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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McCarrey v. Kaylor (3/29/2013) sp-6767

McCarrey v. Kaylor (3/29/2013) sp-6767

        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 



DAVID McCARREY and DONNA                        ) 

McCARREY,                                       )        Supreme Court No. S-14114 

                                                ) 

                  Appellants,                   )        Superior Court No. 3AN-10-07799 CI 

                                                ) 

        v.                                      )        O P I N I O N 

                                                ) 

RONALD KAYLOR and                               )       No. 6767 – March 29, 2013 

JEAN K. KAYLOR,                                 ) 

                                                ) 

                  Appellees.                    ) 

                                                ) 



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

                Judicial District, Anchorage, John Suddock, Judge. 



                Appearances:       Brent   R.   Cole,   Law   Offices   of   Marston   & 

                Cole,   P.C.,   Anchorage,   for   Appellants.      Calvin   R.   Jones, 

                Jones & Colver, LLC, Anchorage, for Appellees. 



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

                Stowers, Justices. 



                CARPENETI, Chief Justice. 



I.      INTRODUCTION 



                Two couples own adjoining lots in Anchorage, located directly north and 



south of each other. Title to the southern lot originated from a federal land patent, which 



reserved a right-of-way across the northern boundary of the lot.               A road currently runs 



through the right-of-way. The owners of this lot proposed building a fence with a locked 


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gate on the north side of the road, along the northern boundary of their lot; the fence 



would have impeded access to a cleared area on the northern neighbors’ lot that the 



neighbors use for parking and storage.          The northern neighbors obtained a permanent 



injunction preventing this limitation on access to the southern part of their lot.  The 



southern neighbors appeal, arguing that the superior court denied them due process or, 



alternatively, erred in finding that their lot is subject to a public right-of-way.  Because 



the superior court made no findings whether the federal land patent’s right-of-way offer 



of a common law dedication was accepted, we remand to the superior court to determine 



whether there has been acceptance of the offer of dedication. 



II.     FACTS AND PROCEEDINGS 



                David and Donna McCarrey own a house and property (lot 14) on East 



136th Avenue in South Anchorage. Ronald and Jean Kaylor own a house and lot on East 



135th Avenue, directly north of the McCarreys.             The McCarreys’ deed shows that the 



land is subject to a 50-foot right-of-way “for roadway and public utilities” across the 



north boundary of the lot.  East 136th Avenue currently runs through this right-of-way. 



The lots are located north of DeArmoun Road between Elmore Road and Davis Road. 



                The Kaylors have lived in their house since early 1988.             According to the 



Municipality of Anchorage’s tax records, their house was built in 1981.  An aerial photo 



from   1980   shows   a   dirt   road   in   the   right-of-way   from   Davis   Road   going   west   to 



approximately lot 15, the lot to the west of the McCarreys’ lot.                At some point, the 



Kaylors began to use an area on the southern boundary of their lot for storing a boat, two 

motor homes, and a mobile greenhouse, and for parking.1              In addition, the Kaylors have 



        1       When this use began was disputed:          According to the Kaylors, they have 



used East 136th Avenue and this area for at least 15 years; the McCarreys contended that 

the   Kaylors    only   began   storing   vehicles   in  the  cleared   area   in  2005.   An    aerial 

                                                                                       (continued...) 



                                                  -2-                                              6767 


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a tenant who uses the area to park her car; the tenant is elderly and reportedly would 



have difficulty accessing her apartment from the north side of the house. 



                The McCarreys’ home was built in 2003, and they bought it in December 



2009.    On   May   21,   2010,   the   McCarreys’   attorney   informed   the   Kaylors   that   the 



McCarreys were going to build “a six foot residential grade chain link fence on the 



northern boundary of [the McCarreys’] property beginning on or about Monday, May 



24, 2010.” The proposed fence, on the Kaylors’ property line between their property and 



the road, would have blocked the Kaylors’ access to East 136th Avenue.                   He also told 



the Kaylors that the McCarreys planned to install a gate in the fence; if the Kaylors 



wished to use the gate, they needed to give the McCarreys 72-hour notice. 



                The Kaylors filed suit to establish a prescriptive easement in the right-of­ 



way and obtain an injunction preventing the McCarreys from building the fence.  After 



the parties unsuccessfully tried to settle the case, the court set an injunction hearing for 



early August. 



                On July 8, the Kaylors filed the affidavit of Daniel Bolles, a consultant in 



zoning and land-use issues.        Bolles had worked for the Municipality of Anchorage for 



about    30   years   in  various   positions,   including    surveying,    construction,    and   code 



enforcement. In his affidavit Bolles indicated that the original patent from which title for 



the McCarreys’ lot derived “established a public roadway easement.” He also stated that 



the easement was “now being used as East 136th Avenue.”   The day before the hearing, 



the Kaylors filed a memorandum of law discussing two issues: whether the McCarreys’ 



proposed fence would interfere with a public right-of-way and whether the Kaylors had 



        1(...continued) 



photograph from 1995 shows a cleared area on the southern boundary of the Kaylors’ 

lot. 



