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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cowan v. Yeisley (5/27/2011) sp-6560

Cowan v. Yeisley (5/27/2011) sp-6560, 255 P3d 966

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

HAROLD M. COWAN and                                   ) 
ELLEN JANE COWAN,                                     ) 
                                                      )   Supreme Court No. S-13380 
               Appellants,                            ) 
                                                      )   Superior Court No. 1KE-06-00310 CI 
        v.                                            ) 
                                                      )  O P I N I O N 
SHARON YEISLEY, GERALD BYRON,                         ) 
CHERRYLE BYRON, KETCHIKAN                             )   No. 6560 - May 27, 2011 
GATEWAY BOROUGH, and all other                        ) 
persons or unknown parties claiming a right,          )
title, estate, lien, or other interest in the real    )
estate described in the Complaint in this             )
action, hereby designated as JOHN DOES,               )
                                                      )
               Appellees.                             )
 						      )
 

               Appeal from the Superior Court of the State of Alaska, First 
               Judicial District, Ketchikan, Michael A. Thompson, Judge. 

               Appearances:   Michael P. Heiser, Ketchikan, for Appellants. 
                Scott A. Brandt-Erichsen, Borough Attorney, Ketchikan, for 
               Appellee Ketchikan Gateway Borough, and H. Clay Keene 
               and Blake M. Chupka, Keene & Currall, P.C., Ketchikan, for 
               Appellee Sharon Yeisley. 

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

                STOWERS, Justice. 

----------------------- Page 2-----------------------

I.     INTRODUCTION 

              In 1948 Claude Yeisley received a patent to Tract A, consisting of 4.45 

acres of land in Ketchikan, from the United States.      In 1956 he deeded a lot of land 

within Tract A to his daughter and her husband, the Cowans, along with a "perpetual 

right of way running with the land" over a 30-foot strip of "right of way" running along 

the southeastern side of Tract A.    Between 1960 and 1973, Claude Yeisley conveyed 

most of the remainder of Tract A to his  son and daughter-in-law, James and Sharon 

Yeisley.   None of the deeds issued between 1960 and 1973 mentioned the right of way. 

In 1980 James Yeisley applied for a subdivision of all of Tract A with the exception of 

the Cowans' land.   The plat showed the right of way; it was approved and recorded.  The 

property was resubdivided in 1981, and the new plat also showed the right of way.  By 

marking the right of way, the two plats had the effect of dedicating the right of way to 

the Ketchikan Gateway Borough. 

              In 2006 the Cowans filed suit against the Borough, Sharon Yeisley, and 

other parties, requesting quiet title to the right of way.  They argued that the 1956 deed 

conveyed it to them, or, in the alternative, that they had obtained title through adverse 

possession.   All parties filed motions for summary judgment.  The superior court ruled 

that the 1956 deed did not convey the disputed land to the Cowans, and denied summary 

judgment on the adverse possession claim.      On the first day of trial, the superior court 

ruled that it would apply the then-current adverse possession statute (amended in 2003) 

instead of the statute in effect in 1980.  The court found that the 2003 statute foreclosed 

the Cowans' claims and entered judgment in the defendants' favor.  The Cowans appeal 

the superior court's rulings on the 1956 deed, the adverse possession claim, and other 

claims. 

              Because we find that it was error to apply the 2003 adverse possession 

statute and because the Cowans raised a genuine issue of material fact as to whether they 

                                            -2-                                       6560
 

----------------------- Page 3-----------------------

adversely possessed the disputed land under the pre-2003 adverse possession statute, we 

remand for further proceedings on the adverse possession claim. 

II.     FACTS AND PROCEEDINGS 

        A.     Land Grant And Conveyance 

               On April 5, 1948, the United States issued a patent granting Claude Yeisley 
title to Tract A, consisting of 4.45 acres of land in Ketchikan.1  In 1953 Harold and Ellen 

Cowan built a house on a portion of Tract A with Claude's permission.                Claude also 

commissioned Milford Page to prepare a plat of Lot 1, the portion of Tract A on which 

the Cowans had built their house.        The Page plat showed a 30-foot wide "R.O.W.," or 

"right-of-way," at the southeastern boundary of Tract A, but it was never recorded. 

               In July 1956 Claude executed and recorded a warranty deed (1956 deed) 

conveying Lot 1to the Cowans. The legal description of Lot 1 in the 1956 deed matched 

the description on the Page plat.  The 1956 deed also granted the Cowans "[a] perpetual 

right of way running with the land over the 30 foot strip of right of way, which right of 

way abuts the southeasternly sideline of . . . Tract A." 

               In 1960 and 1963 Claude executed warranty deeds conveying Lots 2-4 of 

Tract A to James and Maxine Smith (the Smiths). In 1963 Claude executed and recorded 

another warranty deed (1963 deed) conveying a lot of land adjacent to the southeastern 

boundary of Tract A to the Cowans. 

               In   1971   Claude   executed   and   recorded   a   warranty   deed   (1971   deed) 

conveying Lot 5 of Tract A to his son and daughter-in-law, James and Sharon Yeisley. 

In 1973 Claude executed and recorded another warranty deed (1973 deed) conveying a 

large portion of Tract A to James and Sharon. 

