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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Schweitzer v. Salamatof Air Park Subdivision Owners, Inc. (6/22/2012) sp-6684

Schweitzer v. Salamatof Air Park Subdivision Owners, Inc. (6/22/2012) sp-6684

        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 



CRAIG SCHWEITZER,                                ) 

                                                 )   Supreme Court No. S-13350 

                       Appellant,                ) 

                                                 )   Superior Court No. 3KN-05-00407 CI 

        v.                                       ) 

                                                 )   O P I N I O N 

SALAMATOF AIR PARK                               ) 

SUBDIVISION OWNERS, INC. and                     )   No. 6684 - June 22, 2012 

ESTATE OF DENNIS J. LUY,                         ) 

                                                 ) 

                       Appellees.                ) 

                                                 ) 



               Appeal from the Superior Court of the State of Alaska, Third 

               Judicial   District,   Kenai,   Harold   Brown,   Anna   Moran,   and 

               Carl Bauman, Judges. 



               Appearances:      Craig Schweitzer, pro se, Kenai, Appellant. 

               Robert J. Molloy and Kristine A. Schmidt, Molloy Schmidt 

               LLC, Kenai, for Appellee Salamatof Air Park Subdivision 

               Owners, Inc.  Joseph L. Kashi, Soldotna, for Appellee Estate 

               of Dennis Luy. 



               Before:     Carpeneti,     Chief   Justice,   Fabe,   Winfree,    and 

               Stowers, Justices.    [Christen, Justice, not participating.] 



               PER CURIAM. 



I.      INTRODUCTION 



               Purchasers of a lot in a newly formed airpark subdivision prepared and 



properly executed an easement agreement granting them access to the subdivision's 


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

aviation facilities.   The purchasers later claimed the easement agreement gave them a 



priority right to use the subdivision's common areas, distinct from use rights granted to 



other lot owners.     The subdivision's homeowner's association disputed this claim. 



                The superior court ruled that the easement agreement did not grant the 



purchasers the right to exclude other lot owners from common areas.                  The court also 



issued a variety of orders on related issues, declaring the subdivision a common interest 



community   and   quieting   title   to   its   common   use   areas   as   superior   to   the   easement 



agreement.     The court awarded attorney's fees against the purchasers. 



                One of the purchasers appealed but subsequent events rendered all issues 



except the attorney's fees decision moot.          Because we agree with the superior court on 



the main issue in the litigation, namely that the easement agreement did not grant priority 



rights to the purchasers, we affirm the superior court's award of attorney's fees against 



the purchasers. 



II.     FACTS AND PROCEEDINGS 



        A.      Facts 



                In November 1998 Dennis J. Luy recorded a plat creating Salamatof Air 



Park Subdivision, a roughly 88-acre subdivision on Salamatof Lake.                 The subdivision 



was comprised of Lots 1 - 17, Tracts A, B, and C, several roadways, and a nearly 80-acre 



remainder. 



                In   February   1999   Luy   entered   into   an   earnest   money   agreement   with 



Michael and Dorinda Wilhelm for Lot 15.            The Wilhelms' daughter, Melinda, and her 



husband, Craig Schweitzer (collectively the Schweitzers), later became involved in the 



purchase of Lot 15.      In March Craig provided Luy purchase documents, including the 



Easement Agreement at issue in this case and a separate right-of-way easement. In April 



Luy signed and recorded the Easement Agreement and the right-of-way easement Craig 



had provided.     It appears Craig drafted the Easement Agreement and that Luy did not 



                                                 -2-                                          6684
 


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

provide other lot purchasers easement agreements or right-of-way easements.  Luy also 



signed   and   recorded   Covenants,   Conditions,   and   Restrictions   (CCRs)   covering   the 



subdivision. 



                During the summers of 1999 and 2000 Craig worked to widen a channel 



to Salamatof Lake and develop a float plane basin.  In September 2000 Luy died.  Craig 



and   another   lot   owner   filed   suit   against   Luy's   estate   (Estate)   in   July   2001   seeking 



damages "to reimburse them for their previous work on the float plane access and to pay 



for further necessary work on float plane access."           The parties entered into a settlement 



agreement in July 2002.  Under the agreement, Lot 14 was conveyed to Craig; he and the 



other   lot   owner   were   also   permitted   to   construct   additional   float   plane   basins   and 



improvements on Tract A at their own expense for their non-exclusive use. In November 



2004 the Estate recorded a new Salamatof Air Park Subdivision plat dividing Tract A 



into Tract A-1 and Lot 18. 