                                                  -3-                                               6767 


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a prescriptive easement. The McCarreys did not file a response or object to the Kaylors’ 



filings. 



               Superior     Court   Judge   John   Suddock     held  an  injunction   hearing    on 



August 5.    The court heard testimony from Bolles and Robert Stevens, a friend of the 



Kaylors who had visited them often and done remodeling work on their residence. 



               Bolles testified about the origin of the right-of-way on the McCarreys’ lot. 



According to Bolles, the lots in the area “were set up as the Rabbit Creek Small Tracts” 



and “each parcel receiv[ed] patent at the time of sale.”  Typically each patent had a right- 



of-way, which in some cases later became “more formal paved roads.”  Bolles identified 



photographs he had taken near the Kaylors’ and McCarreys’ lots, including pictures of 



municipal signs at the intersections of East 136th Avenue and Davis Road, and East 



136th Avenue and Elmore Road.   Based on the Municipality’s grid map, Bolles testified 



that the map “identifie[d] the . . . right-of-way and its width and location so that at such 



time that the neighborhood wishes to pave it, then the municipality has boundaries in 



which . . . to govern . . . [the] work that’s going to go on there.” 



               Discussing     aerial   photographs    the   McCarreys     had   obtained,   Bolles 



identified a “trail system” existing at earlier times in the area.  For example, he testified 



that in the 1985 photo Elmore Road was “not built” as a through street then, and neither 



was East 136th Avenue, but he said that “it’s obvious . . . that there’s a trail through [the 



rights-of-way on parcels 20-16] and somebody’s driving through there.” Bolles testified 



that East 136th Avenue was built from Davis Road to lot 15 by 1980 and was extended 



to Elmore Road in the early 2000s. He testified that at the time East 136th was extended 



to Elmore Road, the Municipality and the property owners of the affected lots “upgraded 



. . . the trail that was . . . in the 50 foot easement down to lot 17”; he agreed that the 



extension of East 136th “simply recognized the right-of-way . . . that existed before.” 



Bolles said that East 136th had not, as of the time of the hearing, “been developed to 



                                                -4-                                          6767
 


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municipal standards.” He testified that there was no restriction in the patent limiting who 



could use the right-of-way and that, in his opinion, the owners of the lots lying between 



East 135th and East 136th could ask for a driveway permit for access to East 136th.  He 



indicated that the Kaylors “have what was identified under municipal code as a through 



lot,” which he described as “a lot other than a corner lot in which you have frontage to 



two streets.” 



              Stevens testified that he had done several building and remodeling projects 



on the Kaylor home and had also visited the home many times on social visits.  He 



testified that at least starting in the mid-1990s many people used the cleared area for 



parking when they visited the Kaylors.     He said at the hearing that he had built a deck 



for Jean Kaylor 18 years before, and at that time lumber trucks accessed the Kaylor 



property from the south to bring in the materials for the job.  According to Stevens, the 



road to access the southern portion of the Kaylors’ lot at that time was dirt but “pretty 



easy to drive down.”   Stevens indicated that he accessed the Kaylors’ lot from both East 



135th Avenue and East 136th Avenue.          He also said that the apartment the Kaylors 



rented out was in the back of the house and the Kaylors had rented it out since the early 



1990s. 



              After Stevens testified, the court asked the parties to clarify the factual 



dispute. The court thought the dispute was about interpretation of the patent and whether 



the Kaylors “ha[d] unlimited access from 136th onto [their] lot or can that [access] be 



entirely or partially blocked by Mr. and Ms. McCarrey.”       The court did not think there 



was a factual dispute in the case “if you set aside the prescriptive easement issue.” 



              The McCarreys agreed with the court that the question whether “the right- 



of-way benefit[ted] only the McCarrey parcel and not the Kaylor parcel” was “a pure 



legal question.”  The Kaylors initially argued that the “intent” or purpose of the right-of­ 



                                             -5-                                       6767
 


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

way   was   a   disputed   factual   issue,   but   the   court   considered   it   a   legal   question.  The 



superior court then found as a matter of law: 



                [T]here [was] a 1961 devolution of property from the United 

                States to a series of landowners that retained along the north 

                side of lots 13 to 20, including lot 14 which is the McCarrey 

                property,   a   50   foot   right-of-way   for   a   road.  By   history 

                there’s been on the stretch that runs between — from Davis 

                Street past [the] McCarrey/Kaylor lots, there’s been a road 

                there for a long time and then more recently with the upgrade 

                . . . of Elmore Road in the early 2000s, . . . East 136th . . . is 

                punched all the way through, running east/west from Elmore 

                all the way to Davis.  It’s recognized on municipal plats as a 

                roadway, they term it 136th Avenue, it’s in logical sequence 

                with 135th and 137th.   It’s signed by the Municipality at both 

                ends.    It’s open to public access.       Any[one] present in the 

                courtroom or any[one] present in Anchorage or [a] tourist or 

                an Afghani could legally drive from Elmore to Davis, it’s a 

                road.  It’s a road consistent with the 1961 deed conveying the 

                McCarrey property from the United States to somebody else. 



