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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fink v. Municipality of Anchorage (9/16/2016) sp-7126

Fink v. Municipality of Anchorage (9/16/2016) sp-7126

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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@akcourts.us.  



                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



MATTHEW  FINK  and  DIANE                                    )  

WILKE,                                                       )          Supreme  Court  No.  S-15614  

                                                             )  

                                                                                                                                     

                    Appellants,                              )          Superior Court No. 3AN-07-12346 CI  

                                                             )  

          v.	                                                )                             

                                                                        O P I N I O N  

                                                             )  

                                    

                                                                                                                  

                                                              

MUNICIPALITY OF ANCHORAGE, )                                           No. 7126 - September 16, 2016  

                                                             )  

                    Appellee.                                )  

                                                              

_______________________________ )  



                                  

                                                                                                         

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

                                                                                                       

                     Judicial District, Anchorage, Andrew Guidi, Judge.  



                                                                                                     

                     Appearances:  Michael T. Stehle, The Law Office of Michael  

                                                                                                      

                     Stehle, PC, Anchorage,  for Appellants.   James M.  Gorski,  

                                                                                                       

                     Hughes         Gorski       Seedorf         Odsen        &     Tervooren,          LLC,  

                                                                                                   

                    Anchorage, Robert P. Owens, Assistant Municipal Attorney,  

                                                                                                             

                     and William D. Falsey, Municipal Attorney, Anchorage, for  

                                      

                    Appellee.  



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

                                                                      

                     Justices. [Maassen, Justice, not participating.]  



                                                   

                     STOWERS, Chief Justice.  



I.        INTRODUCTION  



                                                                                                                      

                     The dispute in this case concerns a narrow strip of land in the Turnagain  



                                                                                      

area of Anchorage immediately west of Lyn Ary Park and bordering Knik Arm.   The  


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

land is in the shape of a parallelogram; its long sides run in a northeasterly direction up                                                                    

Knik Arm and its short sides run north-south.                                         1  



                         The property was initially subdivided in May 1952 as part of Block K,  

                                                                                                                                                               



Turnagain Heights Subdivision.  As initially platted the northern subdivision boundary  

                                                                                                                                                  



stopped just south of a 50-70 foot bluff.   The bluff itself was just south of the mean  

                                                                                                                                                         

high-tide line2  of Knik Arm; the land between the northern boundary of the lots and the  

                                                                                                                                                              



mean high-tide line was not developable land.   Appellants Matthew Fink and Diane  

                                                                                                                                                        



Wilke (the lot owners) currently own four of the six lots at issue in this case.  

                                                                                                                                        



                         During the Good Friday Earthquake of 1964, the bluff face flattened out  

                                                                                                                                                              



and slid northward into Knik Arm.   This caused the existing land between the pre- 

                                                                                                                                                            



earthquake bluff face and the pre-earthquake mean high-tide line to become developable  

                                                                                                                                             



and created new land between the pre-earthquake mean high-tide line and the post- 

                                                                                                                                                          



earthquake  mean  high-tide  line.                                   Despite  the  plats  of  the  subdivision  apparently  

                                                                                                                                               



indicating that their lots' northern boundary is at the top of the pre-earthquake bluff face,  

                                                                                                                                                           



the lot owners alleged that their property actually extends north to the pre-earthquake  

                                                                                                                                       



mean high-tide line. The parties do not dispute that the Municipality of Anchorage owns  

                                                                                                                                                          



the new land between the pre-earthquake mean high-tide line and the post-earthquake  

                                                                                                                                      



mean high-tide line.  

                                        



                         The Municipality argued that the lot owners did not have a substantial  

                                                                                                                                               



interest in the disputed property and that the statute of limitations barred the lot owners'  

                                                                                                                                                     



claim.  The superior court concluded that the lot owners failed to show a substantial  

                                                                                                                                               



             1           A diagram is attached as an Appendix.                 



             2  

                                                                                                                                                              

                         The mean high-tide line along the south shore of Knik Arm created the  

                                                                                                                                                                     

original record for the northern boundary of the township and the property in dispute.  

                                                                                                        

The mean high-tide line is also known as the meander line.  



                                                                               -2-                                                                        7126
  


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

interest in the disputed parcel and that, even if the lot owners did have a substantial                                                                                                                             



interest, the statute of limitations barred their claim.                                                                                             We affirm.                         



II.                FACTS AND PROCEEDINGS                     



                   A.                 Facts  



                                      In 1943 Lynn Ary conveyed to Marvin Marston by warranty deed a piece                                                                                                                           



of   property   in   what   is   now   the   Turnagain  area   of   Anchorage.     On   its   face,   this  



conveyance does not appear to extend to the pre-earthquake mean high-tide line; the                                                                                                                                                         



northern boundary appears to terminate at the top of a 50-70 foot bluff face, short of the                                                                                                                                                   



mean high-tide line.                         



