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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Offshore Systems - Kenai v. State, Dept. of Transportation & Public Facilities (7/27/2012) sp-6697

Offshore Systems - Kenai v. State, Dept. of Transportation & Public Facilities (7/27/2012) sp-6697

        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 



OFFSHORE SYSTEMS - KENAI,                      ) 

an Alaskan Partnership,                        )       Supreme Court No. S-13994 

                                               ) 

                Appellant,                     )       Superior Court No. 3KN-08-00453 CI 

                                               ) 

        v.                                     )       O P I N I O N 

                                               ) 

STATE OF ALASKA,                               )       No. 6697 - July 27, 2012 

DEPARTMENT OF                                  ) 

TRANSPORTATION AND PUBLIC                      ) 

FACILITIES, and KENAI                          ) 

PENINSULA BOROUGH,                             ) 

a Municipal Corporation,                       ) 

                                               ) 

                Appellees.                     ) 

                                               ) 



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

                Judicial District, Kenai, Anna Moran, Judge. 



                Appearances:     Ronald L. Baird, Office of Ronald L. Baird, 

                Anchorage,      for  Appellant.     Dario    Borghesan,     Assistant 

                Attorney General, Anchorage, and John J. Burns, Attorney 

                General, Juneau, for Appellee Department of Transportation. 

                Scott   Bloom,    Assistant    Borough    Attorney,    Soldotna,    for 

                Appellee Kenai Peninsula Borough. 



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

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



                STOWERS, Justice. 


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

I.      INTRODUCTION
 



                Offshore Systems - Kenai (Offshore) operates a commercial dock facility 



on   Cook   Inlet   in   the   Kenai   Peninsula   Borough   (Borough).     Nikishka   Beach   Road 



traverses Offshore's property.       The public has used this road to access the beach since 



the 1950s.     In 2007 Offshore   installed a gate blocking the road.            The State and the 



Borough      sought   an   injunction   against   Offshore,   alleging   a   public  right-of-way    or 

prescriptive easement exists over Nikishka Beach Road.1              Offshore counterclaimed for 



a declaratory judgment quieting title to its property.   The parties disputed the length and 



history of Nikishka Beach Road. 



                The superior court concluded that Nikishka Beach Road provided public 



access to the beach on several alternative grounds, ruling: (1) Nikishka Beach Road was 



a public highway under the 1959 federal deed conveying the road to the State and the 



road extended all the way to the beach, although the location of the road had shifted over 



time;   (2)   the   1980   patent   conveying   the   surrounding   property   from   the   State   to   the 



Borough reserved a separate public access easement to and along the beach, and that 



easement was located over Nikishka Beach Road; and (3) the public had established a 



prescriptive easement over the road for access to the beach.            Offshore appeals. 



                Because we affirm the superior court's ruling that the 1980 patent reserved 



a valid easement for public access to the shoreline of Cook Inlet, and hold the superior 



court had the authority to locate that easement over Nikishka Beach Road, we do not 



address the court's alternative rulings.  We reverse and remand the award of attorney's 



fees to the Borough. 



        1       The    parties   and   the  superior    court   used   the  terms   "easement"      and 



"right-of-way" interchangeably. 



                                                  -2-                                              6697 


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

II.     FACTS AND PROCEEDINGS 



        A.      Facts 



                Offshore owns three parcels of   property in Section 36, Township 8 North, 



Range 12 West of the Seward Meridian (Section 36).               Lots 1 and 3 are adjacent to the 



shoreline of Cook Inlet along their northern boundaries.   Lot 2 is directly south of Lot 1 



and does not contain any shoreline. 



                Nikishka Beach Road branches off from the Kenai Spur Highway and ends 



on   Offshore's   property.    At   a   bluff   above   the   shoreline,   the   road   splits   into   a   "Y" 



intersection.   One branch proceeds to the right or north, providing access to the north 



beach, and the other branch proceeds to the left or south, providing access to Offshore's 

dock and the south beach.2      The parties and superior court refer to the north branch as the 



"beach access road" and the south branch as the "dock access road." 



                A homesteader named Mack McGahan first plowed Nikishka Beach Road 



through Section 36 in the early 1950s.          This road was the predecessor to the current 



beach access road.  McGahan's son and nephews testified that local residents have used 



the road to access the beach for commercial fishing and recreational purposes since it 



was first constructed. 



