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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hansen v. Davis (11/6/2009) sp-6428

Hansen v. Davis (11/6/2009) sp-6428

     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

HARVEY A. HANSEN and )
ANNETTE M. HANSEN, ) Supreme Court No. S- 13210
)
Appellants, ) Superior Court No. 1KE-07-305 CI
)
v. ) O P I N I O N
)
MARVIN P. DAVIS and ) No. 6428 November 6, 2009
ARLENE LANI DAVIS, )
)
Appellees. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  First
          Judicial  District,  Ketchikan,  Michael   A.
          Thompson, Judge.

          Appearances: Christopher J. Boyette,  McCarty
          &  Boyette,  Ketchikan, for  Appellants.   H.
          Clay  Keene  and  Blake M.  Chupka,  Keene  &
          Currall, P.C., Ketchikan, for Appellees.

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

          FABE, Chief Justice.


I.   INTRODUCTION
          When  William  Rodgers sold Lot 53-A  in  Ketchikan  to
Marvin  and  Arlene Lani Davis in 1984, he reserved an  easement1
across  that  lot to access the adjacent lot, Lot  52,  which  he
apparently had hoped to buy at a future date.  But Rodgers  never
used  the  easement  to  access the adjacent  property,  and  the
Davises  planted a garden covering most of the easement area  and
built  a  greenhouse  within the easement.   Harvey  and  Annette
          Hansen purchased Lot 52 in 2006 and subsequently bought the
rights  to the easement on Lot 53-A from Rodgerss widow  in  June
2007.   The Hansens then cleared the easement, built a road,  and
almost completed installing water and sewer lines.  In July  2007
the  Davises sued the Hansens for trespass, alleging  that  their
adverse  use  of  the  easement had  extinguished  it  and  that,
alternatively, Rodgerss widow had ineffectively transferred title
to  the easement to the Hansens.  Following a two-day trial,  the
trial court determined that the easement had been extinguished by
the Davises adverse use before the Hansens purchased the adjacent
property.   We  conclude  that  although  an  easement   can   be
extinguished by prescription, the prescriptive period for adverse
use  of  an  easement does not begin until the  activity  in  the
easement  area  by the owner of the servient estate  unreasonably
interferes with the easement holders use of the easement.   Here,
the  Davises  level  of  activity in the easement  area  was  not
sufficiently  adverse  to trigger the prescriptive  period  until
2003  at  the  earliest,  an  insufficient  length  of  time   to
extinguish  the  easement.  We thus reverse the  superior  courts
decision  that the easement was extinguished by adverse  use  and
remand  for further proceedings on the question of whether  title
to the easement was effectively transferred.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Marvin  and  Arlene Lani Davis and Harvey  and  Annette
Hansen are neighbors in Ketchikan.  The Hansens own Lot 52, which
is adjacent to the Davises property, Lot 53-A.  On the other side
of  Lot 53-A is Lot 53-B, which is owned by Stephen and Sherilynn
Boehlert.
          Lot  53-A  and Lot 53-B were originally owned  by  Mary
Woodley-Mateu.  When Woodley-Mateu subdivided Lot  53  to  create
Lot  53-A  and  Lot 53-B in 1983, she created an access  easement
across  Lot 53-B.  Woodley-Mateu sold Lot 53-A to William Rodgers
in  January 1984, and Rodgers sold the property to the Davises in
April.   The  warranty  deed conveying Lot 53-A  to  the  Davises
reserved  an  easement across Lot 53-A to access  Lot  52,  which
Rodgers  allegedly had hoped to buy at a future date.   The  deed
described  this reservation as a private easement for access  and
ingress  and utilities and sewer across Lot 53-A, for the benefit
of  Lot  52, U. S. Survey 2402.  Said easement to run  along  the
westerly 15 feet of Lot 53-A along the joint boundary of Lot 53-A
and  the  unsubdivided portion of Lot S, U. S. Survey  2402.  The
deeds  reservation of the easement further provided  that  [s]aid
easement  shall be only for the benefit of Grantor, his grantees,
heirs and assigns.
          After  purchasing Lot 53-A, the Davises sought a  legal
opinion as to the validity of the easement reserved in the  deed.
They  were  advised  in  a letter dated July  8,  1985  that  the
easement  was  not legally enforceable.2  That fall  the  Davises
began  building frames for a garden in the easement area, and  by
1987  their  garden  covered most of the easement.   The  Davises
maintained this garden until the late nineties.  The Davises also
built a greenhouse within the easement in 2003, but by this  time
they  were gardening less and their garden no longer covered most
          of the easement.  It is undisputed that Rodgers never used the
easement to access Lot 52, apparently because Rodgers never owned
Lot 52.
          The  Hansens  bought Lot 52 in July 2006.  The  Davises
gave  the Hansens limited access across their property in January
