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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lee v. Konrad (8/29/2014) sp-6948

Lee v. Konrad (8/29/2014) sp-6948

         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  



CODY LEE and STACEY DEAN,                             )  

                                                      )        Supreme Court Nos. S-14503/14524  

                  Appellants and                      )  

                  Cross-Appellees,                    )        Superior Court No. 3AN-08-09772 CI  

                                                      )  

         v.                                           )        O P I N I O N  

                                                      )  

BARBARA KONRAD,                                       )       No. 6948 - August 29, 2014  

                                                      )  

                  Appellee and                        )  

                  Cross-Appellant.                    )  

_______________________________ )
  



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

                                                              

                  Judicial  District,  Anchorage,  Stephanie  E.  Joannides  and  

                  Andrew Guidi, Judges.   



                  Appearances:         James   B.      Wright,      James     B.    Wright      &  

                  Associates, P.C., Anchorage, for Appellants/Cross-Appellees.  

                  Heather        L.     Gardner,         Seattle,       Washington,           for  

                                                       

                  Appellee/Cross-Appellant.   



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                              

                  Bolger, Justices.  



                  STOWERS, Justice.  



I.       INTRODUCTION  



                  Cody Lee and Stacey Dean (collectively referred to as "Lee") and Barbara  

                                                                                                     



Konrad dispute the boundary between their lots in an Anchorage subdivision.  Lee insists  

            



that the boundary line was established by a 1992 survey, which Lee later marked with  


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

                                            

fence posts.  Konrad argues that a survey she commissioned after purchasing her lot in  



                                                                                                 

2008 disclosed the true boundary and that encroachment of fill material caused by Lee  



along the fenceline between the lots was a trespass.  The superior court concluded that  



Konrad's  survey  correctly  identified  the  boundary  line  and  that  the  fill  material  



                                                                                                                          

encroachment was a trespass.  The court issued an order requiring Lee to remove the fill  



material and erect a retaining barrier to prevent future trespass; it declared Konrad the  



prevailing party and awarded attorney's fees.  



                    This appeal requires us to consider:  (1) whether the superior court correctly  



                                                                                                

determined the boundary between the lots; (2) whether the court erred by concluding that  



                                                                                                       

dirt and gravel encroaching onto Konrad's property was a trespass, and, if not, whether  



                                                                                             

the court properly ordered Lee to remove the fill material and construct a retaining wall;  



                                 

and  (3)  whether  the  court's  attorney's  fees  award  was  an  abuse  of  discretion.    We  



conclude that because Lee and Konrad's predecessors agreed to the boundary established  



                                                                                          

by the 1992 survey, and marked that boundary with fence posts in 1999, the boundary  



                                                                              

between the lots was established by acquiescence.  We thus reverse the superior court's  



boundary line finding.  We conclude that the superior court correctly found that the fill  



material encroaching onto Konrad's property after she purchased her lot was a trespass.  



                                                                                                                       

But the court erred by ordering Lee to remove fill material that encroached onto the  



                                                          

property before Konrad purchased it because this fill material was not a trespass as to  



                                                                                                  

Konrad.    We  also  hold  that  it  was  an  abuse  of  discretion  to  order  Lee  to  pay  for  



                                                                            

construction of a retaining wall to prevent future encroachment.  Because this opinion  



affects the superior court's prevailing-party analysis, we vacate the award of attorney's  



                                                                                          

fees  and  remand  for  redetermination  of  prevailing-party  status  and  recalculation  of  



                                      

attorney's fees; we also note that when it calculated attorney's fees, the superior court  



applied an erroneous rate for Konrad's attorneys.  



                                                               -2-                                                         6948
  


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

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    Shelikof Subdivision is situated south of Dowling Road and west of Lake  

                                                                                   



Otis Road in Anchorage; it was platted in 1972. The boundary line in dispute in this case  

                                                                                                        



separates two properties located on Ivan Drive, Lots 13 and 14 of Block 3 of Shelikof  

                                                                                                      



Subdivision.  Lot 13 sits south of and uphill from Lot 14; there is a gradual slope from  

                                                                    

Lot 13 to Lot 14.1  



                    In 1989 Cody Lee purchased Lot 13 on Ivan Street under a warranty deed  

                                                                                 



that incorporated the 1972 plat.  Lot 14 was owned and occupied by Jack and Jerrie  



                                                                                                                   

Southern at the time.  In 1992 the Southerns hired surveyor Ken Lang to mark their  



                                                             

property line.  Lang did not provide the Southerns with records or a written explanation  



                                                                                              

of  the  survey,  but  he  marked  Lot  14's  corners  with  stakes  labeled  with  his  license  



                                        

number.  The survey was largely consistent with the parties' historical usage, though it  



                                                                                                             

indicated that the Southerns' flower bed partially crossed the property line onto Lee's  



                               

property.  After the Lang survey, the Southerns remedied this encroachment by moving  



the flower bed to their side of the property line.  



                                                                                                                                

                    Stacey Dean married Lee in 1997 and moved into his house on Lot 13.  In  



1999 Lee decided, with the Southerns' permission, to erect a partial fence to mark the  



property line between Lots 13 and 14.  The fence posts were placed consistent with the  



                                                                                             

parties' mutual understanding of the boundary line's location, and Jack Southern offered  



             

to  help  Lee  set  the  fence  posts.    In  an  early  affidavit  Lee  estimated  the  posts  were  



"several inches on [his] side of the line," but a subsequent review of photos and survey  



reports led him to believe that a greater setback existed.  A 1999 aerial photo indicated  



          1  

                                                  

                    We attach a rough sketch of the disputed property as an appendix to this  

opinion.  



                                                               -3-                                                             6948  


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

that the fence posts defined a straight line segment beginning at the rear of Lots 13 and  

                                                                              



14 and ending about a third of the distance between the rear and street front of the lots.  

                                                                                                                    



                    In 2003 the Southerns sold Lot 14 to David and Patty Jo Wilson, who in  

                                                               

                                                                                     2  The Wilsons and Lee treated  

2006 sold the property to their daughter, Sherrie Wilson.  

                                                                                         



the boundary line marked by the fence posts as the true property line without any dispute.  

                                            



Sherrie Wilson stated that she believed the property line extended along her side of the  

                                                                  



fence line to a light pole on the street.  



                    In 2005 or 2006 Lee excavated a basement crawlspace under his home and  

                                                    



placed the fill in his backyard next to the fence posts.  Lee approached Sherrie Wilson  

                                                      



at the time to inform her that "as [he] placed [the] fill, the slope was tending to partially  



                                                                                                         

come onto . . . her side of the property line"; Lee offered to "make it better" if she was  



concerned about the fill.  Wilson stated that she was never bothered by the fill, and did  



not object or ask Lee to remove it.  



                                                                                                              

                    Lee did not complete the fence until 2007, eight years after he first erected  



                                                    

the fence posts, and 15 years after the 1992 Lang survey.  The completed fence followed  



                                              

a straight line from the rear of the lots to about halfway down the common property line,  



at which point it curved into Lot 13 to abut Lee's house.  In 2007 Lee "straightened"  



approximately 16 feet of the curved fence so that it no longer wrapped back to the house.  



                                                                                                         

                    In 2008 Sherrie Wilson sold Lot 14 and a mobile home on the property to  



Barbara Konrad.  Wilson sold both "as-is" and "did not represent to [Konrad] or any  



realtor or buyer any boundary inconsistent with the boundary" marked by the fence.  



                                           

Wilson and Konrad did not discuss the boundary line, nor did they discuss who owned  



the fence between Lots 13 and 14.  



          2  

                                                                

                    Sherrie Wilson lived on Lot 14 during the time it was owned by David and  

Patty Jo Wilson.  



                                                               -4-                                                             6948  


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

                    Later that year, Konrad hired John Schuller of ArcTerra Engineering &  



                                                                                                                3 

                                                                                                                  on Lot 14,  

Surveying to survey her property.  Schuller did not locate any monuments 



                                                                       

but he did find rebar markers defining three of the four corners of Lot 14.  Schuller was  



                                                                                                  

unable to locate the fourth corner (the corner at the street front of the boundary between  



                                                            

Lots 13 and 14), so, using as reference points rebar markers on the lot and monuments  



along Ivan Drive and across the street, he placed his own rebar marker to define the street  



front corner between Lots 13 and 14.  