                The federal government soon accepted responsibility for Nikishka Beach 



Road.   A 1954 report from the federal Alaska Road Commission stated: "Set ditch and 



slope stakes Nikishka No. 2 Beach Road."   A 1957 map from the U.S. Bureau of Public 



Roads shows Nikishka Beach Road extending from the Kenai Spur Highway (formerly 



known as Route 490) to the shoreline.           In 1959 the federal government conveyed its 



interest in all public highways, including Nikishka Beach Road, to the State by quitclaim 



        2       Although these roads actually travel east and west, the parties and witnesses 



in this case refer to them as the north and south   roads   because, when viewed more 

broadly, those are the directions these roads take with reference to Cook Inlet. 



                                                 -3-                                              6697 


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

deed.   The deed described Nikishka Beach Road as reaching "[f]rom a point on FAS 



Route 490 approx. 15.5 miles north of the Village of Kenai, north to Nikishka Beach. 



Length 0.8 mile[s]." 



                The federal government conveyed Section 36 to the State after its admission 



to the Union in 1959.   In the 1960s the State entered into a series of leases for Lots 1, 2, 



and 3 in Section 36 with James Arness, a local resident, and these leases acknowledged 



Nikishka Beach Road as a public road providing access to the beach.                  In 1960 Arness 



submitted his first lease application, which noted that improvements on the land included 



a "road, installed by bureau of public roads . . . to beach."              A 1961 appraisal report 



determining the rental value of Lot 1 stated it was "traversed by the Nikishka #2 State 



road, which leads through [the property] and offers a road approach to the beach."  The 



report also included a drawing showing Nikishka Beach Road extending from the bluff 



to the shoreline in a northeasterly direction. In 1962 Arness entered into a five-year lease 



for Lot 1 that provided "the Lessee shall not prevent the public from using the Nikishka 



Beach Road." 



                By   1963   Arness   had   constructed   a   dock   on   Lot   1   and   an   access   road 



connecting the dock to Nikishka Beach Road.  The public began using the dock access 



road to travel from the bluff down to the beach shortly after that road was constructed. 



                In 1966, as part of a project to widen and pave Nikishka Beach Road, the 



State issued highway right-of-way permit ADL 32264.  This right-of-way stopped short 



of the "Y" intersection and bluff.  Shortly after issuing this permit, the State entered into 



55-year leases with Arness for Lots 1 and 2.   The lease for Lot 2 was subject to highway 



                                                  -4-                                             6697
 


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

permit ADL 32264, and both leases were subject to "a 60 foot wide right-of-way for 

existing roads to the beach."3 



               In 1980 the State conveyed Section 36 to the Borough by patent.  The 



patent stated that the property was subject to a 50-foot wide public easement for access 



to and along the shoreline of Cook Inlet, and provided: 



               Said   public   access   easement   shall  be  identified   by  the 

               [Borough]     and  shall  be  subject  to  the  covenant   that  no 

               development or conveyance shall occur on the land conveyed 

               by this patent until the [Borough] has platted such easements 

               and formally notified the [State] of the location of such public 

               access easements. 



The Borough never located or platted this easement. 



               The Arness leases were ultimately assigned to Offshore in 1985.  By that 



time the original beach access road had become overgrown, and the dock access road had 



fallen into disrepair.  Offshore improved the dock facilities and reconstructed the dock 



access road with a gravel surface and a gentler grade.  Offshore also reconstructed the 



beach access road in order to obtain gravel from the north beach. The public began using 



the beach access road to access the north beach at that time. 



               In 1990 the Borough sold Lots 1, 2, and 3 to Offshore by quitclaim deed. 



The deed did not specifically mention Nikishka Beach Road or a public access easement, 



but contained a general reservation clause stating the conveyance was subject to "[r]ights 



and reservations of record and any easements . . . of record or ascertainable by physical 



inspection."   The public has used both the beach access road and the dock access road 



to access the beach since Offshore purchased the property. 



       3       The State also entered into a 55-year lease with Arness for Lot 3, but this 



lease did not mention any easements or roadways. 



                                              -5-                                           6697 


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

                Offshore did not object to the public's use of these roads until 2007 when, 



in response to security requirements imposed by the Coast Guard, it installed a gate and 



guard shack across Nikishka Beach Road shortly before the bluff and "Y" intersection. 



The   State   notified   Offshore   that   it   was   illegally   obstructing   a   public   right-of-way. 



Offshore refused to remove the gate. 