and  February 2007 to remove logs from Lot 52.  In early February
the  Hansens offered the Davises $5,000 to access their  property
through  the Davises property.  But the Davises turned  down  the
offer  and  asked the Hansens to remove all of the equipment  for
the  logging  operation from Lot 53-A.  The Hansens  removed  the
equipment and the next contact with the Davises appears  to  have
been in June 2007.
          That  month the Hansens purchased from Rodgerss  widow,
Christine Riegler, the easement that Rodgers had reserved when he
sold  Lot 53-A to the Davises.  Rodgers had died in Ohio in 2002.
In  his  will, Rodgers appointed Riegler as the executrix of  his
estate  and  made her the beneficiary of the rest and residue  of
his  estate.   Rodgerss  will  did not  specifically  devise  the
easement reserved in the 1984 deed for Lot 53-A.
          The   Hansens  informed  the  Davises  that  they   had
purchased  the  easement across Lot 53-A, that  they  planned  to
access  their property using the easement, and that  they  wanted
the  Davises  to  clear the easement.  After the Hansens  learned
that  the  Davises  did not intend to remove  anything  from  the
easement  area, the Hansens disassembled and removed  the  garden
frames and greenhouse themselves and then cleared the area  using
a  weed-eater.3   The  Hansens  also  built  a  road  and  nearly
completed installation of water and sewer lines.
     B.   Proceedings
          The  Davises  sued  the Hansens  in  early  July  2007,
alleging  trespass  and  damage  to  their  property.   In  their
complaint,  the  Davises claimed that their adverse  use  of  the
easement had extinguished it.  The Davises also asserted that the
Hansens  had  a  defective claim of title to the easement  across
their  property, arguing that Rodgerss widow had not successfully
transferred  the easement to the Hansens because the deed  failed
to  comply  with the Alaska Probate Code.  The Hansens  filed  an
answer and counterclaim, seeking a judgment quieting title to the
easement  in their favor and an order enjoining the Davises  from
interfering with their use and enjoyment of the easement.
          In February 2008 the Davises sought summary judgment on
their  claim  that  the Hansens claim of title  to  the  easement
across their property was defective, arguing that Rodgerss  widow
failed  to file an ancillary probate proceeding in Alaska  before
transferring the easement to the Hansens.  In asking the superior
court  to  determine the validity of [the Hansens] title  to  the
alleged easement across Lot 53[-]A benefiting Lot 52, the Davises
noted that [t]he threshold issue in this dispute is [the Hansens]
right  to access Lot 52 by means of the easement across Lot  53-B
and an alleged easement across Lot 53-A.  The Hansens opposed the
motion and cross-moved for summary judgment on the claim, arguing
that  the  technical legal defect in transferring  title  to  the
easement  had been cured and that they thus held legal  title  to
the easement.
          Superior  Court  Judge Michael A. Thompson  denied  the
Davises   summary  judgment  motion,  reasoning  that  the   deed
transferring  Lot 53-A from Rodgers to the Davises  expanded  the
existing   easement  appurtenant  benefitting  Lot  53-A   across
Lot  53-B  and that the Davises took ownership of Lot  53-A  with
notice  that the easement could be developed later.  The superior
court  also ruled that [t]he related motion regarding the  status
of  the  Ohio  deed seems mooted by this decision.  Finally,  the
superior court ruled that [t]o the extent that plaintiffs  assert
trespass to Lot 53-B, they lack standing because they do not  own
Lot 53-B.
          A  bench trial was held on May 15 and 16, 2008.  At the
conclusion  of  the  trial, the superior  court  issued  an  oral
decision,  ruling  that  the Davises  had  proved  by  clear  and
convincing  evidence that they adversely possessed  the  easement
before  it was bought by the Hansens.  Thus, there was no  longer
an easement for [the Hansens] to acquire from Mrs. Riegler, . . .
making  the facts of that transfer, or proposed transfer[,]  from
Ms.  Riegler  moot.  Finding that the Hansens trespassed  on  the
Davises  property, the superior court awarded the Davises $13,345
in restoration damages.
          The  superior court issued a written decision  in  July
2008.  The superior court clarified that the Davises adverse  use
of  the easement had the effect of rendering said easement to  be
null and void as of 1995.  The superior court entered judgment in
the  amount  of $13,345.00 and awarded the Davises $30,158.85  in
attorneys fees.
          The Hansens appeal.
III. STANDARD OF REVIEW
          We  review questions of law de novo, adopting the  most
persuasive rule of law upon examination of precedent, reason, and
policy.4
IV.  DISCUSSION
     A.   It  Was  Error  To Hold that the Hansens  Easement  Was
          Extinguished by Prescription.
          
