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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dault v. Shaw (11/29/2013) sp-6847

Dault v. Shaw (11/29/2013) sp-6847

         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  



JAMES DAULT and SHALA                                  )  

DOBSON,                                                )        Supreme Court No. S-14328  

                                                       ) 

                     Appellants,                       )        Superior Court No. 3PA-10-01559 CI  

                                                       )  

         v.                                            )        O P I N I O N  

                                                       )  

EDWARD SHAW,                                           )        No. 6847 - November 29, 2013  

                                                       ) 

                     Appellee.                         )  

                                                       )  



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

                                                                                   

                  Judicial District, Palmer, Eric Smith, Judge.
  



                  Appearances:    Richard  Deuser,  Law  Office  of  Richard
  

                  Deuser,  Wasilla,  for  Appellants.    DanaLyn  Dalrymple,
  

                  Dalrymple Law, P.C., Palmer, for Appellee.
  



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

                  Stowers, Justices, and Matthews, Senior Justice.*
  

                                                                                         



                  MATTHEWS, Senior Justice.
  

                  WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting.
  



I.       INTRODUCTION  



                  In the doctrine of adverse possession there is a  presumption that the use of  

                                                       



a private drive across the property of another is permissive and does not give rise to an  

                                                                                                                 



         *        Sitting  by  assignment  made  under  article  IV,  section  11  of  the  Alaska  



Constitution and Alaska Administrative Rule 23(a).  


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

                                                                                             

easement.         But  the  presumption  does  not  apply  where  a  drive  was  not  originally  



                       

established by the other property's owner for his or her own use.  The main question here  



                                                          

is whether this presumption applies to the facts of this case.  We hold that it does because  



                                                     

the drive at issue was constructed by the original subdivision developers for their own  



use.  



II.       FACTS AND PROCEEDINGS  



          A.        The Subdivision And The Trail 



                                                                                                  

                      Lots 4 through 40 of the North Shore Subdivision extend along the north  



                              

shore  of  Blodgett  Lake.    The  subdivision  was  approved  by  the  Matanuska-Susitna  



                                                                                                            

Borough in 1966.  The subdivision plat is attached as Appendix A to this opinion.  A  



                                                                                

ridge created by a lateral moraine bisects most of the lots so that they slope steeply down  



                                                                                                                

to the lake to the south and to what was originally swampy ground to the north.  All of  



                                                                                              

the lots border a platted road on the north, North Shore Drive.  The lots are not large for  



                                                                            

a rural subdivision.  For example, lot 28, which is owned by appellants James Dault and  



Shala Dobson, extends along the lake shore for only some 88 feet, while the distance  



from the lake to North Shore Drive is about 210 feet.  



                                                                                                     

                    When the lots in the subdivision were first offered for sale in the late 1960s  



North Shore Drive was not improved or readily passable.  The developers first tried  



                                          

showing the lots by boat.   Subsequently they bulldozed a trail along the ridge.  The  



                                                                                        

superior court found that the purpose of this trail was "so that prospective buyers could  



                                                                                                                         

gain access to the property."  The trail does not appear on the subdivision plat.  But by  



the  time  lots  were  sold,  the  deeds  to  most  lots  referred  to  the  trail,  reserving  to  the  



                                                      

subdivision developers as grantors "an easement for right-of-way purposes twenty (20)  



                                                                             

feet in width and upon the North One-half (N 1/2) of said lot."  For reasons that are not  



explained, no reservation was made with respect to lot 28.  



                                                               -2-                                                         6847
  


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

                                                   

          B.         The Controversy  



                     The trail is the source of controversy in this case.  The appellee, Edward  



                                                                             

Shaw, is the owner of lots 33 and 34 of the North Shore Subdivision.  Appellants Dault  



                                                                                                                              

and Dobson (Dault) own lot 28.  The controversy came to a head in 2009.  Shaw had a  



                                                                                                                       

house on lots 33 and 34 that was built by his predecessors in title, the Rices, more than  



                                                            

30 years earlier. By 2009 North Shore Drive had been improved for many years and was  



fully passable.  But Shaw continued to use the trail as the access route to his house up to  



where it merged with North Shore Drive at lot 26.  The trail thus crossed lots 27 through  



                                                                                        

32, including Dault's lot 28.  In 2009 the only lot with a dwelling between the point of  



                                                                                 

merger at lot 26 and Shaw's house was lot 32, where a cabin owned by Carol and Oliver  



                                                                           

Krein was located.  The Kreins also used the trail as their means of access to North Shore  



Drive.  



                                                                        

                     Dault purchased lot 28 in 2006.  In 2009 in preparation for constructing a  



                                                                                                    

house on the lot, he built a driveway from his house site to North Shore Drive.  The trail  



                                                                                            

merged with this driveway so that access along the trail to the lots to the west was not  



                           

blocked.        Dault  built  a  shed  where  the  trail  had  been.    Shaw's  house  was  not  then  



                                                                             

occupied.  When Shaw's brother, Michael Shaw, discovered that a driveway was being  



constructed,  he  asked  Dault  about  the  project.    Dault  assured  Michael  that  the  new  



                                                                         

driveway would provide safer access to Shaw's property, but Michael expressed concern  



over the lack of a Borough permit.  During a subsequent conversation, Dault said that he  



             

did not believe that he needed a Borough permit.  Michael had by then discovered the  



                                                                                  

grantor easements on some of the lots, including his brother's, and based on them, told  



Dault to remove the obstruction from the trail.  



                                                                                                             

                     Subsequently, Edward Shaw's attorney contacted Dault,  demanding that  



                                                                             

the trail be restored based on "the actual grant of easement in [Dault's] deed" and "the  



            

theory of prescriptive easement."  Dault responded, disputing both the existence of a  



                                                                -3-                                                          6847
  


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

                                                                                                                         

granted easement and the factual basis for an easement by prescription.  Shaw then filed  



the complaint in the present case.  



          C.         Pleadings And Motions  



                                                                  

                     Shaw filed the complaint on May 12, 2010.  It alleged that Shaw acquired  



                                                                                                                      

his lots from his mother's personal representative in August of 2008, and that his mother,  



                                                              

Alice Tauscher, acquired them from the Federal National Mortgage Association in 1988.  



                                                                                               

The complaint alleged that there is a dwelling on the property, that access to the dwelling  



                  

is  "via  an  improved  driveway  running  over  and  through  a  number  of  lots  in  the  



                                                                                                                     

subdivision, including Lot 28" and that Shaw and his predecessors have utilized the  



                                                                                                                          

driveway "openly, continuously, hostilely, and in an uninterrupted fashion for a period  



of time in excess of 10 years."  The complaint's final allegation of fact was that Dault  



                                                                                    

blocked the driveway and refused to reopen it.  Shaw requested an injunction requiring  



                                                                                                                    

Dault to reopen the driveway and a declaration that a prescriptive easement runs through  



                                                                                                                

Dault's property "in accordance with the defined and historical usage by [Shaw] and his  



predecessors-in-interest."  



                                               

                     In   his   answer   Dault   admitted   the   existence   of   the   trail,   and   his  



                                                          

reconfiguration of it, but denied that the requirements for a prescriptive easement were  



                                                          

satisfied.  Dault also posed a number of affirmative defenses, including  the availability  



                                                                                                                              

of the public right of way bordering Shaw's property, estoppel, laches, and failure to join  



                                                                                                               

indispensable parties - referring to other lot owners whose property is traversed by the  



trail.  



                     After some discovery was conducted, Shaw moved for what he termed a  



"Declaratory  Judgment."    This  was  understood  by  the  parties  and  the  court  to  be  a  



                                                                                      

motion for summary judgment.  Shaw's memorandum in support of his motion related  



                                                                                          

the ownership history of lots 33 and 34, in relevant part as follows.  The subdivision plat  



                                                                           

was recorded by Helen Clements on September 7, 1966.  On August 9, 1968, John and  



                                                                 -4-                                                          6847
  


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

Ina  Boss  and  Louis  and  Mary  Odsather  (who  other  evidence  established  as  the  



subdivision developers) deeded lots 33 and 34 to Herbert and Lalladge Rice.  This deed  

                                                                                                                               



was recorded on July 17, 1979.  A trustee's deed to a mortgage company was recorded  

                                                                         



February 11, 1988.  Shaw's memorandum noted that this presumably resulted from a  



foreclosure. In short order, the mortgage company conveyed the property to the Federal        



                                                                                                    

National Mortgage Association, which in turn sold it to Alice Tauscher by deed recorded  



October 14, 1988.  Finally, as noted in the complaint, Tauscher's estate conveyed the   



property to Shaw in a deed recorded April 22, 2008.  



                                                         

                      According to Shaw, Tauscher occupied the property from the time of her  



                                                                                         

purchase in 1988 until her death on August 25, 2007, with the exception of a six-week  



                                        

period  in  1999.            Shaw  claimed  to  have  also  occupied  the  property  as  his  principal  



                                                                                                 

residence at times, including the six-week period in 1999 when Tauscher did not live  



there.  The property was rented from March 2008 until November 2008.  Since then it  



                                                                                                                         

has been vacant and listed for sale.  At all times since Tauscher's initial purchase, the  



trail was the sole means of access to the house on the property.  



                                                                                                                       

                      Shaw's argument as set out in the memorandum supporting his motion was  



that the ten-year prescriptive period was satisfied by Tauscher's use of the trail from  



                                                                                                                          

 1988 until her death in 2007, and for the additional year that it was used by renters.  This  



use, Shaw argued, also served to satisfy the requirements of continuity and notoriety.  



As to the requirement of hostility, Shaw's memorandum stated:   



                                                                                  

                      There is a fundamental presumption that the use of land by an  

                                                                                                     

                      alleged easement holder was permissive unless the claimant  

                      proves a distinct, positive assertion of a right hostile to the  

                      owner.    However,  the  presumption  does  not  arise  if  the  

                      roadway was not established by the owner of the servient  

                      estate for its own use but for many years was the means of  

                      passage to the dominant estate [citations omitted].  



                                                                     -5-                                                              6847
  


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

Shaw's  memorandum  went  on  to  explain  his  view  of  why  the  presumption  of  



permissiveness does not apply to this case:   



                                                                   

                    In this case, the driveway was evidently established by the  

                                 

                    owners  of  the  house  when  the  house  was  constructed  in  

                                                                                                 

                    1977. . . .  The records of the State Recorder show that the  

                                                                  

                    owners at that time were Louis and Mary Odsather and John  

                    and  Ina  .  .  .  Boss.    There  is  no  direct  or  circumstantial  

                    evidence that there was a structure on Defendant's Lot 28  

                    during the period of time Plaintiff claims that the prescriptive  

                    easement arose, or that Defendants or their predecessors in  

                    interest constructed the driveway for their own use. . . .  [T]he  

                                                                                                    

                    driveway was the only means of passage utilized by Plaintiff  

                                   

                    and his mother to the dominant estate, Lots 33 and 34.  



                    Dault  opposed  Shaw's  motion  and  filed  a  cross-motion  for  summary  



judgment.  In support of his cross-motion, Dault presented multiple affidavits including  

                                 



affidavits from three long-time owners of lots in the subdivision who testified as to the  

                                                                     

circumstances surrounding the construction of the trail, and its intended uses.1  

                                                                                                                     Robert  



                                  

Dobson purchased lot 23 from the subdivision developers in 1968.  In his affidavit, he  



stated that the developers created the trail to allow prospective buyers access to the  



                                                                                                          

property to facilitate sales, and that it was understood that the trail was only useable as  



a matter of convenience:  



                                      

                    6.        . . . . When a particular lot owner wanted to develop  

                                                            

                    his property, and therefore needed the space occupied by the  

                                                                           

                    access trail on the ridge line, it was understood that the lot  

                                                                            

                    owner could "knock down" the ridge line, thereby removing  

                    the access trail in the process.  



