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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Price v. Eastham (7/15/2011) sp-6578

Price v. Eastham (7/15/2011) sp-6578, 254 P3d 1121

      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 

THOMAS E. PRICE, JR.,                   ) 
                                        )  Supreme Court No. S-13167 
                   Appellant,           ) 
                                        )  Superior Court No. 3HO-99-00066 CI 
      v.                                ) 
                                        )  O P I N I O N 
MIKE EASTHAM, VELDON                    ) 
"SPUD" DILLON, LORRAINE                 )  No. 6578 - July 15, 2011 
TEMPLETON, BRUCE                        ) 
TURKINGTON, LEE KRUMM,                  ) 
LA VELLE DILLON, BOB FENEX,             ) 
CAROL FENEX, BRUCE WILLARD,             ) 
LINDA WILLARD, BUTCH                    ) 
BULLARD, GORDON GREBE,                  ) 
DIANE GREBE, ERIC OVERSON,              ) 
SAM MATTHEWS, NANCY                     ) 
MATTHEWS, RAY KRANICH,                  ) 
EILENE WYTHE, JACK                      )) 
ALEXANDER, SUE ALEXANDER,               ) 
RICK ALEXANDER, REED                    ) 
ALEXANDER, DAVE SANDERS,                ) 
SHIRLEY SANDERS, GREG                   ) 
McCULLOUGH, LLOYD MOORE,                ) 
PENNY MOORE, TAMMY HAGAN,               ) 
CHUCK HAGAN, KATE MITCHELL,             ) 
BEN MITCHELL, RONNIE                    ) 
MORRISON, BARB HRENCHIR,                ) 
MIKE HRENCHIR, GUS WEBER,               ) 
RITA WEBER, BOB SIMCOE,                 ) 
MARK JACOBS, BARB JACOBS,               ) 
SHARON THOMPSON, RICK                   ) 
THOMPSON, FRED THOMPSON,                ) 
CONNIE THOMPSON, MIKE                   ) 

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

DEVANEY, RICK ANDERSON,                    ) 
DAVE WEBER, MARK ROBL                      ) 
TERRY ROBL, TORAS FISK,                    ) 
DAVE BOONE, MARASHA BOONE,                 ) 
GEORGE ESCHIN, JIM BILLS, MIKE             ) 
O'MALLEY, JOE O'MALLEY, BILL               ) 
MARKEL, GORDON BERG, FLOYD                 ) 
NEWKIRK, KARL HORST, ROBERT                ) 
PELKY, ROBERT PLYMIRE, DON                 ) 
BLACKWELL, VALDA ZIEMELIS,                 ) 
RANDY WHITEHORN, CONNIE                    ) 
WHITEHORN, WILLIE BISHOP,                  ) 
HANS ALBERTSON, BILL                      ) 
SAMPSON, MIKE ARNO, ALLEN                  ) 
ENGLEBRETSON, RODNEY McLAY,                ) 
JIM SPENCER, JIMMY SPENCER,                ) 
JOE WRIGHT, JASON KINNARD,                ))) 
AMY KINNARD, SAM WRIGHT,                   ) 
PAUL BUDGE, BRIAN BELLAMY,                 ) 
RICK WISE, NATHAN WISE,                    ) 
JOHN WISE, JACOB WISE, MARTY               ) 
WISE, JAKE ELLYSON, CAROL                  ) 
ELLYSON, BILL SHELDON, LEROY               ) 
CABANA, SR., DORIS CABANA,                 ) 
LARRY CABANA, DAWN CABANA,                 ) 
and SCOTT CONNELLY,                       ) 
                                          ) 
                   Appellees.              ) 
                                          ) 

             Appeal from the Superior Court of the State of Alaska, Third 
             Judicial District, Homer, Harold M. Brown and Carl Bauman, 
             Judges. 

             Appearances:      Thomas   E.  Price,  Jr.,  pro  se,  Homer, 
             Appellant.   Scott   A.   Brandt-Erichsen,   Ketchikan   (limited 
             appearance   for   oral   argument)   for   Appellant.  C.   Michael 
             Hough, Homer, for Appellees. 

                                         -2-                                   6578
 

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

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

                CHRISTEN, Justice. 

I.      INTRODUCTION 

                Thomas   Price   posted   "No   Trespassing"   signs   on   his   property   in   1998 

because   he   believed   an   excessive   number   of   snowmachiners   were   using   a   trail   that 

crossed his land, damaging it, traveling at high speeds, and causing a great deal of noise. 

In 2003, we held that a group of snowmachine users had established a public prescriptive 

easement over the trail, but we twice remanded this case to the superior court to define 

the scope of the easement.       The superior court held additional hearings and in 2007 it 

issued a memorandum opinion and order defining the scope of the easement.                        Price 

appeals. 