          The  trial court held that the Davises proved by  clear
and  convincing  evidence that they had adversely  possessed  the
easement  that Rodgers had reserved when he transferred Lot  53-A
to  them  and  that  this  had the effect  of  extinguishing  the
easement  as  of  1995.  The Hansens argue that this  holding  is
erroneous   because  an  easement  cannot  be   extinguished   by
prescription in Alaska.  They argue alternatively that even if an
easement  can  be extinguished by prescription, the  prescriptive
period in this case would not have run for a sufficient length of
time to extinguish the easement.
          The  Hansens challenge presents two questions of  first
impression.    First,   can  an  easement  be   extinguished   by
prescription  in Alaska?  And second, if it can,  when  does  the
prescriptive period begin to run for adverse use of an  easement?
We  hold that an easement can be extinguished by prescription and
that  the  prescriptive period for adverse  use  of  an  easement
commences   when  the  conduct  of  the  servient  estate   owner
unreasonably  interferes with the current or prospective  use  of
          the easement by the easement holder.  Here, the prescriptive
period  for termination of the Hansens easement ran, if  at  all,
for less than the requisite ten years.  Therefore it was error to
hold that the Hansens easement was extinguished.
          1.   An easement may be extinguished by prescription.
          Alaska  Statutes govern the acquisition  of  rights  in
anothers property by adverse possession and the establishment  of
an  easement by prescription.5  In both cases, a person must  use
the  land for a period of ten years absent color of title  before
bringing a claim.6  But no statute speaks to the questions raised
here:  whether and to what extent an easement can be extinguished
by prescription.
          The Hansens ask us to hold that easements may never  be
extinguished   by  prescription.   They  cite  2003   legislative
amendments   curtailing  adverse  possession  in   arguing   that
[t]ermination of an easement by prescription is contrary  to  the
public  policy  of  the State of Alaska.  We find  this  argument
unpersuasive.    In  amending  the  statutes  governing   adverse
possession,  the Alaska Legislature increased the burden  that  a
litigant  bears in proving adverse possession of anothers  land.7
But  it  did  not  eliminate adverse possession and  prescriptive
easement  claims  altogether.  We find  no  support  for  such  a
categorical  rule allowing easement holders to seek  redress  for
violations   of  their  rights  in  an  easement  in  perpetuity.
Instead,  we  follow  the  approach adopted  by  the  Restatement
(Third)  of  Property8 and many jurisdictions9 and hold  that  an
easement can be extinguished by prescription.
          2.   The prescriptive period begins to run when the use
               of  the  easement  by  the servient  estate  owner
               unreasonably  interferes with use of the  easement
               by the easement holder.
          As  with  a  claim  that  an easement  was  created  by
prescription,10 a party claiming that an easement was extinguished
by  prescription must prove continuous and open and notorious use
of  the  easement  area  for  a  ten-year  period  by  clear  and
convincing  evidence.  The more difficult question is what  level
of  activity in the easement area by the servient estate owner is
sufficiently  adverse  and  hostile to trigger  the  prescriptive
period.   In contrast to a claimant for adverse possession  or  a
prescriptive  easement,  a  party  claiming  termination  of   an
easement by prescription already has the right to use the area in
question.   Indeed,  so long as the use is  consistent  with  the
rights  granted  in the easement, the owner of a servient  estate
may  make substantial use of the easement area.11  At what point,
then,  does use of the easement area by the owner of the servient
estate cross the line from permissible to hostile and adverse  so
as to trigger the prescriptive period?
          We hold that the prescriptive period is triggered where
the  use  of  the  easement unreasonably  interfere[s]  with  the
current  or  prospective  use of the  easement  by  the  easement
holder.12   When satisfied, the various requirements  of  adverse
possession,  and  similarly prescription,13  serve  to  put  [the
property owner] on notice of the hostile nature of the possession
so  that he, the owner, may take steps to vindicate his rights by
          legal action.14 Use of the easement that unreasonably interferes
with the easement owners enjoyment of the easement is adequate to
give  notice that the easement is under threat.15  Moreover, such
extensive  use constitutes a distinct and positive  assertion  by
the servient estate owner that his or her use of the easement  is
hostile to the rights of the easement holder and is not merely  a
permissive use.16  This rule balances the rights of the  servient
estate owner to make use of the easement area consistent with the
scope  of  the easement, encouraging productive use  of  easement
areas,  with  the  rights of the easement  holder  to  enjoy  the
benefits  of a recorded easement, providing assurance that  minor
activities  in  the  easement  area  will  not  result   in   the
termination of the easement.
          Determining what constitutes unreasonable interference,
and  thus triggers the prescriptive period, will be heavily  fact
dependent.   Where the easement holder has not used the  easement
for  some time, or at all, the servient estate owner enjoys  wide
latitude with respect to use of the easement area, and a  showing
of extensive activity will be required to demonstrate adversity.17
As  a  general  guideline, temporary improvements  to  an  unused
easement  area  that  are  easily and cheaply  removed  will  not
trigger   the   prescriptive  period;  permanent  and   expensive
improvements  that  are  difficult and damaging  to  remove  will
trigger  the  prescriptive period.18  The burden on the  servient
estate  owner to prove unreasonable interference with  an  unused
easement  is  high,  consistent  with  the  policy  of  the  2003
legislative  amendments  that  curtailed   but  did  not  abolish
claims of adverse possession.19
          We decline the Hansens invitation to adopt as a general
rule  the even more restrictive test for termination of an unused
easement by prescription first set forth in Castle Associates  v.
Schwartz   that  use by the owner of a property  burdened  by  an
easement  is  not hostile, even if it might prevent the  easement
holder  from  using the easement, until the easement  holder  has
attempted to use the easement or a demand to use the easement has
been  refused.20   While  this rule has  been  adopted  in  other
jurisdictions,21 we do not find it to be most persuasive in light
of precedent, reason, and policy.
          Our  jurisprudence  concerning adverse  possession  and
creation  of  easements  by  prescription  imposes  no  analogous
requirement  that  the  property owner  retake  the  property  or
unsuccessfully demand cessation of the claimants use  before  the
statutory  period  commences.  In fact, any interruption  in  the
claimants possession or use could instead toll the running of the
statutory  period.22  Furthermore, such a restrictive rule  would
allow an easement holder to maintain an easement in perpetuity by
simply  ignoring all communications from a servient estate  owner
wishing  to purchase a release of an unused easement in order  to
build  permanent improvements on the easement area.  The rule  we
have  adopted  today best balances the rights of  the  interested
parties.
          In  this  case, it is undisputed that the easement  was
unused  by  an  easement  holder from its  creation  until  2007.
Beginning in 1985, the Davises built frames for and maintained  a
          garden in the easement area, covering most of the easement by
1987.  In 2003 the Davises built a greenhouse within the easement
area.   As  a matter of law, the maintenance of a garden  on  the
easement  area  did  not  constitute an improvement  sufficiently
adverse to commence the prescriptive period.23  We need not decide
whether construction of the greenhouse triggered the prescriptive
period because ten years have not yet elapsed since it was built.
Therefore,  we  conclude  that  the  Hansens  easement  was   not
extinguished by prescription.
     B.   We  Decline  To Rule on the Quiet Title Question  as  a
          Matter of Law.
          