                    7.        After lot development ended the trail on a particular  

                    lot, the idea was that anyone who had been using the access  

                                      

                    trail would be able to continue using the remaining parts of  

                    the access trail that still existed but would, if necessary or  



          1         The three affiants were  Robert Dobson, Gordon Benedict, and Carol Krein.  



                                                              -6-                                                       6847  


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

                     desired,  construct  their  own  driveway,  leading  from  the  

                     public right of way, as the way to drive to their lot.  



                                                                                        

                     8.         My neighbors have, over the years all understood this  

                                         

                     and  agreed  to  this.    Any  other  understanding  would  have  

                     rendered many of the lots as unbuildable - no place to put  

                     improvements as the access trail occupied the only feasible  

                                                                                                 

                     place to put improvements.  



                     9.         The realtor, John Boss of Totem Realty, who I bought  

                                                                     

                     my lot from, told me that the access trail was for convenience  

                                           

                     and that the public right of way would be the long term way  

                     to access lots in the subdivision.  This made the only sense  

                     because the lots would not be buildable if you couldn't build  

                                                                                     

                     where the access trail was located.  



                     Gordon Benedict testified in an affidavit that he had purchased lot 40 in  

                                                                     



1970.  Like Dobson, he testified that the developers put in the trail to help with lot sales. 

                                  



 He stated that the trail was also a way to gain access to the ridge line in order to develop  

                                                                                    



lots.  He understood that the "ridge line trail was not intended to be a permanent road.  



If it were to remain in place, it would have destroyed the value of the lots as the area that  



was buildable would have been largely taken by the presence of the trail."  Benedict also         



testified that in approximately 1978 he began excavation work on his lot and also worked  

                                                                                                                  



on lots 38 and 39.  Essentially, he pushed dirt from the ridge line toward North Shore  

                                                                           



Drive, thereby "taking down the hill" and, in the process, obliterating the trail. He stated  

                                                                                                                             



that around that time the Borough began to maintain North Shore Drive, including snow  

                                                                                                                   



removal.  Benedict also testified that in the 90s Alice Tauscher called him about some   



changes being made to the trail by another lot owner, Bill Moll.  According to Benedict,   



Tauscher made no objection to the work, and Benedict had the impression that "she   



understood that when people wanted to develop their lots, that they could do so and the             



public right of way would then be used to travel to particular lots instead of using the  



access trail on the lot where the improvements were being made."  



                                                                   -7-                                                            6847
  


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

                                                                                              

                    Carol Krein testified by affidavit that she and her husband purchased lot 32  



                                                                                    

in 1969.  Krein testified that the agent they dealt with told her with respect to the trail  



                                                                   

that everyone eventually would have to put in their own driveway down to North Shore  



Drive.    Krein  also  testified  that  she  had  discussed  the  trail  with  Tauscher  on  one  



occasion, during a conversation regarding an electric meter for Tauscher's house that  



was installed on the Krein property.  According to Krein, Tauscher understood that  



                    the access trail was for convenience and when people wanted  

                    to  use  their  lots,  where  the  access  trail  was  located,  they  

                                                                                              

                    would then build their own driveways off of the public right  

                    of  way.  [Tauscher]  understood  that  she  was  crossing  our  

                                                                          

                    private property and Glenna's (the next lot owner to the east)  

                                                                                      

                    private property.  We were good neighbors and let each other  

                                                                                          

                    cross our private property on the access road.  We were good  

                    neighbors and let her keep the electric meter on our lot.   



                                                                                            

According to Krein, "Tauscher did not object when various persons in the subdivision  



           

either eliminated or re-routed the access trail on their properties.  Nor did we.  We all  



understood the temporary and conditional nature of the access trail."  



                    Dault's  opposition  to  Shaw's  summary  judgment  motion  was  wide- 



             2  

ranging.                                                                         

                But his main point was that the element of hostility is missing.  He noted that  



          2         Dault filed an affidavit in which he explains that he and Shala Dobson own           



and live on another lot in the subdivision, lot 35, which is adjacent to and west of Shaw's  

lots.  Dault testified that preparatory to building a house there in 2004 he talked with  

                                                                                        

Tauscher about bringing earthmoving equipment over the trail, since it is easier to "push  

                                                                                                              

down" than "push up."  According to Dault, Tauscher initially agreed, but "as it turned  

out," he instead brought the equipment in from the public right of way and created a  

                          

driveway to his house site by working up-slope.  In the process he eliminated the trail on  

lot 35, just as development on lots 37-40 had eliminated it there.  Why he did not bring  

equipment up over the trail was explained by Dault at trial.  A few days after Tauscher  

                                                                                           

agreed that Dault could bring equipment over the trail, Shaw told him that he could not.  

                                                                            



                    In   his   affidavit,   Dault   also   explained   why   the   trail   precludes   lot  

                         

                                                                                                               (continued...)  



                                                               -8-                                                         6847
  


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

                                                                                                           

the  trail  was  constructed  by  the  developers  of  the  subdivision  and  therefore  "[t]he  



presumption  of  consent  should  apply."    He  summed  up  by  stating,  "the  evidence  



                                                                                                     

presented by Defendants establishes that use of the access trail was by consent.  Plaintiff  



had the burden on the issue of consent and offered no evidence that consent was absent."  



                    Shaw filed a reply to Dault's opposition and cross-motion, claiming that the  



                                                                                           

evidence was insufficient to show that Tauscher understood that her right to use the trail  



                                                                                                                

was temporary.  Shaw filed his own affidavit stating that there was never a community  



                                                                                          

understanding that the use of the trail would be temporary.  Shaw's argument continued  



                                                                          

to rely on the premise that the presumption that a use is permissive does not apply and  



                                                                                                    

asserted  that  the  burden  of  proof  was  on  Dault  to  show  that  Tauscher's  use  was  



                                                                                                                  

consensual.  But Shaw did not contest the evidence presented by Dault that the trail was  



                                       

built by the subdivision developers, rather than, as Shaw had asserted in his opening  



memorandum, by the original owners of his house.  



                                                              

                    The superior court denied Shaw's motion for declaratory judgment and  



                                                                                                       

Dault's cross-motion for summary judgment.  The court found that there were genuine  



                                         

issues of material fact that precluded summary judgment.  Specifically, the court found  



                        

that there were genuine issues as to whether the usage of the trail was permissive.  The  



                                                                                                     

court noted that "[w]hether there was community understanding among the property  



owners that the use of the trail was permissive is a genuine issue of material fact."  In  



                                                                          

addition, the court found that there were genuine issues as to the continuity and duration  



of Tauscher's use of the trail.  



          2         (...continued)  



development.  The drop off from the ridge line is steep, so the ridge must be leveled to  

                                                                         

some extent by pushing material north toward North Shore Drive.  In addition, there is  

a 75-foot offset requirement from the lake shore as to buildings and 100 feet as to septic  

                                                                          

systems.  Finally, there are specific distances that must be satisfied between wells and  

septic systems.  These factors mean that the ridge is the only plausible house site.  



                                                               -9-                                                         6847
  


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

          D.        The Trial  



                    The case proceeded to a bench trial which occupied parts of four days in  

                                                                                                              



March 2011.  The evidence presented by Shaw relating to the continuity and duration of  

                                                                                           



use of the trail by Tauscher was much the same as he had presented in affidavit form in  

                                                                                                        



his motion for declaratory judgment.  But he did not present evidence that the trail was  

                                                               



constructed by the original owners of his house.  



                    The evidence presented by Dault was also similar to the evidence that he  



presented in his opposition to Shaw's motion and in support of his cross-motion for  



                                                                                                      

summary judgment.  In particular, the evidence was undisputed that the trail was built  



                                                

by  the  subdivision  developers  to  aid  them  in  selling  the  property  and  to  facilitate  



development of the property.  Robert Dobson testified:   



                                                                                          

                    When we bought . . . the property . . . they were glad to tell us  

                                                                                     

                    that there was a trail that we could use to get up there . . . they  

                                 

                    put it in so we could get up and see our lots and use our lots.  

                    And there was not any indication that that's the way it was  

                    going  to  always  be."    Carol  Krein  similarly  testified  that  

                    "there was a . . . trail up along the ridge that was built to show  

                    all the property and our realtor took us over there and showed  

                                                                                            

                    us the lots that were available.   



Krein further testified:  "[W]e were told when we bought it that that was a trail for the  



realtors and that eventually we would have to build our own driveway up from North  

                                                                                                               

[S]hore . . . ."3  

                       



          3         This  aspect  of  Krein's  testimony  was  objected  to  as  hearsay,  but  the  



testimony  was  allowed  on  the  grounds  that  it  would  serve  as  background  for  a  

                                                                                                    

conversation between Krein and Tauscher as to the temporary nature of the trail.  The  

testimony was also admissible on the issue of the community understanding as to the  

                                                                                                                       

nature of the trail.  The court had ruled on summary judgment that this was a material  

issue in the case.  Krein's testimony was covered by Evidence Rule 803(20), which  

excludes from the hearsay rule evidence of reputation in the community arising before  

                                                                                                           (continued...)  



                                                             -10-                                                       6847
  


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

           E.         The Superior Court's Decision  



                                                                                                                           4 

                                                                                                                               

                      The superior court issued its decision in a 27-page written order.  The court 



                                                                                                                

found by clear and convincing evidence that Shaw proved that he had a prescriptive  



                                                                                                   

easement where the trail crossed lot 28. The court found that the continuity and ten-year  



                                                                                                  

duration elements of adverse possession were satisfied by Tauscher's use from 1988  



                                                                 

through 2007. With respect to hostility, the court concluded that the general presumption  



                                                                                                         

that the use of land by an alleged easement holder is permissive did not apply.  Instead,  



the court applied a presumption that the use of the easement was hostile.  The court  



wrote:  



                                 The  Alaska  Supreme  Court  set  forth  the  applicable  

                      analysis relating to hostility in McDonald :  



                                                           

                                 The       hostility         requirement,             however,            is  

                                                            

                                 "determined by application of an objective test  

                                 which simply asks whether the possessor acted  

                                 toward the land as if he owned it, without the  

                                permission of one with legal authority to give  

                                possession."  Still, we will presume that the use  

                                                                                                  

                                 of  land  by  an  alleged  easement  holder  was  

                                permissive unless a claimant proves "a distinct  

                                 and positive assertion of a right hostile to the  

                                                                       

                                 owner."  But this presumption does not arise if  

                                                                                    

                                 "a roadway was not established by the owner of  

                                                                  

                                 the servient estate for its own use but was for  

                                 many years the only means of passage to the  

                                                                                                   

                                 dominant estate."  



           3          (...continued)  



the controversy as to customs affecting lands in the community.   



           4          The text of the court's order relating to the issue of whether a prescriptive       



easement was established is set forth in Appendix B.   



