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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. HP Limited Partnership v. Kenai River Airpark, LLC (1/13/2012) sp-6631
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
HP LIMITED PARTNERSHIP, )
) Supreme Court Nos. S-13955/13965
Appellant and )
Cross-Appellee, ) Superior Court No. 3KN-07-00500 CI
)
v. ) O P I N I O N
)
KENAI RIVER AIRPARK, LLC, and ) No. 6631 - January 13, 2012
KENAI RIVER AIRPARK OWNERS )
ASSOCIATION, INC., )
)
Appellees and )
Cross-Appellants. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Kenai, Anna Moran, Judge.
Appearances: Paul D. Kelly, Kelly & Patterson, Anchorage,
for Appellant and Cross-Appellee. William L. Choquette,
Choquette & Farleigh, LLC, Anchorage, for Appellees and
Cross-Appellants.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
In 1975, two business partners bought a 160-acre property bordering the
Kenai River; they subdivided it into 114 lots and named it Holiday Park Subdivision.
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The partners reserved an easement across Lot 30 for the benefit of all Holiday Park
owners, but disagreements arose over the permissible uses and geographic boundaries
of the easement.
In 2004, the owner of Lot 30 sold it to Kenai River Airpark, LLC. Kenai
River Airpark transferred ownership to Kenai River Airpark Owners Association, Inc.,
which allowed its members to use Lot 30 for general recreation. One of the developers
of Holiday Park sued Kenai River Airpark and the Airpark Owners Association to
prevent their use of Lot 30. The superior court ruled that members of the Airpark
Owners Association could use Lot 30 as long as they did not interfere with Holiday Park
owners' use of the easement. The superior court also ruled that the easement's scope
was limited to a defined path shown on the Holiday Park plat, but that permissible uses
of the easement included boat launching, bank fishing, and river access. The Holiday
Park developer appeals.
Because Holiday Park's plat unambiguously describes the easement's scope
as "30' BOAT LAUNCH ESM'T," we reverse the superior court's ruling permitting
more expansive use. However, we affirm the superior court's order regarding the
geographic bounds of the easement; the original developer did not establish an expanded
easement by prescription, implication, inquiry notice, or estoppel. We also affirm the
superior court's determination that members of the Airpark Owners Association may use
Lot 30 for recreational purposes. Finally, we affirm the superior court's prevailing party
determination and attorney's fee award.
II. FACTS AND PROCEEDINGS
A. Facts
John Todd and Neal Hausam bought 160 acres of undeveloped land near
Soldotna in 1975. The land is bordered by the Kenai River to the east and Roberts
Subdivision to the north. Todd and Hausam each took an undivided one-half interest in
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the property and subdivided it into Holiday Park Subdivision ("Holiday Park"). Holiday
Park has 114 lots.
Hausam was responsible for drafting the plat and corresponding plat notes
for Holiday Park. Lot 30 - a river-front lot - was drawn nearly twice the size of the
other lots to accommodate an easement for the benefit of all property owners in Holiday
Park. The easement was depicted on the plat as a defined path labeled "30' BOAT
LAUNCH ESM'T." The plat notes state that "[a]ll roads, airstrip and boat launching
area [are] for the use of all property owners in the subdivision." The plat was recorded
on August 21, 1975. Todd and Hausam also drafted covenants for Holiday Park, one of
which provided: "No lot shall be used except for residential or recreational purposes.
No building shall be erected, altered, placed or permitted to remain on any lot other than
one single family dwelling and accessory non-trade or business buildings."
Todd and Hausam started selling lots in 1976; 12 lots sold between 1976
and 1978, but the partnership was dissolved in 1978 after a disagreement. Todd and
Hausam split the remaining lots between them. Todd conveyed his interest in Lot 30 to
Hausam by statutory warranty deed "[subject to] the reservations, restrictions, easements
and encumbrances of record." Todd and Hausam continued to sell lots in Holiday Park,
and use of the easement across Lot 30 increased. Some lot owners began parking,
camping, and fishing on and around the defined easement.
In the late 1970s and early 1980s, some Holiday Park lot owners noticed
that members of the general public were using the easement to access the river. The
owners decided to construct a gate at the top of the easement to prevent unauthorized
use; Hausam allowed them to build the gate.
In 1994, Todd conveyed all of his unsold lots to Holiday Park Limited
Partnership ("HP Limited"). Todd is the sole owner of HP Limited.
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Hausam sent a letter to Holiday Park lot owners on July 2, 2001, informing
them that the easement across Lot 30 "was intended and shown on the recorded plat for
boat launching for property owners." He explained that "to facilitate the sale of [Lot 30],
. . . [he would] enforce the intent and recorded covenant on the recorded plat to allow
property owners only boat launching only across the easement." Hausam suggested that
the lot owners form a homeowners' association and purchase Lot 30 from him to
guarantee their continued use of the easement and surrounding areas for fishing,
camping, and general recreation. The Holiday Park lot owners chose not to do so. In an
attempt to prevent activities other than boat launching, Hausam constructed a fence along
the easement. The fence was made of two steel cables stretched between metal posts.
It prevented vehicle access to part of the lot but did not completely enclose the easement
area.
Hausam sold Lot 30 to Voltec International, Inc. in October 2003. Randy
Comer, a representative of Voltec, approached John Hoback and Fred Schroeder about
buying property in both Holiday Park and Roberts Subdivision. Hoback and Schroeder
then formed Kenai River Airpark, LLC ("Kenai River Airpark") and, in May 2004,
Kenai River Airpark bought lots in Roberts Subdivision, and three lots - including Lot
30 - in Holiday Park. After incorporating this property into a planned
recreational/residential community, Hoback and Schroeder formed Kenai River Airpark
Owners Association, Inc. ("Airpark Owners Association"). The Airpark Owners
Association is composed of the owners of 16 lots and one tract in Roberts Subdivision,
and the owners of three lots in Holiday Park. A maximum of 35 lots in the two
subdivisions may be owned by members of the Airpark Owners Association under its
Declaration of Covenants, Conditions, and Restrictions. Roberts Subdivision's
covenants allow duplex homes, but only single-family dwellings are allowed in Holiday
Park. Kenai River Airpark transferred ownership of Lot 30 to the Airpark Owners
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Association on October 11, 2005. The Airpark Owners Association planned to use Lot
30 as a common area "for the benefit of all lot owners in the community."