          The Davises urge us to affirm the trial courts decision
on  an alternative ground, ruling as a matter of law that Riegler
never  effectively transferred ownership of the easement  to  the
Hansens.   The trial court, however, did not address this  issue,
reasoning  that it was mooted by its decision that  the  easement
had   been  extinguished  before  the  Hansens  bought  Lot   52.
Questions  concerning a propertys chain of title are often  fact-
intensive,24  and  the  trial court is in the  best  position  to
address questions of fact.25  We therefore decline to decide this
issue  as  a matter of law and remand for a hearing on the  quiet
title action under AS 09.45.010.26
V.   CONCLUSION
          The  prescriptive period for termination of an easement
by  adverse use is not triggered until the servient estate owners
use  unreasonably  interferes with use of  the  easement  by  the
easement  holder.  Assuming that Riegler effectively  transferred
ownership of the easement to the Hansens, the prescriptive period
in this case did not commence until 2003 at the earliest and this
precludes  the Davises from satisfying the ten-year  adverse  use
requirement  for  extinguishing an easement by prescription.   We
therefore REVERSE the superior courts decision that the  easement
was  extinguished  by adverse use and REMAND for  an  evidentiary
hearing on the easements chain of title.27
_______________________________
     1     An easement creates a nonpossessory property right  to
enter  and  use  land in the possession of another [the  servient
estate owner] and obligates the possessor [of the burdened  land]
not  to  interfere  with  the uses authorized  by  the  easement.
Restatement (Third) of Property: Servitudes  1.2(1) (2000).