                We affirm the superior court's decision that Price did not meet his burden 

of   proving   that   the   volume   of   snowmachine   traffic   had   exceeded   the   scope   of   the 

easement.  But we reverse the superior court's decision that the easement includes non- 

snowmachine users because the court did not make the necessary findings that these non- 

snowmachine users satisfied the elements required to establish prescriptive rights.  We 

remand for further clarification of the permissible scope of the snowmachine easement, 

including its seasonal limits, width, and speed limit.           We affirm the superior court's 

ruling that snowmachine users may clear, groom, and mark the trail. 

II.     FACTS AND PROCEEDINGS 

                This is the third time this case has come before us.           The facts have been 
thoroughly set out in our earlier opinions in this case.1           To summarize, in July 1978 

        1       Price v. Eastham (Price II), 128 P.3d 725 (Alaska 2006); Price v. Eastham 

                                                                                       (continued...) 

                                                  -3-                                              6578 

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

Thomas Price purchased an agricultural interest from the State of Alaska in land located 
at the head of Kachemak Bay.2         A group of snowmachiners had used a seismic trail that 

crosses    this  land   for  a  number    of   years,3  but   Price  perceived   that   the  volume    of 

snowmachine   traffic   increased   significantly   in   the   years   after   he   purchased   it.4 He 

complained of snowmachines crossing his land at high speeds, creating a safety hazard 

and a lot of noise, and that some users had littered, ventured off the trail, made campfires, 

and used the trail after it started to thaw in the spring.  He alleged that use of the trail in 

the spring created deep ruts across his property that filled with water.  Price posted "No 
Trespassing" signs on his property in the winter of 1998-99.5             The snowmachiners sued 

Price, alleging that they had established an easement by prescription before Price posted 

the signs. 

                At the first trial, the superior court concluded that the trail across Price's 
land   was   a   right-of-way   under   43   U.S.C.      932,   Revised   Statute   (RS)   2477.6   On 

reconsideration, the superior court supplemented its earlier order and concluded that the 

        1(...continued) 

(Price I), 75 P.3d 1051 (Alaska 2003). 

        2       Price I, 75 P.3d at 1054. 

        3       Price II, 128 P.3d at 726-27. 

        4       Id. at 726. 

        5       Id. 

        6       Price I, 75 P.3d at 1054.  Before its repeal in 1976, RS 2477 granted rights- 

of-way for the construction of highways over federal public lands not reserved for public 
uses. Id. at 1055.    "[A]n RS 2477 right-of-way automatically came into existence 'if a 
public   highway   was   established   across   public   land   in   accordance   with   the   law   of 
Alaska.' " Id. (citing Fitzgerald v. Puddicombe, 918 P.2d 1017, 1019 (Alaska 1996)). 
The issue of whether an RS 2477 right-of-way existed over Price's land "had not been 
raised by the parties at trial."    Price II, 128 P.3d at 727. 

                                                  -4-                                             6578
 

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

snowmachiners had established a public prescriptive easement.7                   The superior court's 

ruling   briefly   discussed   the   elements   of   a   prescriptive   easement,   but   "decline[d]   to 

exactly delineate the terms and conditions of the public easement [because it] exist[ed] 

at [that] point only as a contingency" to the RS 2477 right-of-way. 

                Price did not appeal the superior court's "findings on any of the elements 
[necessary] to establish a prescriptive easement."8            Price's appeal concerned whether a 

prescriptive   easement   could   be   obtained   over   land   in   which   the   State   retained   an 
interest.9  Price argued that "because he only owned the agricultural interests in his land 

during the relevant time period and because the state retained all other interests, any 

claim   of   a   prescriptive   easement   across   his   land   violate[d]"   AS   38.95.010,   which 
prohibits   people   from   acquiring   interests   in   state   land   through   prescription.10     We 

rejected that argument, noting that the plaintiffs claimed a prescriptive easement against 

Price's interest in the land, not the State's.  In Price I, we reversed the superior court's 

determination that a public right-of-way existed under RS 2477 because the parties did 
not have an opportunity to address the issue,11 but we affirmed the   superior court's 

        7       Price I, 75 P.3d at 1054. 

        8       Id. at 1057 n.22; see also id. at 1056-58. 

        9       Id. at 1056-57. 

        10       Id. at 1057. 

        11      Id. at 1056, 1059; see also Price II, 128 P.3d at 727. 

                                                   -5-                                              6578
 

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

alternate conclusion that a public prescriptive easement had been established.12                      We 

remanded to the superior court to define the scope of the easement.13 

                On   remand,   the   superior   court   issued   a   very   brief   order   defining   the 
easement as 16 feet wide and providing a legal description of its general direction.14 