                    Lee and Dean owned a construction company, and Dean served on the local  



Zoning and Planning Board; Lee considered Dean and himself to be familiar with land  



surveying techniques.  Believing that Schuller's rebar marker improperly defined the  



                                                                                                                                 4  

                                                                                                                  

street front corner, Lee removed the marker, thereby destroying the value of the survey. 



                    On June 4, 2008, Konrad wrote a letter  to Lee informing him that she  



                             

intended to have a permanent marker set to mark the survey; Konrad threatened to pursue  



                                                                                                 

legal action if Lee removed this marker.  The following day Lee responded with a letter  



explaining why he believed Schuller's survey was erroneous:  



                    Your  surveyor  did  not  do  a  full  survey  by  pulling  from  

                                           

                    monuments at the corners of the Shelikof subdivision.  Those  

                                                                            

                    monuments            were      placed       before       determining          the     lot  

                    locations . . . .  The only way to determine where the true  

                                                               

                    corners of the property [are] is to pull not from existing rebar,  

                    but from the monuments that determined the original survey  

                    in 1972.  



          3         In the context of a land survey, a "monument" means "(A) a United States   



public land survey monument; (B) an Alaska state land survey primary monument; (C)     

an exterior primary monument controlling a recorded survey; (D) a geodetic control  

monument established by a state or federal agency." AS 34.65.100(3).  



          4  

                                                             

                    According to Lee, he first talked to Konrad and offered to "split a survey  

                                             

with her so that [they] could resolve this without going to court," but she declined to  

accept his offer, so he removed the marker.  



                                                               -5-                                                         6948
  


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

Lee suggested that he would be willing to move his fence if "a reputable surveyor using  

                                                                                    



the Boundary Survey method of going back to the monuments" determined that the fence  

                                                                                        



encroached on Konrad's property.  



                   Notwithstanding Lee's letter, Konrad hired Schuller to resurvey the land  



for another fee.   Schuller recalculated the position and determined that the corner was  



actually three to four inches to the south of where his first survey located it.  Schuller  



                                               

marked the corner accordingly.  This time Lee did not remove Schuller's rebar marker,  



but he did remove a wooden lattice that Schuller used as an additional survey marker.  



                                                                  

                   Lee subsequently hired Lantech, Inc., a land and construction survey firm  



that  had  previously  performed  work  for  Lee  and  Dean's  construction  company,  to  



conduct a lot stake survey of Lot 13.  Lantech found the fourth survey marker placed by  



                                                                                    

Ken Lang in 1992 that Schuller had been unable to find.   Lantech's survey revealed  



"conflicting corner monumentation for the lots that front along the west side of Ivan  



                                                                                 

Drive," including Lots 13 and 14.  In order to determine the true record position of the  



lot corners, Lantech surveyed the original subdivision boundary along East 68th Avenue,  



                                                   

the existing centerline road control, and several other lot corners within the subdivision.  



Lantech determined that the front corner was slightly to the northwest of the corner  



location determined by Schuller's survey and just to the south of Lang's rebar marker  



but roughly consistent with the fence separating Lots 13 and 14.  



                                                                                                         

                   In August 2008 Lee sent Konrad and her attorney a copy of the Lantech  



survey.  He demanded that "[s]ince [Konrad's] as built [survey was] determined to be  



incorrect," Konrad should:  (1) relinquish any claim to his property and acknowledge  



                                                                                         

that the fence properly marked the boundary line; (2)  direct  Schuller to remove his  



                                                                           

stakes; (3) refund him the $2,800 cost of the lot stake survey; (4) make no further claims  



on his property; and (5) pay for any and all attorney's fees.  Konrad's attorney responded  



                                                           -6-                                                    6948
  


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

four days later by requesting that Lee "remove the fence from [Konrad's] property at his  



expense."  



          B.        Proceedings  



                                                                                                             

                    Lee filed suit in superior court in August 2008.  He sought "[a]n award of  



                            

declaratory relief serving to quiet title and remove any cloud on that title as between the  



                                                               

parties"; a temporary injunction pending resolution of the lawsuit; monetary damages;  



                                             

and costs and attorney's fees.  Konrad counterclaimed and requested costs of her survey;  



                                                                                                                     

"injunctive relief stopping the trespassers, removing the fence and quieting the title"; and  



attorney's fees and costs.  



                    Lee subsequently amended his complaint, asserting that because the fence  



posts   marking   the   boundary   were   set   in   1999,   almost   nine   years   before   the  



                                                       

commencement  of  the  lawsuit,  he  had  established  "a  prima  facie  case  for  adverse  



                                                  

possession under claim of title." Konrad responded and asserted a trespass counterclaim,  



                                                                       

alleging that Lee had "now built a fence and put in an elevated gravel pad," causing  



                                                               

rocks and gravel to continuously "roll off the pad and trespass into Konrad's yard."  Lee  



acknowledged  that  construction  of  the  fence  was  completed  while  the  lawsuit  was  



                                                                                              

pending, but denied having installed an elevated gravel pad.  Lee also "[a]dmitted that  



                                                                                                        

a small amount of gravel may have 'trespass[ed] into Konrad's yard,' but denied that this  



caused Konrad any harm."  



                    The      parties     moved        for     summary         judgment         on     the    boundary         by  



acquiescence,  adverse  possession,  and  trespass  claims.    Lee  also  requested  that  the  



superior court "declare the law of the case" by finding the Lantech survey proper as a  



                                                                                       

matter of law.  In May 2010 the superior court issued an order on the parties' motions.  



                                                                        

                    The superior court found that Lee successfully acquired "the portion of the  



                                            

disputed area encompassed  by [the] 2007 fence" by adverse possession, but that his  



                                                                                                  

"claim fails as to the street front portion of the disputed area."  The court also denied  



                                                               -7-                                                         6948
  


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

Lee's motion to declare the law of the case, concluding that a genuine issue of material  



                   

fact existed regarding the historical use of the property.  The court further considered  



                   

whether the boundary had been established by agreement, and found that Lee "create[d]  



an  issue  of  material  fact  as  to  whether  the  historical  property  owners[]  treated  any  



                                                                   

particular line as an agreed upon boundary line."  The court therefore determined that  



Lee was "not entitled to judgment as a matter of law under the equitable doctrine of  



                                                                                    

mutual recognition and acquiescence, because [he had] not met [his] burden to show by  



         

clear and convincing evidence the existence of a clear and certain line that is sufficiently  



                                   

defined."  Finally, the superior court declined to rule on issues relating to the surveys,  



instead leaving these issues for trial.  



                    The  court  also  addressed  Konrad's  trespass  claim.    It  concluded  that  



                                                                         

Wilson's consent to the gravel/fill encroachment gave Lee a revocable license to trespass  



                                                  

on her land, but this license was terminated when Konrad bought the property or when  



                                                                                                    

she raised the issue of trespass in the lawsuit.   The court further found that although  



Konrad  had  established  a  continuing  trespass,  Lee's  liability  was  "simply  that  of  



removal,"  such  that  once  a  legal  boundary  was  officially  established,  he  would  be  



required  to  "remove  the  encroachment  and  ensure  no  further  encroachment  .  .  .  by  



building a retaining wall or otherwise."  



                                                                                                       

                    The superior court held a three-day trial in June 2010.  The majority of the  



                                                                      

trial testimony focused on the survey methods used in the two recent, competing surveys  



                                                                                

by Lantech and Schuller.  On January 10, 2011, the superior court issued its decision.  



                                                                    

The court first made general findings before addressing the boundary line at issue.  The  



court  concluded  that  because  Schuller  took  into  consideration  the  existing  use  of  



surrounding properties, his method was more reliable.  The court therefore concluded  



                        

that Schuller's survey correctly identified the property line between Lots 13 and 14.  The  



                                                               -8-                                                         6948
  


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

 court did not address or make any findings on whether the boundary line may have been  

                     



 established by agreement between Lee and Konrad's predecessors.  



