| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
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
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)).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