B. Proceedings
HP Limited sued Kenai River Airpark and the Airpark Owners Association
in June 2007. HP Limited asserted that: (1) the Airpark Owners Association's
ownership and use of Lot 30 violated Holiday Park's single-family restriction; (2) Kenai
River Airpark's use of Lot 30 to market Roberts Subdivision lots violated the
commercial use restriction in Holiday Park's covenants; and (3) Holiday Park lot owners,
including HP Limited, had established an easement by prescription and/or estoppel to use
Lot 30 for general recreation, including fishing, parking, picnicking, and camping. The
Kenai River Airpark and its Owners Association filed a counterclaim alleging that:
(1) Holiday Park lot owners could only use the easement for boat launching; and (2)
Holiday Park lot owners were required to help maintain and insure the boat launch.
The parties filed cross-motions for summary judgment. After oral
argument, the superior court ruled that the easement was unambiguously confined to boat
launching within the 30-foot wide path depicted on the Holiday Park plat. The superior
court found that extrinsic evidence of Todd's and Hausam's intent supported this limited
scope. The superior court also observed that HP Limited may have had a claim for an
expanded easement by prescription or implication, but ruled that these claims required
the resolution of questions of fact at trial. The court confined its easement by
prescription inquiry to those lots owned by HP Limited itself, ruling that HP Limited
could not assert prescriptive rights for other Holiday Park lot owners because HP
Limited was "not asserting a general right of the public to utilize Lot 30." Finally, the
superior court ruled that members of the Airpark Owners Association, as the owners of
Lot 30, could use the lot so long as their use did not unreasonably interfere with Holiday
Park lot owners' enjoyment of the easement. The superior court ruled that the Airpark
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Owners Association's proposed recreational use of Lot 30 did not conflict with Holiday
Park's covenants and rejected the argument that the Airpark Owners Association's use
would interfere with Holiday Park lot owners' use of the easement.
A bench trial on the remaining claims was held on May 26 and 27, 2009.
Todd and Hoback both testified. The superior court ruled that HP Limited had not
established an easement by prescription because its alleged use did not satisfy the
requirements of notoriety and hostility. The superior court also ruled that HP Limited
had not established an easement by estoppel because there was no evidence of an oral
grant of an expanded easement.
The superior court discussed two additional grounds for expanding the
easement: intent and implication. Although the superior court had ruled at the summary
judgment stage that Holiday Park's plat unambiguously limited the scope of the easement
to boat launching, the evidence admitted at trial included the depositions of 14 Holiday
Park lot owners, each of whom believed that the easement allowed for general access to
the Kenai River. All 14 lot owners testified that they were told that the right to bank fish
came with the purchase of their lots. The superior court found that Hausam and Todd
intended the easement across Lot 30 to be used for boat launching, all forms of access
to the Kenai River, and bank fishing; it ruled that these uses of the easement had been
established "by intent and by implication." But the superior court maintained its earlier
decision that the geographic extent of the easement was strictly limited to the 30-foot
wide path depicted on the plat, and ruled that the easement could not be used for parking
or general recreation.
On HP Limited's claim that Holiday Park's "single family dwelling"
covenant prohibited the Airpark Owners Association from allowing its members to use
Lot 30, the superior court ruled:
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The restriction simply states that no lot shall be used except
for residential or recreational purposes. [The Association's]
use of Lot 30 for recreational purposes is similar to Holiday
Park lot owners' use of the lot over the years to picnic, camp,
and recreate. . . . It would be disingenuous to now claim [the
Association] cannot use the lot for the same activities.
Kenai River Airpark subsequently filed a motion to alter or amend the
judgment, arguing the superior court erred: (1) by finding that the intended use of the
Lot 30 easement included activities other than boat launching; and (2) by concluding HP
Limited had perfected an easement by implication. The superior court rejected Kenai
River Airpark's argument that permissible uses of the easement should have been limited
to boat launching, explaining:
[I]n its original order for summary judgment [the court]
found . . . that the language was ambiguous as it applied to
creating a general recreational use easement. However, that
was before the court had listened to the full deposition
testimony of 14 witnesses, including Neal Hausam and John
Todd. Each and every Holiday Park lot owner who testified
stated that they understood that the easement on Lot 30
provided them with full access to the Kenai River as well as
bank fishing, and that these representations were made by
Neal Hausam as well as John Todd. When looking at the
provision in the plat notes that "all roads, airstrip and boat
launch area are for the use of all property owners" in the
context of providing river access rather than an all-inclusive
recreational easement, the court found the term 'boat launch
area' was ambiguous in its meaning.
But the superior court reversed its ruling that HP Limited had established
an easement by implication. Because the superior court found that no one had used the
boat launch at the time of severance in 1978, and because no lots had been sold when
Todd transferred his ownership interest to Hausam, the superior court vacated its ruling
that Todd and Hausam had created an easement by implication.
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In ruling on Kenai River Airpark's motion to alter or amend judgment, the
superior court also limited its earlier ruling that the Airpark Owners Association's use
of Lot 30 did not violate Holiday Park's "single family dwelling" covenant. The
superior court observed that the Airpark Owners Association's members owned 16 lots
in Roberts Subdivision and three lots in Holiday Park, and cautioned that its ruling was
"not to suggest [Kenai River Airpark] can . . . have a corporation purchase a lot in the
Roberts Subdivision and turn Lot 30 into a community use lot, or even have another
subdivision buy a lot in the Roberts Subdivision and be able to broaden the usage of Lot
30." The superior court noted that HP Limited could seek additional recourse if there
was a "substantial enhancement" in the use of Lot 30.
Finally, the superior court's order observed that the defendants had
successfully defended all of the plaintiff's claims and "significantly prevailed" on most
of their counterclaims: the members of the Airpark Owners Association were allowed
to use Lot 30 and the use of the easement by Holiday Park lot owners was restricted,
although not to the extent Kenai River Airpark had requested. The court declared Kenai
River Airpark and the Airpark Owners Association the prevailing parties and awarded
them 30% of their attorney's fees.
HP Limited appeals the superior court's rulings that: (1) the scope of the
easement across Lot 30 is limited to the defined path depicted on the Holiday Park plat
and does not include parking, camping, or other non-fishing recreational activities;
(2) the scope of the easement has not been expanded by prescription, implication, or
estoppel; (3) the Airpark Owners Association may allow its members to use Lot 30; and
(4) Kenai River Airpark and the Airpark Owners Association are the prevailing parties.
Kenai River Airpark and the Airpark Owners Association cross-appeal the superior
court's decision that the easement's scope includes fishing and access to the Kenai River.
