued  by  the
Burnetts.
     B.   Proceedings
          In  June 2005 Shane Burnett filed suit against Labrenz,
claiming that Labrenz had made use of the Burnetts land in excess
of  Labrenzs  rights  under the easement.  Specifically,  Burnett
alleged  that Labrenz had trespassed on the Burnetts property  by
making use of a wider strip of land than the easement allowed and
wasting the property.  In August 2005 Burnett requested that  the
superior  court  issue  an order requiring  the  removal  of  the
improvements that Labrenz had made to the easement and  enjoining
Labrenz  from  making any further improvements.  In late  October
2005, the superior court denied Burnetts motion for a preliminary
injunction  requiring removal of the improvements.  Jill  Burnett
was added as a plaintiff in December of that year.  In March 2006
the  superior  court ruled that the Burnetts  could  only  assert
claims  that had been available to Riddle, the former  owner  who
originally granted the easement to Labrenz.
          The  case  went to trial on October 26, 2006.   Labrenz
argued  that all of the landscaping was necessary to protect  his
driveway  from erosion.  He also claimed that the fence and  gate
were  necessary to protect his driveway from vandalism  by  snow-
machiners  and four-wheelers who might come on the  property  and
destroy  the  driveway.  The Burnetts  argued  that  Labrenz  had
landscaped  the  easement area of Lot 14A to match  Labrenzs  own
landscaping  so  that  it would look like Labrenzs  property  and
contended that the light-colored rocks and shrubs were decorative
in  nature.   The Burnetts further maintained that to the  extent
the  rocks  and  plants  protected against  erosion,  other  less
obtrusive  options  such as hardy grass were  available.   Riddle
testified  that he had never approved Labrenzs rocks  and  shrubs
and that he believed Labrenzs gate and fence were temporary.  The
surveyor  of the replat testified that the purpose of the  replat
was  to accommodate the improvements Labrenz had installed on the
easement.
          At the conclusion of the trial, the superior court made
oral  findings, determining that while there has got to  be  some
erosion  control  to  prevent against runoff,  the  light-colored
rocks  bordering the driveway were more for the decorative beauty
of  the landscaping.  Though the superior court acknowledged that
the  threat  of erosion presented a serious issue, it found  that
the  threat of vandalism was not a realistic problem and  ordered
the  fence and gate to be moved onto Labrenzs property.  It  took
under  advisement the question whether the rocks and shrubs would
have  to  be removed and replaced with other plantings to control
erosion.
          The superior court issued supplemental written findings
and  concluded  that the rocks, shrubs, and trees were  primarily
decorative  in nature and that the nature of the landscaping  was
not   reasonable  or  necessary  under  the  circumstances.   The
superior court ordered Labrenz to remove the shrubs, after  which
the  Burnetts could landscape the easement as they see fit.   The
superior  court confirmed its earlier ruling that the  fence  and
gate  were  to  be  moved onto Labrenzs property.   Finally,  the
superior court ruled that the Burnetts would be permitted to  use
Labrenzs  easement  to  access their  own  property,  though  the
superior  court  warned that should the Burnetts damage  Labrenzs
driveway  in  developing their own access, they  would  be  fully
responsible for the damage.
          Labrenz requested a new trial and clarification of  the
superior  courts decision, as well as a stay of its  order.   The
superior court denied both Labrenzs motion for a stay of judgment
and  his  request for a new trial, but it issued  a  supplemental
order  addressing  his request for clarification.   It  explained
that  improvements  within the easement area must  be  reasonably
related  to  the  easements purpose  that  of  a  driveway.   The
superior  court  found  that  the  decorative  rocks,  decorative
shrubs,  gate,  and  fencing placed  on  the  easement  were  not
reasonably related to the essential functions of the driveway and
thus should be removed.  Labrenz appeals.
III. STANDARD OF REVIEW
          We  review  the superior courts factual findings  under
the  clearly  erroneous standard and will disturb those  findings
only when we are left with a definite and firm conviction on  the
entire  record  that  a mistake has been made.1   We  review  the
superior courts legal conclusions de novo.2
IV.  DISCUSSION
     A.   The  Superior Court Did Not Err in Finding  That  There
          Was  No  Express  or Implied Contractual  Agreement  To
          Allow Labrenzs Rocks, Shrubs, Gate, and Fence.
          