                                                                   -11-                                                              6847  


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

978  P.2d  at  84-85  (citations  omitted).    The  Court  relied  

primarily on McGill v. Wahl , 839 P.2d 393, 397-98 (Alaska  

 1992), in this respect, in which the Court held:  



          However, in this case it would be inappropriate  

          for us to presume that the Wahls were acting as  

                                          

          merely permitted users of the roadway.  Such a  

                                                                   

         presumption  does  not  arise  where  a  roadway  

         was not established by the owner of the servient  

          estate for its own use but was for many years  

          the  only  means  of  passage  to  the  dominant  

                                                    

          estate.  Richardson v. Brennan , 92 Nev. 236,  

          548 P.2d 1370, 1372 (1976).  



Both of these cases involved an allegation of a prescriptive  

easement by a person whose driveway crossed the property  

                                 

of another person.  The Court essentially held that in such  

                 

cases,  hostility  is  presumed  and  generally  can  only  be  

rebutted  by  an  affirmative  act  by  the  landowner  of  the  

subservient estate.  As the Court explained in McGill :  



          The roadway originally was and continuously  

                                                    

         had been used as access to the lots behind the  

                                

          McGills' property.  The roadway existed and  

         was used by the Nels Wahls before the McGills  

                                                  

          came  to  the  property.    Although  other  lot  

          owners now use Highway 1 to get to their lots,  

                                                

          the use of the roadway has never changed with  

                                                         

         respect to lot 11.  The McGills, having come to  

                                          

          land  burdened  by  the  roadway,  cannot  now  

          claim that the users of the roadway were acting  

         merely  with  their  permission.    Likewise,  the  

          McGills without any affirmative action cannot  

                                   

         now claim that they intended to permit the use  

                                

          of the road by the other landowners.  



Id.  



          This  case  is  virtually  identical  to  McDonald  and  

McGill .  There is no dispute that Ms. Tauscher and plaintiff  

crossed lot 28 solely for the purpose of gaining access to their  

                                                    



                                       -12-                                                     6847
  


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

                    property.    Defendants  came  to  lot  28  well  after  that  use  

                    began.    And  they  took  no  affirmative  action  to  block  the  

                    access until 2009.  Plaintiff's use therefore was hostile.  



                    The superior court went on to state that even if there were no presumption  

                                                 



of hostility, the court would conclude that Tauscher's use of the trail was hostile because  

                                                                                                    



there was no evidence that the owners of lot 28 did not acquiesce in Tauscher's use of  

                                                                   



the trail, nor was there evidence that Tauscher, or Shaw, ever acknowledged that their  

                                                                           



use was subordinate to the owner's title.  The court wrote:  



                             The  court  would  reach  the  same  conclusion  even  

                                              

                    absent  the  presumption.    In  determining  whether  a  use  is  

                    hostile, the court must look to whether the owner of lot 28  

                    gave  his  or  her  permission  to  use  the  trail  or  merely  

                    acquiesced in that use.  In particular, as the Alaska Supreme  

                                                                           

                    Court explained in  Tenala, Ltd. v. Fowler, 921 P.2d 1114,  

                                                                                            

                    1120 (Alaska 1996):  



                                       In  Swift  v.  Kniffen,  706  P.2d  296,  304  

                             (Alaska  1985),  we  stated  that  "[t]he  hostility  

                             element        turns     on    the    distinction        between  

                             acquiescence and permission," and held that if  

                                                                             

                             the true owners merely acquiesce, and do not  

                             intend  to  permit  a  use,  the  claimant's  use  is  

                                                                  

                             adverse and hostile. Therefore, we must decide  

                                                             

                             whether the record reveals that Tenala intended  

                                                                            

                             to permit the Mayos' use or merely acquiesced  

                                             

                             in that use.  In Hubbard v. Curtiss , 684 P.2d  

                                                

                              842,   we   stated   that   "[t]he   key   difference  

                             between  acquiescence  by  the  true  owner  and  

                             possession  with  the  permission  of  the  true  

                             owner  is  that  a  permissive  use  requires  the  

                             acknowledgment by the possessor that he holds  

                                                        

                             in  subordination  to  the  owner's  title."   Id.  at  

                              848 (citations omitted).  



                             The evidence here supports a finding of acquiescence  

                    by clear and convincing evidence.  First, and perhaps most  

                                                                                  



                                                             -13-                                                       6847
  


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

                    important, there was absolutely no evidence that the original  

                                                    

                    owner of lot 28 had any conversation whatsoever with Ms.  

                                                          

                    Tauscher regarding her right to use the trail as her driveway  

                                                   

                    to her lots.  Nor is there any evidence that Ms. Tauscher or  

                                                                

                    plaintiff ever acknowledged to that person that her use "was  

                                                                                           

                    in subordination to" that owner's title.  There accordingly is  

                                                                       

                    no evidence to counter the claim by plaintiff and his brother  

                    that  they  always  assumed  they  had  the  right  to  cross  the  

                                                                                  

                    property and that no one really cared whether they did so.  



                    The court also found that the use of the trail was notorious, noting that it  

                                                                                              



was undisputed that Tauscher had used the trail as her driveway and had done so openly  

                                                                           



and obviously.  After rejecting Dault's affirmative defense of laches and holding that  



other landowners did not have to be joined under Alaska Civil Rule 19, the court directed  

                                                                                                        



entry of judgment declaring that a prescriptive easement existed on the portion of the trail  

                                                                     



that  crosses  lot  28.    The  court  also  ordered  Dault  not  to  obstruct  the  easement  and  



required him to remove the obstruction that was already present.  



                    The  court  recognized  some  problems  inherent  in  this  resolution  and  



encouraged the parties to consider settlement:  



                              The  court  feels  constrained  to  note,  however,  that  

                    while plaintiff has thereby won this battle, it is not at all clear  

                                                                                               

                    that this is the best result long-term for any of the parties.  

                    Because the trail crosses defendants' property in a manner  

                    that makes it very difficult to develop, plaintiff's use of the  

                                                

                    trail  will  create  ongoing  difficulties  with  his  neighbor.    It  

                    seems to the court that this is a matter that can and should  

                                   

                    have  been  resolved  through  settlement  in  a  manner  that  

                    assured plaintiff access and defendants full use of their land.  

                    The court encourages the parties to explore settlement in lieu  

                                                                     

                    of any further legal proceedings.  



                                                             -14-                                                        6847
  


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

III.      STANDARD OF REVIEW  



                                                                            

                   The  question  in  this  case  is  whether  an  evidentiary  presumption  was  

correctly applied.  This is a question of law.  We review such questions de novo.5  



IV.      DISCUSSION  



                   On  appeal  Dault  challenges  the  superior  court's  findings  concerning  



                                                    

notoriety, continuity, and hostility.  In addition, he argues that the court erred in failing  



to bar Shaw's claim on the grounds of laches, that the claim should have been dismissed  



                                                                     

for failure to join indispensable parties, and that the location, type, character, and scope  



of the easement ordered by the court were insufficiently defined.  Because we conclude  



                                                                               

that the court erred with respect to hostility, we find it unnecessary to consider Dault's  



other arguments.  



          The Superior Court Erred In Holding That The Element Of Hostility Was  

          Satisfied.  



                                                        

                   The elements underlying a court-ordered prescriptive easement are similar  



                                                                                                 

to the elements for adverse possession of real property, except that adverse possession  



                                                

focuses on possession, which is ordinarily exclusive, whereas prescriptive easements  

focus on use, which is often non-exclusive.6  



                                                                

                   To be entitled to a prescriptive easement, a party must prove  

                                                                      

                   (1) continuity - that the use of the easement was continuous  

                   and uninterrupted; (2) hostility - that the user acted as the  

                   owner and not merely one with the permission of the owner;  

                                                            

                   and (3) notoriety - that the use was reasonably visible to the  

                                                          

                   record owner.  A claimant must prove each element by clear  



          5        In re Estate of Fields , 219 P.3d 995, 1002-03 (Alaska 2009).  



          6        Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1119 (Alaska 1996).  



                                                           -15-                                                        6847  


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

                    and  convincing  evidence.    Finally  a  claimant  must  have  

                                                                                          [7] 

                    engaged in the adverse use for at least ten years.  



                   Until amendments made in 2003, adverse possession was governed by two  

                                                                                                       



statutory sections.  The first, AS 09.10.030, provided:  



                   No  person  may  bring  an  action  for  the  recovery  of  real  

                   property, or for the recovery of the possession of it unless  

                                             

                   commenced within 10 years.  No action may be maintained  

                                                                                

                    for  the  recovery  unless  it  appears  that  the  plaintiff,  an  

                                               

                    ancestor, a predecessor, or the grantor of the plaintiff was  

                    seized or possessed of the premises in question within  10  

                                                                                             

                   years before the commencement of action.  



Although in form simply a statute of limitations, this section served as the basis for  

                                          

establishing new title through adverse possession.8  



                                                             

                   The other statutory section, AS 09.45.052, allowed claimants under color  



of title to establish title after the passage of seven years.  Alaska Statute 09.45.052(a),  



prior to 2003, provided:  



                   The  uninterrupted  adverse  notorious  possession  of  real  

                   property  under  color  and  claim  of  title  for  seven  years  or  

                                 

                   more is conclusively presumed to give title to the property  

                    except as against the state or the United States.  



                         

Since the use in question here began, according to Shaw, with Tauscher's use in 1988  



and was terminated when Dault blocked the trail in 2009, these statutes govern Shaw's  



claim as to use of the trail until 2003.  



                           

                   The  2003  amendments  substantially  changed  and  restricted  the  law  of  



adverse possession.  Alaska Statute 09.10.030(a) and (b) now reads:  



          7        McDonald v. Harris , 978 P.2d 81, 83 (Alaska 1999) (emphasis and internal   



citations omitted).  



          8         Cowan v. Yeisley, 255 P.3d 966, 973 n.23 (Alaska 2011); Tenala, 921 P.2d  



at 1118.  



                                                            -16-                                                       6847  


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

                             (a)       Except  as  provided  in  (b)  of  this  section,  a  

                                                                                            

                   person  may  not  bring  an  action  for  the  recovery  of  real  

                               

                   property or for the recovery of the possession of it unless the  

                                                                                             

                   action is commenced within 10 years.  An action may not be  

                                                                             

                   maintained under this subsection for the recovery unless it  

                                                      

                   appears that the plaintiff, an ancestor, a predecessor, or the  

                                                               

                   grantor  of  the  plaintiff  was  seized  or  possessed  of  the  

                                     

                   premises         in    question        within       10     years      before       the  

                   commencement of the action.  



                             (b)       An  action  may  be  brought  at  any  time  by a  

                                                                                  

                   person who was seized or possessed of the real property in  

                                                                                           

                   question at some time before the commencement of the action  

                                                                   

                   or whose grantor or predecessor was seized or possessed of  

                   the     real    property        in   question        at   some       time     before  

                   commencement of the action, and whose ownership interest  

                                                                       

                   in the real property is recorded under AS 40.17, in order to  



                             (1)       quiet title to that real property; or  



                             (2)       eject a person from that real property.  



Alaska Statute 09.45.052(a) now provides in relevant part:  



                   The  uninterrupted  adverse  notorious  possession  of  real  

                   property  under  color  and  claim  of  title  for  seven  years  or  

                                                                         

                   more, or the uninterrupted adverse notorious possession of  

                   real property for 10 years or more because of a good faith but  

                   mistaken   belief   that   the   real   property   lies   within   the  

                   boundaries of adjacent real property owned by the adverse  

                   claimant,  is  conclusively  presumed  to  give  title  to  the  

                                   

                   property except as against the state or the United States.  



                   Under these amendments, adverse possession claims are limited to cases  



where the claimant either has "a good faith but mistaken belief that the real property lies  

                                            



within the boundaries of adjacent real property owned by the adverse claimant" or is  



                                                            -17-                                                       6847
  


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

                                                          9  

asserting a claim under color of title.   The ten-year statute of limitations set out in  



AS  09.10.030(a)  does  not,  because  of  the  language  of  .030(b),  bar  a  quiet  title  or  



ejectment action by a record owner.  