                                                                                         5 

                                                                                            

                    In  final orders issued in June and August 2011,  the superior court ordered 



                                                                                        

Lee to:  (1) pay Schuller all necessary costs for a resurvey; (2) "remove all encroaching  



                                                                                 

fill, existing fence and any other material . . . placed on Lot 14"; (3) construct an adequate  



retaining  wall,  the  proposed  design  of  which  would  be  reviewed  by  a  construction  



                                                                                    

company selected by Konrad; (4) bear "[a]ll costs of fill and fence removal[,] as well as  



costs  for  construction,  design  and  review  of  design  for  the  retaining  wall";  and  



(5) "restore the encroached-upon land to an orderly state."  



                                                                        

                    The  court  declared  Konrad  the  prevailing  party  and  found  that  the  



                           

reasonable value of Konrad's attorneys' services was $55,000, utilizing an hourly rate  



of $250 and $350 respectively for Konrad's two attorneys.  The court then awarded  



                                                                    

Konrad 30% of these fees pursuant to Alaska Civil Rule 82(b)(2), for a total of $16,500.  



                                                                                    

But  the  court  declined  to  award  Konrad  an  enhanced  fee  award  on  the  basis  of  her  



                                                                                                  

Alaska Civil Rule 68 offer of judgment.  The court reasoned that Konrad had made her  



                                                                                 

offer to both Lee and Dean, but Dean did not own the property and therefore "could not  



have bound [Lee] to a change in the property line."  The court therefore determined that  



because "the offer was conditioned on acceptance by both offerees," it was invalid.  



                                                                                                     

                    Lee and Dean appeal.   Konrad cross-appeals on the adverse possession  



claim and the denial of an enhanced attorney's fee award.  



           5        The  case  was  reassigned  from  Judge  Stephanie  E.  Joannides  to  Judge  



                        

 Andrew Guidi in April 2011.  Judge Guidi issued the final judgment and presided over  

 the post-trial motions.  



                                                               -9-                                                           6948  


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

III.      STANDARDS OF REVIEW
  



                                                                                          

                    "We review legal questions de novo, adopting the rule of law that is most  



                                                                             6  

                                                                                Factual findings are reviewed for  

persuasive in light of precedent, reason, and policy."                                      

clear error.7  "We will reverse the trial court's factual findings only when, 'after a review  

                                                                              



of the entire record, we are left with a definite and firm conviction that a mistake has been  

                                                                         

made.' "8  



                    We have not considered a boundary line dispute of the type at issue here.  



We observe, however, that the determination of a disputed boundary often presents a  

                                                



                                                                                          9  

compound  issue  involving  questions  both  of  law  and  fact.     The  relative  weight  of  



                                                                                                                       

different types of evidence of disputed boundaries ordinarily presents a question of law,  



                                                                              

but the credibility of witnesses, including the weight given the opinions of surveyors, the  



                                                                                                                              10  

                                                                                   

location or existence of physical markers, and the timing of events, are questions of fact. 



                    Equitable injunctive relief is an extraordinary remedy that is appropriate  

                                                                                                            



only where the party requesting relief is likely to otherwise suffer irreparable injury and  



          6         Estate  of  Smith  v.  Spinelli ,  216  P.3d  524,  528  (Alaska  2009)  (internal  



 quotation marks and alterations omitted).  



          7         Peterson v. Ek , 93 P.3d 458, 463 (Alaska 2004).  



          8         Id. (quoting Demoski v. New , 737 P.2d 780, 784 (Alaska 1987)).  



          9         See Hansen v. Stewart, 761 P.2d 14, 16 (Utah 1988).  



           10       See id. ("[Legal] rules specify . . . the relative weight to be given various   



 types  of  evidence  that  may  be  used  to  determine  the  location  of  a  boundary.    For  

 example, natural landmarks are generally preferred over artificial monuments . . . .  On  

                                                                                                                       

 the other hand, the determination of factual questions may also be important in boundary  

 cases.  For example, whether a specific event occurred or where a particular marker is  

 located may be critical." (internal citations omitted)).  



                                                             -10-                                                        6948
  


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

                                                  11  

                                                                                                       

lacks an adequate remedy at law.                      We review the superior court's decision to grant or  



                                                                   12  

                                                                                                       

deny injunctive relief for abuse of discretion.                       "Abuse of discretion exists 'if the [order]  



                                                                                                                                 13  

                                                                                                

is arbitrary, capricious, manifestly unreasonable or the result of an improper motive.' " 



                                                             

An award of attorney's fees, including a superior court's prevailing-party determination,  



                                                           14 

                                                               We review de novo whether the superior court  

is also reviewed for abuse of discretion. 

applied the law correctly in awarding attorney's fees.15  



           11        Cf.  Carrol v. El Dorado Estates Div. No. Two Ass'n, Inc.                            , 680 P.2d 1158,  



 1160  (Alaska  1984)  ("Where  a  statute  specifically  authorizes  injunctive  relief,  the  

 plaintiff need not show either irreparable injury or lack of an adequate remedy at law."  

                                                                

 (citations omitted)); see also, e.g., Sharp v. 251st St. Landfill, Inc., 925 P.2d 546, 549  

                                                                                                              

 (Okla.  1996)  ("An  injunction  is  an  extraordinary  remedy  that  should  not  be  lightly  

 granted."  (citations  omitted));  Grimes  v.  Enter.  Leasing  Co.  of  Philadelphia,  LLC.,  

 66 A.3d 330, 340 (Pa. 2013) ("Injunctive relief is considered an extraordinary equitable  

                                             

 remedy and it is to be granted only where the . . . party [seeking injunctive relief] has  

                                                

 established  that  immediate  and  irreparable  harm,  which  cannot  be  compensated  by  

 damages, will result if the injunction is denied. Furthermore, the party seeking to enjoin  

 certain  conduct  must  demonstrate  that  greater  injury  would  result  by  refusing  the  

 injunction than by granting it." (alterations in original) (internal quotation marks and  

 citations omitted)).  



           12  

                                                                                           

                    Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  

                                                                                                 

 177 P.3d 1181, 1184 (Alaska 2008) (citing Betz v. Chena Hot Springs Grp. , 657 P.2d  

 831, 837 (Alaska 1982)).  



           13        Weilbacher v. Ring, 296 P.3d 32, 37 (Alaska 2013) (quoting Hughes v.  



Foster Wheeler Co. , 932 P.2d 784, 793 (Alaska 1997)).  



           14  

                                                                         

                    Id. (citing Hopper v. Hopper , 171 P.3d 124, 129 (Alaska 2007)); Taylor v.  

Moutrie-Pelham , 246 P.3d 927, 929 (Alaska 2011) (citing Fernandes v. Portwine , 56  

 P.3d 1, 5 (Alaska 2002)).  



           15  

                                                 

                     Beal v. McGuire , 216 P.3d 1154, 1162 (Alaska 2009) (citing Glamann v.  

Kirk , 29 P.3d 255, 259 (Alaska 2001)).  



                                                               -11-                                                        6948
  


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

IV.       DISCUSSION  



          A.       The Boundary Line Dispute  



                   Lee asserts that:  (1) the superior court selected the incorrect property line,  



                                                    

disregarding established principles of boundary law and the historic expectations of the  



                                      

property owners; (2) Lee and Konrad's predecessors all recognized the same line as the  



                                                                            

dividing boundary line, such that Lee laid claim to the property under the doctrine of  



                                                                             

boundary by acquiescence; and (3) the superior court improperly applied a new standard  



                                   

for adverse possession at trial after deciding the adverse possession issue on summary  



                                    

judgment.    Lee  argues  that  "the  primary  error  in  the  case  was  the  superior  court's  



                                                                                                               

treatment of the undisputed history of usage at the boundary between Lots 13 [and] 14."  