The    court   refused   to  interpret   the  right-of-way     as  benefitting    only   the  McCarrey 



property; it found that the right-of-way was “there to benefit the world.”                It noted that 



“there’s nothing in the wording of the . . . right of way grant that suggests that the 



McCarreys can turn off of . . . 136th Avenue at point A, B, C, ad infinitum, of their 



property, but that a different condition applies on the north side of the right-of-way.” 



The court stated: 



                The wording i[n] this patent is subject to a right-of-way.             A 

                right-of-way in common parlance is an area in which a group 

                of people or a political entity can do some specified thing. 

                It’s delimited as 50 feet in [width] and its purpose is both for 

                public utility purposes and for a roadway to be located along 

                the north boundary of the land. 



The court suggested that the McCarreys could ask the Municipality for permission to 



build the planned fence, but the court considered that a zoning issue and beyond its 



                                                   -6-                                             6767
 


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

power   to   decide.     It   found   as   a   matter   of   law   that   “the   Kaylors   are   entitled   to   an 



injunction preventing the McCarreys from limiting their access to their property by a 



gated fence.”       The court later entered a written injunction prohibiting the McCarreys 



from interfering with the Kaylors’ use of the easement.              The McCarreys appeal. 



III.    STANDARD OF REVIEW 



                Whether   the   superior   court   violated   a   party’s   due   process   rights   is   a 

question of law, which we review de novo.2 



                Interpretation of a statute is a question of law that we review de novo, 



“adopting   the   rule   of   law   that   is   most   persuasive   in   light   of   precedent,   reason,   and 

policy.”3 



                We have adopted a three-step analysis for interpretation of deeds.4                “The 



proper first step in deed construction is to look at the four corners of the document to see 

if it unambiguously presents the parties’ intent.”5           “Whether a deed is ambiguous is a 



question of law.”6      If a deed is ambiguous, the next step is to consider “the facts and 



        2       A.M. v. State , 945 P.2d 296, 302 (Alaska 1997) (citing DeVaney v. State, 



Dep’t of Revenue, Child Support Enforcement Div. ex rel. DeVaney , 928 P.2d 1198, 

1200 (Alaska 1996)). 



        3       Pastos v. State , 194 P.3d 387, 391 (Alaska 2008) (quoting Guin v. Ha, 591 



P.2d 1281, 1284 n.6 (Alaska 1970)) (internal quotation marks and alterations omitted). 



        4       Estate   of   Smith   v.   Spinelli ,   216   P.3d   524,   529   (Alaska   2009)   (quoting 



Ashley v. Baker , 867 P.2d 792, 794 (Alaska 1994)). 



        5       Id. (quoting Norken Corp. v. McGahan , 823 P.2d 622, 626 (Alaska 1991)) 



(internal quotation marks and punctuation omitted). 



        6       Id. (quoting Norken, 823 P.2d at 626). 



                                                   -7-                                             6767
 


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

circumstances surrounding the conveyance” to discern the parties’ intent.7                In the event 



that   the  parties’   intent   cannot  be   determined,   we    rely  on   rules  of  construction.8 



                Ambiguities in public land grants are “resolved strictly against the grantee 

and in favor of the government.”9 



IV.	    DISCUSSION 



        A.	     The Superior Court Did Not Violate The McCarreys’   Due Process 

                Rights. 



                The McCarreys argue that the superior court violated their due process 



rights because they did not have adequate notice before the injunction hearing that the 



court would consider whether East 136th Avenue was a public road.                    The McCarreys 



point   out   that   the   Kaylors   alleged   in   their   complaint   only   that   the   Kaylors   had   a 



prescriptive     easement    across   the   McCarrey     property    but  failed   to  allege  that  the 



McCarrey       property    was   subject   to  a  public  right-of-way     or  that  the  right-of-way 



established a public road, yet the superior court ruled as a matter of law that East 136th 



Avenue was a public roadway.           The Kaylors respond that under Alaska Rule of Civil 



Procedure 15, issues not raised in the pleadings can nonetheless be tried by the consent 



of the parties. The Kaylors maintain that the court acted properly because the McCarreys 



did not object at the hearing to any testimony about a public roadway.  Additionally, they 



argue that the elements for establishing a public prescriptive easement are similar to 



those for establishing a private prescriptive easement, so there was adequate notice of the 



issues to be tried. 