                                                                     

                    If Shaw's claim depended on a period of use after the 2003 effective date  



of the amended statutes, substantial questions would exist as to whether and how they  



                                                                           10  

                                                                               But under the view that we take of  

should be applied to prescriptive easement claims.  



                                                         

this case these questions do not arise because even under the pre-2003 statutes, Shaw's  



claim fails.  



                                                                                                              

                    Shaw's claim fails because the presumption that the use of a drive across  



                                                                        

another's property is permissive applies to this case.  The exception relied upon by the  



                                                                                     

superior court applies only where the "roadway was not established by the owner of the  



                                               11  

servient estate for its own use."                   Here it was undisputed that the trail was established  



by  the  subdivision  developers  for  their  own  use  in  marketing  the  lots  and  that  the  



                                                                                                                    

developers allowed lot buyers to use the trail for an indeterminate period.  It would not  



                                                                                                    

make sense to presume that the use of a trail as intended by those who owned the land  



                                                                                                  

and built the trail was anything other than consensual. This result is explicitly confirmed  



by our case law, which establishes that the presumption of permissive use is reversed  



                         

only when "the driveway existed when [the alleged servient estate owner] first bought  



          9         Cowan,  255   P.3d   at  972-73; Hansen  v.  Davis ,  220  P.3d  911,  915  n.7  



(Alaska 2009).  



          10        See Minutes, House Jud. Comm., Hearing on S.B. 93, 23d Leg., 1st Sess.  

                                                                                     

at 1428 (May 18, 2003) (testimony of Ronald Baird, real estate attorney) (suggesting  

amendments would extinguish "private prescriptive rights").  



          11  

                                 

                    McGill v. Wahl , 839 P.2d 393, 397-98 (Alaska 1992); McDonald , 978 P.2d  

at 83.  



                                                              -18-                                                         6847
  


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

                                                                                                                                           

the property and  there is no indication that her predecessors in title built or used the  

driveway."12  



             12          McDonald , 978 P.2d at 85 (emphasis added).  Our discussion in                                                         Weidner  



v.  State, Department of Transportation & Public Facilities                                              , 860 P.2d 1205, 1210 (Alaska     

 1993) casts light on the logic underlying the presumption of permissive use and on the           

McGill/McDonald exception to the presumption.  In                                                Weidner the question was whether  

a road constructed by the State on private property should presumptively be regarded as  

having been constructed with the permission of the private landowner. We answered this  

                                                                                                                                        

question in the negative noting that the circumstances - constructing a permanent public  

road on private land - were inconsistent with permission on the part of the landowner.  

                                                                                                                                     

In  reaching  this  conclusion  we  discussed  Dillingham  Commercial  Co.  v.  City  of  

Dillingham , 705 P.2d 410, 416-17 (Alaska 1985), which applied the presumption of  

permissive use in a prescriptive easement context, and McGill .  Concerning Dillingham  

                      

we noted that the public's use of land abutting an alley may have been allowed by the  

                                                                        

owner "to facilitate public access to the owners' businesses . . . ."   Weidner at 1210.  

Comparing these two cases we stated:  



                                     The distinction between Dillingham and McGill lies in  

                         the      concepts            of     "permission"                and        "claim         of      right."  

                         Permission contemplates the servient landowner's right to  

                         revoke that permission and prevent further use of the servient  

                         owner's   land.                  A   claim   of   right,   on   the   other   hand,  

                         contemplates  uninterrupted  future  use  of  the  property.    In  

                                                                                          

                         Dillingham , the public's use of the land abutting the alleyway  

                                                                                        

                         was consistent with the concept of permission.  If the public  

                         merely  used  the  land  in  order  to  gain  access  to  the  stores  

                         along the alleyway, such use did not contemplate unrestricted  

                        future access so much as permission to use the land as an  

                         incident to patronizing the stores.  In McGill , on the other  

                                                                                                                       

                         hand,  the  Wahls  built  and  maintained  a  road  across  the  

                         McGills'  land  as  the  sole  access  to  the  Wahls'  property.  

                         Since access is essential to the beneficial use of one's land, a  

                         road providing the sole access to a parcel likely contemplates  

                                                      

                         continued use not subject to the permission of another.  Thus,  

                         the maintenance of a sole access, without more, gives notice  

                                                                                                                  

                         of a claim of right, rather than use subject to permission.  

                                                                                                                                       (continued...)  



                                                                            -19-                                                                      6847
  


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

                                                                                                                        

                    In  order  to  overcome  the  presumption  that the  use  of the  trail was  by  



                                                                                               

permission, Shaw was required to provide "proof of a distinct and positive assertion of  



          12        (...continued)  



                              This  case  is  closer  to  McGill .                In  1968,  the  State  

                    reconstructed the Bay Road.  If a deviation was made, the  

                    State surely claimed that new portion as part of the land it had  

                                                                                           

                    a  right  to  use.    The  dedication  of  State  resources  to  the  

                                                                            

                    construction and maintenance of a public roadway is not the  

                                                                                    

                    type of land use which one would subject to the permission  

                                        

                    of   a   servient   landowner.                In   constructing   a   road,   the  

                                                                  

                    government            makes        a    commitment            that     contemplates  

                    continued, unrestricted  use  of the  affected  land.                         In  other  

                                                                                                   

                    words, once the State determines a roadway is needed for  

                    public access to a certain region, the State surely does not  

                    intend such access to be contingent upon the permission of a  

                                                      

                    private landowner.  Unlike Dillingham , the interests of the  

                                                                                                       

                    private landowner and the public are not sufficiently aligned  

                    for the public's use to be presumptively permissive .  Thus,  

                    construction and maintenance of a public roadway is a use  

                                                                           

                    that contemplates a claim  of right rather than the owner's  

                                                              

                    permission.  Id. at 1210-11 (emphasis added).  



Here, to follow the highlighted portions of the  Weidner discussion, the new lot owners'  

                                                                                                      

uses of the trail were consistent with the concept of permission.  If new lot owners used  

                                                                                                 

the trail to facilitate development of their lots and for access during a transitional period  

                                                                                 

of  subdivision  development,  such  uses  did  not  necessarily  contemplate  unrestricted  

future  use  of  the  trail  but  could  be  pursuant  to  an  accommodation  afforded  by  the  

subdivision developers to make the lots more attractive for sale.  Thus, there was a  

plausible  alignment  of  interests  that  was  consistent  with  the  concept  of  permission.  

Further, the trail was not the sole access to any of the lots, because a platted street that  

                                                                             

was initially undeveloped abutted every lot.  Therefore, one could not say that continued  

use of the trail without permission was likely contemplated. Finally, since the developers  

                                                                                                      

built the trail for their own purposes, its continued use by lot owners did not involve a  

                                                          

substantial  commitment  of  resources  that  would  be  inconsistent  with  the  eventual  

                                                                              

cessation of the use of the trail.  



                                                              -20-                                                         6847
  


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

                                           13  

                                                                                         

a right hostile to the owner."                But there was no proof of a distinct and positive assertion  



of a right on the part of Tauscher against the owners of lot 28.  Nor was there such an  



                                                                                    

assertion on the part of Shaw, until this controversy  arose in 2009.  In fact, there is  



                                                                  

nothing indicating that Tauscher's use of the trail as the drive to her house was any  



different than the use of the trail by the Rices, the original owners of lots 33 and 34.  



                                                             

                    Further, application of the presumption that a use is permissive is consistent  



with the undisputed facts of this case.  The subdivision developers built the trail to  



                                                                                                                        

facilitate sales and as lots were sold, granted permission to the new lot owners to use it.  



                                                                                                                                  14  

                                                                                                         

The duration of the grant of permission from the developers has not been determined. 



                                           

But the crucial fact is  that  the initial use was by permission.  A use that is initially  



                                                                                                                               

permitted can become adverse only "by proof of a distinct and positive assertion of a  



                                                                15  

                                                                    Further, the distinct and positive assertion  

right hostile to the owner of the property." 



                                                                                                     

of a hostile right must take the form of conduct that would give the owner of the property  



                                                                                                         16 

                                                                                                             A mere transfer  

notice of hostility and thus of the need to protect the owner's interests. 



          13        McGill , 839 P.2d at 397 (internal quotation marks omitted).  



          14        Also undetermined is the effect of the right-of-way reservation in favor of  



the grantor developers contained in most of the initial deeds, but not in the deed for  

                                                                       

lot 28.   Dault contends that the deed language confirms the temporary nature of the  

                                                                                                                           

easement, since the easement is reserved to the  grantors and does not mention their  

                                                                            

"successors and assigns."  Shaw responds that "nothing in the plain language of these  

                                                                                                 

deeds refer[s] to a 'temporary' easement."  Neither party makes a detailed argument,  

undoubtedly because the deed to lot 28 contains no such reservation.  We express no  

                                                               

view on this question.  



          15         City  of  Anchorage  v.  Nesbett,  530  P.2d  1324,  1328-29  (Alaska  1975)  



(internal citation omitted).  



          16  

                                                                                      

                    Id. at 1330 ("If permissive in its inception, then such permissive character  

                                                                                     

being stamped on the use at the outset, will continue of the same nature, and no adverse  

                                                                                                                (continued...)  



                                                               -21-                                                         6847
  


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

                                                                                                           17  

                                                                                                               

of ownership does not suffice to convert a permitted use to a hostile use.                                     As the Idaho  



Supreme Court has noted:  



                    To   hold   that   permission   granted   automatically   expires  

                    without some action of adverseness would be to require that  

                    the  permission  be  regranted  by  the  owner  of  the  servient  

                                                                                                    

                    estate each time the dominant estate was transferred.  Such a  

                                                                        

                    rule  would  impose  too  great  a  burden  of  inquiry  as  to  

                                                                                              [18] 

                    property ownership upon servient estate holders.  



                                                                                                                    

                    The effect of the presumption of permissive use in this case was that Shaw  



                                                                                                            19  

                                                                                                                This burden  

had the burden of going forward with evidence to rebut the presumption. 



                                                                       

required Shaw to introduce evidence sufficient to permit a reasonable conclusion that the  



                                                                                            

use of the portion of the trail crossing lot 28 by the owners of lots 33 and 34 was hostile,  



rather than permissive, for a ten-year period.  



                    The trial court appears to have concluded that acquiescence in the use of  



                                                           

the trail by the owners of lot 28 serves as evidence of hostility.  But this conclusion was  



                                                                         

erroneous because owner acquiescence is not "a distinct and positive assertion of a right  



          16        (...continued)  



user can arise until a distinct and positive assertion of a right to the owner, and brought  

                                                                                     

home to him, can transform a subordinate and friendly holding into one of an opposite  

                                                                 

nature . . . ." (quoting Scheller v. Pierce Cnty., 104 P.2d 277 (Wash. 1909))); Hunter v.  

Shields, 953 P.2d 588, 592 (Idaho 1998) ("Absent unequivocal conduct giving the owner  

                                                                                                           

of  the  property  notice  of  hostility  and  adverseness,  we  will  not  conclude  that  a  use  

     

initiated with permission has somehow changed to one of hostility." (quoting Lorang v.  

                                                            

Hunt , 693 P.2d 448, 450 (Idaho 1984))).  