        1      See Appendix for an illustration of Tract A. 

                                                -3-                                            6560 

----------------------- Page 4-----------------------

                None of the above deeds explicitly conveyed the 30-foot strip of land (the 

disputed land) first referred to in the Page plat as a "R.O.W."  The sole reference to the 

disputed land in any of the deeds is the grant of a "perpetual right of way running with 

the land" in the 1956 deed to the Cowans. 

        B.      Subdivision Of Tract A And Dedication Of Disputed Land To Borough 

                In 1979 James Yeisley commissioned a subdivision survey as part of a 

subdivision   application he had filed with the Ketchikan Gateway Borough (Borough). 

In   February   1980   the   Zoning   Administrator   for   the   Borough   recommended   that   the 

Planning Commission approve the commissioned survey as a plat of the land.                      In the 

recommendation, "the right-of-way shown on the proposal" -                 the disputed land - was 

"confirmed as existing." 

                During a hearing before the Planning Commission, Harold Cowan objected 

to the preliminary plat and stated that "he [had] a 30 foot right-of-way and the lower lines 

[of the commissioned survey] don't show this." The Planning Commission approved the 

plat with the condition that the final plat note a 30-foot right of way.  In March 1980 the 

Borough   recorded   a   modified   version   of   the   1979   survey   as   final   plat   80-9. The 

certificate of ownership on plat 80-9 was signed only by the Yeisleys; the Cowans did 

not sign the plat. 

                In May 1980 Ellen Cowan wrote a letter to the Borough stating that she was 

"holding a deed to [the] existing 30 ft right of way" and that she had "no intention of 

opening up this right of way to anyone."  In 1981 there was an additional resubdivision 

of Tract A.    A new plat was recorded as plat 81-40, and only the Yeisleys signed the 

certificate of ownership. 

        C.      Later Developments On Tract A 

                After acquiring the land in the 1963 deed, the Cowans built a driveway 

connecting their home on Lot 1 to the road that ran across part of the disputed land. 

                                                  -4-                                            6560
 

----------------------- Page 5-----------------------

Ellen Cowan affied that the Cowans used the "remainder of the thirty-foot (30') right-of- 

way . . . in the same manner as the rest of [their] property - as an area for the children 

to play, to grow flowers, to park cars, etc."  In addition, Ellen Cowan affied that Sharon 

Yeisley attempted to use the disputed land twice, but that she stopped when the Cowans 

"advised her she was trespassing."            Ellen also affied that the Cowans saw "various 

surveyors" on their property from 1979 to 1981 and that they would ask the surveyors 

to leave or "chase them off." 

                In 1986 the Cowans brought suit for quiet title after Sharon Yeisley hired 

contractors to build on the disputed land in 1984.  Sharon did not follow through on her 

plans to develop the land, and the Cowans' lawsuit was dismissed for lack of prosecution. 

                In January 2006 Sharon Yeisley conveyed a portion of her property to 

Gerald and Cherryle Byron (the Byrons). 

        D.      Trial Court Proceedings 

                In   July   2006   the   Cowans   again   filed   suit   against   Sharon   Yeisley,   the 

Byrons, and the Borough.   The Cowans sought quiet title to the disputed land, claiming 

that they were its owners through the 1956 deed or through adverse possession, and that 

plats 80-9 and 81-40 were invalid because, as the owners of Lot 1 with an interest in the 

disputed land, their signatures were required for a valid plat.  They also raised trespass 

claims against Sharon Yeisley and the Byrons, and claimed that the Byrons had interfered 

with their water rights.   In response, Sharon and the Byrons filed several counterclaims 

and cross-claims. 

                In   November   2006   the   Borough   filed   a   motion   for   partial   summary 

judgment on the Cowans' quiet title claim to the disputed land.  The Borough argued, in 

part, that the Cowans' claim was barred by waiver, estoppel, and laches, and that the 

                                                   -5-                                            6560
 

----------------------- Page 6-----------------------

Borough was entitled to clear title because the land was validly dedicated to the public 

in plats 80-9 and 81-40. 

                 In January 2007 Sharon Yeisley filed a motion for summary judgment on 

the   Cowans'   quiet   title   and   trespass   claims.  She   argued   that   the   1956   deed   only 

conveyed an easement interest to the Cowans, that the Cowans did not obtain title to the 

disputed land through adverse possession, and that the Borough was the fee simple 

owner.     The Cowans argued in response that there was a genuine issue of material fact 

whether they had adversely possessed the disputed land, and that Sharon's claims were 

barred by waiver, estoppel, and laches. 

                In March 2007 the Cowans filed a motion for summary judgment on all of 

their claims, and the Byrons filed a motion for summary judgment on the Cowans' quiet 

title, trespass, and water rights claims. 

                On April 23, 2007, the superior court issued an "Omnibus Order" on all the 

parties'   motions   for   summary   judgment.       The   court   denied   the   Byrons'   motion   for 

summary judgment on the issues of trespass and water contamination.                    It held that the 

1956 deed did not grant the Cowans a fee interest in the disputed land, and that Sharon's 

claims were not barred by waiver, laches, or estoppel.               It also held that the Cowans' 

ownership of Lot 1 did not render plats 80-9 and 81-40 invalid, but that the plats might 

be invalid if the Cowans had obtained fee title to the disputed land through adverse 

possession before the 1980 dedication.  The court then held that the Cowans had raised 

a genuine issue of material fact on whether their possession of the disputed land was 

"hostile" and whether it had ripened into title before dedication.               It therefore denied 

summary judgment on the adverse possession claim. 