        B.      Proceedings 



                In   2008    the   State   filed   a   complaint   against   Offshore   providing   three 



alternative arguments:        (1) Nikishka Beach Road had existed as a public road since 



before   statehood;   (2)   the   1980   patent   conveying   Section   36   from   the   State   to   the 



Borough had reserved a 50-foot public access easement to the shoreline, which also 



provided a public right-of-way over Offshore's property; and alternatively, (3) the public 



had established a prescriptive easement over Nikishka Beach Road to the beach.  The 



State   requested   an   injunction   preventing   Offshore   from   interfering   with   this   public 



right-of-way.     The Borough filed a motion to intervene, which Offshore opposed.  The 



superior court allowed the Borough to intervene,"but only for the purpose of asserting 



its own interests in real property of [Offshore], not the interests presently asserted by the 



State."  The superior court later clarified that the Borough's participation was limited to 



whether   the   1980   patent   reserved   a   valid   public   access   easement   over   Section   36. 



Offshore      denied    the   existence    of   a  public    right-of-way     over    its  property    and 



counterclaimed for a declaratory judgment quieting title to its property. 



                All parties filed cross-motions for summary judgment disputing, among 



other things, whether the original Nikishka Beach Road had extended all the way to the 



shoreline, whether the 1959 federal deed conveyed a valid public right-of-way over that 



road to the State, and whether the State and Borough could enforce the public access 



easement reserved in the 1980 patent after the Borough failed to plat the easement as 



required under the patent. 



                                                   -6-                                              6697
 


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

                 The superior court granted summary judgment in part, ruling that Nikishka 



Beach Road was a public road under the 1966 highway right-of-way permit ADL 32264, 



which stopped short of the "Y" intersection where the beach access road and dock access 



road travel from the bluff down to the beach. But the superior court determined that two 



questions of fact remained:          whether a public right-of-way extended from that point 



down to the beach under the 1959 deed, and whether the Borough's failure to plat the 



public access easement reserved in the 1980 patent extinguished the easement. 



                 Following an eight-day trial, where witnesses testified to the facts described 



above,   the   superior   court   ruled   that   the   1959   federal   deed   conveyed   a   valid   public 



right-of-way to the State and that the original Nikishka Beach Road, as described in the 



1959   deed   and   1960s   leases,   extended   all   the   way   to   the   shoreline   traveling   in   a 



northeasterly direction from the bluff down to the beach.   However, the court found that 



Arness had shifted the location of the original road when he constructed the dock access 



road and that the public began using that road to access the beach instead.  The original 



road then "fell into disrepair and became overgrown."  When Offshore rebuilt the dock 



facilities and constructed the beach access road, that road became "the primary and only 



means of approach to the north beach" because Offshore's newly constructed warehouse 



prevented the public from accessing the north beach from the dock. The court concluded 



that these shifts in location did not extinguish the right-of-way and that the beach access 



road was a continuation of the original Nikishka Beach Road. 



                 Alternatively, the superior court ruled that the State had reserved a separate 



public    access    easement     to  and   along   the  shoreline    in  the  1980    patent   conveying 



Section 36 to the Borough, and that the Borough's failure to plat this easement did not 



extinguish it.      Therefore, the court concluded, Offshore took title from the Borough 



subject   to   this   public   access   easement.    The   court   then   located   the   easement   over 



Nikishka Beach Road, including both the beach access road and the dock access road, 



                                                    -7-                                              6697
 


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

because Offshore's dock prevented the public accessing both the north and south beach 



from   either   road   alone.    Finally,   the   superior   court   ruled   that   the   public   had   also 



established a prescriptive easement over both the beach access road and the dock access 



road. 



                Consequently, the superior court entered a final judgment in favor of the 



State and the Borough.  The court also granted the Borough's request for attorney's fees, 



over Offshore's objections that the Borough was not a prevailing party and the amount 



of fees requested was unreasonable. 



                Offshore appeals, challenging the superior court's rulings that a public 



right-of-way or easement exists over Nikishka Beach Road under the 1959 deed, the 



1980 patent, or by prescriptive easement.   Offshore also challenges the superior court's 



award of attorney's fees to the Borough. 