                In   October     2004    the  Salamatof     Air   Park   Subdivision     Owners,     Inc. 



(Association) sent a demand letter to the Estate, requesting the Estate convey Tract A-1 



to the Association. In November 2004 the Association released claims against the Estate 



conditioned      on   receiving   "common       property    devoted    to  aviation   related   facilities 



including the runway, float basin, and parking area identified . . . as Tract A-1."  The 



Estate conveyed Tract A-1 to the Association the same day. 



                A conflict later developed between Craig and other lot owners over use of 



the Tract A-1 common areas.           Craig characterized the Association as engaging in "a 



campaign to hinder [his] activities" in the area; several lot owners testified before the 



superior court that Craig verbally and physically threatened them regarding their use of 



the common areas.       In April 2005 Craig posted a "Safety Notice to Salamatof Air Park 



Subdivision Homeowners," stating that he was expanding his commercial float plane 



operation as authorized by the Easement Agreement and requesting that homeowners 



                                                   -3-                                           6684
 


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

stay   clear   of   construction   areas   during   flight  strip  repairs   and   modifications.   The 



Association sent a letter suggesting that Craig misunderstood the Easement Agreement, 



which "recites what are known as the Common Areas . . . available for use by all owners 



of property equally and nonexclusively" and "does not provide any special rights to 



[Craig]."  Craig failed to respond and the Association reiterated the message in two more 



letters. 



        B.       Proceedings 



                1.       Pre-trial proceedings 



                Craig filed a complaint for declaratory judgment against the Association in 



June 2005.  Craig sought judgment establishing, among other things, that the Easement 



Agreement gave him a perpetual right of use to all common areas with priority over the 



Association   and   all   other   users.  Craig   also   claimed   authority   to   perform   any   acts 



necessary to facilitate his use and enjoyment of his easement and to exclude other users 



from facilities constructed pursuant to the Easement Agreement.  The Association filed 



an answer with counterclaims alleging that the   subdivision was a "common interest 

community" subject to AS 34.08 governing easement rights.1                 The Association sought 



ju dgment quieting title to Tract A-1 and expunging Craig's Easement Agreement, right- 



of-way easement, settlement stipulation, and lis pendens; it also sought injunctive relief 



and damages.  The Association also filed third party complaints against Melinda and the 



Estate. 



                In   March   2006   the   Schweitzers   moved   for   summary   judgment   on   the 



Association's claim that the subdivision was a common interest community subject to 



        1       AS 34.08.990(7) defines "common interest community" as " real estate with 



respect to which a person, by virtue of ownership of a unit, is obligated to pay for real 

estate   taxes,   insurance   premiums,   maintenance,   or   improvement   of   other   real   estate 

described in a declaration." 



                                                  -4-                                           6684 


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

AS 34.08.  The Association, joined by the Estate, opposed the motion and cross-moved 



for partial summary judgment establishing that the 1998 plat and original CCRs created 



a de jure or de facto common   interest community.              Following oral argument on the 



motions, Superior Court Judge Harold M. Brown granted the Schweitzers' motion and 



denied the Association and Estate's cross-motion. 



                In July and August 2006 the Association filed several additional motions 



for partial summary judgment.  Judge Brown ruled that the Easement Agreement could 



not grant priority rights in publicly dedicated streets and that Melinda had waived all 



claims for money damages; he also expunged Craig's lis pendens on Tract A. 



                Judge Brown further ruled that the Easement Agreement did not grant Craig 



an appurtenant easement in Tract A or other areas.  Judge Brown reasoned that because 



the   Easement     Agreement   was      executed    before   the  deed   conveying     the  lot   to  the 



Schweitzers was recorded, the Schweitzers had no interest in the dominant estate when 



the Easement Agreement became effective.   Although the Easement Agreement's stated 



effective date was March 24, 1999, the warranty deed was executed April 6, 1999. Judge 



Brown noted that:  (1) the deed expressly stated it was subject to all CCRs; (2) the CCRs 



were executed the same day as the deed; and (3) the CCRs were recorded before the 



deed.   Judge Brown concluded as a matter of law that the Easement Agreement "could 



not be effective until the statutory warranty deed was executed," and that if the CCRs and 



Easement Agreement conflict, the CCRs control. 