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III. STANDARD OF REVIEW
We review whether a deed or plat is ambiguous de novo, as a question of
law.1 We make this determination by looking within the four corners of the document;
if the document is only open to one reasonable interpretation, we do not consider
extrinsic evidence of ambiguity.2 If the document is ambiguous, we resort to extrinsic
evidence; "conclusions about the parties' intent drawn by the trial court after sifting and
weighing such extrinsic evidence" are reviewed for clear error.3
A superior court's determination of whether an easement by prescription,
implication, inquiry notice, or estoppel exists is based on findings of fact and legal
conclusions.4 We do not disturb a trial court's findings of fact unless they are clearly
erroneous.5 We review the application of law to facts de novo.6
"The interpretation of a covenant is a question of law to which we apply our
independent judgment."7
1 Estate of Smith v. Spinelli, 216 P.3d 524, 528 (Alaska 2009).
2 Id. at 529.
3 Id.
4 Williams v. Fagnani, 175 P.3d 38, 40 (Alaska 2007); Price v. Eastham, 75
P.3d 1051, 1055 (Alaska 2003).
5 Hurst v. Victoria Park Subdivision Addition No. 1 Homeowners' Ass'n, 59
P.3d 275, 277 (Alaska 2002).
6 Price, 75 P.3d at 1055.
7 Hurst, 59 P.3d at 277.
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We review a trial court's prevailing party determination for abuse of
discretion, which we find only if the determination is "arbitrary, capricious, manifestly
unreasonable, or improperly motivated."8
IV. DISCUSSION
A. The Plat Unambiguously Limits The Easement To Boat Launching
Within The Bounds Of The Defined Path.
The parties dispute the appropriate geographic bounds and permitted uses
for the easement across Lot 30. The easement is shown on Holiday Park's plat as a
defined path across Lot 30 labeled "30' BOAT LAUNCH ESM'T." One of the plat notes
reads: "All roads, airstrip and boat launching area [are] for the use of all property owners
in the subdivision." The superior court initially ruled that the geographic scope of this
easement was limited to the defined path and that the only permissible use of the
easement was boat launching. But after trial, the superior court was swayed by the
deposition testimony of many Holiday Park lot owners who used the easement for a
variety of purposes. In light of their testimony, the superior court concluded that the
grantors intended the easement could be used for purposes besides boat launching. The
court decided that the intended uses of the easement included boat launching, bank
fishing, and access to the river; but it maintained its ruling that the easement's
geographic scope was confined to the path depicted on the plat. HP Limited argues on
appeal that the geographic scope of the easement includes the shoreline area south of the
defined path and areas alongside the path. It also claims that the easement was intended
to permit all general recreational uses, including camping, picnicking, and parking.
Kenai River Airpark responds that the plat unambiguously limits the easement's scope
to boat launching activities within the defined path.
8 Taylor v. Moutrie-Pelham, 246 P.3d 927, 928-29 (Alaska 2011).
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Whether a deed is ambiguous is a question of law.9 "The touchstone of
deed interpretation is the intent of the parties and where possible the intentions of the
parties will be given effect."10 We have announced a three-step approach to deed
interpretation, and an easement depicted on the face of a plat is interpreted using this
same approach.11 First, the court must look at the four corners of the document "to see
if it unambiguously presents the parties' intent."12 "If a deed when 'taken as a whole'
is open to only one reasonable interpretation, the interpreting court 'need go no
further.' "13 But if the document is ambiguous, the court considers extrinsic evidence of
the surrounding facts and circumstances.14 "[T]his inquiry can be broad, looking at 'all
of the facts and circumstances of the transaction in which the deed was executed, in
connection with the conduct of the parties after its execution.' "15
We review the superior court's findings concerning the parties' intent after
examining extrinsic evidence for clear error.16 If no intent can be ascertained after
9 Cowan v. Yeisley, 255 P.3d 966, 971 (Alaska 2011).
10 Estate of Smith v. Spinelli, 216 P.3d 524, 529 (Alaska 2009).
11 See id. (interpreting a plat); see also Kennedy v. Bodi, Mem. Op. & J. No.
564, 1991 WL 11657237, at *1-2 (Alaska July 17, 1991) (refusing to examine extrinsic
evidence because plat was unambiguous regarding scope of easement).
12 Spinelli, 216 P.3d at 529.
13 Id. (quotingNorken Corp. v. McGahan, 823 P.2d 622, 626 (Alaska 1991)).
14 Id. (quoting Norken Corp., 823 P.2d at 626).
15 Id.
16 Id.
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examining both the document itself and the extrinsic evidence, then the court should
resort to rules of construction.17 As we explained in Estate of Smith v. Spinelli:
In the context of contract interpretation, we have departed
from the "cumbersome" traditional parol evidence rule by
allowing the use of extrinsic evidence without the need for a
preliminary finding that a contract is facially ambiguous.
Thus, extrinsic evidence may be consulted in determining
whether a contract is ambiguous as well as in resolving any
ambiguity. But, as we have recognized, our three-step
approach to deed interpretation differs from our more flexible
approach to contract interpretation and does not allow the use
of extrinsic evidence in making the threshold determination
whether a deed is ambiguous.[18]
Despite this Alaska case law, HP Limited urges us to adopt the Colorado
Supreme Court's approach to deed interpretation. InLazy Dog Ranch v. Telluray Ranch
Corp.,19 the Colorado Supreme Court relied on the Restatement (Third) of Property § 4.1,
which allows courts to interpret an expressly created servitude "in light of all the
circumstances."20 HP Limited argues the deposition testimony of Holiday Park lot
owners shows that "a clear interpretation of [the plat's] language is discerned from the
use put to Lot 30 from its inception." HP Limited argues that the superior court correctly
17 Id.
18 Id. at 530 (emphasis added) (internal citations omitted).
19 965 P.2d 1229 (Colo. 1998).
20 Id. at 1235-36. HP Limited claims that we already adopted this approach
in Spinelli, but this assertion is incorrect. Spinelli is clear that the first step in our
approach to interpreting deeds or plats is to look solely to the four corners of the
document, without consideration of extrinsic evidence. 216 P.3d at 529. In Lazy Dog,
the Colorado Supreme Court explicitly rejected the approach we followed in Spinelli.
See 965 P.2d at 1236.
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interpreted the easement "to fit the circumstances in accord with the original intent" as
shown by extrinsic evidence. We disagree.
Alaska's three-step approach to deed interpretation does not allow the
consideration of extrinsic evidence or the circumstances of the parties when evaluating
whether a plat or deed is ambiguous. We use this approach because potential land
purchasers must be able to rely on the plain and clear language of deeds or plats without
being concerned that an otherwise plain meaning might be modified by the
circumstances surrounding the drafting of the instrument. In this case, this rule of law
requires that we first look within the four corners of the plat to determine whether it is
ambiguous.