        7       Id. (quoting Norken , 823 P.2d at 626).
 



        8       Id.
 



        9       State, Dep’t of Highways v. Green, 586 P.2d 595, 603 n.24 (Alaska 1978).
 



                                                  -8-	                                              6767 


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

                The McCarreys’ contention that the superior court denied them due process 



has no merit.  They admit in their reply brief before us that at the hearing they “disputed 



that   East   136th   Avenue     [was]   a  legally  designated     public   road.”    Moreover,     the 



McCarreys argued to the trial court that the Municipality of Anchorage “determine[d] 



whether     or  not   something     is  a  road  or  a  street,”  and  their  position   was    that  the 



Municipality “ha[d] not dedicated this as a road.”           They also argued at the hearing that 



the Municipality did not plow or maintain the right-of-way, so it could not be considered 



a road and agreed with the superior court that the question whether the right-of-way 



benefitted properties that abutted it was a legal issue, not a factual one.  The McCarreys’ 



arguments      at  the  hearing    show    that  they  consented     to  the  court   considering     the 



establishment of a public road. 



                In addition, the Kaylors raised the question whether East 136th Avenue was 



a public road in pleadings they filed before the hearing.  Their complaint alleged that the 



McCarreys’ lot was “encumbered by a road easement” and that “[a] dirt road . . . is 



located on the northern area[] of . . . the defendants’ Lot 14.”             Bolles’s July affidavit 



described the right-of-way as “a public roadway easement” and said that the easement 



was “now being used as East 136th Avenue.”   The affidavit further stated that the right- 



of-way was “shown as a public easement” on municipal grid maps and “grant[ed] public 



access to the lots north and south of the 50 foot easement.”  All of this demonstrates that 



the   McCarreys   had   actual   notice   before   the   hearing   that   the   court   would   consider 



whether a public roadway occupied the right-of-way on their property. 



        B.	     The Federal Land Policy And Management Act Did Not Terminate 

                The Right-Of-Way. 



                Before us the McCarreys argue that the Kaylors “were required to establish 



actual use of the right-of-way as a road prior to 1976.”             The McCarreys note that the 



patent to their land, and the right-of-way reserved therein, was issued pursuant to the 



                                                  -9-	                                            6767
 


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

Small Tract Act,10 which was repealed by the Federal Land Policy and Management Act 



of   1976  (FLPMA).11    Citing  an  instruction  memorandum      from  the  United  States 



Department of the Interior, Bureau of Land Management (BLM)12 and a Nevada state trial 



court decision13 the McCarreys argue that the right-of-way on their land was a common 



law public right-of-way dedication that would terminate with the 1976 repeal of the 



Small Tract Act unless it had been accepted through actual use prior to that year.  The 



Kaylors agree with the McCarreys that “the roadway provisions of the [Small Tract Act] 



were inapplicable” because of its 1976 repeal.  The Kaylors nonetheless ask us to affirm 



the superior   court on the theory that they established the existence of a public road 



through prescriptive use. Because the superior court specifically stated it was construing 



the deed as a matter of law and did not make factual findings on the elements necessary 

to establish a prescriptive easement,14 we decline to affirm the superior court on the 



prescriptive use theory. 



              We next consider the parties’ views that repeal of   the Small Tract Act 



terminated or otherwise affected the right-of-way at issue here. We have previously held 



       10     Acts of June 1, 1938, ch. 317, § 1, 52 Stat. 609; July 14, 1945, ch. 298, 59 



Stat. 467; June 8, 1954, ch. 270, 68 Stat. 239 (codified at 43 U.S.C. § 682a) (repealed 

1976). 



       11     Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, § 



702, 90 Stat. 2743, 2787 (1976). 



       12     BUREAU OF LAND MGMT ., INSTRUCTION MEMORANDUM NO . 91-196 (Feb. 



25, 1991) (hereinafter IM 91-196). 



       13     Spittler v. Routsis, No. CV08-02467, 2010 WL 2717701 (Nev. Dist. Ct. 



Apr. 21, 2010), pending appeal  in Nevada Supreme Court (case No. 56681), available 

at caseinfo.nvsupremecourt.us/public/caseView.do?CSIID=24810. 



       14     See Swift v. Kniffen, 706 P.2d 296, 302 (Alaska 1985) (listing the elements 



required to succeed on a prescriptive easement claim). 



                                           -10-                                      6767
 


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

that “stipulations as to the law are not binding upon the court,” particularly when they 

“involve[] a matter of public policy.”15       The legal issue of FLPMA’s effect on the right- 



of-way provisions in small tract patents is not limited to the dispute between the parties 



here; indeed, the question whether FLPMA terminated these rights-of-way potentially 

affects many people who are not parties to this case,16 including the Municipality of 



Anchorage.17     Determining what effect the repeal of the Small Tract Act had on the right- 



of-way is a legal question to which we apply our independent judgment.18 



                The   Small   Tract   Act   “authorized   the   sale   of   public   lands   classified   as 

‘valuable for residence, recreation, business or community site purposes.’ ”19 It was 



made applicable to Alaska in 1945.20            In 1961, pursuant to the Small Tract Act, the 



federal government issued a patent to the McCarreys’ predecessor in interest.                  The lot 



appears to have been part of Small Tract Classification Order No. 97, also identified as 



        15      Dresser Indus., Inc. v. Alaska Dep’t of Labor , 633 P.2d 998, 1004 (Alaska 



1981). 