                Judge Brown retired and the case was reassigned to Superior Court Judge 



Anna Moran.       Judge Moran subsequently ruled that the Easement Agreement did not 



grant   Craig   priority   rights   in   Tract   A-1   or   the   lake   frontage   over   other   users   of   the 



common areas. Judge Moran also ruled that the Easement Agreement did not grant Craig 



sole discretion for construction of docks or maintenance of the runways, taxiways, and 



float plane areas. 



                                                  -5-                                          6684
 


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

                The case was then reassigned to Superior Court Judge Carl Bauman. Judge 



Bauman indicated at a status conference that he would not override Judge Brown's or 



Judge Moran's summary judgment rulings. In March 2008 Craig filed a motion in limine 



regarding the scope of the upcoming bench trial, seeking to bar any argument that the 



subdivision was a de jure or de facto common interest community.                    Craig argued that 



Judge Brown's summary judgment ruling on the common interest community issue stood 



as the law of the case and should not be revisited.  The Association opposed the motion. 



Judge Bauman appears to have orally declined to grant the motion in limine. (Due to the 



absence of a complete transcript we are unable to definitively determine Judge Bauman's 



ruling   on   the   motion.)  Judge   Bauman   then   granted   a   stipulation   for   dismissal   with 



prejudice settling the Association's third-party complaint against the Estate. 



                2.      Trial and decision 



                After a five-day bench trial Judge Bauman issued a memorandum decision. 



Judge   Bauman   applied   contract   construction   principles   to   determine   the   Easement 



Agreement conveyed "non-exclusive access and use rights to the common areas," no 



different from   the rights the CCRs conveyed to all lot owners.                 Judge Bauman also 



determined the subdivision was a de facto and implied common interest community.  The 



court ordered that:      (1) Craig remove obstructions he had placed on the subdivision 



common areas; (2) the Association was the operator of the subdivision airport; (3) the 



Association   meet   to   develop   and   propose  to     its   members   rules   for   the   use   of   the 



subdivision common interest areas; (4) the Association be considered to have fee simple 



title   to   Tract   A-1,   with   the   Easement   Agreement   providing   Craig   no   special   rights; 



(5) the Association be awarded approximately $4,700 in money damages to compensate 



the Association for the cost of removing gravel Craig left on the common runway; and 



(6) specific areas of the subdivision had been irrevocably dedicated to the public when 



the original plat was recorded in 1998. 



                                                   -6-                                           6684
 


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

                In October 2008 Judge Bauman entered findings of fact, conclusions of law, 



and orders.  The orders reiterated several determinations from the March 2008 decision, 



and concluded the Association was entitled to a judgment quieting title in Tract A-1. 



The superior court determined the Association was the prevailing party and awarded it 



$60,000 in attorney's fees and $8,250 in costs against the Schweitzers jointly. 



                3.      Appeal and related motions 



                Melinda initiated this appeal in November 2008, and Craig later joined it. 



Because only Craig filed an appellant's brief, we dismissed Melinda's appeal. 



                When this appeal was filed the Schweitzers jointly owned Lot 15 and Craig 



owned Lot 14.  In 2009 a mortgage holder foreclosed on both lots.  After this appeal was 



filed the Association's judgments against the Schweitzers for damages, fees, and costs 

were paid by Don Reesor on behalf of Airflow Leasing, LLC.2 



III.    STANDARD OF REVIEW 



                We review a grant of summary judgment de novo, "reading the record in 



the light most favorable to the non-moving party and making all reasonable inferences 

in its favor."3  We will affirm a grant of summary judgment "when there are no genuine 



        2       Airflow   Leasing,   LLC   claimed   ownership   of   a   partially   reconstructed 



aircraft and aircraft parts the Association had seized to satisfy its judgment against Craig. 

The seized property was found to be Craig's (despite Craig's assertion that he had sold 

the aircraft in question to Airflow).         The superior court ordered the seized property 

released to Airflow if it unconditionally paid $85,000 to the Association and then "[took] 

possession   of   the   seized   property   with   the   responsibilities   of   a   trustee   in   bailment 

pending an agreement among all of the potential claimants to the seized property or a 

court order [addressing] distribution of the seized property." 



        3       Witt v. State, Dep't of Corr., 75 P.3d 1030, 1033 (Alaska 2003) (citing 



Spindle v. Sisters of Providence in Wash., 61 P.3d 431, 436 (Alaska 2002)). 