Lee "ask[s] [this] court to recognize the law of practical location, by whatever name  

(practical location, boundary by agreement, by acquiescence, or by estoppel),[16] based  



on the undisputed 16+ year history between 1992 and 2008."  Specifically, Lee asserts  

                                         



          16        Lee  also  frequently  refers  to  the  applicable  doctrine  as  the  "Cooley  



 doctrine,"  apparently  relying  on  the  view  expressed  by  Justice  Thomas  Cooley's  

                                                                                       

 concurring opinion in Diehl v. Zanger , 39 Mich. 601 (Mich. 1878).  Justice Cooley  

 expanded on this topic in a widely acclaimed and republished paper.  See Herbert W.  

                                                                    

 Stoughton, Thomas McIntyre Cooley and the Judicial Functions of Surveyors, ACSM  

                                                                                                                   

 BULLETIN No. 155 (May/June 1995); Kristopher M. Kline, How to Fix a Boundary Line ,  

 T 

                                             

   HE TARHEEL SURVEYOR No. 13.2 at 22 (Fall 2013) ("Several states recognize practical  

                                                                    

 location as a variant allowing consideration of fence lines as the best available evidence  

 of the original location of the boundary - this is sometimes referred to as the 'Cooley  

 Doctrine.' ").   Most modern legal treatises and courts, however, refer to the doctrine  

                                                                                                        

 under  which  a  boundary  line  may  be  determined  by  the  practical  agreement  or  

 acquiescence to a particular line as "boundary by acquiescence" or "recognition and  

 acquiescence."  See e.g., 9 RICHARD R.  POWELL,  POWELL ON  REAL PROPERTY  68.05  

 (1997)  (mutual  recognition  and  acquiescence);  W                                                            

                                                                           ALTER  G.  ROBILLARD  &  LANE  J.  

 B               

   OUMAN , CLARK  ON  SURVEYING  AND  BOUNDARIES    20.03,  at  672   (7th  ed.  2009)  

 (boundary by acquiescence).  We adopt the concise and accurate term "boundary by   

 acquiescence."  



                                                            -12-                                                     6948
  


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

that "[t]he undisputed evidence of historical use and reliance" demonstrates that from  



 1992 to 2008 the adjacent landowners consistently agreed that the 1992 "Lang line"  



marked the property line between Lots 13 and 14.  



                                                                                                                               

                     Konrad responds that Lee has not shown that the superior court erred in its  



                                                                                                 

factual determination of the boundary line based on its review of the survey techniques  



                                                    

used.  Konrad also cross appeals, arguing in part that the court erred in granting summary  



judgment to Lee on his adverse possession claim.  



                     For the reasons discussed below, we conclude that the boundary line was  



conclusively established by acquiescence of the owners of Lots 13 and 14 to the 1992  



Ken Lang survey line.  Accordingly, we need not consider the parties' other points on  



appeal regarding the surveyed locations of the boundary line and adverse possession.  



                     1.        The doctrine of boundary by acquiescence  



                                                                                      

                     Boundary by acquiescence is an equitable gap-filling doctrine that may be  



                                                                                                       17  

available  where  estoppel  and  adverse  possession  are  unavailable.                                      While  the  exact  

requirements of the doctrine vary from state to state,18 Justice Thomas Cooley of the  



Michigan Supreme Court aptly summarized the doctrine as follows:  "The long practical  

                                                                                           



acquiescence of the parties concerned, in supposed boundary lines, should be regarded  

                                                             



as  such  an  agreement  upon  them  as  to  be  conclusive  even  if  originally  located  



                     19  

                           Boundary  by  acquiescence  is  "a  rule  of  repose,  with  a  view  to  the  

erroneously."                                                                                                   



           17        See 9  POWELL,  supra note   16,  68.05(1)(c).  



           18        Id.  68.05[2] ("The gap-filling role played by the doctrine of recognition       



 and  acquiescence  ensures  there  is  no  accurate  single  or  simple  formulation  of  the  

 doctrine."); see ROBILLARD ,  supra note   16,  20.03, at 294 (Supp. 2010) (noting lack of     

 agreement on precise contours of the doctrine).  



           19        Diehl , 39 Mich. at 606 (Cooley, J., concurring); see also Joyce v. Williams,  



                                                                                                                 (continued...)  



                                                                -13-                                                         6948
  


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

quieting of titles," which rests upon the "sound public policy . . . of preventing strife and  

                                                                                   

litigation concerning boundaries."20  



                                                                                                          

                     One leading treatise describes "[a] general consensus of opinion from those  



                                                                    

courts that have considered the creation of a boundary by acquiescence" that the doctrine  



                                                                          

has three requirements:  (1) the existence of a present "dispute from which it can be  



implied that both parties are in doubt as to the location of the true boundary"; (2) "[a]  



                                                                                                         

continued occupation and acquiescence in a line other than the true boundary"; and (3)  



                                                                                                     

"[u]se  for  a  period  of  time  of  more  than  the  statutory  period  required  for  adverse  



                   21  

possession."            



                    Most courts also require a claimant to prove that a physical, visible marker  



                                                      

actually establishes the purported property line, though what constitutes a sufficiently  



marked  line  varies  considerably.    For  example,  New  Mexico's  approach,  which  the  



superior  court  relied  on  in  its  summary  judgment  order,  requires:    "(1)  adjoining  



                                                                                                        

landowners (2) who occupy their respective tracts up to a clear and certain line (such as  



                                                                          

a fence), (3) which they mutually recognize and accept as the dividing line between their  



                                                              22  

properties (4) for a long period of time."                        In Maine a party seeking to prove boundary  



                            

by  acquiescence  must  prove  "possession  up  to  a  visible  line  marked  clearly  by  



          19(...continued)  



 26 Mich. 332, 337-38 (1873) (holding that boundary line was established by "continued  

 acquiescence"  to  a  boundary  earlier  agreed  upon  by  the  parties,  as  evidenced  by  

 "subsequent acts and improvements, and continued occupancy on the faith of [the line]").  



           20        Holmes v. Judge , 87 P. 1009, 1014 (Utah 1906) (internal quotation marks     



 omitted).  



           21        ROBILLARD ,   supra note   16,  20.03, at 669 (citing                        Campbell v. Noel, 490  



 So. 2d 1014 (Fla. Dist. App. 1986)).   



           22        Cauble v. Beals, 631 P.2d 1311, 1312 (N.M. 1981) (alterations omitted)  



 (quoting Tresemer v. Albuquerque Pub. Sch. Dist., 619 P.2d 819, 820 (N.M. 1980)).  



                                                                -14-                                                         6948
  


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

                                                   23  

                     

monuments,  fences  or  the  like."                      The  Supreme  Judicial  Court  of  Maine  affirmed  



                                      24                                25 

findings that survey pins                and an old roadway                created a sufficiently visible line, but  

                                                     



                                                                                                                26  

held  the  unmarked  edge  of  a  periodically  mowed  hayfield  insufficient.                                        The  Utah  

                                                                                              



Supreme Court held that a party must prove "occupation up to a visible line marked by  

                                                                                                   

monuments, fences or buildings"27 ; this requirement "may be satisfied where land up to  

                                                                                                                             



the visible, purported boundary line is farmed, occupied by homes or other structures,  



                                                                                                     28  

improved, irrigated, used to raise livestock, or put to similar use."                                    In Washington, a  



party  asserting  that  a  boundary  line  was  established  by  mutual  recognition  and  



acquiescence must prove "that the boundary line between two properties was 'certain,  

                                                 



well[-]defined,  and  in  some fashion physically designated upon the ground,  e.g., by  

                                    



                                                                29  

monuments, roadways, fence lines, etc.' "                           The Washington Supreme Court held that  



three widely-spaced survey markers set in a thicket of blackberry bushes, ivy, and weeds,  

                                                                                                                     



                                                                                                  30  

were insufficient to establish a clear and well-defined boundary.                                      The Iowa Supreme  



Court defined acquiescence as "the mutual recognition by two adjoining landowners for  



           23        Anchorage Realty Trust v. Donovan , 880 A.2d 1110, 1112 (Me. 2004)  



 (citing Dowley v. Morency , 737 A.2d 1061, 1067 (Me. 1999)).  