III.    STANDARD OF REVIEW 



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



when a review of the entire record leaves us with a definite and firm conviction that a 

mistake has been made.4         We review the superior court's legal conclusions de novo.5 



                When interpreting a deed, we first look to the four corners of the document 

to   determine     the   parties'   intent.6   If   the  deed    is  open   to  only    one   reasonable 



interpretation, our analysis ends there.7        If the deed is ambiguous, we will then consider 



        4       Labrenz v. Burnett , 218 P.3d 993, 997 (Alaska 2009). 



        5       Id . 



        6       Dias v. State, Dep't of Transp. & Pub. Facilities, 240 P.3d 272, 274 (Alaska 



2010). 



        7       Id . 



                                                   -8-                                                6697 


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

the facts and circumstances surrounding the conveyance.8                   If the parties' intent is still 



unclear after examining extrinsic evidence, we will consider rules of construction.9 



                 Finally, we review the superior court's prevailing party determination and 

award of attorney's fees for an abuse of discretion.10 



IV.	    DISCUSSION 



        A.	      Public Access Easement Under The 1980 State Patent 



                 1.	     The State and Borough were not barred from enforcing this 

                         easement by laches or estoppel. 



                 As a threshold matter, Offshore argues that the doctrines of laches and quasi 



estoppel   bar   the   State   and   Borough      from   attempting   to   enforce   the   public   access 



easement reserved under the 1980 patent.              We disagree. 



                 The doctrine of laches "creates an equitable defense when a party delays 

asserting a claim for an unconscionable period."11            To bar a claim under laches, "[a] court 



must find both an unreasonable delay in seeking relief and resulting prejudice to the 

defendant."12      "Laches   is   usually   invoked   to   bar   a   claim   because   the   plaintiff   has 



        8        Id .
 



        9        Id .
 



        10
      Fernandes v. Portwine , 56 P.3d 1, 4-5 (Alaska 2002). 



        11       State, Dep't of Commerce & Econ. Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 



358-59 (Alaska 2000) (quoting Concerned Citizens of S. Kenai Peninsula, 527 P.2d 447, 

457 (Alaska 1974)). 



        12	      Id . 



                                                    -9-	                                              6697
 


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

unreasonably delayed seeking relief or protecting a known right."13                The superior court 



has "broad discretion to sustain or deny a defense based on laches."14 



                Here, the superior court rejected Offshore's laches argument on summary 



judgment, ruling: 



                Under the circumstances, the State is correct that the wrong 

                for which [it] complained occurred when [Offshore] blocked 

                access to the beach. . . . The State and [Borough] had reason 

                to believe that the public possessed a right-of-way over the 

                Nikishka Beach Road to the beach.              Moreover, the parties 

                were     under    the   belief   that  numerous      legal   documents 

                recognized      the   right-of-way.     The    State   and   [Borough], 

                therefore, were not under an affirmative obligation to sue for 

                the recognition of easements which they already believed to 

                be recognized by [Offshore]. 



This ruling was not an   abuse of the superior court's discretion.                In Keener v. State , 



property owners argued that laches barred the State's claim to a 50-foot right-of-way 

under a 1955 patent.15        We held   that "the   State does not have to sue to establish its 



ownership   of   the   right   of   way   simply   because   problems   might   arise,"   and   that   "the 



challenge to the right of way rather than the issuance of the 1955 patent began the period 

of delay."16   Similarly, Offshore's challenge to the public's right to use Nikishka Beach 



Road to access the beach in 2007 triggered the applicable laches period.  The State and 



Borough filed their complaints in 2008.           There was no unreasonable delay. 



        13      Id. at 359; see also Keener v. State, 889 P.2d 1063, 1067 (Alaska 1995) 



("The period of delay for laches begins to run when the party discovers or could have 

discovered the wrong of which he complains or where, in light of any resulting prejudice 

to the defendant, it became reasonable to expect the plaintiff to act upon the wrong."). 



        14      Keener , 889 P.2d at1066. 



        15      Id . 



        16      Id. at 1067 (emphasis omitted). 



                                                  -10-                                             6697
 


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

                Quasi estoppel "precludes a party from taking a position inconsistent with 



one he or she has previously taken where circumstances render assertion of the second 

position unconscionable."17        The superior court also has "broad discretion to deny the 



application of estoppel."18 



                Offshore     argues    that   the  highway    permit   ADL     32264    "represented     a 



continuing representation of the end of the right-of-way of [Nikishka] Beach Road," and 



that Offshore has been prejudiced because it relied on this representation by constructing 



substantial improvements on what it believed was private property.  The superior court 



rejected this argument, finding "[t]here was no evidence of an unconscionable act or 



representation by the State or Borough."            This ruling was not an abuse of the court's 



discretion.     Highway      permit    ADL    32264,    which     ends   short  of  the  beach,    is  not 



inconsistent   with   the   State's   current   position   that   an   additional   public   right-of-way 



extends over Nikishka Beach Road under the 1980 patent. 