     2     Although there was testimony about the letter  at  the
trial, the letter was not offered or admitted into evidence.

     3    We point out that easement holders should not engage in
such self-help remedies where the owner of the servient estate in
good  faith  disputes the validity of the easement.   The  proper
remedy  for  the  holder  of a disputed easement  that  has  been
blocked is to file a quiet title action to establish the validity
of  the easement and to seek an injunction requiring the clearing
of  the  easement and damages where appropriate.  See Restatement
(Third) of Property: Servitudes  8.3 (2000) (A servitude  may  be
enforced  by  any appropriate remedy or combination of  remedies,
which may include declaratory judgment, compensatory damages, . .
.  [and]  injunctions . . . .).  Where the  easement  is  not  in
dispute,  easement holders must still be cautious  when  clearing
the  easement themselves.   See Jewell v. Kroo, 517 P.2d 657, 659
(Or.  1973) (en banc) (The owner of the dominant estate may enter
on  the  servient  estate  for  the  purpose  of  doing  anything
reasonably  necessary  to the proper exercise  of  his  easement.
Whether  the acts of the defendants were reasonably necessary  to
the  exercise  of  their  easement  or  whether  their  self-help
exceeded  these bounds is a question of fact which  is  dependent
upon the circumstances.) (citations omitted).

     4     Kazan  v. Dough Boys, Inc., 201 P.3d 508, 513  (Alaska
2009).

     5     See AS 09.10.030(a); AS 09.45.052; see also McGill  v.
Wahl,  839  P.2d 393, 396 (Alaska 1992) (AS 09.10.030 establishes
the  method  by  which  a  claimant may establish  title  through
adverse  possession and constitutes a method for establishing  an
easement through prescription.).