          Labrenz  first argues that the superior courts findings
are  clearly  erroneous because the Burnetts  are  bound  by  the
agreement  reached between Labrenz and [Riddle] . . .  to  expand
the  driveway  easement to protect [Labrenzs] improvements.   The
parties  stipulated to the admission of a written statement  from
the surveyor who conducted the replat of Lots 13A and 14A, rather
than  calling him as a witness.  Labrenz relies on the  surveyors
proffered testimony that
          Mr.  Riddle  knew of Mr. Labrenzs gate/fence,
          plantings, rock and improvements in the . . .
          easement   area  and  the  purpose   of   the
          agreement  for the replat was to  accommodate
          the improvements that [Labrenz] had installed
          in   the  access  easement  area;  and   that
          [Labrenz] paid for part of the replat costs.
          
          Labrenz   argues   that  this  testimony   conclusively
establishes  that Riddle knew of [Labrenzs] improvements  in  the
easement  and that a purpose of the agreement between Riddle  and
[Labrenz]  for  the  replat  was to accommodate  or  protect  the
improvements that [Labrenz] had installed in the access  easement
area.  Yet as the Burnetts persuasively argue, the intent of  the
parties regarding the extent of protection granted by the  replat
can  best  be determined by the testimony of Riddle and  Labrenz.
The  Burnetts concede that at the time of the replat, Riddle knew
of  Labrenzs  improvements in the easement,  but  they  highlight
Riddles  testimony that he believed that Labrenzs gate and  fence
were  temporary and that he never gave Labrenz approval  for  the
rocks and shrubs.
          Labrenz  maintains that by entering into a  stipulation
that  the  superior  court could consider the  surveyors  written
statement,  the  Burnetts  removed the trial  courts  ability  to
assess  demeanor  and determine credibility and  they  should  be
bound  by  their stipulation.  But an exchange at  trial  reveals
that  the stipulation reflected only an agreement as to what  the
surveyor  would say if called to the stand.  When  questioned  by
the   superior  court  about  admitting  the  surveyors   written
statement   by  stipulation,  the  Burnetts  attorney  responded,
          obviously well argue [but] we are acknowledging that [is] his
testimony.
          The  superior court heard evidence that the replat  was
not  intended  to  approve all of Labrenzs  improvements  to  the
easement.   Riddle testified that he had never approved  Labrenzs
rocks and shrubs and that he knew of Labrenzs gate and fence  but
believed  that  they  were temporary.  Thus the  superior  courts
finding  that  there was no express agreement to  allow  Labrenzs
decorative   improvements,  gate,  and  fence  was  not   clearly
erroneous.
          Labrenz  also  argues that the replat  amounted  to  an
implied  contract to protect his easement improvements.   Labrenz
relies  on  Cluff  v. Nana-Marriott, in which we recognized  that
[t]he  existence  of an implied contract must  be  determined  by
considering   all  the  factors  in  light  of  the   surrounding
circumstances.3  Labrenz argues that the actions of  the  parties
. . . clearly demonstrate[] that the purpose of the replat was to
protect  the  improvements installed in the  easement.   He  also
points  to  the fact that Riddle never objected to any  of  [the]
improvements,  including the ditch-rock  or  shrubs.   But  under
Alaska  law, an implied contract exists only when there is mutual
assent  between  parties.4   As  we  have  observed,  an  implied
contract arises where the court finds from the surrounding  facts
and  circumstances that the parties intended to make  a  contract
but  failed to articulate their promises.5  In such a  case,  the
court  merely implies what it feels the parties really intended.6
Although Labrenz testified that he assumed that he paid  for  the
replat for the expansion of the driveway easement to protect  all
of his improvements, the superior court also heard testimony from
Riddle explaining his understanding that Labrenzs gate and  fence
were  temporary and that he never gave Labrenz approval  for  the
rocks  and  shrubs.  Given the conflict in the evidence regarding
the  intent  of the parties, the superior court did  not  err  in
declining to find an implied contract between Labrenz and  Riddle
to protect all of Labrenzs improvements to the driveway easement.
     B.   The Superior Court Did Not Err When It Refused To Apply
          the Doctrine of Estoppel Against the Burnetts.
          