                On July 1, 2008, the parties came before the superior court for trial.          On the 

first day of trial, the court ruled that the "modern test," or post-2003 adverse possession 

                                                  -6-                                             6560
 

----------------------- Page 7-----------------------

law, applied.2   The court held that the Cowans could not, as a matter of law, fulfill current 

AS 09.45.052        requirements that they either have color of title or a "good faith but 

mistaken belief" that the disputed land was within the boundaries of their property; the 

court entered judgment in the Borough's favor on the quiet title claim.  Because the 

Cowans did not have an ownership interest in the disputed land, the court's ruling also 

mooted the trespass claims, and the Cowans voluntarily dismissed their water rights 

claim against the Byrons. 

                The court awarded Sharon $58,673.32,representing a mixture of attorney's 

fees   under   Alaska   Civil   Rules   82(b)(2)   and   68(b).  It   also   awarded   the   Borough 

$1,985.96  in   attorney's   fees   under   Rule   82,   and   awarded   the   Byrons   $12,137.25, 

representing a mixture of attorney's fees under Rules 82 and 68. 

                The Cowans appeal. 

III.    STANDARD OF REVIEW 

                When   reviewing   a   grant   of   summary   judgment,   we   "must   determine 

whether any genuine issue of material fact exists and whether the moving party is entitled 
to judgment on the law applicable to the established facts."3         "All reasonable inferences 

of fact from proffered materials must be drawn against the moving party and in favor of 
the non-moving party."4 

        2       In 2003 the Legislature changed the adverse possession statute to eliminate 

adverse possession where the claimant does not have color of title or a good faith (but 
mistaken) belief that the land was in their property.        AS 09.45.052; Ch. 147,  3, SLA 
2003; see also Hansen v. Davis, 220 P.3d 911, 916 n.7 (Alaska 2009). 

        3       Wright    v.  State,   824   P.2d   718,   720   (Alaska   1992)   (citing  Zeman   v. 

Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985)). 

        4      Id. 

                                                 -7-                                           6560
 

----------------------- Page 8-----------------------

                                                          5                                  6 
                Questions of statutory construction,  whether a deed is ambiguous,  and the 
interpretation of rules and statutes governing attorney's fees7 are questions of law, which 

we review de novo. 

III.	   DISCUSSION 

        A.	     The Superior Court Did Not Err In Ruling That The Cowans Did Not 
                Have An Express Fee Interest In The Disputed Land. 

                The Cowans argue that the superior court erred in ruling that the 1956 deed 

granted   the   Cowans   an   easement   rather   than   a   fee   interest   in   the   disputed   land. 

Specifically, they argue that Claude Yeisley must have intended for them to be the sole 

owners of the land because he never deeded an interest in the disputed land to anyone 
else,8 and that it would be "illogical to conclude that Claude Yeisley kept the strip of land 

for himself after conveying the balance of Tract A." 

                We conclude that the 1956 deed unambiguously grants the Cowans an 

easement, not a fee interest. 

        5       State v. Strane, 61 P.3d 1284, 1286 n.4 (Alaska 2003) (citing Todd v. State, 

917 P.2d 674, 677 (Alaska 1996)). 

        6       Dias v. State, Dept. of Transp. & Pub. Facilities, 240 P.3d 272, 274 (Alaska 

2010) (citing Estate of Smith v. Spinelli, 216 P.3d 524, 529 (Alaska 2009)). 

        7	      Lakloey v. Ballek, 211 P.3d 662, 664-65 (Alaska 2009). 

        8       The Cowans argue that Claude did not deed the disputed land when he 

deeded the rest of Tract A to Sharon and James in the 1971 and 1973 deeds. They further 
argue that Sharon did not have an easement by implication or an easement by necessity 
to the disputed land.   Finally, they argue that Claude could not have impliedly dedicated 
the land to the Borough as a public right of way. 

                                                  -8-	                                           6560
 

----------------------- Page 9-----------------------

                 We have held that the "first step in deed construction is to look to the four 
corners of the document to see if it unambiguously presents the parties' intent."9   Only 

if  the deed    is ambiguous     does  this   court    proceed    to  the  next step,   which    is  "a 
consideration of the facts and circumstances surrounding the conveyance."10                   "If the 

words of the deed taken as a whole are capable of but one reasonable interpretation, a 
court need go no further."11 

                 The 1956 deed granted to the Cowans a "perpetual right of way running 

with the land over the 30 foot strip of right of way."          As the superior court noted, we 

have held that "[t]he general rule is that the term 'right of way' is synonymous with 
'easement.' "12    We have described a right of way as "primarily a privilege to pass over 

another's land,"13 and we have consistently used the phrase "right of way" to refer to 

strips of land used for passage of people or things.14   Other courts have also held that 

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

        10      Id. 

        11      Id. (citing Knadler v. Adams, 661 P.2d 1052, 1053 (Wyo. 1983)). 

        12      Dillingham Commercial Co., Inc. v. City of Dillingham, 705 P.2d 410, 415 

(Alaska 1985); see also N. Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629, 
637 n.38 (Alaska 2000). 