The superior court found no ambiguity in the description of the easement
at the summary judgment stage, but it reversed this ruling after considering the
deposition testimony of Holiday Park lot owners presented at trial. The consideration
of this extrinsic evidence was contrary to our rule that "[i]f a deed when 'taken as a
whole' is open to only one reasonable interpretation, the interpreting court 'need go no
further.' "21
The Holiday Park plat clearly defines the geographic boundaries of the
easement across Lot 30 and the purpose for which it may be used. The plat notes do not
add ambiguity to the document; they confirm that the easement is a "boat launching area
. . . for the use of all property owners in the subdivision." Because we do not consider
extrinsic evidence when making the threshold ambiguity determination,22 our inquiry is
complete. The easement's scope is limited to boat launching within the boundaries
depicted on the plat.
21 Spinelli, 216 P.3d at 529.
22 Id.
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HP Limited also argues that easements reserved across the riverfront
portions of the lots adjacent to Lot 30 demonstrate that the Lot 30 easement was intended
to serve not only as an access route to the river, but also as a walkway easement along
the frontage of the river. But HP Limited's counsel conceded during oral argument that
the waterfront easements on the lots adjacent to Lot 30 do not appear within the four
corners of the Holiday Park plat; in fact, those easements were first reflected in the deeds
for the adjacent lots which were recorded a year after the plat was recorded. Because the
easements on the adjacent lots are not shown on the plat, they are extrinsic evidence that
may not be considered in determining whether an ambiguity exists. We conclude that
the plat unambiguously limits the scope of the easement across Lot 30 to boat launching
within the 30-foot path depicted on the plat.
B. The Airpark Owners Association Can Own Lot 30, And Its Members
May Use Lot 30 For Recreation.
1. Neither the Airpark Owners Association's ownership, nor its
members' use, of Lot 30 violates Holiday Park's covenants and
restrictions.
Holiday Park's covenants contain a "Land Use and Building Type"
restriction, which states that "[n]o lot shall be used except for residential or recreational
purposes. No building shall be erected, altered, placed or permitted to remain on any lot
other than one single family dwelling and accessory non-trade or business buildings."
(emphasis added) HP Limited argues that this single-family dwelling restriction also
applies to Holiday Park's "residential or recreational purposes" restriction. In other
words, HP Limited argues that the Airpark Owners Association, which has a multi-
family membership, should not be allowed to use Lot 30, even if only for recreation. HP
Limited also contends Holiday Park's covenants prevent the Airpark Owners Association
from owning Lot 30 in the first place. The Airpark Owners Association responds that
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the single-family building restriction and the "recreational" use restriction must be read
separately.
The superior court ruled that Holiday Park's covenant "simply states that
no lot shall be used except for residential or recreational purposes," and it determined
that the Airpark Owners Association's ownership of Lot 30 did not violate the Holiday
Park covenant. The superior court explained that the Airpark Owners Association's use
of Lot 30 was for recreational purposes, that Holiday Park lot owners erroneously
thought Lot 30 had been dedicated for their personal recreational use, and that it "would
be disingenuous to now claim [the Airpark Owners Association] cannot use the lot for
the same activities." In ruling on the motion to alter or amend the judgment, the superior
court further clarified that its ruling was:
specific to the facts as presented at trial. That is that [the
Airpark Owners Association] consists of [the owners of] 16
lots from the Roberts Subdivision and three lots from the
Holiday Park Subdivision, and that these lots contain
covenants and restrictions similar to the covenants and
restrictions in the Holiday Park covenants, which has 114
individual lots.
We have previously described guiding principles for the interpretation of
covenants and restrictions:
Where the language of the covenant is not ambiguous, the
plain meaning governs. Where the language of the covenant
is ambiguous, judicial construction is necessary. Covenants
are construed within their own four corners. They are also
construed to effectuate the intent of the parties. Once the
intentions of the parties to the covenant are known, their
intention serves to limit the scope and effect of the restriction.
Because restrictions are in derogation of the common law,
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they should not be extended by implication, and doubts
should be resolved in favor of the free use of land.[23]
Applying these principles to the instant case, we hold that the Airpark
Owners Association may properly own lots in Holiday Park; nothing in Holiday Park's
covenants restricts ownership in Holiday Park to individuals, and there is no latent
ambiguity suggesting such a restriction. Holiday Park's "Land Use and Building Type"
covenant does not confine ownership to individuals or natural persons, and the covenant
provides no reason for us to imply such a restriction. The covenant states: "No building
shall be erected, altered, placed or permitted to remain on any lot other than one single
family dwelling and accessory non-trade or business buildings." While there is some
ambiguity regarding whether the term "single family" is a land use - rather than merely
a building - restriction, it is clear that the covenant does not regulate ownership in
Holiday Park in any way. The plain meaning of the covenant controls; the Airpark
Owners Association is not prohibited from owning Lot 30.
We also reject HP Limited's argument that the covenant's building
restriction operates as a limitation on the Airpark Owners Association's use of Lot 30.
The building restriction appears in the second sentence of the covenant, immediately
after the sentence discussing "residential or recreational purposes." The covenant is
unambiguous as it relates to ownership, but there are two possible interpretations of the
covenant's "recreational use" clause: (1) "single family" could relate to "recreational
use," so that the restriction means "single family recreational use," or (2) "single family
dwelling" could refer only to the type of structure that may be built and not to the use of
23 Hurst v. Victoria Park Subdivision Addition No. 1 Homeowners' Ass'n, 59
P.3d 275, 278 (Alaska 2002) (internal citations omitted).
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the land. Because either construction is possible, we consider extrinsic evidence of the
parties' intent.24
There is little pertinent extrinsic evidence of the parties' intent in the record.
The only such evidence is Hausam's suggestion that the Holiday Park lot owners form
a homeowners' association and purchase Lot 30 from him for their continued
recreational use. His offer is some evidence that the original developers intended that
Holiday Park lots would be available for multi-family recreational use, but it is not
conclusive.
Because Holiday Park's covenant could be read as either limiting the use
of the property to single family "residential or recreational" purposes or limiting
permissible structures on the lot, the covenant is ambiguous. The only relevant extrinsic
evidence indicates that Holiday Park's developers intended to allow multi-family
recreational use of Lot 30 and we have held that "doubts [about the interpretation of
restrictions] should be resolved in favor of the free use of land."25 We therefore interpret
the covenant to permit multi-family recreational use. Absent a nonconforming structure,
24 Hurst, 59 P.3d at 278. We note that other jurisdictions have interpreted
"single family dwelling" as a purely structural restriction. See, e.g., Double D Manor,
Inc. v. Evergreen Meadows Homeowners' Ass'n, 773 P.2d 1046, 1047-50 (Colo. 1989)
(interpreting covenant's "one single-family dwelling" provision as purely structural
restriction). HP Limited cites to case law from outside of Alaska that restricts multiple
owners' use of a single family dwelling after it has been constructed, but we find these
cases inapplicable. O'Connor v. Resort Custom Builders, Inc., 591 N.W.2d 216 (Mich.