          Labrenz  next argues that the superior courts  findings
are  inadequate  because  they fail  to  [include]  any  findings
concerning  Labrenzs  position  that  [the]  Burnetts[]  proposed
actions  were  barred  by quasi or equitable  estoppel.   Labrenz
contends that the doctrine of quasi or equitable estoppel  should
be applied against the Burnetts because Riddles failure to object
to  the improvements he admit[ted] he knew were installed in  the
easement  created a situation where Labrenz reasonably believe[d]
that   the   replat   was  being  performed  to   protect   [his]
improvements.   Labrenz  claims  that  he  reasonably  relied  on
Riddles  silence and lack of objection to his detriment and  that
he  paid  thousands of dollars for a replat that [he]  reasonably
believed was intended to protect his improvements.
          Quasi estoppel precludes a party from taking a position
inconsistent with one he has previously taken where circumstances
render  assertion  of the second position unconscionable,7  while
          [e]quitable estoppel results from an assertion of a position,
expressly or by implication, which is reasonably relied on by the
opposing  party  to  his  detriment.8  As  discussed  above,  the
superior court heard testimony from Riddle that he believed  that
Labrenzs  gate  and fence were temporary and that he  never  gave
Labrenz  approval for the rocks and shrubs.  And as the  Burnetts
point out, the purpose of the replat was not to allow Labrenz  to
landscape [the] Burnett[s] property to Labrenzs liking,  but  was
rather to cure a previously unauthorized encroachment onto  [the]
Burnett[s] property.  Thus, the superior court did not  err  when
it declined to rule that the Burnetts requested relief was barred
by the doctrine of quasi or equitable estoppel.
     C.   The Superior Court Did Not Err in Finding That Some  of
          Labrenzs Easement Improvements Were Not Reasonable  and
          Necessary To Protect Labrenzs Driveway.
          
          The  superior court recognized the steep nature of  the
land  in  question  and  found that reasonable  use  of  Labrenzs
easement  could  include back-sloping to aid in channeling  water
and runoff, as well as installation of minimal rocks or plants to
achieve  additional water control.  But the superior court  found
that the light-colored landscaping rocks, decorative shrubs,  and
white  vinyl  fence were not a reasonable use of the easement  on
the  Burnetts  land.  The superior court found that  the  primary
purpose  of  the rocks and shrubs was decorative  and  that  less
intrusive  means were available to help with erosion  prevention.
Labrenz challenges the superior courts factual findings that some
of  his improvements were not reasonable and necessary to protect
the driveway.
          1.   The   superior  courts  oral  findings   did   not
               contradict its written findings.
               
          Labrenz  first argues that the superior courts findings
are   clearly  erroneous  because  its  oral  findings   directly
contradict [its] written findings.  But a review of the  superior
courts  oral  and  written findings reveals  that  they  are  not
contradictory.   The  superior court made oral  findings  at  the
conclusion  of the trial, recognizing that although  Labrenz  was
responsible for some really excellent landscaping and  there  has
got to be some erosion control, the rocks placed by Labrenz along
the  driveways border may not have runoff implications  and  were
more  for the decorative beauty of the landscaping.  The superior
court then indicated that it was not yet prepared to require  the
removal  of  the rocks and shrubs and that it want[ed]  to  think
about that a little more.
          In  its  written  findings, the  superior  court  again
recognized  the  steep nature of the land in question  and  found
that  reasonable  use  of Labrenzs easement could  include  back-
sloping  to  aid  in  channeling water and  runoff,  as  well  as
installation  of  some  rock  and  plantings  for  water  control
purposes.   But  the superior court found that installing  light-
colored  landscaping rocks, decorative shrubs,  and  white  vinyl
fence  was  not a reasonable use of the easement on the  Burnetts
land  because  they  were primarily decorative  in  nature.   The
          superior courts written findings thus did not contradict but
rather supplemented its oral findings and explained them in  more
detail.
          2.   The superior courts findings that some of Labrenzs
               improvements were primarily decorative  in  nature
               and  thus  not  reasonable and  necessary  to  the
               easement were supported by the evidence.
               