                2.	     The     public    access    easement      was    not   conditioned       on   the 

                        Borough's duty to locate and plat the easement. 



                Article VIII, section 14 of the state constitution provides that "[f]ree access 



to the navigable or public waters of the State . . . shall not be denied . . . except that the 



legislature may by general law regulate and limit such access for other beneficial uses 



or public purposes."   Under AS 38.05.127, the State is required to reserve public access 



easements to and along navigable bodies of water before selling, leasing, or otherwise 



disposing of state land adjacent to such bodies of water.              The 1980 patent conveying 



Section 36 from the State to the Borough provided that the conveyance was subject to 



        17      Id. (quoting Dressel v. Weeks , 779 P.2d 324, 329 (Alaska 1989)). 



        18      Cizek   v.   Concerned   Citizens   of   Eagle   River   Valley,   Inc., 49   P.3d   228, 



233 n.13 (Alaska 2002). 



                                                  -11-                                               6697 


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

a 50-foot-wide perpetual public easement to and along the ordinary high water mark of 



Cook Inlet: 



                Subject to the reservation of a 50 foot wide lineal perpetual 

                public   easement   along   the   line   of   the   ordinary   high   water 

                mark of Cook Inlet and other unnamed bodies of water as 

                portrayed on the official township survey plat for Township 

                8 North, Range 12 West, Seward Meridian, Alaska, examined 

                and    approved     by  the  U.S.   Surveyor    General's     Office   in 

                Juneau, Alaska on June 12, 1923, and further subject to the 

                reservation      of  a  50   foot  wide    perpetual    public   access 

                easement to the aforementioned lineal public easement along 

                the above bodies of water. 



(Emphasis   added).      The   patent   also   required   the   Borough   to   identify   and   plat   this 



easement: 



                Said public access easement shall be identified by the Grantee 

                and shall be subject to the covenant that no development or 

                conveyance shall occur on the land conveyed by this patent 

                until the Grantee has platted such easements and formally 

                notified   the   Grantor   of   the   location   of   such   public   access 

                easements. 



The Borough failed to comply with this requirement. Offshore argues that this provision 



imposed an executory obligation on the Borough to identify and plat the easement, and 



that no easement can exist under the patent until the Borough fulfills that duty. 



                As previously discussed, when interpreting a deed we first look to the four 

corners of the document to determine the parties' intent.19          Only if the deed is ambiguous 



        19      Dias v. State, Dep't of Transp. & Pub. Facilities , 240 P.3d 272, 274 (Alaska 



2010). 



                                                  -12-                                              6697 


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

do we consider the facts and circumstances surrounding the conveyance and, lastly, rules 

of construction.20 



                Here,     the  1980   patent   first   reserves  a  50-foot   wide  perpetual      public 



easement to and along the ordinary high-water mark of Cook Inlet and then requires the 



Borough   to   identify   and   plat   the   specific   location   of   the   easement. Nothing   in   the 



patent's language suggests that the existence of the easement is conditioned upon the 



Borough's duty to identify and plat its location.           We conclude the patent's reservation 



of a perpetual 50-foot wide public easement is unambiguous. 



                Even if this language were ambiguous, however, facts and circumstances 



surrounding the conveyance indicate that the State did not intend to create an easement 



conditioned on the Borough's duty to fix a location.              Prior to conveying Section 36 to 



the Borough, the State issued a public notice of the proposed conveyance, stating: "The 



lands approved for conveyance by this decision are subject to the reservation of a 50-foot 



wide     perpetual    public    easement,     as  required    by   AS    38.05.127     and   regulations 



implementing that statute, to and along each navigable and public body of water . . . ." 



The public notice also stated that "no such easement may be vacated, abandoned or 



otherwise extinguished or rendered incapable of reasonable use by the public for the 



purposes for which it was reserved without the approval of the grantor . . . ."  This public 



notice described the easement in the present tense, implying it was not conditioned upon 



some future action by the Borough, and stated the easement could not be extinguished 



without   the   State's   approval.    This   extrinsic   evidence   shows   the   State   intended   to 



establish a present easement under the 1980 patent, not a conditional future easement. 