1999) considered a covenant restricting land use to "residential purpose[s]" only, but lots
in Holiday Park may be used for either "residential or recreational purposes." HP
Limited also argues that Dean v. Nugent Canal Yacht Club applies, but the covenant in
that case specifically restricted use of the property "solely and exclusively for single
family residence purposes." 585 N.E.2d 554, 555 (Ohio App. 1990).
25 Hurst, 59 P.3d at 278.
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use of Lot 30 for recreation by the members of the Airpark Owners Association does not
violate the Holiday Park covenant.
2. The Airpark Owners Association's ownership and use of Lot 30
does not conflict with § 4.11 of the Restatement.
HP Limited argues that the Restatement (Third) of Property: Servitudes
§ 4.11 prohibits the Airpark Owners Association from allowing Roberts Subdivision lot
owners to use Lot 30. The Restatement provides: "Unless the terms of the servitude
. . . provide otherwise, an appurtenant easement . . . may not be used for the benefit of
property other than the dominant estate."26 The superior court rejected this argument,
observing that because the Airpark Owners Association owns the servient estate, the
Restatement (Third) of Property: Servitudes § 4.9 applies. The superior court applied
§ 4.9 and ruled that the Airpark Owners Association could use Lot 30 in any way that
did not unreasonably interfere with Holiday Park owners' permissible use of the
easement. The court also ruled that HP Limited's argument that the Airpark Owners
Association's use of Lot 30 would interfere with HP Limited's use and enjoyment of the
boat launch easement was based on speculation.
On appeal, HP Limited again argues that the superior court should have
applied § 4.11 of the Restatement. In support of its position, HP Limited cites an
illustration from the Restatement regarding § 4.11:
Hotel Corporation, the owner of a five-acre parcel on which
it operated a hotel, purchased a lot in Greenacres, the adjacent
subdivision. An easement appurtenant to the Greenacres lot
granted rights to use the Greenacres community beach and
recreational facilities. In the absence of other facts or
circumstances, Hotel Corporation is not entitled to use the
26 RESTATEMENT (THIRD) OF PROPERTY : SERVITUDES § 4.11 (2000).
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Greenacres beach or recreational facilities for the benefit of
its hotel operation.[27]
The Airpark Owners Association argues that Restatement § 4.11 does not apply to this
case because its use of Lot 30 is as the owner of the servient estate, not as the owner of
a dominant tenement benefitted by the easement.
We have explained that "the land subject to [an] easement is described as
a 'servient tenement' and the land enjoying [an] easement [is] the 'dominant tenement.'
. . . [I]t is not necessary that the two tenements be contiguous or adjoining."28 Here,
because Lot 30 is the lot subject to the easement, it is the servient tenement. Holiday
Park's plat notes make clear that the easement is "for the use of all property owners in
the subdivision." All of the other lots in Holiday Park are dominant tenements.
"Unless the terms of the servitude . . . provide otherwise, an . . . easement
may not be used for the benefit of property other than the dominant estate."29 But the
Airpark Owners Association is not seeking to use the easement for the benefit of
property other than the dominant estate; it seeks to use the servient estate itself for the
benefit of its members. The superior court correctly ruled that Restatement § 4.9 applies
to these facts, not § 4.11. Section 4.9 states: "[T]he holder of the servient estate is
entitled to make any use of the servient estate that does not unreasonably interfere with
enjoyment of the servitude." Because the Airpark Owners Association owns Lot 30, it
27 RESTATEMENT (THIRD) OF PROPERTY : SERVITUDES § 4.11 illus. 1 (2000).
28 Freightways Terminal Co. v. Indus. & Commercial Const., Inc., 381 P.2d
977, 982-83 (Alaska 1963) (internal citations omitted).
29 RESTATEMENT (THIRD) OF PROPERTY : SERVITUDES § 4.11 (2000).
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is entitled to use Lot 30 in any manner that does not unreasonably interfere with the
Holiday Park lot owners' use of the boat launch easement.30
HP Limited did not introduce any evidence that the Airpark Owners
Association's use of Lot 30 interferes with the boat launch easement. HP Limited argues
that because members of the Airpark Owners Association "will have to use, cross or
travel on the easement," "conflicts will develop." We agree with the superior court that
these assertions are speculative and unsupported by the record. There is no evidence in
the record that the Airpark Owners Association's use of Lot 30 unreasonably interferes
with Holiday Park lot owners' use of the easement.31
C. The Superior Court Did Not Err In Ruling That HP Limited Did Not
Establish A Prescriptive Easement.
HP Limited argues that even if the original scope of the express easement
was limited, it perfected an easement by prescription to use the designated path and
surrounding areas on Lot 30 for general recreation. This argument is based on Holiday
Park lot owners' use of the easement between 1976 and 2004.
There are three elements necessary to perfect a prescriptive easement:
(1) the use must have been continuous and uninterrupted for at least ten years; (2) the
user must have acted as if he were the owner and not merely one acting with permission
30 The cases HP Limited cites to in support of its argument do not apply here.
As Kenai River Airpark points out, Leffingwell Ranch v. Cieri, 916 P.2d 751 (Mont.
1996) concerned an easement holder seeking to expand the use of the easement; the
easement holder did not own the servient estate. Christensen v. City of Pocatello is
similarly inapplicable. 124 P.3d 1008 (Idaho 2005).
31 We note that our decision today does not affect HP Limited's ability to
bring another claim in the future should the Airpark Owners Association's use of Lot 30
begin to unreasonably interfere with Holiday Park lot owners' use of the boat launch
easement. We merely hold that there is no evidence in the record before us to support
a finding that the Airpark Owners Association's current use reaches this level.