          Labrenz  next  argues  that the  superior  court  erred
because  it  ordered the removal of the rocks  and  shrubbery  as
primarily decorative despite its finding that the rock and shrubs
are  a  reasonable manner of erosion control.  Labrenz relies  on
our  decision in Simon v. State, where we considered a landowners
challenge to the States relocation of a highway within a right-of-
way.9   We  concluded  that as long as the  States  changes  were
reasonably  necessary  to  improve  the  highway,  the  statutory
easement  allowed  the  State to relocate  the  highway  anywhere
within  150  feet  of  the centerline of the original  roadway.10
Pointing  to his own testimony that the purpose of the rocks  and
shrubs installed was to prevent erosion, Labrenz argues that like
the  improvements  in  Simon,  his improvements  were  reasonably
necessary.
          Yet  a  careful  reading of the case cited  by  Labrenz
reveals  that his improvements to the driveway easement  are  not
supported by our decisions.  Where specific parameters, including
the  length  and  width of an easement have  been  expressly  set
forth,  the easement is specific and definite.11  In such a  case
[t]he expressed terms of the grant or reservation are controlling
. . . and consideration of what may be necessary or reasonable to
the present use of the dominant estate are not controlling.12  The
plain   meaning   of  the  subdivision  map   of   the   property
unambiguously  describes the original thirty-foot  easement,  and
the  plain  language  of the replat states that  it  is  for  [a]
driveway  to Lot 13A.  But there are no provisions in the  replat
for  a  permanent fence, a permanent gate, or other  improvements
that are not necessary to the existence of a driveway.13
          As  the  holder  of  the  easement,  Labrenz  may  make
unlimited reasonable use of the easement.14  But Labrenz is  only
entitled  to  use  the  Burnetts property in  a  manner  that  is
reasonably  necessary  for  the  convenient  enjoyment   of   the
servitude,15 or, as the superior court framed the issue, to  make
improvements  within  the  easement area  [that  are]  reasonably
related to the easement purpose: that of a driveway.
          Labrenz  claims that the Burnetts objections  that  the
improvements make the property look like it is part of [Labrenzs]
lot,   without   any   evidence  showing  the  improvements   are
unnecessary  or unreasonable, cannot trump reasonable  necessity.
Given the steep nature of the land, it was reasonable for Labrenz
to  include  features to control the threat  of  erosion.16   But
Labrenz  was  not  entitled to interfere  unreasonably  with  the
Burnetts  enjoyment of their own property.17  As the  Restatement
recognizes,   in   determining  what   constitutes   unreasonable
interference with the enjoyment of the servient estate, aesthetic
considerations may be relevant.18
          The  superior court heard evidence showing that certain
aspects  of  Labrenzs landscaping were decorative in  nature  and
thus  not  reasonably  related  to  the  essential  functions  of
[Labrenzs]  driveway.  Labrenz claimed that the rocks and  shrubs
on  his  driveway were necessary to prevent erosion.   Yet  Shane
Burnett testified that other houses in the neighborhood use grass
to  control  erosion on hillsides steeper than  the  property  in
question,  and the superior court also heard testimony by  Riddle
that  erosion on the hillside could be controlled using  grasses.
Thus,  the  superior court did not err in finding  that  some  of
Labrenzs  easement improvements were not reasonable and necessary
to protect Labrenzs driveway.
          3.   The  superior  court did not fail to  sufficiently
               explain its reasoning as required by Alaska  Civil
               Rule 52.
               