        13      Gerstein v. Axtell, 960 P.2d 599, 600 n.2 (Alaska 1998) (internal quotation 

marks omitted). 

        14      See, e.g.,  N. Alaska Envtl. Ctr., 2 P.3d at 629 (right of way for electric 

transmission line); Gerstein, 960 P.2d at 600 (right of way for electric distribution lines); 
Wessells v. State Dep't of Highways, 562 P.2d 1042, 1049-51 (Alaska 1977) (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 [owner's] purposes"). 

                In contrast, we referred to a right to use a material site as a "material site 
                                                                                      (continued...) 

                                                 -9-                                              6560 

----------------------- Page 10-----------------------

unless the parties make it clear that a fee interest is intended, a grant of a "right of way" 
conveys an easement interest.15        Thus, on its face, the deed grants to the Cowans an 

easement, not a fee interest.16 

                Because Claude Yeisley did not convey a fee interest in the 30-foot right 

of way to anyone, we conclude that Claude owned the 30-foot right of way outright, and 

that Plat 80-9's notation of the 30-foot right of way in the subdivision had the legal effect 
of dedicating the disputed land to the public,17 unless the Cowans can demonstrate that 

they adversely possessed the strip of land under the pre-2003 statute.18 

        14(...continued) 

right-of-way" in Foster v. State, Dep't of Transp., 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. 

        15      See JON W. BRUCE & JAMES W. ELY, JR., THE LAW OF EASEMENTS AND 

LICENSES IN LAND  1:22 (2010). 

        16       Because we find that the deed unambiguously grants the Cowans only an 

easement, we do not reach the question of the parties' intent.              We also find that the 
Cowans'   alternative   argument   that   Claude   conveyed   an   exclusive   easement   in   the 
disputed land to the Cowans was waived because the Cowans did not raise it below. See 
Hagans, Brown, & Gibbs v. First Nat'l Bank of Anchorage, 783 P.2d 1164, 1166 n.2 
(Alaska 1989) ("Issues not properly raised . . . at trial are not properly before this court 
on appeal."). 

        17      See   AS    40.15.030    ("When     an  area is   subdivided    and   a  plat  of  the 

subdivision is approved, filed, and recorded, all streets, alleys, thoroughfares, parks and 
other public areas shown on the plat are considered to be dedicated to public use."); 
Ketchikan Gateway Borough Code (KGB)  55.35.020(e)(3). 

        18      We note that neither the parties nor the trial court raised the question of 

Claude Yeisley's ownership interest in the right of way prior to his death.  We also note 
that the record is silent on both the date of Claude Yeisley's death and who received legal 
title to the land as Claude Yeisley's successor-in-interest upon his death. 

                                                -10-                                            6560
 

----------------------- Page 11-----------------------

        B.	     It Was Error To Grant Summary Judgment On The Cowans' Adverse 
                Possession Claim. 

                Prior to 2003, Alaska had two adverse possession statutes.  Under former 

AS 09.45.052(a), claimants with color of title could establish adverse possession by 

showing that their use of the land was continuous, open and notorious, exclusive, and 
hostile to the true owners of the land for seven years.19            Under former AS 09.10.030, 

claimants   without   color   of   title   claiming   adverse   possession   had   to   fulfill   the   same 
requirements for ten years.20 

                In 2003 the Alaska Legislature modified AS 09.45.052(a) to add a claim for 

adverse possession where there was "uninterrupted adverse notorious possession of real 

property for 10 years or more because of a good faith but mistaken belief that the real 

property   lies   within   the   boundaries   of   adjacent   real   property   owned   by   the   adverse 
claimant."21   The Legislature also modified AS 09.10.03022 with the intent of abolishing 

        19      Former AS 09.45.052(a) (1991); Tenala, Ltd. v. Fowler, 921 P.2d 1114, 

1118-19 (Alaska 1996). 

        20      Former AS 09.10.030 (1962); Hansen v. Davis, 220 P.3d 911, 915 (Alaska 

2009); Tenala, 921 P.2d at 1118. 

        21      Ch.    147,     3,  SLA    2003.     AS   09.45.052(a)      currently    states  (2003 

amendment is in bold): 

                The     uninterrupted    adverse    notorious     possession    of  real 
                property   under   color   and   claim  of  title   for   seven   years   or 
                more, or the uninterrupted adverse notorious possession 
                of real property for 10 years or more because of a good 
                faith but mistaken belief that the real property lies within 
                the boundaries of adjacent real property owned by the 
                adverse claimant, is conclusively presumed to give title to 
                the property except as against the state or the United States. 

        22      Ch.    147,     1-2,   SLA    2003.     AS   09.10.030     currently    states  (2003 

                                                                                        (continued...) 

                                                  -11-	                                             6560 

----------------------- Page 12-----------------------

adverse possession in cases where the claimant does not have color of title.23               The net 

effect of these changes was to limit Alaskans' adverse possession claims to cases where 

        22(...continued) 

amendment is in bold): 

                (a) Except as provided in (b) of this section, a person may 
                not bring an action for the recovery of real property or for the 
                recovery     of  the   possession     of  it  unless   the  action    is 
                commenced        within    10   years.   An    action   may    not   be 
                maintained under this subsection for the recovery unless it 
                appears that the plaintiff, an ancestor, a predecessor, or the 
                grantor    of  the  plaintiff  was    seized   or  possessed    of  the 
                premises      in   question     within     10   years     before    the 
                commencement of the action. 