Because the superior court's order did not provide sufficient findings for a meaningful 
review under Civil Rule 52(a), Price II remanded the case to the superior court again.15 

We directed the superior court to define the easement's scope in light of our decision in 

Price I and the Restatement (Third) of Property, and explained that the superior court 

was     free  to  "conduct     additional    evidentiary    hearings    concerning      the  changes     in 
frequency, intensity, and manner of use of the easement" since it was established.16 

                The superior court held additional hearings in 2006 and found that users of 

the trail included snowmachiners, four-wheelers, hikers, persons training their sled dogs, 

occupants of three residences along the trail, hunters, skiers, recreational RV users, and 

berry pickers.  Focusing on the snowmachiners, the superior court heard testimony that 
snowmachine traffic may have increased during the years 1996-98.17  The superior court 

found that while the number of snowmachines increased, the use of snowmachines may 

        12      Price I, 75 P.3d at 1059.
 

        13      Id.
 

        14      Price II, 128 P.3d at 727.
 

        15      Id.  at 731.   Alaska Rule of Civil Procedure 52(a) states, in relevant part:
 

"In all actions tried upon the facts without a jury or with an advisory jury, the court shall 
find the facts specially and state separately its conclusions of law thereon." 

        16      Price II, 128 P.3d at 731. 

        17      The superior court noted that it was unclear based on the testimony whether 

the increase in traffic was over Price's property or on trails in general. 

                                                   -6-                                              6578
 

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

have later subsided and "[a]ny increase in snowmachine traffic has been reasonable and 

consistent with traditional uses of the easement area."         The superior court's decision 

expressly allowed the snowmachiners to remove deadfall along the trail for maintenance 

and    safety,  and  to  place  markers    and  groom    the  trail  to  identify  the  easement's 

boundaries.    The superior court redefined the width of the easement as 18-feet wide - 
a two foot increase from its order in Price II18 - concluding this width is "sufficient to 

permit two snowmachines traveling in opposite directions to pass each other safely." 

Finally, the superior court declined to restrict the use of the easement to "winter time" 

because this would violate the non-snowmachine users' access to the trail. 

               Price appeals the superior court's rulings. 

III.	   STANDARD OF REVIEW 

               "We review the superior court's factual findings . . . for clear error, which 

we find only 'when we are left with a definite and firm conviction based on the entire 
record that a mistake has been made.' "19 

IV.	    DISCUSSION 

        A.	    Price II Remanded This Case For A Determination Of The Scope Of 
               The Snowmachine Easement. 

               1.	     Price I and Price II describe the guiding principles for defining 
                       the scope of an easement by prescription. 

               The creation of a public prescriptive easement requires the same elements 

as a private prescriptive easement, except that "a public prescriptive easement requires 

qualifying use by the public, while a private prescriptive easement requires qualifying 

        18     Price II, 128 P.3d at 726. 

        19     In re Protective Proceedings of W.A., 193 P.3d 743, 748 (Alaska 2008) 

(quoting Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004)). 

                                               -7-                                            6578 

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

use only by the private party."20       We have previously held that "a prescriptive easement 

obtained by the general public gives the right of use to the public at large."21                But this 

right of use is not unlimited; rather the "public at large" is constrained to using the 

easement only for those types of uses that led to its establishment.              As we explained in 

Price I, "[t]he scope of a prescriptive easement is defined narrowly to include only the 
'use that created the easement and closely related ancillary uses.' "22 

                In Price I we remanded this case with instructions to the superior court to 

delineate   the   scope   of   the   prescriptive   easement   by   imposing   restrictions   upon   it, 

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

(quoting Brimstone Mining, Inc. v. Glaus, 77 P.3d 175, 181 (Mont. 2003)) (internal 
quotation marks omitted).         The requirements for establishing a prescriptive easement 
have been well-established. As we explained in Dillingham Commercial Co., Inc. v. City 
of Dillingham: 

                The     requirements     for  establishing    a  public   easement     by 
                prescription      are  nearly   identical   to  the   requirements     of 
                adverse     possession,    and   the   string  of  adjectives    used   to 
                describe prescription have a familiar ring:           the use must be 
                open, notorious, adverse, hostile, and continuous. . . . These 
                general requirements have been reduced to a simple statement 
                by this court . . . "(1) the [use] must have been continuous 
                and   uninterrupted;   (2)   the   [user]   must   have   acted   as   if   he 
                were     the   owner    and    not   merely    one   acting    with   the 
                permission of the owner; and (3) the [use] must have been 
                reasonably visible to the record owner." 

