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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dias v. State, Dept. of Transportation and Public Facilities (9/17/2010) sp-6510

Dias v. State, Dept. of Transportation and Public Facilities (9/17/2010) sp-6510

     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


DAVID T. DIAS and )
MARIBELLE DIAS, )
) Supreme Court No. S- 13570
Appellants, )
) Superior Court No. 3AN-08-6170 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF )
TRANSPORTATION AND PUBLIC )
FACILITIES, )
) No. 6510 - September 17, 2010
Appellee. )
)
                                             
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:  Ronald  L.  Baird,  Office   of
          Ronald  L.  Baird, Anchorage, for Appellants.
          Jeffrey P. Stark, Assistant Attorney General,
          Anchorage,  and Daniel S. Sullivan,  Attorney
          General, Juneau, for Appellee.

          Before:     Fabe,   Winfree,  Christen,   and
          Stowers, Justices. [Carpeneti, Chief Justice,
          not participating.]

          STOWERS, Justice.



I.   INTRODUCTION
          The  Diases obtained land that was adjacent to a public
road  and  subject to an easement and right of way  held  by  the
State.  The State contacted them to begin using the easement  and
right of way for road construction.  The Diases filed suit in the
superior court to quiet title, asserting that the State had  only
a  temporary  easement  for  the  removal  of  gravel  and  other
materials  and  that  the temporary easement  had  expired.   The
superior  court  granted the States motion for summary  judgment,
finding  that the instrument conveyed to the State the  right  to
construct  and  maintain a road and perform  related  activities.
The  Diases appeal.  We agree with the superior court and  affirm
the grant of summary judgment.
II.  FACTS AND PROCEEDINGS
          In  1969 Frank Cornelius conveyed an easement and right
of  way  on  land  he  owned in Palmer to the  State  of  Alaska,
Department  of  Highways.1   The conveyance  was  recorded  on  a
standard  form  entitled GRANT OF RIGHT  OF  WAY  EASEMENT.   The
standard  language on the form provided that the grantor conveyed
a perpetual, full and unrestricted easement and right of way.
          A   typewritten  passage  on  the  form  described  the
conveyance  as [a] strip of land 150 feet wide, adjacent  to  the
northwesterly  side  of Trunk Road (Route 565)  .  .  .  [for]  a
distance  of  2000 feet.  A consideration of no/100  dollars  was
typed  into  a corresponding blank on the form.  The  typewritten
description provided that the State will pay ten cents per  cubic
yard  for  gravel or other material removed from above  described
area.   The  form provided space to describe the purpose  of  the
conveyance, which was left blank.  Trunk Road FAS 565  was  typed
into a space provided for PROJECT NO.
          In  1992 Cornelius conveyed a portion of the land  that
was  subject  to  the  easement and right of  way  to  David  and
Merribelle Dias.
          In 2007 the State contacted the Diases to negotiate its
use  of  the  easement and right of way and  the  acquisition  of
additional  right  of  way  for  the  Trunk  Road  Reconstruction
Project.   The  Diases asserted that the State did  not  have  an
existing right of way and refused to convey any additional  right
of way.
          The  Diases  filed a Complaint for Quieting Title  with
the  superior court, asking the court to quiet their interest  in
the property free of any interest of the State.   The State filed
a  counterclaim, asking the court to declare that it had a  valid
easement for highway right-of-way purposes.
          The Diases moved for summary judgment, arguing that the
easement  and right of way was solely for the removal  of  gravel
and  other materials, not construction of a public road, and that
it  had  expired.   The  State filed a cross-motion  for  summary
judgment,  arguing  that the instrument granted  it  a  perpetual
right   to  use  the  easement  and  right  of  way  for  highway
construction and maintenance.
          The  superior court granted the States summary judgment
motion,  concluding that the 1969 instrument granted the State  a
valid and enforceable easement and right-of-way over the [Diases]
property  for  the  purpose  of constructing  and  maintaining  a
roadway, and for other related purposes.
          The Diases appeal.
III. DISCUSSION
     A.   Standard Of Review
          We  review a superior courts grant of summary  judgment
de  novo.2  In our review, we determine whether any genuine issue
of  material fact exists and whether on the established facts the
moving  party  is  entitled to judgment  as  a  matter  of  law.3
Whether  a deed is ambiguous is a question of law subject  to  de
novo review.4
     B.   Three-Step Analysis
          
          When  interpreting deeds, we attempt to give effect  to
the  intentions of the parties using a three-step analysis.5  The
first step is to look to the four corners of the document to  see
if  it  unambiguously presents the parties intent.6  The analysis
ends  here  if the deed, taken as a whole, is only  open  to  one
reasonable interpretation.7
          If  we  determine that the deed is ambiguous, the  next
step in determining the parties intent is a consideration of  the
facts  and  circumstances surrounding the  conveyance.8   If  the
parties intent is still not discernable after examining extrinsic
evidence, then we resort to rules of construction.9
     C.   The  Deed  Unambiguously Grants The State  A  Perpetual
          Right To Construct A Road.
          