                (b) An action may be brought at any time by a person who 
                was seized or possessed of the real property in question at 
                some   time   before   the   commencement   of   the   action   or 
                whose grantor or predecessor was seized or possessed of 
                the    real  property      in  question    at   some    time    before 
                commencement          of   the  action,   and    whose     ownership 
                interest in the real property is recorded under AS 40.17, 
                in order to (1) quiet title to that real property; or (2) eject 
                a person from that real property. 

        23      Although the pre-2003 AS 09.10.030 purported only to bar a remedy, this 

court has stated that it can be the basis for a new title.  Ayers v. Day & Night Fuel Co., 
451 P.2d 579, 581 (Alaska 1969). The Legislature's 2003 revisions essentially abolished 
the   bar   on   the   original   landowner's   remedy  and   were   intended   to   prevent   adverse 
possession under this statute.   Minutes, House Judiciary Comm. Hearing on SB 93, 23rd 
Leg. 1st Sess. (May 18, 2003) (statement of Senator Wagoner, Member, Sen. Labor & 
Commerce        Standing    Comm.)     (stating  that  purpose    of  bill  was   "to  eliminate    the 
possibility that a landowner will lose property to a squatter who has no claim to the 
property"). 

                                                 -12-                                           6560
 

----------------------- Page 13-----------------------

the claimant had either color of title or a good faith but mistaken belief that the claimant 
owned the land in question.24 

                On the first day of trial, the superior court held that it would apply the 2003 

test for adverse possession because the Cowans had failed to bring an action for quiet 

title before the Legislature had changed the law.  The court concluded that the Cowans' 

adverse possession claim under the current statute failed as a matter of law because the 

Cowans did not have color of title or a good faith but mistaken belief that the property 

was within the boundaries of their property.  In doing so, the court effectively granted 

summary judgment on the Cowans' adverse possession claim. 

                We   find   that   it   was   error   to   grant   summary   judgment   on   the   Cowans' 

adverse possession claim because the 2003 version of AS 09.10.030 does not apply to 

this case, and there is a genuine issue of material fact as to whether the Cowans had 

adversely possessed the disputed land under the pre-2003 version of the statute. 

                1.	     It was error to apply the 2003 version of AS 09.10.030 to the 
                        Cowans' claim. 

                The   Cowans      argue   that  it  was   error    to  apply   the  2003    version   of 

AS 09.10.030 to their adverse possession claim because the Cowans were vested with 

title to the disputed land well before the statute was changed, the legislative history 

indicates that the changes were not intended to be applied to vested adverse possession 

rights, and the Legislature did not indicate that the law changing AS 09.10.030 was 

retrospective. 

                Alaska Statute 01.10.090 states that "[n]o statute is retrospective unless 

expressly declared therein."   The 2003 amendments to AS 09.10.030 specifically stated 

that the amended version "applie[d] to actions that have not been barred before [July 18, 

        24      Hansen, 220 P.3d at 916 n.7. 

                                                  -13-                                              6560 

----------------------- Page 14-----------------------

2003]   by   AS   09.10.030   as   it   read   before   [July   18,   2003]."25    Thus,   the   changes   to 

AS.09.10.030 were not intended to be retrospective. 

                 We have held that "[a] statute will be considered [retrospective] insofar as 

it gives to pre-enactment conduct a different legal effect from that which it would have 
had   without   the   passage   of   the   statute."26     The   Cowans   claim   that   they   adversely 

possessed   the   disputed   land   for   more   than  ten   years   before   1980.         Because   title 
automatically vests in an adverse possessor at the end of the statutory period,27  the true 

owner's action to recover the property would thus have been barred by 1980 under 

former AS 09.10.030 if the Cowans in fact perfected their adverse possession claims by 

1980.      Applying the amended statute to the Cowans' case would therefore give the 

Cowans' pre-2003 conduct a different legal effect, effectively stripping them of their 

title. 

                 Because   the   2003   revision   to   AS   09.10.030   was   not   intended   to   be 

retrospective, and applying it to this case would produce retrospective results, it was error 

to apply the revised statute   to the Cowans' adverse possession claim. 

        25       Ch. 147,  5, SLA 2003.   The effective date of the Act was July 18, 2003. 

        26       Eastwind, Inc. v. State, 951 P.2d 844, 847 (Alaska 1997) (internal quotation 

marks omitted). 

        27       Hubbard v. Curtiss, 684 P.2d 842, 849 (Alaska 1984). 

                                                    -14-                                               6560
 

----------------------- Page 15-----------------------

               2.	    There is a genuine issue of material fact precluding summary 
                      judgment      on  the  Cowans'     adverse    possession   claim   under 
                      former AS 09.10.030. 

               The Cowans also argue that they met all of the requirements for adverse 
possession under former AS 09.10.030,28 and that the only contested question in this case 

was whether their possession of the disputed land was "hostile."  The Cowans argue that 

they raised a genuine issue of material fact whether their possession of the disputed land 

was "hostile" because they presented evidence that they treated the disputed land as their 

own, held themselves out as owners of the land, and protected their right to exclusive use 

of the land. 