                Additionally,       rules  of   construction     support    the  conclusion      that  the 



1980 patent reserved a valid public access easement that was not conditioned upon the 



        20      Id. 



                                                  -13-                                                6697 


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

Borough's duty to fix a location for the easement.  First, we have previously recognized 



the general rule that failure to specify the location of an easement in a deed or instrument 



does not necessarily affect the validity of the easement: 



                 The law appears to be settled that where the width, length and 

                 location   of   an   easement   for   ingress   and   egress   have   been 

                 expressly set forth in the instrument the easement is specific 

                 and definite. . . . If, however, the width, length and location 

                 of an easement for ingress and egress are not fixed by the 

                 terms     of  the  grant   or   reservation    the   dominant     estate   is 

                 ordinarily entitled to a way of such width, length and location 

                 as is sufficient to afford necessary or reasonable ingress and 

                          [21] 

                 egress. 



Thus,   the   fact   that   the   1980   patent   did   not   specify   a   location   for   the   public   access 



easement does not mean the patent failed to convey a valid easement. 



                 Furthermore, a conditional easement must be created by express terms or 



clear implication.  In Davidson v. Ellis , a case similar to the case before us, landowners 



conveyed part of their property to a purchaser along with a perpetual easement across the 



property   "to   be   thereafter   and   within   a   reasonable   time   definitely       located   by   [the 

purchaser]."22     Although the purchaser never located the easement, the Davidson court 



held: 



         21      Andersen v. Edwards , 625 P.2d 282, 286 (Alaska 1981) (quoting Aladdin 



Petroleum Corp. v. Gold Crown Props. , 561 P.2d 818, 822 (Kan. 1977)) (addressing the 

scope of use permitted by an easement, however, not the existence or location of that 

easement); see also RESTATEMENT  (THIRD)  OF  PROPERTY : SERVITUDES                            4.8 (2000) 

("Except   where   the   location   and   dimensions   are   determined   by   the   instrument   or 

circumstances   surrounding   creation   of   a   servitude,   they   are   determined   as   follows: 

(1) The owner of the servient estate has the right within a reasonable time to specify a 

location   that   is   reasonably   suited   to   carry   out   the   purpose   of   the   servitude.   (2)   The 

dimensions are those reasonably necessary for enjoyment of the servitude."). 



         22      98 P. 254, 255 (Cal. App. 1908). 



                                                     -14-                                               6697
 


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

                 The   grant   of   the   right   of   way   by   defendants   was   not   one 

                 made   upon   condition,   and   nothing   in   the   language   of   the 

                 grant indicates that a failure to fix the definite route should 

                 work     a   forfeiture    of  the   right   of   way.     "Conditions 

                 subsequent,   when   relied   on   to   work   a   forfeiture,   must   be 

                 created by express terms or clear implication."[23] 



We have also   stated   that " 'the intent to create a condition subsequent must appear 

expressly or by clear implication' if such a condition is to be found."24             Because the 1980 



patent did not expressly require or clearly imply that the existence of the reserved public 



access easement was conditioned on the Borough's duty to locate and plat the easement, 



we   will   not   read   such   a   provision   into   the   patent. Accordingly,   the   1980   patent 



established a valid public access easement. 



                 3.	     The superior court had the authority to determine the location 

                         of the public access easement, and the location that the court 

                         chose was reasonable. 



                 Offshore also argues that AS 38.05.127, the statute requiring the State to 



preserve   public   access   easements   to   and   along   navigable   bodies   of   water,   does   not 



authorize a superior court to declare the location of such easements.  Alaska Statute 



38.05.127(a) provides that before the sale of state land adjacent to a body of water, the 



Commissioner of the Department of Natural Resources shall "determine if the body of 



water . . . is navigable water, public water, or neither" and "upon finding that the body 



of water or waterway is navigable or public water, provide for the specific easements or 



        23	     Id. (quoting Behlow v. S. Pac. R.R. Co. , 62 P. 295, 295 (Cal. 1900)). 



        24       State v. Allen, 625 P.2d 844, 848 (Alaska 1981) (quoting Lowe v. Copeland , 



13 P.2d 522, 525 (Cal. App. 1932) (addressing whether a contract was subject to a 

condition subsequent)). 