     6    Interior Trails Pres. Coal. v. Swope, 115 P.3d 527, 529-
30 (Alaska 2005).

     7     To  prevail under the amended adverse possession  law,
claimants must now show that they believed in good faith that the
disputed  land  lies within the boundaries of their  property  in
addition to proving, as they had been required to prove prior  to
the  2003 legislative amendments, that their use of the land  was
continuous, open and notorious, exclusive and hostile to the true
owners  for the statutory period.  Compare ch. 147,  3, SLA  2003
(amending  Alaskas  adverse possession statutes  to  include  the
additional requirement that litigants asserting ownership of real
property by adverse possession absent color of title have a  good
faith but mistaken belief that the real property lies within  the
boundaries  of  adjacent  real  property  owned  by  the  adverse
claimant),  with  Vezey v. Green, 35 P.3d 14,  20  (Alaska  2001)
(listing  the requirements of adverse possession absent color  of
title under Alaskas adverse possession statutes prior to the 2003
legislative amendments).

     8      Restatement  (Third)  of  Property:  Servitudes   7.7
(2000).

     9     See,  e.g., Landgray Assocs. v. 450 Lexington Venture,
L.P.,  788  F. Supp. 776, 785 (S.D.N.Y. 1992) (holding  that  the
plaintiffs   light   and  air  easement   was   extinguished   by
prescription to the extent that the defendants maintenance  of  a
conveyor structure for the prescriptive period had obstructed the
easement);  Faulconer v. Williams, 964 P.2d 246, 253  (Or.  1998)
(holding that the plaintiffs adverse use of the easement area for
the  prescriptive  period extinguished the  easement  across  the
plaintiffs land); Norman v. Belcher, 378 S.E.2d 446, 449 (W.  Va.
1989)  (holding  that  even  if the  defendant  had  acquired  an
easement by prescription, it was subsequently extinguished by the
plaintiffs use of the easement area for the prescriptive period).

     10    See Interior Trails Pres. Coal., 115 P.3d at 530.

     11    See 7 Thompson on Real Property  60.08(b)(7)(i) (David
A. Thomas ed., 2004) (The servient owner already has the right to
use  the servient tenement in any way that does not obstruct  the
easement . . . .).

     12     Restatement (Third) of Property: Servitudes  4.9; see
also  Jon W. Bruce & James W. Ely, Jr., The Law of Easements  and
Licenses  in  Land   10:25  (2008)  (The  general  standard  [for
determining adversity] is that the servient estate owners conduct
must  unequivocally and substantially interfere with the easement
holders use of the servitude.).  The prescriptive period may also
be  triggered where the use of the easement violates  an  express
term  in the easement, an issue not relevant to the facts of this
case.

     13     See McDonald v. Harris, 978 P.2d 81, 83 (Alaska 1999)
(The elements of a prescriptive easement are essentially the same
as  the  elements  of  adverse possession,  except  that  adverse
possession  focuses  on  possession rather  than  use.  (footnote
omitted)).

     14     Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d
826, 832 (Alaska 1974).

     15      7   Thompson  on  Real  Property,  supra  note   11,
60.08(b)(7)(i).

     16     McDonald, 978 P.2d at 85 (stating that in the case of
prescriptive  easement  claims,  a  claimant  must  overcome  the
presumption that use of anothers property was permissive).

     17    Bruce & Ely, supra note 12,  10:25.

     18     Of  course,  an  owner  of a  servient  estate  makes
permanent and expensive improvements to a valid easement area  at
his  or  her  peril.  A servient estate owner is not entitled  to
unreasonably  interfere with use of the easement by the  easement
holder  by  making  such improvements.  Cf. Kelley  v.  Matanuska
Elec.  Assn, Mem. Op. & J. 12488, 2008 WL 4367550, at *7 (Alaska,
September 24, 2008) (agreeing that the owner of land burdened  by
an  easement held by a utility company was entitled to the use of
his  property as long as it does not unreasonably interfere  with
[the utility companys] use of its easement (citations omitted)).

     19    See supra note 7 and accompanying text.

     20     407 N.Y.S.2d 717, 723 (N.Y. App. Div. 1978) (applying
test  where servient estate owner erected fence blocking  use  of
easement).