705 P.2d 410, 416-17 (Alaska 1985) (quoting Alaska Nat'l Bank v. Linck , 559 P.2d 
1049, 1052 (Alaska 1977)) (internal citations omitted); see also McGill v. Wahl, 839 
P.2d 393, 397 (Alaska 1992) (citing Swift v. Kniffen, 706 P.2d 296, 302 (Alaska 1985)). 

        21      Interior Trails, 115 P.3d at 529-30 (citing Elmer v. Rogers, 214 A.2d 750 

(N.H. 1965)). 

        22      Price I, 75 P.3d 1051, 1058 (Alaska 2003) (quoting RESTATEMENT (THIRD) 

OF PROP.: SERVITUDES  4.10 cmt. d (2000)). 

                                                   -8-                                             6578
 

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

including, "for example, limiting use to certain seasons, prescribing the width of the 
easement, and specifying the precise uses that may be made of the easement."23                   Price I 

explained that "[b]ecause an easement directly affects ownership rights in the servient 

tenement, judicial delineation of the extent of an easement by prescription should be 
undertaken   with   great   caution."24      Price   I   also   quoted   the   Restatement   (Third)   of 

Property to explain that a determination of an easement's scope should focus on "what 

a landowner in the position of the owner of the servient estate should reasonably have 

expected to lose by failing to interrupt the adverse use before the prescriptive period had 
run."25   Price I concluded:       "Although the use made of a prescriptive easement may 

evolve beyond the original prescriptive uses, new uses cannot substantially increase the 

burden   on   the   servient   estate   or   change   the   nature   and   character   of   the   easement's 
original use."26 

                In Price II, we decided the brevity of the superior court's order on remand 
did not allow for meaningful review under Civil Rule 52(a).27                We remanded the case 

again and directed the superior court to "make specific factual findings regarding . . . the 

original purpose and use of the easement; any changes that have been made in the use 

of the easement; and, finally, the reasonableness of that change, taking into account such 

        23      Id. at 1059. 

        24      Id. at 1058 (quoting  Wright v. Horse Creek Ranches, 697 P.2d 384, 388 

(Colo. 1985)) (internal quotation marks omitted). 

        25      Id . (quoting RESTATEMENT  (THIRD) OF  PROP.: SERVITUDES                   4.1 cmt. h 

(2000)) (internal quotation marks omitted). 

        26      Id. (citing House v. Hager, 883 P.2d 261, 264-65 (Or. App. 1994)). 

        27      Price II, 128 P.3d 725, 731 (Alaska 2006). 

                                                   -9-                                             6578
 

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

factors as the speed of the changes in use, damage   to the estate, and the reasonable 
expectations of the servient landowner."28 

                The superior court conducted   an evidentiary hearing in 2006, after our 

decision in Price II.       The superior court considered Price's testimony that a club of 

snowmachiners ("the Snomads") leased a parking lot in 1996 and this allowed more of 

the club members to get to the trail that crosses his property. According to the superior 

court, some Snomads used the trail to access the recreational area in Caribou Hills.  But 

the superior court also heard testimony that the Snomads built a nearby clubhouse in 

2000 and that some of the snowmachiners who parked in the leased lot did not travel 

across Price's property, but instead traversed a different route to get to their clubhouse. 

                In 2007, the superior court issued a ten-page memorandum opinion and 

order redefining the scope of the easement.             The order described the permissible types 

of uses, the width of the trail, and the volume of use.              The superior court found that 

"[t]hose    presently    using   the   trail,  and  those   who    have   used   the  trail  [during   the 

prescriptive period], primarily use snowmachines, but the trail has also seen some use 

by four-wheelers, hikers, persons training their sled dogs[,] and by occupants of the three 

residences   located   along   the   trail,   hunters,   and   berry   pickers."  The   superior   court 

concluded that these uses all should be included in the public easement across Price's 

land.  The superior court further found that although the volume of snowmachine traffic 

increased at some point after the easement was perfected, it may have later subsided - 

perhaps   due   to   the   construction   of   the   Snomad's   clubhouse   -   and   that   overall   the 

increase was not a significant burden on the servient estate. 

        28      Id. at 732. 

                                                  -10-                                                6578 

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

               2.	     The easement established at the first trial was a snowmachine 
                       easement. 

               Price now argues the scope of the easement should be limited to the types 

of users who "qualif[ied] for inclusion within [its] initial scope":       snowmachiners.  We 

agree with Price that the superior court's findings in its 2007 memorandum decision and 

order do not support the conclusion that non-snowmachine users have established the 

elements for easements by prescription. 