          17        City of Anchorage, 530 P.2d at 1329.  



          18        Hunter , 953 P.2d at 592.  



          19        Alaska R. Evid. 301(a).  



                                                              -22-                                                         6847
  


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

                                  20  

                                                                                                                                   

hostile to the owner."                 Moreover, the fact that one owner has acquiesced in a use is not  



at all inconsistent with the possibility that an earlier owner permitted it.  The court's use  



                                              

of acquiescence in this case changed the presumption of permission to a presumption of  



                                                                                                                     21  

hostility and erroneously placed on Dault the burden of proving consent.                                                 



                                                                                  

                     In concluding that the court erred in finding that Shaw has a prescriptive  



                                                               

easement to use the portion of the trail crossing lot 28, we are aware that this will mean  



that Shaw will have to build a driveway on his lots to North Shore Drive.  In view of the  



                                                               

steepness of the ridge this may entail considerable earthmoving efforts similar to, or  



                                                                                                                 

perhaps more intensive than, those undertaken by the owners of other developed lots in  



                                                                                 

the subdivision.  This burden, however, does not justify imposition of an easement on  



                                                      

lot 28.  But the superior court on remand may consider the entry of an order that would  



                                                                                                                   

permit Shaw to use the trail for a short period until he is able to build a driveway on his  



                       22  

own property. 



           20         City of Anchorage, 530 P.2d at 1328-29.  



           21        This is evident from the court's language quoted supra on p. 14:                                           "There  



accordingly is no evidence to counter the claim by plaintiff and his brother that they   

always assumed they had the right to cross the property and that no one really cared   

whether they did so."  



           22  

                                                                            

                     The dissent argues that there was a dispute as to whether the developers of  

                          

the subdivision were  initially the owners of all the lots in the subdivision.  We disagree.  

                                                                                                               

Robert Dobson testified at trial that the developers owned the entire subdivision.  This  

echoed his affidavit submitted in opposition to Shaw's motion for summary judgment  

and in support of Dault's cross-motion for summary judgment, which in inclusive terms  

                                                                     

described the developers as the "developer-owners of the subdivision" "who purchased  

the lots from  Helen  Clements."  James Dault also testified in inclusive terms in his  

                                   

affidavit relating to the same motions that "Helen Clements sold the land to three couples  

                                                                   

who sold lots through the business known as Totem Realty.  The lot owners then asked  

                                                                                                  

Gus  Scheele  to  put  in  the  trail."    Likewise  in  his  trial  brief  concerning  the  issue  of  

                           

                                                                                                                     (continued...)  



                                                                  -23-                                                             6847
  


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

V.        CONCLUSION  



                                                                                        

                     For the reasons stated, the judgment of the superior court is REVERSED  



and  this  case  is  REMANDED  with  instructions  to  enter  judgment  in  favor  of  the  



appellants in accordance with the views expressed in this opinion.  



          22         (...continued)  



consent, Dault asserted without exception or qualification that "the realtor purchasers of  

                        

the platted subdivision hired a local earth mover to construct a trail. . . ."  Shaw did not  

                                                                                                           

take issue with any of these assertions and at no point argued that the developers did not  

                                                                                   

have an ownership interest in all the lots when they built the trail.  Nor does he do so on  

         

appeal.  Likewise the trial court never suggested that the subdivision developers who  

                                                                                    

constructed the trail did not have an ownership interest in all the lots over which the trail  

                                                                                         

passed.  See the court's decision set out in Appendix B, especially pages 2 and 3 where  

                                                                                                                   

the trial court refers to the builders of the trail as "the subdivision developer" and "the  

                                                                                                                         

original developer."  Indeed the trial court's understanding of the situation seems well  

                                                   

reflected by a question the court asked of  Shaw's counsel during final argument  after  

                                                                                                               

all the evidence was presented.  The court referred to "whoever it was who created the  

                                                                                                              

subdivision way back when" as the person who "put in a trail that rendered the lots fairly  

                                                                         

undevelopable if in fact that was going to be the right-of-way." 



            The  dissent  also  claims  that  the  trial  court  made  an  implicit  finding  that  the  

"realtor-developers did not own Lot 28 when they bulldozed the trail. . . ."  But there is  

                                                                                                    

nothing in the court's opinion that implies such a finding.  The dissent also refers to the  

                                                                                                                              

trial court's "express finding that there was no evidence the owner of Lot 28 said or did  

                                                                                                       

anything with respect to the trail bulldozed across Lot 28."  But the finding referred to  

                                             

relates to the absence of any conversation between the owner of lot 28 and Shaw's  

mother,  Alice  Tauscher.    See  Appendix  B,  page  9.    Tauscher  began  to  occupy  her  

                        

property in the subdivision in 1988, at least 20 years after the trail was constructed.  The  

                                                                   

absence of any conversation with Tauscher in 1988  says nothing about whether the  

                                                                                    

developers had an ownership interest in Lot 28 when the trail was constructed.   



                                                               -24-                                                          6847
  


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

WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting.  



                                                                                                                      

                     In my view the trial court correctly applied our existing case law, made  



                                                                            

findings of fact not clearly erroneous, and did not err by ultimately deciding that Edward  



Shaw had a perfected prescriptive easement across the property owned by James Dault  



and Shala Dobson (Dault) in the North Shore Subdivision.   



                     The fundamental issue in this case is whether clear and convincing evidence  



                                                                           

demonstrates  that  Shaw  and  his  predecessors'  use  of  the  trail  across  Dault  and  his  



                                                                                                                 

predecessors' property was sufficiently "hostile" to support perfection of a prescriptive  



                                                                                                         

easement, i.e., whether Lot 28's series of owners acquiesced to, but did not permit, use  



                                                                                

of the trail across the lot.  The trial court found such clear and convincing evidence, first  



                                                                                                          1 

by employing a presumption of hostility based on McDonald v. Harris ,  and alternatively 

by ignoring that presumption and using the normal hostility standard.2  



                                                                                                             

                     The court today holds that the trial court erred in finding that the hostility  



requirement was met under either approach because:  



                                                          

                     Here it was undisputed that the trail was established by the  

                     subdivision developers for their own use in marketing the lots  

                                                          

                     and that the developers allowed lot buyers to use the trail for  

                                                                                        

                     an indeterminate period. It would not make sense to presume  



          1          978  P.2d  81,  84-85   (Alaska  1999)  (describing  general  presumption  of  



permission for adverse use of land and exception where "a roadway was not established       

by the owner of the servient estate for its own use but was for many years the only means     

of passage to the dominant estate" (citing and quoting McGill v. Wahl , 839 P.2d 393,  

397-98 (Alaska 1992))). We never have expressed the reverse presumption stated by the  

                                                       

trial court, but the court today does not question it.  



          2  

                                                                                 

                    Id . at 84 ("The hostility requirement . . . is 'determined by application of  

                                                                                                                               

an objective test which simply asks whether the possessor acted toward the land as if he  

owned  it,  without  the  permission  of  one  with  legal  authority  to  give  possession.'  "  

(emphasis in original) (quoting Nome 2000 v. Fagerstrom , 799 P.2d 304, 310 (Alaska  

1990))).  



                                                               -25-                                                          6847
  


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

                      that the use of a trail as intended by those who owned the                         

                                                                                                                        [3] 

                                                     

                      land and built the trail was anything other than consensual.  



                 

But if all that this statement implies really were undisputed, the case would not have  



                                                    

survived summary judgment.  Acting as its own fact-finder, the court reaches a view of  



                                            

the record not shared by the parties or the trial court - that it is undisputed that the  



realtor-developers were among Dault's predecessors in title to Lot 28.  



                                                                                           

                      According to the 1966 recorded plat, the original owner and subdivider of  



                                      

the property resulting in the North Shore Subdivision was Helen P. Clements.  The court  



                                                                  

acknowledges that Clements recorded the subdivision plat, and then states that "other  



evidence established" that John and Ina Boss and Louis and Mary Odsather were the  

                                        4  I have no quarrel with this latter assertion - evidence in the  

subdivision developers.                                                   



record demonstrates that the Bosses and Odsathers were connected to a realty company  

                                           



and  they  purchased  subdivision  lots  from  Clements  as  a  development  project;  they  

                                                                          



rightfully are described as the subdivision developers, but they were not the original  



                                                        

subdivider.  This is an important distinction when considering who was in the chain of  



                                                                                                                         

title to Dault's Lot 28.  As the original subdivider, Clements clearly was in that chain of  



                                                                                          

title.  But the realtor-developers were in that chain of title only if they actually acquired  



Lot 28 and then conveyed it to a Dault predecessor-in-title, and not merely because the  



court labels them "the subdivision developers."  



                                                     

                      Dault's trial brief stated that Clements had created the subdivision and that  



                                            

"the realtor purchasers of the platted subdivision hired a local earth mover to construct  



[the] trail."  At trial Dault introduced a number of deeds and a real estate contract into  



                                                                                                            

evidence,  covering  subdivision  Lots  26,  29,  30,  31,  32,  33,  and  35,  all  reflecting  



           3          Op. 18.  



           4          Op. 4-5.  



                                                                     -26-                                                                    6847  


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

                                                                                                  

conveyances by the realtor-developers (beginning in 1967); these documents also reflect  



                                                

the realtor-developers' specific reservation of a 20-foot-wide right-of-way easement on  



the north half of the lots, consistent with the trail location.  Dault also introduced into  



                                                                                     

evidence a 2005 deed covering Lot 27, reflecting a sales transaction by the then-current  



owners but referencing a 20-foot-wide right-of-way easement on the north half of the lot  



that had been reserved in an earlier deed by the realtor-developers.  



                    Conspicuous by its absence from the record is a deed showing or suggesting  



                                                                                                                      

that the realtor-developers ever owned Dault's Lot 28.  The only deed for Lot 28 in the  



record is the deed by which Dault came into title.  That deed is notable for its lack of  



reference to a 20-foot-wide right-of-way easement reserved by the realtor-developers.  



                                                                                                                  

Dault  testified  at  trial  that  to  his  knowledge  there  had  never  been  such  a  reserved  



                           

easement on Lot 28, and he identified his predecessors in title as first the Habersetzers  



and previous to them George Stepanov.  He believed Stepanov got the property "back  

in '65."5  



          5         The State of Alaska, Department of Natural Resources, maintains an on-line  



data bank of recorded real property transactions, and the recorded transaction documents  

                                                                                                  

are readily accessible public records subject to judicial notice.  More than a century ago,  

                                                                                              

the United States Supreme Court held that, "[w]hile it is ordinarily true that this court  

                                                            

takes notice of only such facts as are found by the court below, it may take notice of  

                                                                                                              

matters of common observation, of statutes, records, or public documents which were not  

called to its attention, or other similar matters of judicial cognizance."  N.Y. Indians v.  

                                                                       

United States, 170 U.S. 1, 32 (1898).  A half-century later, the United States Court of  

                                                                                           

Appeals for the Tenth Circuit echoed this principle when it held, "[w]hether an appellate  

                                                                                                                 

court will for the first time take judicial notice of a judicially notable fact rests largely in  

                                                                                           

its own discretion.  There are numerous cases in which appellate courts have reversed  

the lower courts by taking judicial notice for the first time on appeal of a fact which was  

not called to the attention of the trial court."  Mills v. Denver Tramway Corp. , 155 F.2d  

                                                                                            

808, 812 (10th Cir. 1946).  And the United States Court of Appeals for the Sixth Circuit  

has held that "it [is not] necessary that the Court be requested to take judicial notice of  

                                                                                                          

                                                                                                              (continued...)  



                                                              -27-                                                         6847
  


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

                    The trial court's finding of acquiescence rested on this factual record:  



                                                                                        

                    First, and perhaps most important, there was absolutely no  

                                                                                             

                    evidence   that   the   original   owner   of   lot   28   had   any  

                    conversation whatsoever with [Shaw's mother (his immediate  

                                                                               

                   predecessor in title)] regarding her right to use the trail as her  

                                                                      

                    driveway to her lots.  Nor is there any evidence that [Shaw's  

                    mother or Shaw] ever acknowledged to that person that her  

                                                                           

                    use  "was  in  subordination  to"  that  owner's  title.    There  

                                               

                    accordingly is no evidence to counter the claim by [Shaw]  

                                                                                                

                    and his brother that they always assumed they had the right  

                    to cross the property and that no one really cared whether  

                    they did so.  