        16      See Neal v. Brown, 191 P.3d 1030, 1036 n.4 (Ariz. App. 2008) (Snow, J. 



dissenting) (noting “considerable” effect of majority’s decision about small tract rights- 

of-way because of widespread classifications of small tracts). 



        17      The grid map from the Municipality in the record shows a number of streets 



in the area with the designation “patent roadway reserve.” 



        18      See Johnson v. Johnson, 239 P.3d 393, 407 (Alaska 2010) (citing Cooper 



v. Cooper, 144 P.3d 451, 454 (Alaska 2006)) (noting that independent judgment standard 

of review would apply if question involved interpretation of federal statutes). 



        19      Mountain States Tel. & Tel. Co. v. Kennedy , 711 P.2d 653, 655 (Ariz. App. 



1985) (quoting 43 U.S.C. § 682a). 



        20      State, Dep’t of Highways v. Crosby, 410 P.2d 724, 727 (Alaska 1966). 



                                                 -11-                                            6767
 


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

Rabbit Creek Additional Unit No. 1.21          The patent was issued “subject to a right-of-way 



not exceeding 50 feet in width, for roadway and public utilities purposes, to be located 

along the north boundary of said land.”22 



                The McCarreys argue that the date of repeal of the Small Tract Act was the 

date by which the Kaylors had to show that the right-of-way was used as a road.23                   The 



McCarreys rely on the BLM’s Instruction Memorandum No. 91-196 (IM 91-196), dated 

February   25,   1991.24     According      to   IM  91-196,   “small   tract   rights-of-way   [were] 



common law dedications to the public to provide ingress and egress to the lessees or 

patentees and to provide access for utility services.”25         The memorandum also provided: 



        21      Notices, Alaska, Small Tract Classification Order No. 97, 20 Fed. Reg. 



2871, 2871-72 (Apr. 28, 1955). 



        22      The classification order specified the location of rights-of-way on the lots 



offered for lease and referred to the rights-of-way as easements.  Id. at 2872. 



        23      This issue was not specifically raised before the superior court, although 



the   McCarreys   implied   that   public   roads   had   to   be   owned   by   the   Municipality   and 

contended that the Municipality had not “dedicated” East 136th Avenue as a road. 



        24      According to the BLM website, instruction memoranda “are temporary 



directives that supplement the Bureau Manual Sections” and either “contain new policy 

or procedures that must reach BLM employees quickly,” “interpret existing policies,” or 

“provide      one-time    instructions.”     U.S.     Dept.   of   the  Interior,   Bureau     of  Land 

Management, National Instruction Memoranda, available at  http://www.blm.gov. (last 

visited July 31, 2012).      Instruction memoranda are not regulations, so they are entitled 

only to limited deference under federal administrative law — that is, we defer to the 

interpretation in them only “to the extent that it is persuasive.”  Allen v. State, Dep’t of 

Health & Soc. Servs., Div. of Pub. Assistance , 203 P.3d 1155, 1165 & n.48 (Alaska 

2009);  see   also   Christensen   v.   Harris   Cnty.,   529   U.S.   576,   587   (2000)   (noting   that 

agency interpretations of statutes that are not in regulations are entitled only to limited 

deference). 



        25      IM 91-196, supra note 12, at 1. 



                                                  -12-                                            6767
 


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

                 The   right-of-way   remained   available   as   long   as   the   lands 

                 were classified for small tract use.  These rights-of-way were 

                 determined to be common law dedications and had the effect 

                 of a public easement.       However, until acceptance by use of 

                 the easement made the dedication complete, the United States 

                 could revoke or modify the offer to dedicate in whole or in 

                 part.  Said another way, unless the common law rights-of­ 

                 way were actually used for a road or public utilities to serve 

                 a small tract, the dedication disappeared with the termination 

                 of the classification.[26] 



The   McCarreys   infer   that   repeal   of   the   Small   Tract   Act   terminated   all   small   tract 



classifications and, as a result, if the right-of-way had not been used as a roadway before 



repeal of the Small Tract Act, the right-of-way “disappeared.” 



                 But    IM   91-196     does   not   discuss   how     a  small   tract  classification    is 



terminated. And the language of FLPMA, BLM regulations and notices, and a BLM 



instruction   memorandum   from   1980   all   indicate   that   FLPMA   did   not   automatically 



terminate Small Tract Act classifications existing at the time of repeal. Section 102(a)(3) 



of FLPMA, codified at 43 U.S.C. § 1701(a)(3), directs review of “existing classifications 



of public land that were effected by executive action or statute before October 21, 1976.” 