               We wrote in Price I that "Price does not dispute the trial court's findings 
on any of the elements to establish a prescriptive easement."29         There was considerable 

evidence at the first trial supporting the findings necessary to establish a prescriptive 

snowmachine easement, and this limited easement is what we meant when we referred 

to the prescriptive elements as undisputed in Price I.       The public prescriptive easement 

over Price's land meant that the easement was open to the general public, not just the 

plaintiffs, for snowmachine use.        We did not intend to suggest that members of the 

general public could use the easement for other uses without clear findings that these 

users independently satisfied the requirements for establishing a prescriptive easement. 

Price   I  did  not   explicitly  state  that   the  established  easement   was   a  snowmachine 

easement, but the evidence the superior court relied upon was overwhelmingly evidence 

of snowmachine use and it was this use that was the focus of Price's original complaint 
of increased traffic and annoyance.30       Nothing in Price II suggested a more expansive 

        29	    Price I, 75 P.3d at 1055 n.22. 

        30     Id. at 1053 ("In January 1999 Price complained to the state troopers about 

the  snowmachiners       trespassing   on  his  land.   This   was   the  first  time  he  publicly 
complained about the trail's use." (emphasis added)). 

                                               -11-	                                           6578 

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

remand; that decision was based solely on the need to have sufficient findings to allow 
for meaningful review.31 

                Our    decision   today    limiting  the  permissible     users  of  the  prescriptive 

easement is not intended to suggest that other types of users cannot use the trail with 

Price's permission. Indeed, it appears to us that the non-mechanized users accessing the 

trail are not objectionable to Price.       Nor does this opinion suggest that other types of 

users cannot establish prescriptive rights to use the trail.   But other types of users cannot 

skip    the  requirement   of   proving    that   their  use  satisfied  the  elements   required    for 

establishing   an   easement   by   prescription.    The   superior   court   did   not   make   explicit 

findings on whether non-snowmachine users had independently satisfied the required 

elements for establishing an easement by prescription; it only concluded that the trail 

"has . . . seen some use by" other types of users.  Therefore, we hold that the scope of the 
prescriptive easement is limited to snowmachine users.32 

        B.      The Scope Of The Established Easement For Perfected Users 

                Price contends that the superior court erred in its findings concerning the 

easement's volume of use, seasonality of use, width, and allowance for improvements. 

Because the easement is limited to snowmachiners - as described above - we review 

the superior court's findings with this narrower focus in mind. When reviewing findings 

        31      Price II, 128 P.3d at 732. 

        32      There was some evidence in the first trial suggesting that non-snowmachine 

users may have met some of the elements for establishing an easement by prescription. 
For example, there was evidence that a dog musher and her handlers may have used the 
trail during the 10-year prescriptive period for training, one trail user testified that he had 
skied on the trail in the wintertime continuously from 1959 to 2000, and Price's brief 
acknowledges that four ATVers regularly use the trail during the fall hunting season. 
The superior court has never made findings about whether these users satisfied all of the 
required elements to establish easements by prescription. 

                                                 -12-                                            6578
 

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

by the superior court, we abide by the general principle that "[a]lthough the use made of 

a prescriptive easement may evolve   beyond the original prescriptive uses, new uses 

cannot substantially increase the burden on the servient estate or change the nature and 
character of the easement's original use."33          In other words, the scope of an easement 

does not need to remain static, but changes in its use must remain within the bounds of 

what "a landowner in [Price's] position . . . should reasonably have expected to lose by 
failing to interrupt the adverse use before the prescriptive period had run."34 

                1.	     The   superior   court   did   not   err   in   finding   that   there   was   no 
                        significant     increase     in  snowmachine         traffic   across   Price's 
                        property. 

                At the heart of Price's claim is the contention that snowmachine traffic 

significantly increased during and after the ten-year prescriptive period:                the winter of 
                                         35  Price claimed that the snowmachiners' lease of a 
1988-89 to the winter of 1998-99. 

new parking lot in 1996 - "the Jones lot" - led to increases in traffic beyond the 

volume of use at the beginning of the prescriptive period in 1988-89.  Several witnesses 

testified that this lot was used by snowmachiners to get to the Caribou Hills area or to 

access    the   Snomad     clubhouse.      Price   argued    that  the  parking    lot  allowed    more 

snowmachiners to access the trail that crosses his property.   To support his claim at the 

2006 trial, Price introduced considerable testimony, much of it conflicting, about the 

increased     parking    capacity   of  the  lots  near   his  property.    But   the   superior   court 

        33      Price I, 75 P.3d at 1058 (citing House v. Hager, 883 P.2d 261, 264-65 (Or. 

App. 1994)). 

        34      Id. (quoting RESTATEMENT  (THIRD)  OF  PROP.: SERVITUDES  4.1 cmt. h 

(2000)) (internal quotation marks omitted). 