               In response, Sharon Yeisley argues that the Cowans' use of the disputed 

land could not be "hostile" under the law because they had a legally protected right (an 

easement) to use the land, and they made no other use of the land besides that which was 

legally protected. 

               We find, as the superior court did in its Omnibus Order, that there may be 
a genuine issue of material fact regarding the existence of hostility.29 

               We have held that "[h]ostile possession does not imply that the adverse 

possessor bore ill will or aggression toward the true owner; it only means that the adverse 

possessor held the land in such a way that his interest in the property was incompatible 

       28      "In order to acquire title by adverse possession, the claimant must prove, 

by clear and convincing evidence, . . . that for the statutory period his use of the land was 
continuous, open and notorious, exclusive and hostile to the true owner." Nome 2000 v. 
Fagerstrom, 799 P.2d 304, 309 (Alaska 1990) (citations and quotation marks omitted). 
Under former AS 09.10.030, the statutory period for adverse possession without color 
of title was ten years. 

       29      The superior court stated:     "[T]he facts sworn to by [Ellen] Cowan in her 

first affidavit, if believed by a jury, could theoretically rise to the level of hostility even 
despite the strong presumption created by permissive use." 

                                              -15-	                                       6560
 

----------------------- Page 16-----------------------

with the record owner's interest."30   "If the adverse possessor, without the true owner's 

permission, 'acted toward the land as if he owned it,' then his claim is hostile."31  The test 

is an objective one.32 

               We have also stated that when possession has begun permissively, it cannot 

become hostile until the presumption of permissive use is rebutted "by proof of a distinct 
and positive assertion of a right hostile to the owner of the property."33   Subsequent to 

the trial court's Omnibus Order, we decided Hansen v. Davis, which provides additional 
guidance on the concept of "hostility" in the context of easements.34 

               When the trial court issued its Omnibus Order, it found that there was a 

genuine issue of material fact regarding the existence of hostility but failed to explain the 

basis of this finding. Because it was error to apply the revised adverse possession statute 

and the Cowans presented evidence that might support a finding of adverse possession 

under the former statute, we reverse and remand on the issue of adverse possession.  On 

remand, the trial court should determine whether there is a genuine issue of material fact 

regarding any of the factors of adverse possession under the pre-2003 statute in light of 

our holding inHansen. Additionally, the trial court should determine specifically which 

       30      Glover v. Glover, 92 P.3d 387, 392 (Alaska 2004). 

       31      Id. (quoting Smith v. Krebs, 768 P.2d 124, 126 (Alaska 1989)). 

       32      Smith, 768 P.2d at 126 (citingPeters v. Juneau-Douglas Girl Scout Council, 

519 P.2d 826, 832 (Alaska 1974)). 

       33      City of Anchorage v. Nesbett, 530 P.2d 1324, 1329 (Alaska 1975) (quoting 

Ayers v. Day & Night Fuel Co., 451 P.2d 579, 581 (Alaska 1969) (internal quotation 
marks omitted)). 

       34      220 P.3d 911, 916-17 (Alaska 2009) (determining that what constitutes 

"unreasonable interference" sufficient to trigger prescriptive period for extinguishing 
easement by prescription is heavily fact dependent; temporary improvements to unused 
easement area that are easily removable will not trigger prescriptive period). 

                                             -16-                                        6560
 

----------------------- Page 17-----------------------

of the Cowans' activities on the 30-foot right of way, if any, constitute "hostile" activity 

and when each of those activities took place.     The trial court may either reexamine the 

facts in the record as it stands, or re-open the record and take new evidence to make these 

determinations. 

       C.	     The Superior Court's Ruling That The Disputed Land Was Validly 
               Dedicated To The Public Is Vacated And Remanded. 

               The Cowans argue that the disputed land was not validly dedicated to the 

public because the plats through which the land was dedicated were invalid; as owners 

of the disputed land or holders of an easement, they argue that their signatures were 

required on the plats to make them valid. 

                Alaska law allows for the dedication of land for public use through the 
subdivision process.35   Former AS 40.15.030, in effect in 1980 and 1981, stated:  "When 

an area is subdivided and a plat of the subdivision is approved and recorded, all streets, 

alleys, thoroughfares, parks and other public areas shown on the plat are deemed to have 
been dedicated to public use."36    Thus if either plat 80-9 or 81-40 was validly approved 

and recorded, the disputed land was validly dedicated to public use. 

               The Cowans argue that, because the  Ketchikan municipal code in effect in 

1980 did not give the Platting Board the discretion to omit the signature of easement 

holders, "it follows that the Borough intended that certificates of ownership and consents 

       35	     AS 40.15.030. 

       36      In 1988 the Legislature modified the statute to substitute "considered to be" 

for "deemed to have been." Ch. 161,  32, SLA 1988. Likewise, KGB  55.35.020(e)(3) 
provides: "[u]pon recordation of the final plat, all . . . easements, or rights-of-way shown 
on the plat shall, and are deemed to have been dedicated to public use.  Any such areas 
not dedicated to public use must be clearly marked as not dedicated on the face of the 
plat." 