(...continued)
  

a fact before it is authorized to do so.  The Court may take judicial notice sua sponte."
  

                                           

United States v. Harris, 331 F.2d 600, 601 (6th Cir. 1964) (citing  Weaver v. United
  

                                                                                                                  

States, 298 F.2d 496, 498 (5th Cir. 1962)).
  

                    Palmer       Recording         District     records       show      the     following        series     of  

conveyances recorded for Lot 28:  on January 22, 1974 at Book 79, Page 294, a January  

                                                        

1974 Executor's Deed from the Estate of Helen P. Clements to George A. and Lora  

Stepanov, as tenants by the entirety; on August 2, 2004 as Document 2004-021192-0,  

                                                                                    

a Corrected Clerk's Deed conveying Lora Stepanov's interest to George A. Stepanov;  

on  August  2,  2004  as  Document  2004-021193-0,  a  Statutory  Warranty  Deed  from  

George Stepanov to Douglas L. and Donna M. Habersetzer, as tenants by the entirety;  

                                                                                                          

and  on  December  29,  2006  as  Document  2006-036772-0,  a  Warranty  Deed  from  

Douglas L. and Donna M. Habersetzer to James M. Dault and Shala Dobson, as tenants  

                        

in common.  (Document copies are attached in order as Appendix C to today's decision.)  

                                                                                 

Due to the poor scanning quality of older documents for the Palmer Recording District,  

                                                                                                    

I was unable to locate recorded documents for Clements's transaction(s) with the realtor- 

developers or for Clements's earlier transaction with Stepanov.  

                    It is sufficient for this dissent to take judicial notice of these recorded deeds  

                                                                         

for the limited purposes of supporting Dault's own testimony about the chain of title for  

                                        

his Lot 28, which the court fails even to acknowledge, and contradicting the court's  

factual  determination  the  realtor-developers  indisputably  owned  Lot  28  when  they  

bulldozed the trail across it.  



                                                            -28-                                                       6847
  


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

                                                                                

                   The trial court also responded as follows to Dault's arguments about how  



the community generally understood the trail's nature:  



                   There  is  a  further  and  more  substantial  difficulty  with  

                                                                                                 

                    [Daults'] analysis.  The evidence regarding what was done on  

                    [other]  properties  pertains  only  to  those  properties  -  it  

                    speaks nothing about what the owner of lot 28 had in mind.  



                   As   the   party  who  would  have   benefitted  from  demonstrating  that  the  



                                                                                                                    

realtor-developers owned Lot 28 when they bulldozed the trail across it, Dault had the  



burden of producing that evidence; he knew the importance of the information, and he  



                                                                                                    

obviously researched his chain of title.  Robert Dobson's testimony about his personal  



1968  understanding  that  the  realtor-developers  owned  the  subdivision  is  not  much  



                                                                                     

support for the court's proposition that it is undisputed that the realtor-developers owned  



                                                                       

Lot 28 when they bulldozed the trail across it.  If the court's proposition were true, there  



                                                                       

would have been no need for Dault to press his argument about an alleged community  



understanding that use of the trail was authorized but temporary.  Dault pressed that  



argument  because  he  could  not  prove  that  a  predecessor  in  title  played  any  part  in  



                                                  

bulldozing the trail across Lot 28 and he needed to cast doubt on Shaw's evidence that  



Shaw's predecessors used the trail across Lot 28 as if it were their own.   



                   There  is  no  place  in  the  trial  court  record  where  either  Dault  or  Shaw  



                                                                      

asserted that the realtor-developers owned Lot 28 when they bulldozed the trail across  



                                                                          

it.  There is no place in the trial court record where either Dault or Shaw asserted that the  



                                                                                                                  

realtor-developers had the consent of Lot 28's owner when they bulldozed  the trail.  



There is no place in the appellate briefing before us where either Dault or Shaw makes  



these assertions.  Yet  the  court today finds it undisputed that the realtor-developers  



owned Lot 28 when they bulldozed the trail.  



                           

                   It  is  undisputed  that  Clements  was  the  one  and  only  subdivider.    It  is  



undisputed that Clements sold lots to the realtor-developers, although we do not know  



                                                            -29-                                                       6847
  


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

when;  and  that  they  bulldozed  the  trail  across  a  number  of  lots  in  the  subdivision,  



                       

including Lot 28, although we do not know when.  It is undisputed that for lots the  



                                                                                   

realtor-developers purchased, bulldozed the trail over, and then sold, they reserved a 20- 



foot-wide right-of-way easement along the bulldozed trail.  It is undisputed that no such  



easement burdens Lot 28.  



                                                                              

                    But it is not undisputed that an owner of Lot 28 played a part in bulldozing  



                                                           

the trail and therefore gave permission for others to use it.  To the contrary, given Dault's  



                                                                                      

own testimony and the lack of a reserved easement on Lot 28, evidence in the record  



                                                                            

supports both the trial court's implicit finding that the realtor-developers did not own Lot  



                                                                                                             

28 when they bulldozed the trail and its express finding that there was no evidence the  



                                                                                                                          

owner of Lot 28 said or did anything with respect to the trail bulldozed across Lot 28.  



                                                        

The trial court weighed the evidence actually presented and obviously concluded that the  



realtor-developers  did  not  have  ownership  of  Lot  28  when  they  bulldozed  the  trail;  



otherwise Dault would have prevailed at trial.  The court today wrongfully reweighs the  



                                                                                   

evidence and concludes Dobson's understanding, that when he bought his lot in 1968 the  



realtor-developers owned the subdivision, not only outweighs Dault's own testimony  



                                                                     

about the specific chain of title to Lot 28, but is so dispositive that it is indisputable proof  



that the realtor-developers owned Lot 28 when they bulldozed the trail.  



                                                                                                                    

                    Ownership of Lot 28 when the trail was bulldozed was critical to the issue  



     

of permission versus acquiescence, and it was not an undisputed fact simply forgotten  



or overlooked by the parties or the trial court.  The trial court heard the evidence and  



                         

made a finding of fact that should be reviewed only for clear error.  This court does a  



                                                                                             

disservice to the parties and the trial court by abandoning its normal course of appellate  



                                                                                    

review and becoming its own fact-finder, here finding as a matter of "undisputed" fact,  



                                                                                      

despite the evidence and the parties' litigation strategies to the contrary, that the realtor- 



                                                               -30-                                                         6847
  


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

developers owned Lot 28 when they bulldozed the trail across it.                                                                                  There is no such     



undisputed fact, only the court's mistaken assumption of a fact not in evidence.  



                            I dissent.  



                                                                                            -31-                                                                             6847
  


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

                                                     APPENDIX A - Page 1 of 1                         6847  


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

             IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
  



                         THIRD JUDICIAL DISTRICT AT PALMER
  



EDWARD SHAW,                                 )
  

                                             )  

                  Plaintiff,                 )  

                                             )  

v.                                           )  

                                             )  

JAMES DAULT and SHALA                        )  

DOBSON,                                      )  

                                             )  

                  Defendant.                 )  

__________________________)                           Case No. 3PA-10-1559 CI  



                                                    ORDER  



         Trial was held in this case on March 7-9 and 16, 2011.  All parties were present,  

                                                                      



represented by counsel.  Having heard the evidence, the court finds that plaintiff has  



demonstrated by clear and convincing evidence that he has a prescriptive easement to the  



driveway  crossing  defendants'  land  to  his  property.    The  court  further  finds  that  

               



plaintiff's claim should not be dismissed for failure to join indispensable parties or for  

                                                                       



laches.  



                                            Factual Background  



         Plaintiff  Edward  Shaw  owns  lots  33  and  34  in  the  North  Shore  Subdivision.  



Defendants James Dault and Shala Dobson own lot 28 in that subdivision.  Mr. Shaw  



accesses his property by means of what he terms a "driveway" and what defendants term  

                                                      



a "trail" that crosses defendants' property.  He claims that he has a prescriptive easement  

                                                                              



granting him a property right in the driveway; he seeks declaratory relief to that effect,  

                                                                            



as well as an injunction ordering defendants to remove the obstruction they have placed  



on the access.  



                                                     APPENDIX B - Page 1 of 14                                  6847  


----------------------- Page 34-----------------------

                                                                           

          North  Shore  Subdivision  is  located  on  the  north  shore  of  Blodgett  Lake.    It  



                                                                                                             

basically consists of a ridge with very steep sides that go down to the lake to the south  



                                                                                                  

and a somewhat swampy area to the north. North Shore Drive was originally platted to  



                                                           

go  through  the  swampy  area  below  the  ridge  -  it  was  not  very  drivable  when  the  



                                                           

subdivision was first offered for sale in the 1960's, and little maintenance was done on  



the road for many years.  



                                                                                     

          The  subdivision  developer  bulldozed  a  trail  along  the  ridge  itself  so  that  



                               

prospective buyers could gain access to the property.  That trail was used by persons who  



bought lots in the subdivision.  Since the trail went through each lot, rather than along  



                                                                                                           

one side, the people who bought lots generally moved the trail to the side so they could  



                                    

build a house.  Several landowners in fact filled in the area platted as North Shore Drive,  



effectively  upgrading  the  road  and  making  it  more  passable.    These  landowners,  



                 

including Gordon Benedict, who bought lot 40, used the trail for access until the road  



                                                                                                    

was redone in a way that made it usable.   The use of the trail necessarily meant that  



                 

people in the further lots were crossing the lots of those closer to the beginning of the  



subdivision.  



                                                                                        

          The court heard a considerable amount of credible evidence that the owners of lots  



                                                        

22 through 26 took a lot of surface gravel off the ridge to flatten it, thereby effectively  



                                                            

eliminating the trail.  That gravel was placed in the right of way platted as North Shore  



                           

Drive.  As best  the court can determine, North Shore Drive was relatively passable  



sometime in the mid-1990's. There apparently was no objection from anyone who used  



                                                                                                              

the trail when these landowners eliminated the trail and required those passing through  



to drive on North Shore Drive.  



                                                                                                     

          Alice Tauscher, plaintiff's mother, bought lots 33 and 34 in 1988.  There was a  



                                                     

building on those lots, which Ms. Tauscher upgraded to some extent.  While the parties  



greatly dispute the extent to which she and plaintiff lived there over the next 20 years,  



                                                     APPENDIX B - Page 2 of 14                                                    6847  


----------------------- Page 35-----------------------

                                                                                  

there is no dispute that she accessed these lots through the trail that had been bulldozed  



                         

by the original developer, as modified by the landowners in the lots over which she  



crossed to get to her property.  



                                                                 

          As noted above, the trail effectively was eliminated up through lot 26.  The trail  



                                                                                     

did remain on lots 27-35 - it took off up the hill on lot 27, and then crossed the other lots,  



                                                                                                                        

ending around lot 35 and passing directly in front of the Kreins' residence on lot 32 and  



Ms. Tauscher's residence on lots 33 and 34.  Some work was done in 1997 to flatten lot  



27,  and  the  trail  apparently  was  moved  somewhat  as  a  result.    In  addition,  at  



                                                              

approximately the same time, a parking lot was constructed next to the trail on lot 28.  



                                                   

But the basic contours of the trail remained as they had been since the time the trail was  



built.  