        35      See    Interior   Trails   Pres.  Coal.    v.  Swope,    115   P.3d   527,   529   ("[A] 

prescriptive easement . . . requires ten years of continuous use[.]" (citing McGill v. Wahl, 
839 P.2d 393, 397 (Alaska 1992))). 

                                                  -13-	                                           6578
 

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

concluded: "[P]arking availability does not inform this court in which direction and over 

which   trail   an   [off-loaded]   snowmachine   or   RV   from   the   Jones   lot   traveled."       The 

superior   court   found   that,   "while   there   has   been   increased   snowmachine   use   in   the 

Caribou Hills generally, the use of snowmachines over Price's land cannot be said to 

have   increased   or   decreased   significantly   from   the   use   that   was   being   made   of   the 
easement area before the Jones parking lot was created in 1996."36 

                 Our review of the record confirms that the superior court did not clearly err 

in its 2007 finding that snowmachine traffic across Price's land did not significantly 

increase above the level that existed during the prescriptive period. We recognize that 

"[an easement] holder is not entitled to cause unreasonable damage to the servient estate 

        36       This finding is inconsistent with the superior   court's February 9, 2000 

findings.    The February 9, 2000 findings observed: 

                 Particularly   troubling   to   the   court   is   the   factual   situation 
                 exemplified by the case at hand, where a public easement 
                 might   be   created   by   a   relatively   small   number   of   people, 
                 followed by a dramatic increase in those wishing to use the 
                 trail . . . . If . . . the landowner fails to prevent ten members of 
                 the public from using the trail, can he really have been said to 
                 have slept on his rights as against fifty, or five hundred, or 
                 five thousand users? 

                 After the superior court's February 9, 2000 findings, Price II noted:  "In the 
record before us, there is evidence to suggest a significant change in use."                  128 P.3d at 
729.  This was based on the "opinion of February 9, 2000, [in which] the superior court 
note[d] that evidence in the record suggests that the trail was used only occasionally for 
many years by a small number of people." Id.  This was the origin of our direction to the 
superior court to define the scope of the easement, including the consideration of whether 
any increase in volume overburdened the servient estate. 

                 The superior court's 2007 order acknowledges that "[a]fter many days of 
hearings over the subsequent years, the court is now satisfied that the illustration in 
February 2000, overstated changes in volume of use over the years." 

                                                    -14-                                              6578
 

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

or interfere unreasonably with its enjoyment."37          But this consideration must be balanced 

against the principle that "[t]he manner, frequency, and intensity of [an easement's] use 

may     change    over   time   to  take  advantage     of  developments      in  technology      and   to 

accommodate normal development of the dominant estate or enterprise benefitted by the 
servitude."38    The superior court found that "[a]ny increase in snowmachine traffic has 

been reasonable and consistent with traditional uses of the easement area[,]" and the 

evidence supports this finding. 

                2.	     The superior court must establish seasonal limits on the use of 
                        the easement by snowmachiners. 

                Price also contends that the superior court erred in ruling that it would not 

constrain the seasonality of the easement's use.            In Price I we instructed the superior 

court    to  define   the  easement's     scope   by   imposing     restrictions   upon    it,  including 
potentially   limiting   the   use   to   certain   seasons.39 The   superior   court's   most   recent 

findings did not limit the seasonality of the easement's use; instead, the superior court 

explained: 

                Damage to Price's property can be minimized by restricting 
                use of the easement area to winter time use when the ground 
                is   frozen   and   covered   with   snow.   But   there   are   hunters, 
                hikers, recreational RV users and other persons whose only 
                access to their camps or residences or Caribou Hills is use of 
                the easement area and the unavailability of the easement area 
                during the non-winter months would violate their rights to 
                prescriptive use. 

        37      RESTATEMENT (THIRD) OF PROP.: SERVITUDES  4.10 (2000). 

        38      Id. 

        39      Price I, 75 P.3d at 1059. 

                                                  -15-                                               6578 

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                Given our holding that the superior court's findings only have established 

a prescriptive easement for snowmachiners, the superior court's failure to define the 

seasonal limits of the trail's use - based on the understanding that other users accessed 

the trail year-round - requires remand.   The superior court must establish the seasonal 

limitations   on   use   of   the   easement   by   snowmachiners.       This   is   necessary   because 

evidence at trial included photos showing deep ruts on Price's land filled with water; it 

is clear that use of the trail when the ground is not frozen has indeed caused damage. 

Price testified the damage was caused by use of the trail by both snowmachiners and 

other   users   too   late   in   the   spring   when   the   ground   starts   to   thaw,   and   there   was   no 

conflicting evidence presented on this point.  If necessary, the superior court may solicit 

input from the parties on the appropriate measure to use to determine when the ground 

is too soft for snowmachiners to travel across it without damaging the land, and how the 

trail may be marked to signal that it is closed to snowmachine traffic at the end of the 

snowmachine season. 