                                             -17-	                                       6560
 

----------------------- Page 18-----------------------

be signed by all parties having any interest of record" in plat 80-9.37                 They offer no 

evidence to support this claim.  They also argue that the Borough should have exercised 

its discretion to require the Cowans' signatures for dedication of plat 81-40, but they give 

no reason why the Platting Board erred in failing to do so. 

                There was no language in the Ketchikan municipal code in effect March 

1980 - when plat 80-9 was approved - indicating that the signatures of easement holders 
in the dedicated land were required to approve and record a subdivision plat.38 The 

Ketchikan municipal code in effect in 1981 when plat 81-40 was recorded gave the 

Platting Board the discretion to omit the signatures of parties owning "rights-of-way, 
easements or other interests that cannot ripen into fee."39             It is therefore clear that the 

Cowans' signatures were not required to validate the plats if the Cowans held only an 
easement interest in the land.40 

        37      The Cowans also argue that the Borough acted unreasonably in failing to 

obtain their signatures on the plats because it knew or should have known of the Cowans' 
adverse   possession   claim.     But   they   only   point   to   Harold   Cowan's   objection   to   the 
preliminary   1980   plat   that   he   had   a   "30   foot   right-of-way,"   and   to   a   copy   of   Ellen 
Cowan's letter to the Borough in which she stated that she was "holding a deed to [the] 
existing 30 ft right of way." Because these statements could be interpreted as claims that 
the Cowans owned a right-of-way easement in the land, rather than claims that they 
owned the land outright,   these statements alone would not put the Borough on notice of 
an adverse possession claim. 

        38      Both the Borough and the Cowans agree that in March 1980 the Ketchikan 

municipal code provided:  "The subdivider shall comply with all State laws concerning 
dedication of all streets . . . and easements for public purposes by the owner(s) and wife 
(wives) of the owner(s); if the lands dedicated are mortgaged, the mortgagee shall also 
sign the plat."   Former KGB 49.20.040(d)(5)(e). 

        39      KGB 55.35.020(f)(8)(b). 

        40      We also note that there is a question whether the Cowans have standing to 

complain about the lack of signatures on the plats that were publicly dedicated to the 
                                                                                         (continued...) 

                                                  -18-                                               6560 

----------------------- Page 19-----------------------

                If the superior court finds that the Cowans held only an easement interest 

in the disputed land, its ruling that the land was validly dedicated to the public because 

the Cowans' signatures were not required to validate plats 80-9 and 81-40 is correct.  If 

the superior court determines on remand that the Cowans had obtained fee title to the 

disputed land through adverse possession before 1980, however, the Cowans' signatures 

would have been required to validate both plats, and thus the dedication of the land to the 

public through those plats would be invalid.            We therefore vacate the superior court's 

decision   on   this   issue   so   that   it   may   make   a   new   determination   on   remand   after   it 

determines whether the Cowans adversely possessed the disputed land prior to 1980. 

        D.	     Neither The Cowans' Nor Sharon's Claims Are Barred By Waiver, 
                Laches, Or Estoppel. 

                We find no merit in either the Borough's or the Cowans' waiver, estoppel, 

and laches arguments. 

                1.	     The     Cowans'      claims   are   not   barred    by   waiver,    laches,    or 
                        estoppel. 

                The Borough argues that the Cowans waived their claims by failing to 

pursue them after the plats were recorded in 1980 and 1981, and by allowing their 1986 

quiet title action to lapse for want of prosecution.  It also argues that the Cowans' claims 

should be barred by laches and equitable estoppel because the Borough was prejudiced 

by the Cowans' delay in pursuing them. 

        40(...continued) 

Borough if they only held an easement interest in the land. We have stated that a plaintiff 
must   establish   that   the   plaintiff   has   "an   interest   which   is   adversely   affected   by   the 
complained-of conduct" in order to have standing to sue. Keller v. French, 205 P.3d 299, 
304 (Alaska 2009).         Because the Cowans' easement interest in the disputed land is 
essentially identical to the interest they would hold as members of the public if the land 
was publicly dedicated, they would not have the adversely affected interest necessary for 
standing unless the superior court finds on remand that they obtained title to the land 
through adverse possession. 

                                                  -19-	                                           6560
 

----------------------- Page 20-----------------------

                In response, the Cowans argue that they never intended to waive their right 

to the disputed land, and that the Borough was not prejudiced by the delay. 

                Although the superior court made no ruling on the Borough's arguments in 

its Omnibus Order or final judgment, the court's silence on the Borough's arguments 

constituted   an   implicit   ruling   that   the   Cowans'   claims   were   not   barred   by   waiver, 

estoppel, or latches. 

                We have stated:   "Neglect to insist upon a right only results in an estoppel, 

or an implied waiver, when the neglect is such that it would convey a message to a 

reasonable person that the neglectful party would not in the future pursue the legal right 
in question."41 An implied waiver requires "direct, unequivocal conduct indicating a 

purpose to abandon or waive the legal right . . . ."42 

                Although the Cowans did not pursue legal action after plats 80-9 and 81-40 

were recorded, Ellen Cowan did tell the Borough that she had "no intention of opening 

up this right of way to anyone."         She also affied that the Cowans did not pursue their 

1986 quiet title action because Sharon had stopped her plans to develop the disputed 

road. The Cowans' behavior thus did not clearly, directly, or unequivocally indicate that 

they would not pursue a quiet title claim in the future, as required for a finding of both 
waiver and estoppel.43 

        41      Powers   v.   United   Servs.   Auto.   Ass'n,   6   P.3d   294,   299   (Alaska   2000) 

(quoting Airoulofski v. State, 922 P.2d 889, 894 (Alaska 1996)). 