                                                   -15-	                                                6697 


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rights-of-way necessary to ensure free access to and along the body of water . . . ."25 



Although this statute does not expressly authorize a trial court to determine the location 



of a public access easement, the general rule is where an   instrument such as a deed 



expressly reserves an easement but does not specify the location of that easement, the 



superior court has the authority to determine a location if the parties fail to locate it 



themselves.     The Restatement (Third) of Property: Servitudes provides that when the 



location of an easement is not specified by the instrument that creates it, and the parties 



fail to establish a location within a reasonable amount of time, "the parties may resort to 



legal proceedings in which a location should be selected that strikes a balance between 



minimizing the damage to the servient estate and maximizing the utility to the owner of 

the   servitude."26    In  Fitzgerald   v.   Puddicombe ,27     we   recognized   that   when   a   valid 



easement   exists   but   its   location   is   not   fixed,   the   superior   court   may   determine   the 



location.  In that case, we held that a public right-of-way existed across a parcel of land 



under a federal statute authorizing the construction of highways over public lands not 



reserved for public uses; we then remanded to the superior court                "for a determination 

of the precise location and extent of the right-of-way."28            Other jurisdictions have also 



        25      See    also AS     38.05.965(3).     Nothing      in  the  record   indicates   that  the 



Department of Natural Resources ever made these findings before the State conveyed 

Section 36 to the Borough. 



        26      RESTATEMENT  (THIRD)  OF  PROPERTY : SERVITUDES                  4.8, cmt. b at 560 



(2000). 



        27      918 P.2d 1017 (Alaska 1996). 



        28      Id. at 1022. 



                                                  -16-                                             6697
 


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

held that when a deed coveys an easement but fails to locate it, a court may determine 

the location of the easement.29 



                 Here, the State did not designate a location for the public access easement 



in   the   1980   patent and   the   Borough   did   not   locate   and   plat   the   easement,   as   it   was 



required   to   do   under   the   patent.   The   parties   resorted    to   this   legal   proceeding   to 



determine      the  validity   and   location    of  this  public   access   easement.      Under     these 



circumstances, we hold that the superior court had the authority to determine a location 



for the easement. 



                 Offshore also argues that the 1980 patent applied to all of Section 36, and 



therefore     this  public   access   easement   does     not   necessarily    need   to  be   located   on 



Offshore's property.  We affirm the location selected by the superior court.  The public 



has used Nikishka Beach Road to access the beach since the 1950s.                         Both the 1959 



federal deed conveying Nikishka Beach Road to the State and the 1960s leases between 



the State and Arness gave notice that Offshore's property had been and was potentially 



still burdened with a public easement for access to the beach.                Given these factors, the 



superior court's ruling that the public access easement should be located over Nikishka 



Beach Road was reasonable. The court's ruling that this easement extends over both the 



beach   access   road   and   the   dock   access   road   was   also   reasonable,   given   the   court's 



finding that Offshore's dock prevents the public from traversing the beach along the 



        29       See, e.g., Adair v. Kona Corp. , 452 P.2d 449, 455 (Haw. 1969) ("[W]here 



an easement is not definitely located in a grant or a reservation, and the dominant and 

servient owners fail to agree, a court may locate it in the exercise of its equity powers."); 

Joseph Giddan & Sons v. Northbrook Trust & Sav. Bank , 501 N.E.2d 757, 760 (Ill. App. 

1986) ("Where an easement by deed is undefined as to location and width, these details 

can be ascertained and fixed by the court."); Wood v. Wilson, 157 N.E. 592, 593 (Mass. 

1927) ("The law is settled that if the bounds of a way are not located by the deed which 

creates it, the parties may fix the location upon the servient premises, and, if they do not, 

a court may do so."). 



                                                   -17-                                              6697
 


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

shoreline.    Two points of access are therefore necessary to provide access to the beach 



on either side of the dock. However, we note that nothing in our decision today prevents 



Offshore and the Department of Natural Resources from changing the location of this 



public access easement if they agree to a different route or access point, provided that the 



public can still reasonably access both beaches. 



        B.       Attorney's Fees 



                 Offshore also appeals the superior court's award of attorney's fees to the 



Borough, challenging both the superior court's prevailing party determination and the 



amount of attorney's fees.   The superior court ruled, over Offshore's objection, that the 



Borough was a prevailing party, reasoning: 



                 The Borough moved to intervene alleging several claims for 

                 relief, some of which were similar to the claims asserted by 

                 the State in its action for declaratory judgment. . . . [Offshore] 

                 did not object to the Borough's intervention on the limited 

                 issue of asserting its own claim for a public access easement 

                pursuant   to   its   deed   to   [Offshore].  The   court   granted   the 

                 Borough's   motion   to   intervene   solely   for   the   purpose   of 

                 asserting     its   own     interests    in   the   real   property     in 

                 dispute. . . . Ultimately, the court found, among other things, 

                 that the public access easement described in the State's patent 

                 survived the conveyance from the Borough to [Offshore], and 

                 that a 50 [foot] wide public access easement existed to the 

                 mean     high   water   line  of   Cook   Inlet.   Thus,   the  Borough 

                prevailed on this issue . . . . 