                                                  -7-                                          6684
 


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

issues of material fact and the moving party is entitled to judgment as a matter of law."4 



"We resolve issues of standing and mootness using our independent judgment because 

they are   questions of law involving matters of judicial policy."5              We review factual 



findings for clear error.6 



                The   superior   court's   attorney's   fees   awards   are   reviewed   for   abuse   of 

discretion.7   We will conclude there has been an abuse of discretion if, after reviewing 



the whole record, we are left with a definite and firm conviction that the superior court 

erred in its ruling.8 



IV.	    DISCUSSION 



        A.	     Craig's Appeal Is Moot, But We Nonetheless Consider The Main Issue 

                To Resolve The Attorney's Fees Question. 



                1.	     Craig's appeal is moot. 



                The Association argues that the foreclosures of Lots 14 and 15 negated any 



rights Craig had in the Easement Agreement, rendering his appeal moot and depriving 



him of standing to obtain relief.      Craig responds that he "retains a vested interest in the 



property rights issues in this matter" because a standing order in earlier litigation directed 



the Estate to retain title to Lot 16 as security for any monies owed Craig.                  We find 



Craig's argument unconvincing. 



        4	      Id. (citing Spindle, 61 P.3d at 436). 



        5       Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d 



1165, 1167 (Alaska 2002) (citingKleven v. Yukon-Koyukuk Sch. Dist. , 853 P.2d 518, 525 

n.13 (Alaska 1993)). 



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



        7       Balough v. Fairbanks N. Star Borough , 995 P.2d 245, 254 (Alaska 2000) 



(citing Davila v. Davila , 908 P.2d 1027, 1031 (Alaska 1995)). 



        8       Id. (citing Buster v. Gale , 866 P.2d 837, 841 n.9 (Alaska 1994)). 



                                                  -8-	                                         6684
 


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

                "A claim is moot if it is no longer a present, live controversy, and the party 

bringing the action would not be entitled to relief, even if it prevails."9              The issues on 



appeal here arise almost entirely from rights under the Easement Agreement signed when 



Craig purchased Lot 15. The parties agree the easement benefitting Lot 15 is appurtenant 



and   therefore   runs   with   the   land   and   passes   to   the   new   owner   upon   transfer   of   the 

property, in the absence of contrary intent.10        Lot 15's transfer following foreclosure left 



Craig without any rights under the Easement Agreement.                   Even assuming a potential 



stake in Lot 16, this general interest in   the "property rights issues" surrounding the 



subdivision is not sufficient to reanimate the specific issues raised in this appeal. Craig's 



claim is moot. 



                2.	     We make an exception to the mootness doctrine where, as here, 

                         appellate review may change the status of the prevailing party 

                         for attorney's fees purposes. 



                We will "hear an otherwise moot case 'to determine who is the prevailing 

party for purposes of awarding attorneys' fees.' "11  The Association acknowledges this 



exception   but   argues   the   prevailing   party   is   unlikely   to   change.   The   Association 



contends Craig did not challenge every claim-dispositive ruling the superior court issued 



and   even   if   Craig   won   every   appeal   point,   the   case   would   have   to   be   remanded   to 



determine the prevailing party.         The Association then argues the superior court would 



have to dismiss Craig's claim on remand because he is no longer a subdivision lot owner 



        9       Fairbanks Fire Fighters , 48 P.3d at 1167 (citing Gerstein v. Axtell, 960 



P.2d 599, 601 (Alaska 1998)). 



        10      RESTATEMENT (THIRD) OF PROP .: SERVITUDES  5.1 cmt. b (2000). 



        11      Smallwood v. Cent. Peninsula Gen. Hosp., Inc., 227 P.3d 457, 461 (Alaska 



2010) (quoting Lamoureaux v. Totem Ocean Trailer Express, Inc. , 651 P.2d 839, 840 n.1 

(Alaska 1982)). 



                                                   -9-	                                           6684
 


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

and he therefore lacks standing to pursue his claims.             Craig responds that he remains 



liable to Reesor and Airflow for the $85,000 the Association was paid and that this 



appeal is his only legal remedy regarding that debt. 



                We agree with Craig - he may no longer have standing with regard to the 



underlying   issues   on   appeal,   but   the   principle   behind    the   mootness   exception    for 



attorney's fees is to recognize the continued interest in an otherwise moot claim based 



on the party's liability for attorney's fees.   If a party in Craig's position lacked standing 



on remand, the mootness exception would be meaningless. 