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of the owner;32 and (3) the use must have been reasonably visible to the record owner.33
"The main purpose of these requirements is to put the record owner on notice of the
existence of an adverse claimant."34 The claimant must prove each element by clear and
convincing evidence.35
HP Limited's claim for a prescriptive easement relies largely on the
testimony of other lot owners as to how they used the easement area over the years. But
the lot owners in Holiday Park purchased their properties at different times and used
Lot 30 with varying frequency. HP Limited is the only plaintiff in this action, and it is
not seeking to establish a public prescriptive easement. Therefore, HP Limited cannot
rely on the other lot owners' use of Lot 30 to establish a prescriptive easement for itself;
it can only rely on its own use of the lot or, possibly, the use of its predecessor-in-
interest, Todd.36 We agree with the Idaho Supreme Court that:
[W]here there is more than one claimant to a prescriptive
easement, the trial court must make findings sufficient to
support each claim. The easement alleged is best described
as a shared, private right of way. Further, it is permissible for
32 This is also referred to as the "hostility" requirement. See McDonald v.
Harris, 978 P.2d 81, 83 (Alaska 1999).
33 This is also referred to as the "open and notorious" requirement. See Swift
v. Kniffen, 706 P.2d 296, 302 (Alaska 1985).
34 Id.
35 McDonald, 978 P.2d at 83.
36 Kenai River Airpark argues that "Todd's uses are not applicable and [HP
Limited] has to prove its own adverse use for 10 years since 1994 when [it] was formed."
Like the superior court, we decline to reach the question of whether HP Limited could
rely on Todd's use to establish an easement by prescription because we conclude that the
superior court did not err in finding that Todd's use did not satisfy the requirements of
hostility and notoriety.
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a trial court to make findings of fact common to all property
owners asserting prescriptive rights in the same property.
Nonetheless, where, as here, the claimants purchased their
property at different times and used the subject property for
different purposes and with different frequency, the trial court
must make specific findings to each Property Owner's claim.
Such findings are necessary, in part, because prescriptive
rights are defined by the actual prescriptive use of the
property over the statutory period.[37]
HP Limited can only support its claim for a prescriptive easement with evidence of its
own use of the easement, or the use of Todd, its predecessor in interest. Any other
Holiday Park lot owner seeking to expand the bounds of the express easement by
prescriptive use would have to bring his or her own claim and independently satisfy the
requirements for a prescriptive easement.
1. Todd's use of Lot 30 was not hostile.
The hostility requirement for a prescriptive easement requires that the "user
must have acted as if he were claiming a permanent right to the easement."38 The test is
objective and seeks to determine "whether the possessor acted toward the land as if he
owned it, without the permission of one with legal authority to give possession."39 When
one uses another's property, there is a presumption that he does so with "the rightful
owner's permission and in subordination to his title."40 "This presumption is overcome
. . . by a showing that such use of another's land . . . was openly adverse to the owner's
37 Hodgins v. Sales, 76 P.3d 969, 973 (Idaho 2003).
38 Swift, 706 P.2d at 303 (citing City of Anchorage v. Nesbett, 530 P.2d 1324,
1331 (Alaska 1975)).
39 McDonald, 978 P.2d at 84 (quoting Nome 2000 v. Fagerstrom, 799 P.2d
304, 310 (Alaska 1990)).
40 Swift, 706 P.2d at 304.
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interest, i.e., by proof of a distinct and positive assertion of a right hostile to the owner
of the property."41 Evidence of a landowner's acquiescence is not enough to extinguish
an adverse user's claim; the question is whether the landowner intended to permit the use
or merely acquiesced in that use.42
Todd testified that he fished on the riverfront of Lot 30 in 1978, 1979, and
1980, but other Holiday Park lot owners testified that they never, or very rarely, saw
Todd fishing off of the easement in later years. Todd testified that he also camped on the
easement in 1976 and 1977, but he owned the lot during this time and was therefore not
acting "adversely" by camping on it. Further, Todd testified that he knew when Hausam
was on the lot and that, because he did not like confrontation, he avoided going to Lot
30 when Hausam was around.
The superior court found that, after 1978, Todd did not use Lot 30 as
though he were its owner; he used it as if acting with the owner's permission. The court
found that Todd's use of the easement included showing prospective buyers the
easement, but ruled that this was a permissible use implied by the scope of the express
easement. The superior court also found that Todd was "rarely present during the peak
fishing season" and that "[t]his is not conduct synonymous with ownership." Todd's
intentional avoidance of Hausam, the owner of the lot, demonstrates that he did not act
"toward the land as if he owned it."43 The superior court did not clearly err in finding
that this purposeful avoidance, as well as Todd's allegedly rare use of the lot, were
inconsistent with the conduct necessary to perfect an easement by prescription.
41 Id.
42 Id. at 303-04.
43 McDonald, 978 P.2d at 84.
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2. Todd's use of Lot 30 was not open and notorious.
A party making a claim for an easement by prescription also must prove
that "a duly alert owner would have known of the adverse presence."44 In other words,
the claimant must establish that his or her use was open and notorious.45 The superior
court found that Todd's use of Lot 30 was not notorious. The court explained that "by
Todd's own testimony he avoided Hausam after they had their falling out in 1978 and
he had not seen Hausam in 23 years; that is, until Hausam's deposition was taken in
August 2008 in connection with this law suit." The court concluded: "Todd's conduct
in avoiding Hausam [was] the antithesis of notoriety."
The superior court's determination is supported by the record. Todd
testified that he did not see Hausam between 1976 and 2008. Todd also testified that he
would fish late at night or early in the morning, and that he knew when Hausam was on
Lot 30. Todd explained: "I don't attempt to contact people I'm having a little difficulty
with. . . . I don't rile up issues at all." Many of the other lot owners confirmed that they
very rarely saw Todd fishing on Lot 30. Todd's intentional avoidance of Hausam was
inconsistent with an open and notorious use of the property sufficient to put a reasonably
diligent landowner on notice.46
The superior court did not err in ruling that Todd's use of Lot 30 was
neither hostile nor open and notorious. The record shows that Todd did not act "toward
44 Id. at 85.
45 Id.
46 See Nome 2000 v. Fagerstrom, 799 P.2d 304, 309 n.7 (Alaska 1990) ("The
function of the notoriety requirement is to afford the true owner an opportunity for
notice.").
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the land as if he owned it,"47 and that Hausam had little or no notice that Todd
intermittently used the property. The superior court did not err in ruling that HP Limited
failed to establish an easement by prescription.
D. HP Limited Did Not Establish An Easement By Implication.
1. HP Limited did not meet the requirements for establishing an
easement by implication.
HP Limited also argues that it established an easement by implication,
which expanded the permissible uses of the easement on Lot 30 to include all general
recreational activities and broadened the geographic boundaries of the easement.