                3.	     The      superior      court    did    not    err    in   determining        that 
                        snowmachiners           may      maintain      and     mark      the   trail    to 
                        accommodate reasonable use and enjoyment of the easement. 

                The superior court's 2007 order concluded that easement holders: 

                [S]hould be allowed to remove deadfall and willows prior to 
                freeze up for purposes of maintaining the trail and for safety. 
                [They]   should   be   able   to   place   signs   along   side   the   trail 
                clearly identifying the boundaries of the trail and there should 
                be no prohibition on grooming which does no damage to the 
                property of [Price]. 

These types of activities are consistent with the prescriptive use, and we find no error in 

this portion of the superior court's ruling.        The Restatement (Third) of Property allows 

for the holder of an easement: 

                                                  -16-	                                            6578
 

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

                 [T]o make any use of the servient estate that is reasonable for 
                 enjoyment of the servitude, including the right to construct, 
                 improve,      repair,    and   maintain     improvements         that   are 
                 reasonably necessary.        The right of the easement . . . owner 
                 is qualified, however, by the general principle that the use 
                 may not interfere unreasonably with the enjoyment of   the 
                 servient estate.[40] 

We affirm the superior court's ruling that snowmachiners may clear, mark, and groom 

the trail to accommodate responsible use and enjoyment of the easement.                      Marking the 

trail, picking up deadfall, and grooming the trail to establish a defined path are certainly 

consistent with the snowmachiners' right to "improve . . . and maintain improvements 

that are reasonably necessary" for their enjoyment of the trail.                 Clearing the trail and 

marking      it  should   help   snowmachiners        use   the  easement     without    damaging      their 

snowmachines or themselves, and should minimize the number of snowmachiners who 

veer off the trail and trespass on Price's land. 

                 We also recognize the potential for abuse that comes with grooming a trail 

and making it easier to ride.        Price argues that the improved trail "allowed increases in 

speed   to   possibly   100   miles   per   hour."   The   superior   court   found   that   "[t]here   was 

evidence, mostly anecdotal, that some users of snowmachines . . . drink alcohol to excess 

and travel on their machines at unsafe speeds and act irresponsibly towards the property 

of   others."    While   easement   holders   may   make   improvements   that   are   reasonably 

necessary to enjoy their servitude, the Restatement makes clear that this right is qualified 

by    the  right   of  the  landowner      to  avoid    unreasonable      interference    with   the   quiet 
enjoyment   of   his   or   her   property.41   The   evidence   at   the   first   trial   established   that 

snowmachiners used the trail across Price's land between the winter of 1988-89 and the 

        40       RESTATEMENT (THIRD) OF PROP.: SERVITUDES  4.13 cmt. b (2000). 

        41       Id. 

                                                   -17-                                                 6578 

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

winter   of   1998-99   to   gain   access   to   Caribou   Hills   recreational   area.   There   was   no 

evidence that the Snomads or other snowmachine users needed to cross Price's property 

at   excessive   speeds;   high-speed   travel   does   not   fall   within   the   easement's   original 

purpose      as  an  access    trail   to  other  recreational    areas.   Excessive      speeds    and   the 

associated increase in noise is not an improvement reasonably necessary for enjoyment 

of the easement, and this type of use can significantly interfere with Price's quiet use and 
enjoyment of his property.42        Accordingly, on remand the superior court should establish 

a speed limit for use on the trail across Price's property.   Price may post the speed limit 
if he chooses to do so.43 

                 4.	     There   were   not   sufficient   findings   to   justify   establishing the 
                         width of the easement as 18 feet. 
                 Price I also suggested that the superior court define the easement's width.44 

The superior court issued a brief order setting the width of the easement at 16 feet,45 but 

the superior court's 2007 decision increased the width of the easement to "18 feet . . . 

[which is] sufficient to permit two snowmachines traveling in opposite directions to pass 

each other safely." 

                 We agree with Price that the superior court's findings concerning the width 

of the easement are not supported by the record.              First, the superior court increased the 

        42	      See id. 

        43       We   are   mindful   that   this   has   been   a   contentious   case. Nothing   in   this 

decision implies that Price is free to enforce the speed limit across his property on his 
own.  But as the superior court implied in its 2007 findings, users who exceed the scope 
of the easement by littering, veering off of the trail, exceeding the speed limit, or crossing 
the trail where the ground is too soft, may be liable to Price in trespass. 

        44       Price I, 75 P.3d at 1059. 

        45       Price II, 128 P.3d 725, 727 (Alaska 2006). 

                                                    -18-	                                              6578
 

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

width of the easement from 16 feet (in its 2004 order) to 18 feet (in its 2007 order) 

without providing any findings or explanation for doing so.                 Without any additional 

findings, the revised width is unsupported by the record. 