          Labrenz also challenges the findings on the ground that
the superior court did not explain its reasoning sufficiently  as
required by Alaska Civil Rule 52.  In Sullivan v. Subramanian  we
explained the superior courts duty under Rule 52(a):
          [T]he  trial court had a duty . . .  to  find
          the  facts specially and state separately its
          conclusions  of  law  thereon.    This   rule
          required  the  court to deal adequately  with
          and state with clarity what it finds as facts
          and what it holds as conclusions of law.  The
          findings  and conclusions should be so  clear
          and  explicit as to give the Supreme Court  a
          clear  understanding of  the  basis  for  the
          decision made.[19]
          
          In  this  case, the superior courts findings are  quite
detailed and allow for meaningful appellate review.  The superior
court did not disregard Labrenzs testimony as Labrenz claims  but
rather did not agree with Labrenzs version of events or his legal
arguments.  For example, the superior court found that it was not
Riddles  intent  to  approve  all of  Labrenzs  improvements  and
subsequently bind the Burnetts, relying on Riddles testimony that
he  only  became aware of Labrenzs improvements after  they  were
completed,  that he believed that Labrenzs gate  and  fence  were
temporary, and that he never gave Labrenz approval for the  rocks
and shrubs.  In addition, the superior court found that the rocks
and shrubs were decorative in nature and not reasonably necessary
for  the  easement  purpose after it heard the testimony  of  the
Burnetts  and  Riddle and conducted a site visit.   The  superior
courts  written order provides citations to the trial  transcript
after  each of its findings.  The findings of the superior  court
also addressed and resolved all critical issues and claims of the
case  and  are therefore sufficiently detailed under  Civil  Rule
52(a).
          4.   The  superior courts finding that there was not  a
               significant   threat  of  vandalism  to   Labrenzs
               property is supported by the testimony at trial.
               
          In  finding that Labrenz must move his gate  and  fence
          off of the Burnetts property, the superior court acknowledged
that  there is always that risk of damage from vandals  and  that
Labrenzs desire to protect his property was understandable.   Yet
the  superior court found that Labrenz could effectively  protect
his property simply by moving the gate to his property line.
          Labrenz  argues that the superior courts  finding  that
there is no current risk of vandalism that would justify Labrenzs
fence  and  gate  on  the Burnetts property as  being  reasonably
necessary  is  clearly erroneous because the  finding  [was]  not
based on evidence admitted at the trial.  Labrenz claims that the
superior  court  based its finding on personal knowledge  of  the
character   and  history  of  the  subdivision  and   that   this
undisclosed  prior  knowledge of the character  of  the  area  in
question  calls  its  conclusions into  question.   Labrenz  also
contends  that  the superior courts finding is  contrary  to  the
evidence admitted at trial, including Labrenzs own testimony that
he  observed  damage left by trespassers and that  neighbors  had
called  to  warn  him  about vandals on snow-machines  and  four-
wheelers.
          In  its findings, the superior court addressed Labrenzs
concerns about vandals and noted that previous vandalism had been
in  a  lower  area of the subdivision. But the trial  court  also
noted  a  decline in the use of motorized vehicles in  the  area.
Any  knowledge that the superior court had of the  area  was  not
dispositive as other witnesses testified that there had not  been
any  problems  with trespassers vandalizing the property  in  the
past.   Thus,  the superior courts findings were not contrary  to
the  evidence  admitted at trial; rather the superior  court  was
simply not persuaded by Labrenzs testimony.
     D.   The  Superior  Court Did Not Err in  Finding  That  the
          Burnetts Are Allowed To Use the Easement To Access  the
          Bottom Part of Their Property.
          