                                                                   

          Ms. Dobson's father bought lot 23 in 1968 and built a house there that his family  



                                                                            

mostly used in the summers.  Ms. Dobson and her husband, Mr. Dault, spent time with  



the family there.  They purchased lot 35 in 1997, planning to build a house there.  At  



                                                                                                

some point, they decided to bring in heavy equipment to flatten the ridge, so they could  



                                                                                            

install a septic.  They went to speak with Ms. Tauscher about these plans, and had what  



                                 

they termed a cordial discussion with her.  But after they started construction, Mr. Shaw  



told them not to cross his property.  They honored that request, so they put in a driveway  



and cleared the top of the ridge.  



          Defendants purchased lot 28 in 2006 with the intention of putting in a ranch house  



there.  They did not think that Ms. Tauscher would object to their plan.  In 2009, they  



built a driveway to that lot, as well as a shed that partially blocked the trail.  



          Ms.  Tauscher  died  in  2007,  leaving  the  house  to  plaintiff.    Plaintiff  was  



incarcerated at the time.  He and his brother, Michael Shaw, decided to put the property  



                                                                                                                    

up for sale.  Michae1 went to the property in July 2009 for this purpose and found the  



driveway blocked.  Hearing chainsaws up the driveway, he walked up and found Mr.  



                                                     APPENDIX B - Page 3 of 14                                               6847  


----------------------- Page 36-----------------------

Dault clearing the land for his driveway.  The two men had a somewhat acrimonious   



discussion, during which, according to Michael Shaw, defendants agreed to talk to the                       



Borough about their plans.  Michael Shaw and Mr. Dault spoke again a few weeks later;   



Mr. Dault said he had been too busy to speak with the Borough.  



                                                                                                                  

           Plaintiff sent a letter to defendants in April 2010 demanding that they remove the  



                                                                                                     

obstruction.  When defendants did not do so, plaintiff filed this action on May 12, 2010.  



                                                              Analysis  



           . . . .  



Prescriptive easement  



           The  central  issue  in  this  case  is  whether  plaintiff  has  demonstrated  that  he  is  



entitled  to  a  prescriptive  easement  to  access  his  property  using  what  he  terms  the  



driveway across lot 28.  



                     To be entitled to a prescriptive easement, a party must prove  

                      (1) continuity-that the use of the easement was continuous  

                      and  uninterrupted;  (2)  hostility-that  the  user  acted  as  the  

                                                                                                      

                     owner and not merely one with the permission of the owner;  

                      and (3) notoriety-that the use was reasonably visible to the  

                                                                 

                     record owner.  A claimant must prove each element by clear  

                                                                  

                      and  convincing  evidence.  Finally,  a  claimant  must  have  

                      engaged in the adverse use for at least ten years.  



McDonald, 978 P.2d at 83 (citations deleted).  The court will address each criterion in   



turn.  The court will then evaluate defendants' related claim that plaintiff has failed  



adequately to define the scope of the easement.  



           Continuity  



           The Alaska Supreme Court stated in McDonald that in determining whether a  



person has made continuous and uninterrupted use of an easement, the court may look  



to "whether the adverse possessor has used and enjoyed the land as 'an average owner  



                  

of  similar  property  would  use  and  enjoy  it.'  "  Id.  (citation  omitted).    Plaintiff  has  



                                                     APPENDIX B - Page 4 of 14                                                         6847  


----------------------- Page 37-----------------------

provided clear and convincing evidence that he and his mother used the easement in the  



                                                    

same manner an average owner of a similarly located parcel, and that he did so for more  



than ten years.  



          Plaintiff presented highly credible testimony from himself, his brother, his ex- 



                                             

wife,  and  a  girlfriend  who  lived  with  him  at  the  house  that  he  and  his  mother  



continuously  used  the  driveway  to  get  to  the  house  since  his  mother  purchased  the  



                                                                                                 

property in 1988.  In particular, plaintiff and his brother credibly testified that the house  



             

was her primary place of residence until she passed away in 2007, with the exception of  



a brief period of time when plaintiff and his wife lived there.  Plaintiff's ex-wife and  



                                                           

girlfriend corroborated that testimony, although the girlfriend was somewhat confused  



as to the exact years involved after 2004.  That testimony was further corroborated by  



                                               

Mr. Benedict and his son, both of whom stated that they saw plaintiff's mother going to  



                                                                 

the house, that they plowed the driveway at times, that they saw tire tracks going up there  



in the snow, and that they saw vehicles stuck in the ditch along the driveway.  



          Defendants contested this testimony by presenting evidence from other people  



with dwellings in the subdivision that they rarely saw plaintiff or his mother at the house.  



                                                                                                                        

The  problem  with  this  testimony  is  two-fold.                       First,  plaintiff  was  in  and  out  of  jail  



throughout these years, and his mother spent much of that time working a two-week  



on/two-week off schedule.  Second, and more important, with the exception of Mr.  



                                                                      

Benedict, all of these individuals did not live in the subdivision full-time - they primarily  



                                                                                   

were there during the summer and occasionally during the winter.  The court also notes  



                                                                                                                

that with the exception of the Kreins, all of these lot owners lived along  Lake Shore  



                                                                                               

Drive, and so would only have seen plaintiff and/or his mother driving by on that road,  



                                                                                                    

rather than across their property.  It therefore is not surprising that the other lot owners  



did not see plaintiff or his mother very much.  



                                                     APPENDIX B - Page 5 of 14                                               6847  


----------------------- Page 38-----------------------

          Defendants  also  suggest  that  any  use  of  the  driveway  could  not  have  been  



                                                

continuous in view of plaintiff's incarceration and the fact that Ms. Tauscher was on the  



Slope half of each month.  They also note that the driveway was unplowed for what they  



believe to be significant periods of time.  But "to establish abandonment the period of  



                      

non-use must indicate that the adverse user had ceased his use and claim."  Swift v.  



                                                                

Kniffen, 706 P.2d 296, 304 (Alaska 1985). There is no such showing here - after all, the  



                                                                                                                 

average lot owner who works on the Slope will only be present at the lot when not  



working; the same is true for a person who has had difficulties with the law.  



                                                                                                                  

          Nor does the fact that the road was unplowed at times prove a lack of use.  The  



Alaska Supreme Court addressed this point directly in Swift:  



                                                               

                             The fact that the road was sometimes unplowed and  

                   impassable  for  weeks  at  a  time  does  not  signify  either  

                                                                               

                   abandonment or interrupted use.  First, failure to plow and  

                   use a road for a few weeks in winter in Fairbanks does not  

                   demonstrate that the Swifts no longer intended to use the road  

                                                                              

                   as an alternative route to their property.  Second, interruption  

                   of possession or use must be caused by the record owner or  

                   third  parties.    The  Swifts'  use  of  the  roadway  was  not  

                   interrupted   until   the   fall   of   1981,   when   the   Kniffens  

                   physically  blocked  the  roadway.    Prior  to  that  time,  the  

                   Kniffens apparently posted signs warning against trespassing  

                   and ran an advertisement.  These acts, however, were not  

                                                                                              

                    sufficient by themselves to interrupt the Swifts' adverse use.  

                                   

                   The roadway's closure due to snowfall cannot be considered  

                                                                                        

                   an interruption because it was not caused by the Kniffens or  

                                                                      

                   Fairhill.  



Id. (citations omitted).  The same logic applies here.  



          Defendants contend finally that the alterations made to the trail on lots 27 and 28  



interrupted the continuous use of the trail as access to lots 33 and 34.  The fact that these  

                                                                                         



changes were made does not, of itself, mean that plaintiff's use was not continuous.  



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Hanson  v.  Davis,  220  P.3d  911,   916   (Alaska  2009)  ("Indeed,  so  long  as  the  use  is  



consistent with the rights granted in the easement, the owner of a servient estate may  



          

make substantial use of the easement area.").  Rather, those changes must somehow  



affect the use of the trail for its intended purpose of access to plaintiff's lots.  



                                                            

          The evidence at trial was directly to the contrary.  The change to the trail on lot  



                                                                                                    

27 was rather minor and did not impede access to plaintiff's lot.  The modification on lot  



                                            

28 consisted of a parking lot, which again did not impede access.  And since access was  



                                                                            

not blocked, the adverse use of the trail by plaintiff and his mother was not interrupted.  



Swift, 706 P.2d at 304.  



          For these reasons, plaintiff has proven by clear and convincing evidence that he  



                                                                                                 

and his mother used the trail as their driveway continuously from 1988 through at least  



                                                       2  

2007, a period of more than 10 years.   Plaintiff therefore has met the first criterion to  



demonstrate a prescriptive easement.  



          Hostility  



                                                                                                                

          The Alaska Supreme Court set forth the applicable analysis relating to hostility in  



McDonald :  



                   The   hostility   requirement,   however,   is   "determined   by  

                                      

                   application of an objective test which simply asks whether  

                                                                            

                   the possessor acted toward the land as if he owned it, without  

                   the     permission        of    one     with      legal     authority       to   give  

                   possession."  Still, we will presume that the use of land by an  

                   alleged easement holder was permissive unless a claimant  

                   proves "a distinct and positive assertion of a right hostile to  



          2         Defendants do not directly assert that the use was abandoned once Ms.  



Tauscher passed away in 2007, nor could they do so.  Plaintiff was incarcerated for part  

                                               

of the time after she dies, and he and his brother decided to put the property up for sale.  

This latter action entails that plaintiff never abandoned or had any intent to abandon his  

                                                                                           

use of the driveway.  



                                                     APPENDIX B - Page 7 of 14                                            6847  


----------------------- Page 40-----------------------

                    the  owner."    But   this  presumption  does  not  arise  if  "a  

                    roadway was not established by the owner of the servient  

                    estate for its own use but was for many years the only means  

                    of passage to the dominant estate."  



978 P.2d at 84-85 (citations omitted). The Court relied primarily on McGill v. Wahl, 839  

                                                              



P.2d 393, 397-98 (Alaska 1992), in this respect, in which the Court held:  



                    However,  in  this  case  it  would  be  inappropriate  for  us  to  

                                                                          

                    presume that the Wahls were acting as merely permitted users  

                    of the roadway.  Such a presumption does not arise where a  

                                                                            

                    roadway was not established by the owner of the servient  

                    estate for its own use but was for many years the only means  

                    of passage to the dominant estate.  Richardson v. Brennan, 92  

                   Nev. 236, 548 P.2d 1370, 1372 (1976).  



Both of these cases involved an allegation of a prescriptive easement by a person whose  

                                                                                                          



driveway crossed the property of another person. The Court essentially held that in such  

                                                                                                                      



cases, hostility is presumed and generally can only be rebutted by an affirmative act by  

                                                                                                                       



the landowner of the subservient estate. As the Court explained in McGill:  



                    The roadway originally was and continuously has been used  

                                                              

                    as  access  to  the  lots  behind  the  McGills'  property.  The  

                    roadway existed and was used by the Nels Wahls before the  

                                                                                   

                    McGills came to the property.  Although other lot owners  

                    now  use  Highway  1  to  get  to  their  lots,  the  use  of  the  

                                                                     

                    roadway  has  never  changed  with  respect  to  lot  11.  The  

                                                                                          

                    McGills,  having  come  to  land  burdened  by  the  roadway,  

                                              

                    cannot now claim that the users of the roadway were acting  

                                                      

                    merely with their permission.  Likewise, the McGills without  

                    any affirmative action cannot now claim that they intended to  

                                                                                             

                    permit the use of the road by the other landowners.  



Id.  



          This case is virtually identical to McDonald and McGill.  There is no dispute that  

                                                                                 



Ms. Tauscher and plaintiff crossed lot 28 solely for the purpose of gaining access to their  

                                                    



                                                     APPENDIX B - Page 8 of 14                                          6847  


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property.    Defendants came to lot 28 well after that use began.                                    And they took           no  



affirmative action to block the access until 2009.  Plaintiff's use therefore was hostile.  