        42      Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978). 

        43      See  Carr-Gottstein   Foods  Co.  v.       Wasilla, LLC,      182 P.3d     1131,   1136 

(Alaska 2008) ("Waiver is generally defined as the intentional relinquishment of a known 
right.") (internal quotation marks omitted); Tufco, Inc. v. Pac. Envtl. Corp., 113 P.3d 
668, 671 (Alaska 2005) ("A party claiming equitable estoppel must prove four elements: 
(1) an assertion of a position by word or conduct; (2) reasonable reliance on the assertion; 
                                                                                         (continued...) 

                                                  -20-                                               6560 

----------------------- Page 21-----------------------

                The Borough also failed to prove whether, and to what extent, the Borough 
and others were prejudiced by the delay - a required element of estoppel and laches.44 

The Borough argues that it was prejudiced because it did not collect tax revenue on the 

disputed land, but it presents no evidence regarding how much the tax revenue would be. 

 The Borough also argues that the lots created by plat 81-40 would have no access to the 

road if the Cowans owned the right of way, but the Cowans' claim that alternative access 

routes exist creates a question of fact regarding how prejudicial the Cowans' ownership 

of the disputed land would be. 

                Because the Borough offered insufficient evidence to support its arguments, 

we hold that the superior court did not err in implicitly ruling that the Cowans' claims 

were not barred by waiver, estoppel, or laches. 

                2.	    The superior court did not err in ruling that Sharon's claims are 
                       not barred by waiver, laches, and estoppel. 

                The Cowans argue that Sharon waived her claims by failing to pursue them 

during    the   Cowans'     previous   quiet   title  lawsuit  that  was   dismissed    for  lack  of 

prosecution, and that Sharon's unreasonable delay in bringing this lawsuit prejudiced 

them. 

        43(...continued) 

(3) resulting prejudice; and (4) the estoppel will be enforced only to the extent that justice 
requires."). 

        44      See  Tufco,   113   P.3d   at   671;   Anchorage   Citizens   for   Taxi   Reform   v. 

Municipality of Anchorage, 151 P.3d 418, 425 (Alaska 2006) (citing State, Dep't of 
Commerce & Econ. Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 358-59 (Alaska 2000)) 
("Laches operates to bar a claim when a court finds one party caused unreasonable delay 
in seeking relief that resulted in prejudice to the other party."); Pavlik v. State, Dep't of 
Cmty. & Reg'l Affairs, 637 P.2d 1045, 1047-48 (Alaska 1981) (finding that there is an 
interdependence between the elements of delay and prejudice in the laches analysis). 

                                                -21-	                                            6560 

----------------------- Page 22-----------------------

                The   superior   court   ruled   that   Sharon's   arguments   were   not   barred   by 

waiver, laches, or estoppel because there were "many conceivable reasons, other than 

acquiescence, that might explain why [Sharon] did not force the litigation." 

                The Cowans present no evidence of waiver, estoppel, or laches besides 

Sharon's failure to oppose the 1992 dismissal of the Cowans' first quiet title action.  But 

as the superior court stated, there are many conceivable reasons other than acquiescence 

that would explain why Sharon did not force the litigation in the face of the Cowans' 

failure to prosecute.  Sharon's failure to force the litigation cannot reasonably be viewed 

as a waiver of her property rights, nor would it be reasonable for the Cowans to rely on 

her lack of action as an assertion that she did not own the land.  Because Sharon had no 

obligation to force the continuance of the Cowans' first quiet title action, she did not 

unreasonably delay in bringing her counterclaims.   The superior court thus did not err in 

ruling that Sharon's arguments were not barred by waiver, estoppel, or laches. 

        E.	     Attorney's Fees Are Vacated. 
                In light of our decision, we vacate the award of attorney's fees.45 

IV.	    CONCLUSION 

        45      We note that the trial court did not have the benefit of Beal v. McGuire, 

216 P.3d 1154, 1178 (Alaska 2009)   (considering validity of nominal offers of judgment 
made at outset of litigation), when it awarded attorney's fees in this case.            In this case, 
Sharon Yeisley served a $1 offer of judgment on August 31, 2006, approximately six 
weeks after the complaint was filed.  In addition, it was error to award both Rule 82 and 
Rule 68 attorney's fees; a party may receive the greater of Rule 68 or Rule 82 fees, but 
not both.   See Ellison v. Plumbers & Steam Fitters Union Local 375, 118 P.3d 1070, 
1078 (Alaska 2005). 

                                                 -22-	                                          6560
 

----------------------- Page 23-----------------------

             For the reasons discussed above, we AFFIRM in part, REVERSE in part, 

VACATE the award of attorney's fees, and REMAND for furtherproceedings consistent 

with this opinion on the Cowans' adverse possession claim. 

                                        -23-                                   6560
 

----------------------- Page 24-----------------------

1973 Deed 

1971 Deed 

1960/63 Deeds to Smiths 

1956 Deed to Cowans 

                       Appendix                                           6560 
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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