BLM’s current regulations indicate that lands segregated under the Small Tract Act 

remain   segregated,27      and   BLM      has   published   notices   terminating   Small   Tract   Act 



classifications after 1976.28      Finally, in The Small Tract Act: Guide Book for Managing 



        26       Id. at 2 (first emphasis in original) (second emphasis added). 



        27       43 C.F.R. § 2091.7-1(a)(1) (2010) (“Lands classified under the authority 



of . . . the Small Tract Act (43 U.S.C. § 682a) are segregated from the operation of public 

land   laws   including   the   mining   laws   .   .   .   except   as   provided   in   the   notice   of   realty 

action.”). 



        28       See, e.g., Realty Action; Termination of Classification and Opening Order: 



                                                                                           (continued...) 



                                                    -13-                                              6767
 


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

Existing Small Tract Areas , Instruction Memorandum No. 80-540, the BLM noted that 



“[t]he classification and accompanying segregation[]continue until revoked, even though 

the [Small Tract Act] has been repealed.”29        We thus conclude that repeal of the Small 



Tract Act did not by itself end a small tract classification. 



               In any event, it is unlikely that FLPMA had any effect on the right-of-way 

at issue here because FLPMA applies to public, not private, lands.30          “Public lands” are 



lands “owned by the United States within the several States.”31         The McCarreys’ lot was 



not public land in 1976 — it passed out of federal ownership in 1961.   According to the 



BLM’s regulations, issuance of a patent ends the segregative effect of a classification 

order as to the land in the patent.32    In addition, even in IM 91-196 the BLM states: 



               Upon     issuance    of  a  small  tract  patent,  the  Secretary   is 

               deprived of all rights to the lands except those specifically 



        28(...continued) 



Alaska, 67 Fed. Reg. 8310, 8310 (Feb. 22, 2002); see also Termination of Classification 

of   Public   Land   for  Small   Tract  Classification   Number     368,   and  Opening     Order; 

California,    63   Fed.   Reg.   48,753,    48,753-54    (Sept.   11,   1998);   Termination     of 

Classifications of Public Lands for Small Tract Classification Numbers 236, 243, and 

388, and Opening Order; California, 63 Fed. Reg. 10,036, 10,036-37 (Feb. 27, 1998). 



        29     BUREAU      OF LAND    MGMT .,   THE   SMALL    TRACT    ACT : GUIDE    BOOK     FOR 



MANAGING EXISTING  SMALL TRACT AREAS 1-46 (1980) (hereinafter GUIDE BOOK). 



        30     See   43    U.S.C.   §  1701;   Columbia      Basin   Land    Protection   Ass’n   v. 



Schlesinger, 643 F.2d 585, 601-02 (9th Cir. 1981) (holding that lands in which U.S. had 

retained mineral rights were not “public lands” under FLPMA); United States v. City & 

Cnty. of San Francisco, 446 F.Supp.2d 1140, 1143-44 (E.D. Cal. 2006) (holding that 

certain provisions of FLPMA regulate only public, not private, lands). 



        31     43 U.S.C. § 1702(e) (2006). 



        32     43 C.F.R. § 2091.2-2(a)(3) (2010) (“The segregative effect of a Notice of 



Realty Action automatically terminates . . . [u]pon issuance of a patent or other document 

of conveyance.”). 



                                               -14-                                           6767
 


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

                 reserved     to  the   United    States.    Under      a  common       law 

                 dedication, fee title lies with the owner of the land subject to 

                 the   easement   of   the   public   for   the   use   of   the   land.  The 

                 government transfers all its interest in and jurisdiction over 

                 the lands as completely as if the patent had been made subject 

                 to a right-of-way in favor of a named holder of such right-of­ 

                 way.    The   government   has   no   legal   power,   except   under 

                 eminent domain proceedings . . . to eliminate this restriction 

                 from the patent.[33] 



We therefore hold that repeal of the Small Tract Act in 1976 did not terminate or revoke 



the right-of-way at issue here. 



        C.	      The   Right-Of-Way   Grant   Created   An   Offer   Of   Dedication   For   A 

                 Public Roadway. 



                 We next consider the nature of the interest created by the federal patent. 



This requires interpreting the language of the patent, or deed, issued to the McCarreys’ 



predecessor in interest. The first step in deed interpretation is deciding whether the deed 

is ambiguous.34     The patent was issued subject to a right-of-way not to exceed 50 feet in 



width for roadway and public utilities purposes, so the size and purpose of the right-of­ 



way are not ambiguous.          But the parties disagree about the nature of the right-of-way. 



The McCarreys contend that the right-of-way is a common law dedication, although they 



suggest that the right-of-way created a private road that was intended to benefit only 



owners   of   federally-issued   small   tracts.     The   Kaylors   argue   that   the   superior   court 



correctly held that the right-of-way in fact contains a public road. 