          The superior court found that the Burnetts have a right
to  make  reasonable use of the driveway easement on their  land.
Labrenz  argues that the superior court failed to address whether
the  Burnetts  plan to construct a new driveway[]  is  reasonable
under  the circumstances.  Labrenz also argues that the  Burnetts
construction of a new driveway into lot 14A through the  easement
is  a  violation  of the [replat] agreement between  Labrenz  and
Riddle.    Yet  the  Burnetts  persuasively  argue   that   their
construction  of  a new driveway to access the lower  portion  of
their  lot  is  not  a violation of the replat agreement  because
nothing  in  the  replat revokes [their] right  to  access  their
property,  including the easement.  Furthermore, [t]he  owner  of
the  servient estate may utilize the easement area in any  manner
and for any purpose that does not unreasonably interfere with the
rights of the easement holder.20
          The  superior court heard testimony from Shane  Burnett
that  he  would like to access the lower portion of his  lot  but
that  the slope of the land makes it difficult to reach the lower
portion  from  his  existing driveway.  The superior  court  also
heard testimony and visited the property, and it determined  that
the  Burnetts  plan for a second driveway to access  a  different
          part of their lot was reasonable and was not precluded by the
replat agreement.21  Its findings are not clearly erroneous.
     E.   The Superior Court Showed No Bias Against Labrenz.
          After   the  superior  court  issued  its  supplemental
written  findings in May 2007, Labrenz requested a new trial  and
sought  clarification  of  the  superior  courts  decision.   The
superior   court  then  issued  a  supplemental  order  regarding
Labrenzs request for clarification, stating:
          [Labrenzs]  own unreasonable stance  has  led
          him to this situation.  Despite being given a
          practical and equitable opportunity to remove
          and   salvage   the  plants  and  landscaping
          materials  at  issue, he  chose  to  continue
          flogging  the poor expired beast before  this
          court.   [Labrenzs] energies would be  better
          put  to use in determining how he might  best
          reuse  the materials previously consigned  to
          this   driveway,  rather  than  besting  [the
          Burnetts].
          
          Labrenz   claims  that  the  superior  court  expressed
animosity toward him,  demonstrat[ing a] deep commitment  to  the
Burnetts  view  of  the  facts.  Labrenz also  characterizes  the
superior  courts  remarks  as an unjustifiable,  angry  diatribe.
Labrenz cites to the Alaska Code of Judicial Conduct22 and  Ogden
v.  Ogden,  where we remarked that appearance of  impropriety  is
defined  by  an objective standard  one that asks not  whether  a
judicial  officer displayed actual bias but whether  the  conduct
would  create  in reasonable minds a perception that  the  judges
ability  to  carry out judicial responsibilities with  integrity,
impartiality  and  competence is  impaired.23   But  as  we  have
repeatedly cautioned, judicial bias should not be inferred merely
from  adverse rulings.24  The record does not reveal any improper
actions  or  bias  on the part of the superior court  that  would
require  us  to remand the case to a different judge  as  Labrenz
requests.
V.   CONCLUSION
          Because a number of Labrenzs easement improvements were
not reasonably necessary to protect his driveway from erosion and
vandals and because the Burnetts are legally entitled to use  the
easement  on  their  property, we  AFFIRM  the  judgment  of  the
superior court in all respects.
_______________________________
     1    Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979).

     2     E.A. v. State, Div. of Family & Youth Servs., 46  P.3d
986, 989 (Alaska 2002).

     3    892 P.2d 164, 171 (Alaska 1965).

     4     Altman v. Alaska Truss & Mfg. Co., 677 P.2d 1215, 1226
(Alaska 1983).

     5     Martens  v.  Metzgar, 524 P.2d 666, 672 (Alaska  1974)
(quoting Hill v. Waxberg, 237 F.2d 936, 939 (9th Cir. 1956)).

     6    Id. (quoting Hill, 237 F.2d at 937).

     7     Dressel  v.  Weeks, 779 P.2d 324,  329  (Alaska  1989)
(alteration and internal quotation marks omitted).

     8     Krize  v. Krize, 145 P.3d 481, 486 n.19 (Alaska  2006)
(internal quotation marks omitted).

     9    996 P.2d 1211, 1212 (Alaska 2000).