     21    See, e.g., Sabino Town & Country Estates Assn v. Carr,
920  P.2d  26,  30 (Ariz. App. 1996); Vandeleigh Indus.,  LLC  v.
Storage  Partners  of Kirkwood, LLC, 901 A.2d  91,  105-06  (Del.
2006);  Kolouch  v.  Kramer, 813 P.2d 876, 879-80  (Idaho  1991);
Halverson  v. Turner, 885 P.2d 1285, 1290 (Mont. 1994);  City  of
Edmonds  v.  Williams,  774 P.2d 1241, 1244  (Wash.  App.  1989);
Mueller v. Hoblyn, 887 P.2d 500, 508-09 (Wyo. 1994).

     22    See Swift v. Kniffen, 706 P.2d 296, 303 (Alaska 1985);
Alaska Natl Bank v. Linck, 559 P.2d 1049, 1052 (Alaska 1977).

     23    See, e.g., Smith v. Muellner, 932 A.2d 382, 393 (Conn.
2007)  ([C]ourts routinely reject that vegetation on an easement,
both cultivated and natural, constitutes adverse use adequate  to
extinguish the easement.).

     24    See, e.g., Capener v. Tanadgusix Corp., 884 P.2d 1060,
1074  (Alaska 1994) (holding that genuine issues of material fact
precluded  summary judgment in a quiet title action involving  an
occupier  of  land that had been conveyed to a corporation  under
the  Alaska Native Claims Settlement Act); Wickwire v.  McFadden,
576  P.2d  986,  987 (Alaska 1978) (reversing a summary  judgment
order  in  an  action to quiet title to a lot  in  a  subdivision
because  there  was a genuine issue of material  fact  concerning
whether  the  seller could convey good title to the  buyer  in  a
timely manner).

     25     See  Kirby  v. State, 649 P.2d 963, 970 (Alaska  App.
1982)  ([T]he  trial court is in a better position than  is  this
court to rule upon the factual aspects of the case . . . .);  see
also  Veselsky v. Veselsky, 113 P.3d 629, 634 n.16 (Alaska  2005)
(We  have  held that the trial court, not this court, is  in  the
best  position to judge witnesses credibility and evaluate  their
testimony.).

     26    In hearing the quiet title action on remand, it may be
wise  to  include  all parties, including third parties  such  as
Riegler,  who  have had or may have an interest in  the  easement
across  Lot 53-A.  On remand, the Davises allegation of  trespass
to  their neighbors property is not an issue.  Although  we  have
broadly   interpreted  the  concept  of  standing  in  favor   of
increasing  accessibility  to the courts,  a  litigant  is  still
required  to have a sufficient personal stake in the  outcome  of
the  controversy  to have standing to sue.  Hoblit  v.  Commr  of
Natural Res., 678 P.2d 1337, 1340 (Alaska 1984); Moore v.  State,
553  P.2d  8,  23  (Alaska  1976).  The purpose  of  requiring  a
personal stake is to guarantee that there is adversity, which  is
fundamental  to judicial proceedings. Hoblit, 678 P.2d  at  1340.
Here,  the Boehlerts own Lot 53-B, and they are the ones directly
affected  by the Hansens using their land to access Lot  52.   To
achieve the necessary adversity for a trespass action for Lot 53-
B,  the  Boehlerts are the proper plaintiffs to bring this claim.
Thus,  we  affirm the trial courts decision that [t]o the  extent
that  [the  Davises]  assert trespass  to  Lot  53-B,  they  lack
standing because it is not a cause of action accruing to  [them],
and  this court is without jurisdiction to adjudicate the  rights
of the Boehlerts, parties not before it.

     27     Our  disposition requires us to vacate  the  superior
courts award of damages and attorneys fees to the Davises,  which
makes  it  unnecessary to consider the Hansens argument that  the
attorneys  fee award should be reduced.  See Holta  v.  Certified
Fin.  Servs., Inc., 49 P.3d 1104, 1111 n.22 (Alaska 2002) (noting
that  consideration of the sufficiency of the attorneys fee award
is  unnecessary because the decision to reverse the  judgment  on
its merits requires that the award be vacated).

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