                We have held that "[t]he prevailing party [in an action] is . . . 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.' "12        To determine the prevailing party and resolve 



the attorney's fees issue we need only review the superior court's holding on what we 



determine is the "main issue."        In this case, the main issue is Craig's claim to priority 



rights under the Easement Agreement. 



        B.	     Craig     Is  Not    Entitled    To   Priority    Rights    Under     The   Easement 

                Agreement. 



                1.	     The Easement Agreement did not give Craig priority rights over 

                        other lot owners. 



                In his original complaint, Craig sought a judgment declaring his right in the 



common   areas   had   "priority   over   .   .   .   all   other   users   of   the   Common   Areas." The 



superior court's order granting the Association's partial summary judgment motion ruled 



the Easement Agreement did not grant Craig any special or priority rights in the common 



areas. 



        12      Progressive Corp. v. Peter ex rel. Peter , 195 P.3d 1083, 1092 (Alaska 



2008) (quoting Hillman v. Nationwide Mut. Fire Ins. Co. , 855 P.2d 1321, 1326 (Alaska 

1993)). 



                                                  -10-	                                         6684 


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

                 Craig argues the Easement Agreement's plain language unambiguously 



grants   him   special   rights   to   the   common   areas.    Craig   bases   this   contention   on   the 



Easement Agreement granting him "unrestricted access" to the common areas, and the 



lack of such a provision pertaining to other lot owners. Craig contends the superior court 



never found the Easement Agreement ambiguous and should have interpreted it based 



on its plain language.  The Association counters the superior court correctly interpreted 



the Easement Agreement as not giving Craig exclusive or superior rights to common 



areas   or   rights-of-way.      We   agree   with   the   superior   court's   conclusions   about   the 



Easement Agreement's intended meaning. 



                                                                                                      13 

                 In Dias v. State, Department of Transportation & Public Facilities                      we 



reiterated a three-step approach to the interpretation of an easement agreement. First, the 



court "look[s] to the four corners of the document to see if it unambiguously presents the 

parties'   intent."14   "[I]f   the   deed,   taken   as   a   whole,   is   only   open   to   one   reasonable 



interpretation"   the   interpreting   court's       analysis   "ends   here."15    Whether   a   deed   is 



ambiguous is a question of law that is reviewed de novo.16                  If the court finds the deed 



ambiguous,        it  next  determines      the  parties'   intent   by   considering      "the   facts  and 

circumstances        surrounding      the  conveyance."17       "If   the   parties'   intent   is  still  not 



         13      240 P.3d 272 (Alaska 2010). 



         14      Id. at 274 (quoting Estate of Smith v. Spinelli , 216 P.3d 524, 529 (Alaska 



2009). 



         15      Id. (citing Estate of Smith , 216 P.3d at 529). 



         16      Id. (citing Estate of Smith , 216 P.3d at 529). 



         17      Id. (quoting Estate of Smith , 216 P.3d at 529). 



                                                    -11-                                             6684 


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

discernable after examining extrinsic evidence, then we resort to rules of construction."18 



                Looking   at   the   four   corners   of   the   Easement   Agreement   we   note   the 



absence of any explicit grant of exclusive rights, and that use of the term "common 

areas"   necessarily     conveys    common,     not   exclusive,   access   to  those   areas.19  The 



Easement Agreement's plain language leads us to agree with the superior court that it 



was not intended to give Craig special, "super priority" rights. 



                Even if the Easement Agreement were ambiguous, the extrinsic evidence 



does not indicate an intent to grant Craig priority rights.  Among the extrinsic evidence 



the superior court considered were several settlement provisions between Craig and the 



Estate giving Craig "non-exclusive" use of float plane basins.  The court also discussed 



the reasonable expectations of the parties to the Easement Agreement, concluding "there 



was extensive evidence that . . . Luy intended to create an air park in which the lot 



owners would enjoy access and use of the common areas."                 According to the superior 



court,   this  conclusion     was   supported    by   testimony    from   Luy's    widow,    other   lot 



purchasers, and the escrow agent.  Craig argues that he and Melinda were not interested 



in purchasing Luy's property "unless they were assured that their . . . investment would 



be protected from outside interference."   The Association correctly observes that Craig 



describes   only  his   intent   in   entering  into   the   Easement   Agreement   and   not   Luy's 



development       plans   for  the  entire  subdivision.      The   superior    court  relied   on  the 



circumstances surrounding the transaction, particularly the undisputed fact that Luy was 



developing an entire subdivision, called an "air park," and hoped to sell numerous lots 



to other buyers. The superior court asked a reasonable rhetorical question: "Why would 



        18      Id. (citing Estate of Smith , 216 P.3d at 529). 



        19      See BLACK 'S  LAW  DICTIONARY 311 (9th ed. 2009) (defining "common 



area" as "[a]n area owned and used in common by the residents of a condominium, 

subdivision, or planned-unit development"). 