           24        Dupuis v. Soucy , 11 A.3d 318, 323 (Me. 2011).  



           25        Marja Corp. v. Allain , 622 A.2d 1182, 1185 (Me. 1993).  



           26        Crosby v. Baizley, 642 A.2d 150, 154 (Me. 1994),                               superceded on other  



gounds by statute , ME . R             EV .   STAT .  810-A (2009).  



           27        Fuoco v. Williams , 421 P.2d 944, 946 (Utah 1966).  



           28        Bahr v. Imus , 250 P.3d 56, 65 (Utah 2011) (citation omitted).  



           29        Merriman v. Cokeley , 230 P.3d 162, 164 (Wash. 2010) (quoting                                     Lamm v.  



McTighe , 434 P.2d 565, 569 (Wash. 1967)).  



           30        Id. at 165.  



                                                               -15-                                                         6948
  


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

ten  years  or  more  that  a  line,  definitely  marked  by  fence  or  in  some  manner,  is  the  

                                                                                 



                                            31  

dividing line between them."                     The Iowa Court affirmed a finding that boundary by  



                                                                                                   

acquiescence was established where the boundary was marked by just three fence posts,  



                                                                                                                      

reasoning that "[a]lthough the boundary line claimed . . . is not marked by a fence or  



                                                                                

some other consistently solid barrier, the three posts represent a distinct division of the  



                              32  

parties' properties."              



                    There is little functional difference between the various formulations of the  



standard for establishing a boundary line by acquiescence.  We agree with the New  



                                                

Hampshire Supreme Court that "boundary by acquiescence is grounded 'upon principles  



                                                 

of public policy that preclude a party from setting up or insisting upon a boundary line  



                                                                                      33  

                                                                                           Given that rationale for the  

in opposition to one which has been steadily adhered to.' " 



doctrine, it makes little sense to rigidly limit the way in which agreement to a boundary  



                                                                          

line can manifest.  To that end, we do not attempt to define the minimum extent to which  



                                                                                        

a line must be established by physical markers.  But we observe that it is difficult to  



                                                                                                             

conceive how parties could prove agreement to a boundary line without some  physical  



markers indicating the line's location.  Accordingly, we hold that a boundary line is  



                                                     

established by acquiescence where adjoining landowners (1) whose property is separated  



by  some  reasonably  marked  boundary  line  (2)  mutually  recognize  and  accept  that  

boundary line (3) for seven years or more.34  



           31        Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997) (quoting Sille v.  



 Shaffer, 297 N.W.2d 379, 381 (Iowa 1980)) (internal quotation marks omitted).  



           32        Tewes v. Pine Lane Farms, Inc., 522 N.W.2d 801, 806 (Iowa 1994).  



           33        O'Hearne  v.  McClammer,  42  A.3d  834,  839  (N.H.  2012)  (quoting  



Richardson v. Chickering , 41 N.H. 380, 384 (1860)) (alterations omitted).  



           34        For consistency we adopt the seven-year statutory prescriptive period for     



                                                                                                              (continued...)  



                                                              -16-                                                         6948
  


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

                     2.	       The  superior  court  erred  by  failing  to  consider  Lee's  trial  

                               evidence and argument that the boundary between Lot 13 and  

                               Lot 14 was established by acquiescence.  



                     In its summary judgment order the superior court considered what it called  



"the  doctrine  of  mutual  recognition  and  acquiescence"  in  some  detail.    The  court  



                                                                                            

concluded that Lee was not entitled to judgment as a matter of law, finding that "[w]hile  



                                                                            

evidence suggests the property owners may have recognized land to the lot 13 side of the  



                                                           

fence posts as Plaintiffs', there is no clear and convincing evidence that a definite line  



                                                                                                                  

otherwise existed, especially with regard[] to the street front portion of the lots."  In  



                                                                                                                                 

essence, the court denied Lee's motion for summary judgment because it found there was  



                         

a genuine issue of material fact.  Thus, if the court was correct in finding a genuine issue  



                                                                                               

of material fact, the issue should have been resolved at trial.  But the superior court did  



                                                                                                          

not revisit the boundary by acquiescence issue in its trial decision; instead, it focused  



almost entirely on the merits of the competing survey techniques.  



                     The  theory  that  the  boundary  line  should  be  established  based  on  the  



longstanding understanding and agreement between Lee and the previous owners of  



          34(...continued)  



 adverse possession under color and claim of title, AS 09.45.052(a), as the time period  

 required  to  establish  boundary  by  acquiescence.    But  we  note  that  boundary  by  

                                                     

 acquiescence  and  adverse  possession   are  fundamentally  distinct  legal  doctrines.  

                                                                

 Boundary by acquiescence arises from some of the same policy considerations as adverse  

 possession, but rather than creating a means whereby a party can acquire title to land  

                                                          

 without  the  other  owner's  consent,  it  allows  parties  to  establish  the  location  of  a  

                               

 boundary by consent, but without written agreement.  See James H. Backman, The Law  

 of Practical Location of Boundaries and the Need for an Adverse Possession Remedy,  

                                                                                     

 1986 B.Y.U. L. R 

                           EV . 957, 958-967 (1986).                Adverse possession requires "uninterrupted   

 adverse notorious possession of real property under color of claim for seven years or   

 more."    AS  09.45.052(a).    By  contrast,  boundary  by  acquiescence  does  not  require  

 possession to be adverse; it requires the opposite: mutual acquiescence to possession.  

 ROBILLARD ,  supra note   16,  20.03, at 672.  



                                                                -17-	                                                         6948
  


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

                                                                                                    

Lot 14 was raised and supported at trial.  Lee's closing argument included a discussion  



                                                           

of the "Ken Lang line."  This line was the property line as determined by a 1992 survey  



                                                                               

commissioned by Konrad's predecessors in interest and agreed to by Lee and Konrad's  



                                                                                           

predecessors in interest, and was marked by the fence posts which Lee erected in 1999.  



Lee argued that this line was accepted as the undisputed property boundary by all of Lot  



                                                     

14's owners prior to Konrad.  His argument was supported by the testimony of Sherrie  



                                                                                

Wilson, who owned Lot 14 from 2003-2008.  It was supported by the trial testimony of  



Jerrie Southern, who lived at Lot 14 from the early 1990s to 2000, and who hired Ken  



Lang in 1992 to perform the survey giving rise to the agreed-upon boundary line.  And  



it was supported by Lee's trial testimony.  



                                                           

                    Because the boundary by acquiescence issue was not decided in the court's  



                                                               

summary judgment order and was raised and argued at trial, the court erred by failing to  



consider  whether  the  boundary  line  was  established  by  the  adjacent  lot  owners'  



acquiescence to the 1992 Ken Lang survey line.  



                                                                                                

                    3.	       The   boundary   between   Lots   13   and   14   was   conclusively  

                              established by acquiescence to the 1992 Ken Lang survey line.  



                    As  we  have  discussed,  the  boundary  line  claimed  by  Lee  was  first  



                                                           

established  in  1992  when  Ken  Lang  surveyed  Lot  14.    In  1999  Lee  set  fence  posts  



                                                                                                 

according to Lang's survey markers, though he explained that he "held them back on  



                                                       

[his] side of the property line" so as to avoid "issues with the neighbor."  Jerrie Southern  



and Lee both stated that the fence posts were placed consistent with the parties' mutual  



                            

understanding of the boundary line - indeed, Jack Southern offered to assist Lee in  



placing  the  fence  posts.    Lee  and  the  Southerns  never  disputed  the  location  of  the  



                                                                                                           

boundary between their properties.  Wilson testified that, although she did not know the  



                                                                       

exact location of the property line because "[i]t didn't really matter" to her, she never had  



                                                                                                                          

any dispute with Lee about its location.  She further stated that "[a]t all relevant times I  



                                                               -18-	                                                       6948
  


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

believed that the property line extended along my side of Cody and Stacey's fenceline  



out to near the streetlight."  