          The   Diases   argue  that  the  instruments   language
unambiguously  supports  the  use  of  the  conveyance  only  for
temporary  material  extraction.   The  State  argues  that   the
instrument unambiguously grants it a perpetual highway  right  of
way.    The  language  of  the  instrument  supports  the  States
contention.
          The  instrument grants the State the right to construct
and maintain a highway and to perform related activities, such as
removing  gravel.  The instrument is entitled GRANT OF  RIGHT  OF
WAY  EASEMENT and it conveys an easement and right  of  way.   We
have stated that [a] right-of-way is generally considered to be a
class  of  easement.10   We have described  a  right  of  way  as
primarily a privilege to pass over anothers land,11 and  we  have
consistently used the phrase right of way to refer to  strips  of
land  used  for  passage  of  people  or  things.12   Blacks  Law
Dictionary  also  defines right of way as a right  of  passage.13
Given  the definition of right of way and our past interpretation
of  the  term, the instrument unambiguously gives the  State  the
right to use the land for passage.
          The  instrument provides the State with an easement and
right  of  way  along,  over and across  land.   This  phrase  is
consistent  with  a  purpose  of  highway  construction;  it   is
inconsistent with a purpose limited to only the removal of gravel
and  other materials, which involves removing the materials  from
below  the surface of the land.  The conveyance is a narrow strip
of  land  150  feet wide and 2000 feet long running alongside  an
existing road, a configuration that would reasonably be used  for
a road.
          The  instrument  lists no/100 dollars as  consideration
for  the  easement and right of way, but provides that the  State
          will pay ten cents per cubic yard of gravel or other material
removed  from  the  conveyed area.  The  Diases  argue  that  the
specification of consideration only for the removal of gravel  or
other  material signifies that the instrument conveyed  only  the
right   to   remove  those  materials.   The   lack   of   stated
consideration  for the easement and right of way,  however,  does
not  change  the plain meaning of the instrument.  Cornelius  may
have  had  a  number  of reasons to limit his  cash  payments  to
compensation for materials removed.  For instance,  he  may  have
decided  that  an improved road would increase the value  of  his
property.  Whatever his motivation, the limited cash compensation
does not affect the scope or purpose of the right of way.
          The instrument also grants the State a perpetual right.
The  instrument unambiguously states that the right  conveyed  to
the State is perpetual, defeating the Diases argument that only a
temporary  right was granted.  The grant of a perpetual  easement
and right of way is also consistent with a grant to construct and
maintain  a highway, which is a permanent right, and inconsistent
with  a  grant  to only remove materials, which  is  generally  a
temporary right.
          Taken  as  a whole, an analysis of the four corners  of
the  instrument unambiguously reveals the intent of the  original
parties   the instrument grants the State a perpetual,  full  and
unrestricted  easement and right of way  that  can  be  used  for
highway  construction and maintenance.  The  description  of  the
easement and right of way supports this interpretation,  and  the
financial arrangements do not change it.14
IV.  CONCLUSION
          We   AFFIRM  the  superior  courts  grant  of   summary
judgment.

























          
_______________________________
     1      The  Department  of  Highways  became  part  of   the
Department of Transportation and Public Facilities in 1977.

     2     Nielson  v. Benton, 903 P.2d 1049, 1052 (Alaska  1995)
(citing Tongass Sport Fishing Assn v. State, 866 P.2d 1314,  1317
(Alaska 1994)).

     3     Id. at 1051-52 (citing Wright v. State, 824 P.2d  718,
720 (Alaska 1992)).

     4     Estate of Smith v. Spinelli, 216 P.3d 524, 529 (Alaska
2009).

     5    Id. (internal citations omitted).

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

     7    Id. (internal citations omitted).

     8    Id. (quoting Norken, 823 P.2d at 626).

     9    Id. (internal citations omitted).

     10    Wessells v. State Dept of Highways, 562 P.2d 1042, 1046
n.5 (Alaska 1977) (internal citation omitted).  See also Andersen
v. Edwards, 625 P.2d 282, 284 n.1 (Alaska 1981).

     11    Gerstein v. Axtell, 960 P.2d 599, 600 n.2 (Alaska 1998)
(internal quotations omitted).

     12     See,  e.g.,  N. Alaska Envtl. Ctr. v. State, Dept  of
Natural  Res., 2 P.3d 629, 632 (Alaska 2000) (right  of  way  for
electric transmission line); Gerstein, 960 P.2d at 600 (right  of
way for electric distribution lines); Wessells, 562 P.2d at 1049,
1051  (implying  that rights of way are for road construction  by
stating that one could not reasonably expect a right-of-way to be
triangular in shape and that a right-of-way may follow such route
as is reasonably necessary for the [owners] purposes).
          In  contrast, we referred to a right to use a  material
site  as  a  material  site  right-of-way  in  Foster  v.  State,
Department  of Transportation, 34 P.3d 1288, 1289 (Alaska  2001).
However,  we made other references to simply a right-of-way  that
was used for highway construction.  Id. at 1289.  This difference
in  terms  suggests  that  right  of  way,  with  no  descriptive
modifier, refers to the privilege to pass over land.

     13    Blacks Law Dictionary 1440 (9th ed. 2009) provides the
following  applicable definitions for right of way: 1. The  right
to  pass through property owned by another. . . . 2. The right to
build  and  operate a railway line or a highway on land belonging
to  another,  or  the land so used. . . . 4. The  strip  of  land
subject to a nonowners right to pass through.

     14     Even  if  we  found  the deed to  be  ambiguous,  the
extrinsic evidence compels the same result.  The records for  the
Trunk  Road project contain forms entitled Permit to Take  Borrow
for  Highway  Purposes, which the State uniformly  used  when  it
sought  easements for gravel removal.  These instruments describe
rectangular and triangular easements, consistent with  sites  for
removal of gravel but not consistent with the construction  of  a
road.   The  record contains three other Grant of  Right  of  Way
Easement  instruments  used  for  the  Trunk  Road  project  that
describe strips of land, consistent with construction of a  road.
And two of these instruments explicitly provide that the easement
and  right  of  way  was  for  road  construction.   These  other
instruments provide extrinsic evidence that the State intended to
obtain  rights to construct and maintain a road when it used  the
Grant  of  Right  of  Way Easement instrument with  Cornelius  to
obtain rights to a strip of land.

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