This prevailing party determination was not an abuse of the superior court's discretion. 



As the court observed, it allowed the Borough to intervene on the "limited issue" of 



whether the 1980 patent established a valid public access easement over Section 36 that 



then survived the conveyance of Lots 1, 2, and 3 from the Borough to Offshore, and the 



Borough prevailed on this issue. 



                                                   -18-                                              6697
 


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

                 However,       the   court    then   ruled    that   even    though    "the    Borough's 



involvement was limited to the issue of public access easements under the State patent" 



there was "no way for the court to parse out those portions of the trial that pertained 



solely to public use easements."   Therefore, the court granted the Borough's request for 

an award of 30% of its total actual fees under Alaska Rule of Civil Procedure 82.30 



                 Offshore challenges this award of attorney's fees, arguing that many of the 



Borough's arguments were duplicative of the State's arguments at trial.  The Borough 



responds that even though its participation was limited to arguing the issue of the public 



access easement under the 1980 patent, that issue "required an examination of the entire 



chain   of   title   in   order   to   reasonably   understand   the   significance   of   the   conveyance 



documents." 



                 The superior court awarded the Borough 30% of its total attorney's fees 



because the court could not "parse out those portions of the trial that pertained solely to" 



the limited issue of a public access easement under the 1980 patent, not because the court 



found that all of the Borough's arguments were reasonably related to that issue.                    It was 



not    the  superior    court's   duty   to  "parse"    the  record    to  ascertain   which    fees   were 



reasonably   related   to   the   Borough's   limited   intervention   -   this   was   the   Borough's 



burden of proof.      The superior court's order implicitly concluded that the Borough did 



not meet its burden of proof (because the court was unable to determine which of the 



Borough's fees related to its limited issue and which related to other issues), but the court 



nevertheless awarded the Borough 30% of all of its attorney's fees.                  This was an abuse 



of discretion, and   we reverse and   remand   for further proceedings on   the   Borough's 



        30       That rule provides: "In cases in which the prevailing party recovers no 



money judgment, the court shall award the prevailing party in a case which goes to trial 

30    percent   of   the   prevailing   party's   reasonable   actual   attorney's   fees   which   were 

necessarily incurred. . . ."      Alaska R. Civ. P. 82(b)(2). 



                                                   -19-                                                 6697 


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

attorney's     fees  calculation.    On    remand    the   Borough     must   segregate    its  fees  and 



demonstrate   which   are   reasonably   related   to   the   limited   issue   of   the   public   access 



easement under the 1980 patent. If the Borough cannot meet its burden of demonstrating 



which fees are reasonably related to its limited intervention, then it is not entitled to 

attorney's fees.31 



V.      CONCLUSION 



                We AFFIRM the superior court's ruling that the 1980 patent from the State 



to the Borough reserved a valid 50-foot wide public access easement to the shoreline of 



Cook Inlet and that this easement is located over Nikishka Beach Road, including both 



the beach access road and the dock access road.   We REVERSE the award of attorney's 



fees   to   the   Borough   and   REMAND   for   the   Borough   to   demonstrate   which   fees   are 



reasonably related to its limited participation in this case. 



        31      Offshore also argues that it is entitled to a judgment quieting title to its 



property under several specific easement theories that were either resolved in Offshore's 

favor at trial or were not specifically addressed in the superior court's final ruling, and 

requests that we remand for the court to revise the judgment.  The superior court's final 

ruling is binding on the parties, regardless of whether each specific theory and argument 

is mentioned in the final judgment, and relitigation of any issues that the parties raised 

or could have raised in this proceeding are now barred by res judicata.                 See Larson v. 

State, 254 P.3d 1073, 1077 (Alaska 2011) ("Res judicata precludes relitigation by the 

same parties, not only of claims raised in the first proceeding, but also those relevant 

claims that could have been raised." (internal citations and quotation marks omitted)). 

Offshore has not demonstrated that it is necessary to revise the judgment. 



                                                  -20-                                               6697 

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