                                                                                                            

                    The basic requirements for boundary by acquiescence are established by  



undisputed  evidence  in  this  case:    the  boundary  line  between  Lots  13  and  14  was  



                                                                                                                35 

                                                                                                                   and later  

definitely marked by rebar survey markers placed by Ken Lang, fence posts, 



                                                                                                            

a  fence, and  the  owners  of the  adjacent lots  mutually  recognized  and  accepted  that  



                                            

boundary line for more than seven years.  To the extent that the fence posts were the  



                                                                  

visible marker of the boundary line, that line clearly extended to the front of the property.  



There  is  no  dispute  that  the  boundary  line  between  the  properties  is  a  straight  line.  



                                                                                    

Indeed, the 1972 subdivision plat clearly shows that the line is straight.  And given the  



                                     

relatively short distance from the back to the front of the lots, there could be no confusion  



about continuation of the straight line established by the fence posts to the front of the  



property.  



                                                                                              

                    We  conclude  that  the  boundary  line  between  Lots  13  and  14  was  



                                          

conclusively established by Lee's and Konrad's predecessors' undisputed acquiescence  



                                                                                                                    

to the 1992 Ken Lang survey line during the period between 1992 and 2008.  Thus, the  



                                                      

superior court's decision accepting the Schuller survey as the applicable boundary was  



erroneous and we reverse.  



          B.        The Trespass Claim  



                    In 2005 or 2006 Lee excavated a basement crawlspace under his home and  



                                                                                                             

placed the fill next to the fence posts in his back yard.  Lee's lot is upslope of Lot 14, and  



          35            Lee  apparently  set  the  fence  posts  back  a  few  inches  from  the  Lang  



 property line in order to avoid any possible disputes with his Lot 14 neighbors.  The  

 record  indicates  that  the  owners  of  Lot  14  recognized  that  the  boundary  line  was  

                                                                                              

 consistent with the fence posts but that the fence posts themselves were set back slightly  

                                               

 on Lot 13.  



                                                             -19-                                                        6948
  


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

                                                                 

Lee approached Sherrie Wilson at the time to inform her that "as [he] placed [the] fill the  



                                                                                     

slope was tending to partially come onto . . . her side of the property line."  Lee offered  



                                                                                  

to "make it better" if she was concerned about the fill.  Wilson stated that she was never  



bothered by the fill and did not object or ask Lee to remove it.  Lee did not remove any  



                                                                    

fill material that had encroached onto Lot 14 before Konrad purchased the property.  Lee  



admitted that some material "may" have continued to move onto Lot 14 after Konrad  



                      

purchased it.  Konrad alleged that the encroachment both before and after she purchased  



Lot 14 was a trespass.  



                    In  its  summary  judgment  order,  the  superior  court  defined  the  issue  



                                                                                                           

presented  by  the  trespass  claim  as  "whether  an  implied  consent  to  a  gravel/dirt  fill  



                                                                                                             

encroachment given by a predecessor in interest precludes a landowner from [bringing]  



                                                                                     

a trespass action."  The court concluded that it did not:  it found that the encroachment  



                                                                                                                

was a continuing trespass because the gravel/dirt fill remained on Konrad's property, and  



                                                                  

that Wilson's consent to the encroachment was a revocable license that was terminated  



                                                                                        

when Konrad bought the property or when she raised the issue of trespass in litigation.  



                                                                                         

The court further ruled that Konrad had standing to raise a continuing trespass claim and  



that Konrad need not establish damages as part of her trespass claim.  



                    Lee argues on appeal that Konrad's trespass claim "should fail as a matter  



                                                                                          

of law because . . . Konrad did not own or possess Lot 14 in 2005-2006" when gravel  



                                                                                       

spilled across the property line and "the 'offense' was not considered such by those who  

then owned the property, [who] consent[ed] to it."36  



           36        Lee also contends that Konrad's trespass claim was 'so trivial' that she was  



 unable to allege any resulting damage with the specificity required by Alaska Civil Rules  

 9(h) and 26(a)(1)(G).  But a trespasser may be liable for nominal damages even if "his  

                                                                                                                           

 presence  on  the  land  causes  no  harm  to  the  land,"  Brown  Jug,  Inc.  v.  Int'l  Bhd.  of  

                

 Teamsters, Chauffeurs, Warehousemen & Helpers of Am., Local 959, 688 P.2d 932, 938  

                                                                                                               (continued...)  



                                                               -20-                                                        6948
  


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

                                                                                            

                   For the reasons discussed below, we conclude that the superior court erred  



                      

to the extent it concluded that Lee's fill material that encroached on Wilson's lot before  



                             

Konrad purchased the lot constituted a continuing trespass.  The court also erred by  



                                                                                                

ordering Lee to remedy any injury caused by fill material placed on Lot 14 with Wilson's  



                                                                                                     

consent before Konrad purchased the property.  We further conclude that the superior  



court properly ordered Lee to remove any material that encroached onto Lot 14 after  



Konrad purchased the property and to prevent future encroachment, but that it was an  



abuse of discretion to order Lee to pay for the construction of a retaining wall.  



                                                                                           

                   1.	       The encroachment of fill material before Konrad purchased Lot  

                             14 was not a trespass.  

                   A "[t]respass is an unauthorized intrusion or invasion of another's land."37  



                                                                                                            38  

Consent  is  generally  considered  to  be  an  affirmative  defense  to  trespass.                                Indeed,  



"consent marks a deficiency in the plaintiff's prima facie case at the most fundamental  

level; where the plaintiff consents, the defendant's act is simply not tortious."39  



                   Wilson consented to the fill material's encroachment onto her property.  The  



superior court characterized Wilson's consent as implied consent, and we agree because  

                                                                                                     



          36(...continued)  



 (Alaska  1984)  (quoting  RESTATEMENT  (SECOND)  OF  TORTS     163   (1965)),  thus  the  

 viability of Konrad's trespass claim does not depend on the specificity of her damage   

 allegations.  



          37       Mapco Express, Inc. v. Faulk , 24 P.3d 531, 539 (Alaska 2001) (citing Parks  



Hiway  Enters.,  L.L.C.  v.  CEM  Leasing,  Inc. ,  995  P.2d  657,  664  (Alaska  2000);  

 RESTATEMENT (SECOND) OF TORTS  158, 163).  



          38        RESTATEMENT (SECOND) OF TORTS  167-175; 1 DAN B. DOBBS, PAUL T.  



 H 

                                                 

   AYDEN  & ELLEN  M. BUBLICK , THE  LAW  OF  TORTS  105, at 317-18 (2d ed. 2011)   

 (citations omitted).  



          39        1 DOBBS, supra note 38,  105, at 318 (citations omitted).  



                                                           -21-	                                                     6948
  


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

                                                                                                               

Wilson's undisputed testimony establishes that at the least, her consent was implied.  "If  



words or conduct are reasonably understood by another to be intended as consent, they  

constitute apparent consent and are as effective as consent in fact."40  Consent to trespass  



may  be  implied  from  actions  or  conduct,  applicable  social  conventions,  or  the  



                                               41  

                                                                                                         

relationship between the parties.                  In this case the undisputed facts are:  Lee approached  



                                                                                           

Sherrie Wilson to inform her that "as [he] placed [the] fill, the slope was tending to  



                              

partially come onto . . . her side of the property line"; Lee offered to "make it better" if  



                                                                                                                 

she was concerned about the fill.  Wilson stated that she was never bothered by the fill,  



and did not object or ask Lee to remove it.  



                    Because  Wilson  consented  to  the  spillage  of  fill  material,  no  trespass  



               

occurred while Wilson owned Lot 14.  Thus, the superior court erred to the extent it  



                                                                                                           

concluded that the initial encroachment caused by Lee's placement of fill material along  



the property line was a trespass.  



                    On the other hand, when Konrad came into possession of the property, the  



consent given by Wilson "cease[d] to be effective as conferring a privilege to enter or  



                                  

remain"  because  "the  interest  of  the  licensor  in  the  land  [in  this  case,  Wilson,]  .  .  .  