        33	      IM 91-196, supra note 12, at 3. 



        34       Estate of Smith v. Spinelli , 216 P.3d 524, 529 (Alaska 2009) (citing Norken 



Corp. v. McGahan, 823 P.2d 622, 626 (Alaska 1991)) (“Whether a deed is ambiguous 

is a question of law.”). 



                                                   -15-	                                                6767 


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

                 A dedication is “[t]he donation of land or creation of an easementfor public 

use.”35     Dedications can be either express or implied.36               Express dedications   can   be 



statutory or common law.37          “A common law dedication occurs ‘when the owner of an 



interest in land transfers to the public a privilege of use of such interest for a public 

purpose.’ ”38 “There are two essential elements of a common law dedication: (1) an 



owner’s offer of dedication to the public and (2) acceptance by the public.”39                   Whether 



there has been a common law dedication is usually a factual issue related to the intent of 

the   dedication.40    But   in   this   case   both   parties   agreed   in   the   superior   court   that   the 



government’s intent was a legal issue.   The Kaylors initially told the court that there was 



a factual issue about intent, but they later agreed with the court that intent could be 



derived by interpreting the patent.         We too agree that the government’s intent in creating 



the   right-of-way   is   a   legal   question    because   the   patent   was   issued   by   the   federal 



government pursuant to a statutory and regulatory scheme; the government’s intent can 



be   derived   from   the   wording   of   the   patent   as   well   as   interpretation   of   statutes   and 

regulations.41 



        35       BLACK ’S LAW DICTIONARY 473 (9th ed. 2009) (emphasis added). 



        36       JON   W.  BRUCE      &  JAMES     W.  ELY , JR .,   THE   LAW     OF  EASEMENTS        AND 



LICENCES IN LAND § 3:10 (2011). 



        37       Id. 



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



Denton , 359 P.2d 121, 125 (Alaska 1961)). 



        39       Id. at 301 (citations omitted).
 



        40       Id.
 



        41
      Cf. State, Dep’t of Highways v. Green, 586 P.2d 595, 602-03 (Alaska 1978) 



                                                                                           (continued...) 



                                                    -16-                                              6767
 


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

                 Nothing in the patent’s language suggests that the government intended to 



limit use of roads created in the rights-of-way to small tract owners.  The patent did not 

identify   a   dominant   estate   or   limit   access   only   to   small   tract   owners.42 The   patent 



reserved      the  right-of-way      for   a  roadway      and   public    utilities.   The     instruction 



memorandum on which the McCarreys rely states, “[I]t is generally accepted that small 



tract rights-of-way are common law dedications  to the public to provide ingress and 

egress   to   the   lessees   or   patentees   and   to   provide   access   for   utility   services.”43 We 



previously identified the purpose of Small Tract Act rights-of-way as “provid[ing] rights- 

of-way   for   ‘access   streets   or   roads’   and   for   public   utilities.”44 We   noted   that   the 



regulatory language authorizing the rights-of-way “suggest[ed] the Secretary’s concern 

with reserving access for other lots within the boundaries of the small tract lease area.”45 



We agree with the Arizona Court of Appeals that the rights-of-way in small tracts were 



intended “to avoid imposing the heavy burden on local governments of subsequently 

having to acquire an easement when the time came to install utilities and roadways.”46 



                 The   BLM   has   consistently   considered   small   tract   rights-of-way   to   be 



common law dedications to the public.  As early as 1957, the Solicitor General’s Office 



        41(...continued) 



(interpreting   patent as legal issue, using   rules of construction   related   to   public   land 

grants). 



        42       Cf. Branch v. Occhionero, 681 A.2d 306, 308-09 (Conn. 1996) (noting that 



both dominant and servient estates must be identified to create easement appurtenant); 

Mackiewicz v. Metzger , 750 N.E.2d 812, 817 (Ind. App. 2001) (same). 



        43       IM 91-196, supra note 12, at 1 (emphasis added). 



        44        Green, 586 P.2d at 601 (quoting 43 C.F.R. § 271.16(c) (1954)). 



        45       Id. 



        46       City of Phoenix v. Kennedy, 675 P.2d 293, 295 (Ariz. App. 1983). 



                                                    -17-                                              6767
 


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

in the Department of Interior advised the BLM that the rights-of-way reserved under the 

Small Tract Act were common law dedications to the public for utilities and roads.47  The 



two BLM instruction memoranda we have discussed also describe the rights-of-way as 

common       law   dedications.48     Because      the  BLM      has  not,   as  far  as  we   are  aware, 



promulgated       regulations     to  the   effect  that   these   rights-of-way      are  common       law 



dedications, we need only defer to the   BLM’s interpretation to the extent we find it 

persuasive.49    We find the BLM’s interpretation persuasive in light of the purpose of the 



Small Tract Act and the longstanding nature of the interpretation50                   and hold that the 



right-of-way at issue here was an express offer of common law dedication to the public. 