An implied easement exists when there is a quasi-easement at the time of
contract or sale or conveyance.48 The quasi-easement must be apparent, reasonably
necessary for the enjoyment of the land retained or the land conveyed, and continuous
in nature.49 The focus is on the use of the property at the time of severance.50
Additionally, "[e]ven if these elements exist, an easement by implication will not be
found where the parties intend that such an easement not exist."51
The superior court initially agreed that HP Limited had established an
expansion of the easement across Lot 30 by implication. But the superior court reversed
this determination after trial, granting Kenai River Airpark's motion to modify or amend
the judgment. The post-trial order stated:
47 McDonald, 978 P.2d at 84.
48 Williams v. Fagnani, 175 P.3d 38, 40 (Alaska 2007).
49 Id.
50 Id.
51 Demoski v. New, 737 P.2d 780, 784 (Alaska 1987).
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[T]here must be unity of ownership at the time of severance
in order to find an easement by implication, and . . . no one
had used the boat launch easement for access to the river at
the time the lots were created. The evidence shows that the
boat launch was built at a later date and . . . no lots had been
sold to third parties when Mr. Todd transferred Lot 30 to
Neal Hausam."
The superior court's post-trial ruling denied HP Limited's claim for an easement by
implication.
On appeal, HP Limited argues that all of the elements of an implied
easement were shown and that it is entitled to a ruling establishing a broader geographic
scope for the easement and additional permissible uses. Kenai River Airpark responds
that none of the elements was met and that, even if they had been, the parties did not
intend that such an easement would exist.
1. Unity of ownership and quasi-easement requirements
The first requirement for an easement by implication is a showing that a
quasi-easement existed at the time of severance. We have defined the term
"quasi-easement" in the following way: "While a person cannot have an easement over
his own land, he may make use of one part of his land for the benefit of another part and
thus create what has been denominated a quasi easement."52 To establish an easement
by implication, there must have been unity of ownership prior to the severance of the title
to the land, and the previous owner must have used one part of the land for the benefit
of another part.53
52 Freightways Terminal Co. v. Indus. & Commercial Const., Inc., 381 P.2d
977, 983 (Alaska 1963).
53 Id. at 985.
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Prior to 1978, Hausam and Todd each held a one-half ownership interest
in Lot 30. They also shared a one-half ownership interest in other unsold Holiday Park
lots between 1975 and 1978. Thus, prior to 1978, there was unity of ownership between
Lot 30 and other unsold lots in Holiday Park.54 Because the other unsold lots were
benefitted by the easement across Lot 30, Todd and Hausam created a quasi-easement
to use the boat launch. Kenai River Airpark argues that the severance of ownership
occurred in 1975, when the 160-acre parcel was parceled into 114 lots. But we do not
consider the date of parceling to be the date of severance; instead, severance occurs when
the lot burdened by the quasi-easement is sold or transferred.55 In this case severance
occurred on May 16, 1978, when Todd conveyed his interest in Lot 30 to Hausam.
2. Todd's use was not apparent.
To establish an expanded easement by implication, HP Limited also must
show that Todd's use of the easement - for purposes other than boat launching within
the defined path - was apparent. HP Limited relies heavily on evidence of the use of
the Lot 30 easement after the 1978 conveyance to prove this element. But only those
activities that occurred before the date of severance are relevant to the establishment of
54 The superior court found that "no lots had been sold to third parties when
Mr. Todd transferred Lot 30 to Neal Hausam." As HP Limited points out, this statement
is incorrect. 12 lots were sold between the 1975 platting and the 1978 conveyance to
Hausam. But the fact that other lots in the subdivision were sold prior to 1978 is
irrelevant to the unity of ownership and severance inquiry in this case. As long as Todd
concurrently owned Lot 30 and any other Holiday Park lot, unity of ownership existed.
Some lots were sold between 1975 and 1978, but Todd remained the joint owner of
many other Holiday Park lots, in addition to Lot 30, until May 16, 1978. Severance
occurred on May 16, 1978.
55 See, e.g., Freightways Terminal, 381 P.2d at 985 (focusing on the use of
one of the parceled lots, Tract D, before it was sold rather than before it was parceled).
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an easement by implication,56 i.e. only the uses made of the easement and surrounding
areas between 1976 and 1978.
Todd testified that he and Hausam had a falling out in 1976 and that he did
not see Hausam again until the deposition in 2008. Todd testified that he camped on the
lot for 30 days in 1976 and 1977, but he also testified that he knew when Hausam was
on the lot and tried to avoid confrontation after their disagreement. Purposefully
avoiding one of the co-owners while using the property is antithetical to an "apparent"
use;57 such hidden use does not establish that the parties intended, or had a reasonable
expectation of, an expansion of the easement by implication.58
Because Todd's use was not sufficiently apparent, we need not address
whether Todd's use was reasonably necessary or whether the parties intended to create
an easement by implication. The superior court did not err in ruling that Todd did not
establish an easement by implication.
E. HP Limited Did Not Prove Hoback Had Inquiry Notice Of The Alleged
Scope Of The Easement.
HP Limited also argues that it is entitled to an expanded scope of the
easement on the basis of inquiry notice. Purchasers of land can be charged with notice
of an interest adverse to their title when they are aware of facts "which would lead a
56 See Williams v. Fagnani, 175 P.3d 38, 40 (Alaska 2007) ("An implied
easement arises when there is (1) a quasi-easement at the time of contract of sale or
conveyance, (2) which is apparent . . . ." (emphasis added)).
57 See Methonen v. Stone, 941 P.2d 1248, 1253 (Alaska 1997) (citing
Hutchenson v. Sumrall, 72 So.2d 225, 227 (Miss. 1954) (use is apparent if discoverable
upon inspection)).
58 RESTATEMENT (THIRD) OF PROPERTY : SERVITUDES § 2.12 cmt. h (2000)
("Implication of a servitude . . . is based on what the parties probably intended or had
reasonable grounds to expect.").
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reasonably prudent person to a course of investigation which, properly executed, would
lead to knowledge of the servitude."59 "The purchaser is considered apprised of those
facts obvious from an inspection of the property."60 Lack of diligence in the pursuit of
a required inquiry creates a conclusive presumption that the purchaser knew of those
facts which reasonable inquiry would have revealed.61 Proper investigation generally
includes a request for information from those reasonably believed to hold an adverse
interest; purchasers may not rely solely on statements of vendors or anyone who has a
motive to mislead.62
The superior court did not directly address HP Limited's easement by
inquiry notice claim at trial.63
On appeal, HP Limited claims that Hoback, and by association Kenai River
Airpark, relied exclusively on the statements of Randy Comer, the seller and realtor, that
the easement across Lot 30 was rarely used, and that exclusive reliance on Comer's
59 Methonen, 941 P.2d at 1252. In Methonen, we established that inquiry
notice is an independent theory for establishing an easement. Id. at 1251 (". . . Stone and
Talmage have raised genuine issues of material fact as to two separate potential grounds
for establishing an easement . . . inquiry notice and implied easement."). Methonen is
the only case in which we have recognized that inquiry notice is an independent
easement theory.