                  42                                                                                                   43 

terminated."          In other words, Wilson's consent effectively vitiated Lee's trespass,                                but  

                                             



          40        RESTATEMENT (SECOND) OF TORTS  892 (1979).  



          41        1 DOBBS, supra note 38,  106, at 322-23 (citations omitted).  



          42        RESTATEMENT (SECOND) OF TORTS  171(c) cmt. f. (1965).  



          43        1 DOBBS, supra  note 38,     105,  at 318 ("The plaintiff's consent . . . negates  



 any tortious intent, so the plaintiff fails in one element of her proof."); R 

                                                                                                            ESTATEMENT  

                                         

 (SECOND) OF TORTS   167 cmt. b ("[A] consent to enter a particular part of the land in  

    

 a particular manner or at a particular point or for a particular purpose carries with it  

 consent to such harm to the land and to the possessor's interest in the persons and things  

 on the land as is incidental to a careful exercise of the license.").  



                                                             -22-                                                       6948
  


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

                                                                                                     

when Wilson sold her property to Konrad, Konrad started afresh; she had a viable cause  



                                   

of action with respect to any fill material encroachment that may have occurred after she  



                                                                                              

purchased Lot 14, but not with respect to the fill material that Lee had previously spilled  



onto the property when Wilson owned it.  



                                                                                                             

                    We also observe that Konrad suffered no injury as a result of encroachment  



                                                                                                    

that  occurred  before  she  purchased  Lot  14.                          If  Konrad  had  serious  objections  to  



                                                                                      

purchasing Lot 14 with the previous fill encroachment, she could have conditioned her  



purchase on Wilson removing the material.  But Konrad agreed to purchase the property  



                              

"as-is" and did not express any concern regarding the presence of the fill material before  



                                                                           

purchasing Lot 14. In purchasing Lot 14 "as-is," she effectively became the owner of the  



                                                                                                                         

land that included whatever fill material had spilled onto the land previously.  If there  



                                                                                   

was  any  reduction  (or  increase)  in  Lot  14's  value  based  on  that  encroachment,  it  



presumably  was  reflected  in  the  purchase  price.    Konrad  got  exactly  what  she  



purchased - Lot 14 "as-is" - and suffered no injury as a result of the fill material that  



was on and part of Lot 14 when she purchased the property.  



                                                                        

                    2.	        The material that spilled onto Lot 14 after Konrad purchased it  

                               may properly be characterized as a trespass.  



                                                     

                    The superior court's findings identify two times when fill and gravel spilled  



                                                   

onto Lot 14.  The first time was "[i]n late 2005/early 2006, [when] Lee raised the level  



                                                                             

of his backyard with excavated dirt and gravel fill.  This resulted in fill and gravel spilling  



                                                                    

over onto lot 14 and encroach[ing] onto lot 14 by two or three feet.  Sherrie Wilson, the  



then-owner of [Lot 14], did not object to this encroachment."  The second time was  



           

when, "[i]n addition to the fill Plaintiffs previously placed within their fence from the  



                                                                                    

excavation of their basement, they brought additional fill after the law suit was filed[,]  



and it has further spilled over onto [Konrad's] property."  



                                                                -23-	                                                        6948
  


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

                     To establish a claim of trespass, a plaintiff must prove that she had actual                



or  constructive  possession  of  the  property  in   question  at  the  time  the  alleged  injury  



               44	                                                                                   45 

occurred.          Ordinary trespass "is complete when it is committed";                                thus a plaintiff who  

                                                                                                                 



acquires a possessory interest in the property may not recover for a trespass that occurred  

                                                                                  

prior to that possession.46  



                     As stated previously, because Wilson consented to the fill material spilling  



onto her property, the privilege of consent applied to preclude a trespass claim with  



regard  to  the  material  that  encroached  before  Konrad  purchased  the  lot.    But  in  the  

                                                               



absence of consent from Konrad, Lee had an obligation to prevent additional fill material  

                                                                                                                      



from  spilling  onto  Lot  14.    Thus,  after  Konrad  purchased  Lot  14,  Lee's  conduct  in  

                       



allowing that encroachment was tortious, and the superior court properly characterized  

                                                    



this as a trespass.  



                     3.	       The       superior         court       erred        by     granting          relief      for     any  

                               encroachment  of  fill  material  that  occurred  before  Konrad  

                               owned Lot 14, but properly granted relief for encroachment that  

                                                                                                   

                               occurred after Konrad purchased the lot.  



                     As explained above, because Konrad purchased the property after Lee's  



initial placement of fill material along the property line with Wilson's consent, Konrad  

                                                   



suffered no injury due to the initial encroachment of fill material.  Thus, Konrad lacked  

                                                                                                                



standing to bring a trespass action based on material deposited on Lot 14 before she  



           44        Cape Fox Corp. v. United States, 456 F.Supp. 784, 804 (D. Alaska 1978)   



 (footnote omitted), judgment reversed in part on other grounds by Cape Fox Corp. v.       

 United States, 646 F.2d 399 (9th Cir. 1981).  



           45        W.   PAGE KEATON ,   PROSSER AND KEATON ON   TORTS  13, at 83 (5th ed.  



 1984).  



           46        Id. ; see also RESTATEMENT (SECOND) OF TORTS  157.  



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

                            47  

                                                                                                                          

purchased the lot.              Konrad did have standing, of course, to bring a trespass action for  



                           

any fill material that spilled onto Lot 14 after she purchased the property.  And Konrad  



                                                                                             

had standing to seek injunctive relief to require Lee to cease all continuing encroachment  



                                                                            

of the fill material, to remove the fill material that had encroached after Konrad purchased  



Lot 14, and to prevent any further encroachment.  



                                                                                                                                      48  

                                       

                     Ordinarily we review grants of injunctive relief for abuse of discretion. 



But the superior court's order was premised on the incorrect legal conclusion that Konrad  

                                                                                                                       



had an actionable trespass claim for the fill material that spilled onto Lot 14 before she  

                                           



purchased the lot.  It was therefore legal error to order Lee to remove the fill material that  

                                                                                           



was already present on Lot 14 when Konrad purchased the property.  



                             

                     The same cannot be said of the fill material that continued to spill onto  



                                                                                                

Konrad's property after she purchased the lot.  We conclude that the superior court did  



                 

not abuse its discretion to the extent it ordered Lee to cease the continuing encroachment  



                                                       

of the fill material, to remove any fill material that encroached onto Konrad's property  



after  she  purchased  the  lot,  and  to  prevent  any  further  encroachment.    However,  



                                                                                                                     

"injunctive relief should be no more burdensome to the defendant[] than necessary to  



                                                                        49  

provide  complete  relief  to  the  plaintiff[]."                             Photographs  and  diagrams  of  the  



                                                                                                                      

encroachment show that all of the material, including whatever spilled onto the property  



           47        See  KEATON ,   supra  note   45,    13,   at  83  (explaining  that  plaintiff  who  



 acquires title to a property may not recover for an ordinary trespass that occurred prior  

 to her ownership).  



           48  

                             

                     See Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                           

 Servs., 177 P.3d 1181, 1184 (Alaska 2008) (citing Betz v. Chena Hot Springs Grp. , 657  

 P.2d 831, 837 (Alaska 1982)).  



           49  

                                                                                                          

                     Richardson v. City of Rutland , 671 A.2d 1245, 1249 (Vt. 1995) (quoting  

Madsen v. Women's Health Ctr., Inc. , 512 U.S. 753, 765 (1994)).  



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

while it was owned by Wilson, only slightly altered the slope of a narrow strip of Lot  



14's   backyard   along   the   fence   line.      And   the   record   indicates   that   continued  



                                                                                                 

encroachment, if any, after Konrad purchased Lot 14 was minor.  Further, the superior  



                                                                                 

court did not find that a retaining wall was the only way to prevent future encroachment.  