          The court would reach the same conclusion even absent the presumption.  In  



                                                                              

determining whether a use is hostile, the court must look to whether the owner of lot 28  



                                                              

gave his or her permission to use the trail or merely acquiesced in that use.  In particular,  



as the Alaska Supreme Court explained in Tenala, Ltd v. Fowler, 921 P.2d 1114, 1120  



(Alaska 1996):  



                    In  Swift v. Kniffen, 706 P.2d 296, 304 (Alaska 1985), we  

                    stated that "[t]he hostility element turns on the distinction  

                    between acquiescence and permission," and held that if the  

                                                   

                    true owners merely acquiesce, and do not intend to permit a  

                                                       

                    use, the claimant's use is adverse and hostile.  Therefore, we  

                                                                                      

                    must decide whether the record reveals that Tenala intended  

                                                          

                    to permit the Mayos' use or merely acquiesced in that use.  In  

                    Hubbard v. Curtiss, 684 P.2d 842, we stated that "[t]he  key  

                                                                                              

                    difference  between  acquiescence by  the  true  owner  and  

                    possession  with  the  permission  of  the  true  owner  is  that  

                                                                                  

                    a  permissive  use  requires  the  acknowledgment  by  the  

                                                                                                  

                    possessor  that  he  holds  in  subordination  to  the  owner's  

                                                                                       

                    title."  Id.  at  848  (citations omitted).   



          The evidence here supports a finding of acquiescence by clear and convincing  



evidence.  First, and perhaps most important, there was absolutely no evidence that the  

                                                     



original owner of lot 28 had any conversation whatsoever with Ms. Tauscher regarding  



her right to use the trail as her driveway to her lots.  Nor is there any evidence that Ms.  



Tauscher or plaintiff ever acknowledged to that person that her use "was in subordination  

                                                                                                          



to" that owner's title.  There accordingly is no evidence to counter the claim by plaintiff  



and his brother that they always assumed they had the right to cross the property and that  



no one really cared whether they did so.  



                                                     APPENDIX B - Page 9 of 14                                               6847  


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          Defendants  argue  that  the  pattern  of  activity   in   the  subdivision  indicates  that  



everyone there understood that any use of the trail was by consent of the landowner.  



According to defendants, the practice there was that the trail would only be used until the  



property was developed, at which time the landowner was entitled to remove the trail  



with the expectation that he or she would put in his or her own driveway.  Defendants  



                                                                                                           

assert that this expectation entails that any use of the trail was at the sole discretion and  



permission of each landowner.  



                                                                     

          The evidence at trial leads to a different conclusion.  There is no question that the  



trail cut across the lots in a manner that rendered them undevelopable were the trail to  



                                                                                                     

remain where it was.  But the properties were developed in a manner such that access to  



the other lots was guaranteed to those other lot owners.  In particular, each person moved  



                          

gravel from their property and filled in North Shore Drive, thereby enabling other people  



to  drive past the lot and gain access.  This indicates that to the extent there was an  



                                                                                                             

expectation in the community, the implicit understanding was the access would not be  



                                                                                  

precluded, it would just be changed.  The fact that these other properties were developed  



                                                                                                         

in a manner that destroyed the trail therefore does not entail that use of the trail was  



permissive.  



                                                                    

          There is a further and more substantial difficulty with defendants' analysis.  The  



                                                         

evidence regarding what was done on these properties pertains only to those properties  



- it speaks nothing about what the owner of lot 28 had in mind.  And at most, that  



evidence indicates only that those landowners were interrupting a use, not that they  



intended  only  to  permit  the  use.    As  such,  what  was  done  on  these  other  lots  has  



relatively little bearing on the use plaintiff and his mother made on lot 28.  



                                                                                                  

          Defendants point finally to what they term three admissions by Ms. Tauscher and  



                                                                                                         

plaintiff that her use was permissive.  According to Mr. Dault, the first occurred during  



                                                                                                                    

a conversation he had with Ms. Tauscher about his plans to level lot 35 and put in a  



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driveway and a septic. Mr. Dault testified on direct that they had a pleasant conversation  



for  about  10-15  minutes  on  this  topic,  during  which  Ms.  Tauscher  expressed  some  



                                                                                                            

concern about having to put in her own driveway and acknowledged that anyone could  



                                                          

block her access to her home.  The court did not find this testimony credible for two  



                                                                                               

reasons.  First, Mr. Dault admitted on cross-examination that in his deposition, he stated  



that  he  never  "broached"  the  topic  of  a  driveway  at  all;  his  efforts  to  explain  this  



discrepancy were not convincing.  Second, Michael Shaw testified credibly that his  



                                                                                                           

mother made it very clear that she did not like Mr. Dault, due to that very conversation,  



                                                                                                            

and that he had never heard his mother say anything about putting in a driveway or about  



some  community  understanding  as  to  the  use  of  the  trail.    Taken  together,  these  



                                                                                                    

considerations lead the court to conclude that the topic of access was not discussed when  



                                                                     

Mr.  Dault  met  with  Ms.  Tauscher,  much  less  that  she  conceded  that  her  use  was  



permissive.  



                                                                  

          The second apparent admission by Ms. Tauscher was during a conversation with  



                                                        

Carol  Krein,  who  owned  a  cabin  on  lot  32.    Ms.  Krein  testified  that  she  told  Ms.  



                                                                            

Tauscher that she was thinking about expanding her house and putting in a septic, which  



                                                                                                           

would mean that she would have to block the trail leading to Ms. Tauscher's house.  



                                                                         

According to Ms. Krein, Ms. Tauscher stated that she was "fine with that."  Ms. Krein  



                                                                   

admitted on cross-examination, however, that her affidavit did not use the words "fine  



                                

with that."  Having heard the testimony and reviewed the affidavit, the court concludes  



                                                                                     

that Ms. Tauscher did not voice any objection to Ms. Krein's plans.  But this does not  



                                                                                                   

mean that Ms. Tauscher thereby made some binding admission that she was not entitled  



                                                                                                                  

to use the trail as her driveway.  These two women were neighbors.  Ms. Krein testified  



                                                                   

that her plans were very vague, and there is no reason not to conclude that Ms. Krein  



made that point to Ms. Tauscher.  Under these circumstances, there was no reason for  



                                                                                                   

Ms. Tauscher to get in a fight with her neighbor on the basis of a general statement that  



                                                     APPENDIX B - Page 11 of 14                                                    6847  


----------------------- Page 44-----------------------

perhaps Ms. Krein would have to block the driveway.  The court also notes that given  



                                                           

the description given of Ms. Tauscher by all the witnesses it is unlikely that she was well  



versed in the law of prescriptive easements.  



          The final admission upon which defendants rely is a refusal by plaintiff and his  



                                                         

wife to allow Mr. Dault to cross their property to do work on lot 35.  Defendants contend  



                                                                                     

that this indicates that even plaintiff viewed the trail as their property and not subject to  



                                                             

an easement by those seeking access to a further lot.  But defendants read too much into  



                                                                                                    

this incident.  As noted above, Ms. Tauscher was annoyed at Mr. Dault, a feeling shared  



                      

                                                                                  

by plaintiff.   Plaintiff's action therefore was not an admission so much as an effort to  



                                                                 

keep defendants away.  The court doubts very much that the issue of some prescriptive  



                                                                                                                       

right was going through anyone's mind at the time of that particular dispute.  The court  



also notes that defendants had only recently purchased lot 35, and so would have had  



some difficulty making a viable claim of access across any of the other lots under a  



prescriptive easement theory.  



          Notoriety  



                                                  

          In  order  to  demonstrate  that  a  use  is  notorious,  "the  adverse  user  need  not  



                                                                                           

demonstrate that the record owner had actual knowledge of the adverse party's presence.  



                                                                          

The adverse user must show only that a duly alert owner would have known of the  



                                                                                                        

adverse presence."  McDonald, 978 P.2d at 85 (footnotes deleted.)  Plaintiff has met his  



                                                                                                                         

burden in both respects here.  No one denied that Ms. Tauscher and plaintiff used the  



                                                                                                

trail as their driveway. Indeed, there was ample testimony that both individuals had been  



seen using the driveway on many occasions.  In addition, there were tire tracks and  



                                                                                            

footprints in the snow leading up to the house, and vehicles were seen stuck in the ditch  



at the bottom.  All of these factors indicate both that the owner of lot 28 had actual  



                                                                       

knowledge of the presence of Ms. Tauscher and plaintiff and that a duly alert owner  



                                                     APPENDIX B - Page 12 of 14                                                  6847  


----------------------- Page 45-----------------------

would have known of their presence.   Plaintiff therefore has demonstrated by clear and       



convincing evidence that his and his mother's use of the driveway was notorious.  



           Scope of the easement  



                                                           

          Defendants assert that plaintiff did not present any evidence as to the scope of the  



                                                                      

easement, both with respect to the actual size of the easement and to allowed uses of the  



                                                                                                        

easement. There was, however, extensive evidence that the portion of the trail that was  



used as plaintiff's driveway was readily apparent on the ground, which means that both  



defendants and any user of the easement are on notice as to what portion of lot 28 is  



covered by the easement.  With respect to use, the easement is claimed as a driveway,  



                                                                                         

which reasonably entails use for access to the property by the lots' owner and guests, as  



well  as  reasonable  maintenance  so  that  the  driveway  can  continue  to  be  used  as  a  



driveway.  It is unclear to the court just what more is required, given that the trail has  



                                                                                      

been used as a driveway for many years and everyone in the area seems to know full well  



just what the trail is and how it has been used.  



           . . . .  



Relief  



          Plaintiff  requests  a  declaratory  judgment  that  he  is  entitled  to  a  prescriptive  



                                                                                                                 

easement for the portion of the trail that has been used as his driveway.  Plaintiff also  



                                            

requests both an injunction directing defendants not to obstruct the easement and an  



                                                                                                     

order directing them to remove any obstructions. Since plaintiff has demonstrated by  



clear and convincing evidence that he has a prescriptive easement consisting of that  



                                                                                     

portion of the trail he has used for his driveway across lot 28, he is entitled to the relief  



he has requested.  



                                                                                      

           The court feels constrained to note, however, that while plaintiff has thereby won  



                                                                                     

this battle, it is not at all clear that this is the best result long-term for any of the parties.  



                                                                                                           

Because the trail crosses defendants' property in a manner that makes it very difficult to  



                                                     APPENDIX B - Page 13 of 14                                                 6847  


----------------------- Page 46-----------------------

develop, plaintiff's use of the trail will create ongoing difficulties with his neighbor.                                                                                                                       It  



seems to the court that this is a matter that can and should have been resolved through   



settlement in a manner that assured plaintiff access and defendants full use of their land.                                                                                  



The  court  encourages  the  parties  to  explore  settlement  in  lieu  of  any  further  legal  



proceedings.  



                                                                                            Conclusion  



                For the foregoing reasons, it is ORDERED that:  



                                                                                                                                                      

                 1.              Plaintiff has a prescriptive easement consisting of that portion of the trail  



crossing lot 28 that he has used as his driveway to access lots 33 and 34.  



                2.               Defendants may not obstruct plaintiff's easement in any manner.  



                 3.              Defendants shall remove any obstruction to the easement within 60 days  



of the date of distribution of this order.  



                Dated at Palmer, Alaska this 25th day of April, 2011. 



                                                                                                                       /s/                                                   

                                                                                                  ERIC SMITH  

                                                                                                  SUPERIOR COURT JUDGE  



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