                 A   common       law   dedication    is  not  complete     until   the  offer   has  been 

accepted.51     Because   neither   party   expressly   presented   the   theory       of   common   law 



dedication   to   the   superior   court,   the   court   did   not   have   the   opportunity   to   consider 



whether   the   offer   of   dedication   had   been   accepted.     We   have   previously   held   that 



acceptance of an offer of dedication “may occur through a formal official action or by 



        47       Memorandum from Associate Solicitor, Division of Public Lands, to the 



Director, Bureau of Land Management, Elimination of a Right-of-Way Reservation from 

Patent 2 (Aug. 5, 1957). 



        48       IM 91-196, supra note 12, at 1-3; GUIDE BOOK , supra note 29, at 1-94, 1-97 



to -99. 



        49      Allen v. State, Dep’t of Health & Soc. Servs., Div. of Pub. Assistance , 203 



P.3d 1155, 1165 & n.48 (Alaska 2009) (citing Christensen v. Harris Cnty., 529 U.S. 576, 

587 (2000)). 



        50       See Marathon Oil Co. v. State, Dep’t of Natural Res., 254 P.3d 1078, 1082 



(Alaska 2011) (noting that more deference is given “to agency interpretations that are 

‘longstanding   and       continuous.’   ”   (quoting  Premera       Blue    Cross   v.   State,   Dep’t   of 

Commerce, Cmty. & Econ. Dev., Div. of Ins., 171 P.3d 1110, 1119 (Alaska 2007))). 



        51       Swift v. Kniffen, 706 P.2d 296, 301 (Alaska 1985). 



                                                   -18-                                              6767
 


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

public use consistent with the offer of dedication or by substantial reliance on the offer 

of dedication that would create an estoppel.”52       On remand, the superior court should 



make findings about whether the offer of dedication has been accepted. 



               The McCarreys’ contention that the Kaylors cannot benefit from the right- 



of-way because they are not small tract owners conflicts with the idea that the right-of­ 



way was a common law dedication.          A common law dedication is a dedication to the 

public, even when there is no specific grantee.53       Even though the BLM’s instruction 



memoranda indicate that the rights-of-way were intended to benefit small tract owners, 



IM 91-196 nevertheless characterizes the rights-of-way as common law dedications and 

“public easement[s].”54    The Guide Book contains a solicitor’s opinion concluding that 



the regulation authorizing rights-of-way in Small Tract Act classifications was “a clear 



and explicit manifestation on behalf of the United States to dedicate a portion of each 

small tract to public  use.”55 



               Although     the  McCarreys     rely  heavily  on  a  Nevada    state  trial  court 

decision56 in their argument, there are many factual distinctions between the cases.  The 



       52      State v. Fairbanks Lodge No. 1392, Loyal Order of Moose, 633 P.2d 1378, 



1380 (Alaska 1981) (citing Litvak v. Sunderland , 353 P.2d 381, 384 (Colo. 1960); City 

of Carlsbad v. Neal, 245 P.2d 384, 389 (N.M. 1952); Tinaglia v. Ittzes, 257 N.W.2d 724, 

730 (S.D. 1977)); see also Safeway, Inc. v. State, Dep’t of Transp. & Pub. Facilities, 34 

P.3d 336, 339 (Alaska 2001) (holding that State’s inclusion of street on right-of-way map 

was formal official action accepting street dedication). 



       53      23 AM . JUR . 2D Dedication § 16 (2002). 



       54      IM 91-196, supra note 12, at 1-2. 



       55      GUIDE BOOK , supra note 29, at 1-99 (emphasis added). 



       56      Spittler v. Routsis, No. CV08-02467 2010 WL 2717701, at *2-3 (Nev. Dist.
 



Ct.   Apr.   21,   2010), pending   appeal in   Nevada   Supreme     Court   (case   No.   56681),
 

                                                                                 (continued...)
 



                                              -19-                                         6767
 


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

Nevada case involved small tract rights-of-way that were used only as driveways; there 



is nothing in the Nevada trial court’s decision to suggest that a road of any type ever 

occupied the rights-of-way.57        Here, in contrast, the aerial photographs admitted into 



evidence   show      a   dirt   road   leading  past  the   McCarrey   lot   as   early  as   1980.  The 



McCarreys do not dispute that as of 1980 there was a “right-of-way road” across their 



lot. 



                Finally, the McCarreys argue that the injunction issued by the superior 



court was too broad. Because we are remanding to the superior court for findings related 



to acceptance of the common law offer of dedication, we do not reach this issue. 



V.      CONCLUSION 



                For the foregoing reasons, we VACATE the superior court’s finding that 



a public road occupies the right-of-way crossing the McCarreys’ lot and REMAND to 



the court for factual findings about whether the offer of common law dedication was 



accepted.    The court may, in its discretion, hold another hearing or may make findings 



on the record already before it.      We do not retain jurisdiction. 



        56(...continued) 



available at caseinfo.nvsupremecourt.us/public/caseView.do?CSIID=24810. 



        57      Id. 



                                                 -20-                                              6767 

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