     10    Id. at 1213.

     11     Andersen v. Edwards, 625 P.2d 282, 286 (Alaska  1981)
(internal quotation marks omitted).

     12    Id. (internal quotation marks omitted).

     13     See Kennedy v. Bodi, Mem. Op. & J. No. 3934, 1991  WL
11657237, at *3 (Alaska, July 17, 1991) (Because we find that the
plain  language  of Plat 85-40 does not contemplate  use  of  the
easement for an above-ground cable such as the Bodis, we  believe
that the cable constitutes an unreasonable use of the easement.).

     14    Id. at *2 (citing Andersen, 625 P.2d at 286).

     15    Restatement (Third) of Prop.: Servitudes  4.10 (2000).

     16     See  id.   4.10 cmt. d (The first step in determining
whether  the  holder  of  an  easement  is  entitled  to  make  a
particular use challenged by the owner of the servient estate  is
to  determine whether the use falls within the purposes for which
the servitude was created.).

     17     See id.  4.10 cmt. h  ([T]he easement holder may  not
use  it in such a way as to interfere unreasonably with enjoyment
of   the   servient   estate.    What  constitutes   unreasonable
interference   will   depend  largely   on   the   circumstances,
particularly the purpose for which the servitude was created  and
the use of the servient estate made or reasonably contemplated at
the time the easement was created.).

     18    Id.

     19     2 P.3d 66, 69 (Alaska 2000) (internal quotation marks
omitted).   In Mapco Express, Inc. v. Faulk, 24 P.3d 531,  538-39
(Alaska  2001),  we  remarked that [t]wo major principles  emerge
from  our  past decisions concerning Civil Rule 52(a).   A  trial
courts  findings are sufficiently clear and explicit if they  (i)
allow  for  meaningful  appellate review  and  (ii)  resolve  all
critical issues and disputes between the parties.

     20    Jon W. Bruce & James W. Ely, Jr., The Law of Easements
and Licenses in Land  8.20, at 8-60 (2009); accord 7 Thompson  on
Real Property  60.04(b)(1) (David A. Thomas ed., 2d ed. 2006).

     21    The superior court instructed the Burnetts that if they
develop  a  driveway that uses Labrenzs easement,  they  will  be
responsible for ensuring that the development reasonably protects
Labrenzs driveway.  The Burnetts concede that should they  choose
to  develop their new driveway in a manner outside of the  courts
instructions,  Labrenz  would then have a  possible  unreasonable
interference or waste claim.

     22    Alaska Code of Judicial Conduct Canon 2(A) states that
[i]n  all  activities, a judge shall . . . avoid impropriety  and
the  appearance of impropriety, and act in a manner that promotes
public  confidence in the integrity and the impartiality  of  the
judiciary.

     23     39 P.3d 513, 516 (Alaska 2001) (emphasis and internal
quotation marks omitted).

     24     Tillmon v. Tillmon, 189 P.3d 1022, 1027 n.13  (Alaska
2008);  see  also DeNardo v. Maassen, 200 P.3d 305,  311  (Alaska
2009) (Our past holdings demonstrate that neither interpretations
of  the  law nor adverse rulings alone are sufficient to  require
recusal. (footnotes omitted)); Wasserman v. Bartholomew, 38  P.3d
1162, 1171 (Alaska 2002) (Disqualification was never intended  to
enable a discontented litigant to oust a judge because of adverse
rulings  made.  (internal  quotation marks  omitted));  Pride  v.
Harris,  882  P.2d 381, 385 (Alaska 1994) (Indeed,  every  judge,
when he hears a case or writes an opinion must form an opinion on
the merits and often an opinion relative to the parties involved.
But  this  does  not mean that the judge has a personal  bias  or
prejudice. (alterations and internal quotation marks omitted)).

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