                                                 -12-                                          6684 


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

the owner of an air park, who was in negotiations with other interested lot buyers, give 



exclusive rights to the airstrip and lake frontage to the first buyer?" 



                 We   therefore   affirm   the   superior   court's   conclusion   that   the   Easement 



Agreement was not intended to give Craig special priority rights. 



                 2.	     The Easement Agreement did not give Craig priority rights to 

                         areas of the subdivision already dedicated. 



                 Luy expressly dedicated all rights-of-way to public use in the original plat. 



Luy later entered into the Easement Agreement with the Schweitzers, granting them a 



perpetual easement in certain "common areas" including streets dedicated to public use 



by the plat.  The superior court held that after recording the plat, Luy had no legal right 



to convey exclusive use of previously dedicated rights-of-way. 



                                                                                                       20 

                 Craig paraphrases Black's Law Dictionary's definition of "dedication"                    to 



argue "the owner of property who dedicates a portion thereof for public use . . . reserves 



to himself all rights that are not inconsistent with the public's right of use granted by the 



dedication."  Craig claims Luy granted the public only a "privilege of use" in the rights- 



of-way, rather than an irrevocable interest, and this privilege did not conflict with Craig's 



claim to priority rights.      The Association disputes this theory, arguing that the general 



definition of "dedication" cited by Craig is less relevant than Black's Law Dictionary's 



specific definition of "statutory dedication":   a property owner files a plat "which marks 



or   notes   .   .   .   portions   of   premises   as   donated   or   granted   to   the   public;   it   results   in 

conveyance of dedicated portions infee simple  to the public."21               The Association argues 



that based on this definition - and on this court's adoption of the "title" doctrine of 



        20       BLACK 'S LAW DICTIONARY 412 (6th ed. 1990). 



        21       BLACK 'S LAW DICTIONARY 413 (6th ed. 1990) (emphasis added). 



                                                   -13-                                             6684 


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

dedications22 - Luy had no title in the rights-of-way areas after dedicating them to the 



public,   and   therefore   no   ability   to   grant   Craig   special   rights   through   the   Easement 



Agreement.      We agree with the Association. 



                An interest in land is dedicated when the owner "transfers to the public a 

privilege of use of such interest for a public purpose."23        In State v. Simpson, we held that 



title   transfers   to   the   public   trust   upon   statutory   dedication   of   streets.24 Here   Luy 



dedicated rights-of-way in the subdivision when he recorded the original plat in 1998. 



From that point on, he no longer had fee simple ownership in the subdivision rights-of- 



way and could not have granted Craig or anyone else an easement.  It is undisputed that 



the Easement Agreement was executed after the plat was recorded.  Because Luy did not 



have the ability to convey priority rights to Craig, we agree with the superior court's 



conclusion that the Easement Agreement could not have provided Craig with priority 



rights in the subdivision's rights-of-way. 



        C.      We Affirm The Superior Court's Attorney's Fees Award . 



                Because Craig did not prevail on the main issue in this case - his claim of 



priority rights under the Easement Agreement - we affirm the superior court's ruling 



that the Association was the prevailing party for purposes of attorney's fees.  We do not 



reach Craig's remaining claims of error by the superior court because they do not go to 



the main issue in this case. 



        22      See State v. Simpson, 397 P.2d 288, 291 (Alaska 1964). 



        23      Swift v. Kniffen, 706 P.2d 296, 300-01 (Alaska 1985) (quoting Hamerly v. 



Denton , 359 P.2d 121 (Alaska 1961)). 



        24      Simpson, 397 P.2d at 291 ("[T]itle to streets created by dedication is held 



by the municipality in trust for the public."). 



                                                  -14-                                           6684
 


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

V.    CONCLUSION 



            We AFFIRM the superior court's judgment as noted. 



                                     -15-                                6684
 

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