The superior  court  judge who conducted the trial concluded that Lee's liability was  



                                                       

"simply that of removal" - Lee was required to "remove the encroachment and ensure  



no further encroachment . . . by building a retaining wall or otherwise."  We conclude  



                                                                                                                         

that requiring Lee to pay a contractor selected by Konrad to approve the design of a  



                                                                    

retaining wall and construct a retaining wall is an unreasonably burdensome remedy for  



                                                                                                                 

the  encroachment  of  fill  material  onto  Lot  14  after  Konrad  purchased  the  lot.    It  is  



                                                                                 

sufficient to order Lee to remove the encroaching fill material and ensure no further  



encroachment will occur.  We reverse the superior court's  order and remand the trespass  



issue to the superior court for further proceedings consistent with this opinion.  



          C.       Attorney's Fees  



                                                                     

                   Alaska Civil Rule 82(a) provides that "the prevailing party in a civil case  



                                                                                                    

shall be awarded attorney's fees" unless otherwise provided by law or agreed to by the  



parties.  "The prevailing party is the one who has successfully prosecuted or defended  



                                                                                              

against the action, the one who is successful on the main issue of the action and in whose  



                                                                                                                 50  

                                                                                                                        The  

favor   the   decision   or   verdict   is   rendered   and   the   judgment   entered." 

prevailing-party determination is within the broad discretion of the trial court.51  



                   Because  this  decision  will  affect  the  superior  court's  prevailing-party  



                                                                                               

analysis, we vacate the court's attorney's fee award and remand for reconsideration of  



          50        Taylor  v.  Moutrie-Pelham,  246  P.3d   927,  929  (Alaska  2011)  (quoting  



Progressive Corp. v. Peter ex rel. Peter                  , 195 P.3d 1083, 1092 (Alaska 2008)) (internal  

 quotation marks omitted).  



          51        Day v. Moore , 771 P.2d 436, 437 (Alaska 1989) (citation omitted).  



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

prevailing-party status and recalculation of  attorney's fees.  We do not reach whether the   



superior court abused its discretion by finding that Konrad was the prevailing party in the   



first instance, nor do we address whether the superior court erred by failing to grant                    



Konrad enhanced attorney's fees under Alaska Civil Rule 68.                                              But we do observe that in   



its  calculation   of  attorney's  fees  the  superior  court  adopted  an  erroneous  rate  for  



Konrad's attorneys. 



                       As a member of the Alaska Public Employees Association (APEA), Konrad  



                                                                                                   

was  entitled  to  receive  legal  services  at  a  contractually  reduced  fee  rate.    Konrad's  



                                                                                       

attorneys contracted with APEA to charge APEA members an hourly rate of no more  



                                   

than  $140.    But  in  their  motion  for  attorney's  fees,  Konrad's  attorneys  argued  that  



                                                                                       

Konrad should receive fees calculated on the value of their "usual" rate, rather than their  



agreed-upon APEA rate.  



                                                                                                                               

                       In awarding attorney's fees to Konrad pursuant to Rule 82, the superior  



                                                                                                                          52  

                                                                                                                              and Krone v.  

court, relying on our decisions in Arctic Slope Native Association v. Paul 

                                                                               53 found that "the reasonable hourly value  

State, Department of Heath and Social Services,  



of defense counsels' services [was] $55,000, utilizing a valuation" of $350 per hour for  

                                                                                                                  



one of Konrad's attorneys and $250 per hour for the other attorney.  The superior court  



interpreted Arctic Slope Native Association to mean that "in cases where the attorney  



charges no fee or a reduced rate, the proper approach is to value the attorney's services  



                                              

and  to  make  a  [Rule]  82  award  which  is  some  fraction  of  that  value."    The  court  



                                                                                            

apparently derived this proposition from Municipality of Anchorage v. Gentile , where in  



            52         609 P.2d 32 (Alaska 1980).  



            53         222 P.3d 250 (Alaska 2009).  



                                                                      -27-                                                                     6948  


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

a footnote we briefly summarized Arctic Slope Native Association  in almost identical  

language.54  



                    In Arctic Slope Native Association , attorneys charged a fellow attorney a  

                                  

reduced rate.55  After the attorney prevailed at trial, the trial court awarded attorney's fees  

                                                                                              

pursuant to Rule 82 and valued the attorneys' services at their customary hourly rate.56  

                                                                                     



Noting that the attorneys were "apparently motivated by considerations of professional  

                   



courtesy," we held that "the trial court's award was not of a full attorney's fee in the  



                                              57  

sense prohibited by our cases."                   In Krone we applied the aforementioned proposition,  

                                                                      

                                                                 



as  summarized  in  Gentile,  to  conclude  that  the  superior  court  should  have  awarded  



attorney's fees to public interest class representatives who prevailed on a constitutional  



challenge by "objectively valu[ing] the attorney's services" even though the attorney  



                                            58  

                                                  We  held  that  this  objective  valuation  "might  be  

provided  pro  bono  services. 



accomplished simply by multiplying reasonable hourly rates by the actual reasonable  

                                                        



          54        See Municipality of Anchorage v. Gentile, 922 P.2d 248,  263 n.20 (Alaska  



 1996) ("In cases  where  the attorney charges  no f   ee  or a lower  than usual fee, however,  

 the proper approach is to value the attorney's services and to   make a Rule 82 award  

 which is  some  fraction of this value." (citing Arctic Slope Native Ass'n ,  609 P.2d at 38)).  



          55        Arctic Slope Native Ass'n , 609 P.2d at 38.  



          56        Id.  



          57        Id.  (citing  ETHICAL   CONSIDERATION    2-18   OF   THE                        CODE   OF   PROF 'L  



                                                                            

 RESPONSIBILITY , ABA CANONS OF PROF 'L ETHICS, NO .  2-18 ("It is a commendable and  

 long-standing tradition of  the ba            r t  hat  special  consideration is given in the fixing of any  

 fee for services rendered a brother lawyer or a member of his immediate family.")).  



          58        Krone , 222 P.3d at 257 (footnote omitted).  



                                                             -28-                                                       6948
  


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

hours   worked, or          in  an  appropriate   context, by            further   considering  value-enhancing  

factors such as risk premiums and encouraging representation in similar cases."59  



                                                                          

                    Under these cases a court may set a reasonable market rate for pro bono or  



                                            

quasi-pro bono services that are provided, but this case does not involve such services.  



Unlike  in  the  pro  bono  context,  Konrad's  attorneys  received  a  financial  benefit  for  



                                                                              

offering the reduced rate:  they were able to obtain business they might not otherwise  



have  received  had  they  not  participated  in  the  APEA  benefits  plan.    An  objective  



valuation of the attorneys' services should take into account the benefit received by  



                                       

Konrad's attorneys in the form of referrals.  In this case the most objective estimation of  



                                                                                       

that  rate  is  simply  the  rate  Konrad's  attorneys  agreed  to  accept  in  exchange  for  



participating in the APEA benefits plan - $140 per hour.  The hourly rates adopted by  



the  superior  court  thus  did  not  represent  an  objective  valuation  of  the  attorneys'  



             60  

services.        We conclude that the superior court misapplied Rule 82 in its valuation of  



Konrad's attorneys' hourly rates.  



V.        CONCLUSION  



                                                                                                 

                    For the reasons explained above, we REVERSE the superior court's ruling  



that  Schuller's  survey  defined  the  boundary  line:    rather,  the  boundary  line  was  



                                                                                                 

established by the acquiescence of Lee and Lot 14's owners before Konrad purchased Lot  



                                                                                                                   

14.  We AFFIRM the superior court's conclusion that Lee is liable for trespass of any fill  



                                                                                          

material that spilled onto Lot 14 after Konrad purchased the lot, but we REVERSE the  



court's determination that Konrad could state a claim of trespass as to fill material that  



                            

spilled onto lot 14 prior to Konrad's purchase of the lot.  We also REVERSE the court's  



                                                              

order of injunctive relief and REMAND for further consideration of Konrad's trespass  



          59        Id. (footnotes omitted).  



          60        See id.  



                                                             -29-                                                           6948  


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

claim consistent with this opinion. We VACATE the superior court's award of attorney's                                                      



fees and REMAND for reconsideration of the prevailing-party status and attorney's fees     



calculations.  



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

APPENDIX A   



For illustrative purposes only - not to scale.  



                                           -31-                                     6948
  

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