60 Id.
61 Id.
62 Id.
63 The superior found an easement "by intent" in its ruling at trial but this
finding cannot be understood as a consideration of HP Limited's "inquiry notice" claim.
In context, the superior court's use of an "intent" theory of easement creation referred
to its consideration of extrinsic evidence outside the four corners of the plat. "Easement
by intent" is not a separate theory for the creation or expansion of an easement in Alaska.
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statements was unreasonable. But HP Limited ignores Hoback's testimony that he
visited Lot 30 twice before purchasing it and that there were no visible signs of expanded
use of the easement. These visits occurred in the spring - when there was no fishing
- and Hoback found no evidence to suggest that the easement was being used for
activities other than boat launching. Further, although Hoback spoke with Todd a few
months before he bought Lot 30, Todd did not mention the recreational uses of Lot 30
until after Hoback bought the lot.
The record does not show that Hoback had any way of knowing, at the time
of purchase, that Holiday Park lot owners fished on Lot 30. Hoback conducted sufficient
investigation into potential interests adverse to his title, and he was not put on notice that
the easement was used for anything other than boat launching. On the record before us,
he cannot be charged with inquiry notice of the alleged expanded scope of the easement.
F. The Superior Court Did Not Err In Ruling That HP Limited Did Not
Prove An Easement By Estoppel.
HP Limited also argues that the scope of the easement across Lot 30 was
expanded by estoppel. We follow the definition of an easement by estoppel explained
in Tiffany's Real Property § 801:
In case there is an attempted oral grant of an easement, and
the intended grantee makes improvements for the purpose of
exercising the easement, equity will recognize and enforce
the easement on the theory of what is ordinarily referred to as
that of part performance but which is essentially the theory of
estoppel.[64]
64 Freightways Terminal Co. v. Indus. & Commercial Const., Inc., 381 P.2d
977, 984 (Alaska 1963).
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We have made clear that "a party 'may not rely upon the theory of creation of an
easement by oral grant and estoppel, when there is no evidence to support a finding that
an oral grant was made.' "65
The superior court denied HP Limited's easement by estoppel claim
because HP Limited did not show: (1) an oral grant; or (2) that HP Limited, or its
predecessor Todd, relied to its detriment on any type of oral representation, especially
given that Todd was one of the original developers of Holiday Park. HP Limited
responds that "Todd testified [about] his discussion as to the recreational river access
with Hausam at the beginning of the development and the intended use of Lot 30."
We find no evidence in the record that an oral grant of an expanded
easement was made. The evidence cited by HP Limited merely consists of the
developers' discussions about the proposed scope for the express easement. Even
Todd's testimony at trial did not clarify who had made the broader proposals Todd
recalled. Further, Hausam could not have given Todd an oral grant of an easement
before 1978 because Todd and Hausam jointly owned the unsold lots up until that time.66
Todd testified that he did not see Hausam between 1976 and 2008. The superior court
did not clearly err in finding that Todd did not prove there was an oral grant beyond the
express easement contained in the plat.67
65 Swift v. Kniffen, 706 P.2d 296, 302 (Alaska 1985) (quoting Hawkins v.
Alaska Freight Lines, 410 P.2d 992, 993 (Alaska 1966)).
66 See Freightways Terminal Co., 381 P.2d at 983 ("a person cannot have an
easement over his own land . . .").
67 HP Limited also argues that it established an easement to use "the Lot 30
hill for Kenai River related recreation" on the basis of estoppel, prescription, and
implication. HP Limited claims that "John Todd both personally and with his buyers
demonstrated uses of the hill . . . ." But as we have explained, "a party 'may not rely
(continued...)
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G. The Superior Court Did Not Abuse Its Discretion By Ruling That
Kenai River Airpark Was The Prevailing Party.
After the superior court entered its findings of fact and conclusions of law,
it ruled that Kenai River Airpark was the prevailing party and awarded fees and costs to
Kenai River Airpark. HP Limited appeals the superior court's prevailing party
determination, arguing that "there was no prevailing party."
Under Alaska Civil Rule 82, "Except as otherwise provided by law or
agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's
fees calculated under this rule." We have made clear that "[t]he prevailing party is the
one who has successfully prosecuted or defended against the action, the one who is
successful on the 'main issue' of the action and 'in whose favor the decision or verdict
is rendered and the judgment entered.' "68 We review a trial court's prevailing party
determination for abuse of discretion, which we find only if the determination "is
arbitrary, capricious, manifestly unreasonable, or improperly motivated."69
The superior court concluded that permissible uses of the easement included
boat launching, bank fishing, and access to the river; it denied HP Limited's claims for
an expanded easement by prescription, implication, and estoppel. The superior court
67(...continued)
upon the theory of creation of an easement by oral grant and estoppel, when there is no
evidence to support a finding that an oral grant was made.' " Swift, 706 P.2d at 302. HP
Limited cites no authorities contradicting this rule, nor does it point to any express
evidence of an oral grant. HP Limited's arguments that it established an easement by
prescription and implication are likewise unsupported: there has been no showing that
Todd's activities on the hill were open and notorious or hostile, or that Todd's activities
on the hill were apparent.
68 Taylor v. Moutrie-Pelham, 246 P.3d 927, 929 (Alaska 2011) (quoting
Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1092 (Alaska 2008)).
69 Id. at 928-29 (internal citations omitted).
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also ruled that the Airpark Owners Association could allow its members to use Lot 30,
despite HP Limited's assertions to the contrary. These findings alone are sufficient for
us to conclude that the court did not abuse its discretion in making its prevailing party
determination. Further, pursuant to our decision on appeal, the only permissible use of
the easement is boat launching. Kenai River Airpark is definitively the prevailing party.
V. CONCLUSION
We REVERSE the superior court's determination as to the permissible use
of the easement and hold that it is limited solely to boat launching. We AFFIRM the
superior court's conclusion that the easement is limited to the path defined on the plat
and that HP Limited has not established an expanded easement by prescription,
implication, inquiry notice, or estoppel. We AFFIRM the superior court's decision that
Kenai River Airpark Owners Association may allow its members to use Lot 30 so long
as their use does not unreasonably interfere with the Holiday Park lot owners' right to
use the easement across the lot. We also AFFIRM the superior court's prevailing party
determination and attorney's fee award.
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