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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

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 

                                                 -2-                                            6631
 

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

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. 

                                                 -3-                                            6631
 

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

                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 

                                                  -4-                                             6631
 

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

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 

                                                   -5-                                             6631
 

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

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: 

                                                   -6-                                            6631
 

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

                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. 

                                                   -7-                                             6631
 

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

                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. 

                                                  -8-                                             6631
 

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

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. 

                                                  -9-                                             6631
 

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

                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). 

                                                  -10-                                              6631 

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

                 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. 

                                                   -11-                                              6631
 

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

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. 

                                                    -12-                                              6631
 

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

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. 

                                                  -13-                                              6631 

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

                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 

                                                -14-	                                          6631
 

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

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, 

                                                    -15-                                              6631
 

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

                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). 

                                                  -16-                                               6631 

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

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. 

                                                  -17-                                             6631
 

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

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). 

                                                 -18-                                              6631 

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

                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). 

                                                  -19-                                            6631
 

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

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. 

                                                 -20-	                                          6631
 

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

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. 

                                                   -21-                                              6631
 

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

                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. 

                                                  -22-                                            6631
 

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

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. 

                                                  -23-                                               6631 

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

                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."). 

                                                 -24-                                           6631
 

----------------------- Page 25-----------------------

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). 

                                                  -25-	                                            6631
 

----------------------- Page 26-----------------------

                [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. 

                                                  -26-                                              6631 

----------------------- Page 27-----------------------

                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). 

                                                 -27-                                           6631
 

----------------------- Page 28-----------------------

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."). 

                                                 -28-	                                           6631
 

----------------------- Page 29-----------------------

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. 

                                                  -29-                                             6631
 

----------------------- Page 30-----------------------

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). 

                                               -30-	                                          6631 

----------------------- Page 31-----------------------

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...) 

                                                   -31-                                              6631
 

----------------------- Page 32-----------------------

        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). 

                                                   -32-	                                             6631
 

----------------------- Page 33-----------------------

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. 

                                            -33-                                       6631
 
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