                Second, and perhaps more importantly, we cannot find anything in the 

record to suggest that the easement was 16-feet wide during the prescriptive period; to 

the contrary, the testimony suggests that the 16-foot width only came about once the 

Snomads began grooming the trail around 1998.  Given this evidence, even the 16-foot 
width must be reconsidered.46         It is uncontested that an 8-foot trail permits one lane of 

snowmachine travel.  If the easement's use has evolved to require widening the path, the 

superior court must make specific findings as to the reasonableness and necessity of 

increasing   the   width   of   the   easement.   Without   these   findings,   the   record   does   not 
support an easement more than 8-feet wide.47 

        C.      Vesting The Easement In A Government Agency 

                Finally, Price argues that the superior court erred by failing to identify a 

State    agency     or   political   subdivision     as   the   holder    of   the   easement     under 

        46      The   superior   court   may   have   been   concerned   that   a   safety   issue   was 

presented by snowmachines traveling on the trail at high speeds, but as explained, there 
has been no showing that high-speed travel is consistent with the use of the trail during 
the prescriptive period. 

        47      We recognize that there may be times where snowmachiners coming from 

different directions will need to get off the trail to allow one another to pass.             A minor 
diversion off the trail for this purpose fits within the principle that "the holder of an 
easement . . . is entitled to make any use of the servient estate that is reasonable for 
enjoyment of the servitude." RESTATEMENT (THIRD) OF PROP.: SERVITUDES  4.13 cmt. 
b (2000).  Temporarily veering from the trail to allow another snowmachine to pass and 
establishing   a   two-snowmachine-wide   easement   are   different   things:          the   latter   is   a 
significant change in purpose that would require factual findings, the former is not. 

                                                  -19-                                            6578
 

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

AS 09.45.052(d).  Whether the superior court was required to do so is a question of law, 
which we review de novo.48 

                Alaska Statute 09.45.052(d) provides in relevant part: 

                [T]he uninterrupted adverse notorious use . . . of private land 
                for . . . public access purposes . . . by the public, . . . for a 
                period of 10 years or more, vests an appropriate interest in 
                that land in the state or a political subdivision of the state. 
                This subsection does not limit or expand the rights of a state 
                or    political   subdivision      under    adverse    possession      or 
                prescription as the law existed on July 17, 2003. 
This section was added to AS 09.45.052 in July 2003.49                The easement across Price's 

land was perfected by the time he put up "No Trespassing" signs in 1998.50                      Alaska 

Statute 09.45.052(d) did not exist at the time this public easement was perfected and the 
legislature did not instruct that this statute should be applied retrospectively.51  Therefore, 

the superior court did not err by not identifying a State or political subdivision to hold 

the interest in the easement. 

        48      Jacob v. State, Dep't of Health   and Social Servs.,  Office of Children's 

Servs., 177 P.3d 1181, 1184 (Alaska 2008). 

        49      AS 09.45.052, as amended by ch. 147,  4, SLA 2003. 

        50      Price I, 75 P.3d 1051, 1053 (Alaska 2003). 

        51      See AS 01.10.090 ("No statute is retrospective unless expressly declared 

therein."); see also  Minutes, Sen. Labor & Commerce Standing Comm. Hearing on S.B. 
93, 23rd Leg. 1st Sess.       (March 11, 2003) (Testimony of Amy Seitz, staff to Senator 
Wagoner, sponsor of the bill) ("[Proposed AS 09.45.052] . . . will not extinguish already 
vested adverse possession claims."); Minutes, Sen. Labor & Commerce Standing Comm. 
Hearing   on   S.B.   93,   23rd   Leg.   1st   Sess.   (March   11,   2003)   ("Chair   Bunde   asked   if 
[proposed AS 09.45.052] will have any retroactive impacts or whether it only applies to 
actions in the future.    Mr. Tillinghast [Sealaska Corp.] replied it is prospective."). 

                                                  -20-                                            6578
 

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

V.      CONCLUSION 

                We REVERSE the superior court's ruling that non-snowmachine users 

have   established   the   right   to   a   prescriptive   easement   across   Price's   property.  We 

AFFIRM the superior court's determinations that the permissible uses of the trail include 

grooming,   marking,   and   clearing   of   the   trail,   and   we   AFFIRM   the   finding   that   any 

increase in the volume of snowmachine traffic has not overburdened the easement.  But 

we   REVERSE   the   superior   court's   findings   concerning   the   easement's   width         and 

REMAND for a determination of an appropriate speed limit and seasonal limitation for 

the snowmachine easement. 

                                                 -21-                                           6578
 
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