                                                                                                                                                                                                                                               

                                      In September 1946 Marston conveyed two deeds to Union Bank, one of  



                                                                                                                                                                                                                    

which was a warranty deed conveying to Union Bank almost all of the 1943 conveyance  



                                                                                                                                                                                                                                            

from Ary to Marston except for a fifty foot strip of land on the western edge of the  

parcel.3  



                                      In June 1949 Ary conveyed to Marston via quitclaim deed the "Beachfront  

                                                                                                                                                                                                                   



Deed," described as "[a]ll my right, title and interest to the Beach and Waterfront lying  

                                                                                                                                                                                                                                      



in  front  of  the  550  feet  originally  sold  to  [Marvin]  Marston  out  of  the  west  side  

                                                                                                                                                                                                                                        



waterfront  of  the  Lynn  Ary  Homestead  and  adjoining  the  Simonson  Homestead."  

                                                                                                                                                                                                               



Marston recorded the Beachfront Deed in 1954, and he never conveyed the property to  

                                                                                                                                                                                                                                                



Union Bank.  The ownership of the parcel described in the Beachfront Deed is at issue  

                                                                                                                                                                                                                                       



in this case.  

                    



                                      Over the years several plats of the area were created and recorded.  Plat  

                                                                                                                                                                                                                                         



P-67, recorded in July 1947, was a topography of the land owned by Ary and Marston.  

                                                                                                                                                                                                                            



                   3                  The parties disagreed at trial on the nature of the interest Marston conveyed                                                                                                       



to Union Bank in 1946.                                              The court determined that Union Bank received only a security                                                                                           

interest from Marston, as opposed to a fee interest, and the Municipality does not contest                                                                                                                                       

that finding on appeal.                     



                                                                                                                       -3-                                                                                                             7126
  


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

                                                                                                         

Plat P-67B was created in May 1948 and recorded in May 1952.  A "Master Plan" for  



                                                                                                                              

Turnagain Heights was created in April 1949.  Plat P-67E was created in May 1952 and  



                                                                                                                                

recorded in June of that year.   Plat P-67E created a subdivision known as Block K,  



                                                                                                                      

Turnagain Heights Subdivision. This subdivisionessentiallycontains the land conveyed  



                                                                                                                               

by Ary to Marston in 1943 and later from Marston to Union Bank in 1946.  Each of the  



                                                                                                                            

plats appears to indicate that the lots' northern boundary is at the top of the bluff face.  



                                                                                                                              

                    In September 1952 Union Bank conveyed via warranty deeds several lots  



                                                                                                                             

in Block K, including Lots 2-5, the lots currently owned by Fink and Wilke.  This deed  



                                                                                                                             

was recorded on September 21, 1953.  The lots changed hands a number of times over  



                                                                                                                                     

the years. In 1957 the owners of Lots 1-6 re-platted the lots as Lots 1A-6A in plat P-424.  



                                                                                                                               

Marston owned Lots 1 and 2. The re-plat altered the internal boundary lines slightly, but  



                                                                                                                              

it did not change the northernmost boundary.  Plat P-424 is the current and official plat  



                                                                                                                              

of the subdivision, and it is incorporated by reference into the deeds owned by Fink and  



                                                                                                                              

Wilke. Fink purchased Lots 2A and 3A in 1991, and Wilke acquired Lot 5A in 2000 and  



                 

Lot 4A in 2012.  



                    When Block K was initially platted in plat P-67E, the northern boundary  



                                                                                                                             

of the lots appeared to terminate in the north at a steep, 50-70 foot bluff, with tidal mud  



                                                                                                                    

flats below. The 1964 Good Friday Earthquake seriously damaged the entire Turnagain  



                                                                                                                            

area and caused the bluff face at the northern edge of Block K to flatten and slide  



                                                                                                                            

northward toward Knik Arm.  This slide created developable land on the former bluff  



                                                                                                                      

face and mud flats and also created new land between the pre-earthquake mean high-tide  



                                                                     

line and the post-earthquake mean high-tide line.  



                                                               -4-                                                         7126
  


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

                                          In 1985-1986theMunicipality                                                                  constructed theTony                                               Knowles Coastal Trail  



alongthenorthernedgeofthedisputed                                                                                     property along thepre-earthquakemeanhigh-tide                                                                               

line.4  



                                                                                                                                                                                                                                                    

                                          The parties do not dispute that the Municipality owns the new land between  



                                                                                                                                                                                                                                                                

the pre-earthquake mean high-tideline and the post-earthquake mean high-tide line; they  



                                                                                                                                                                                                                                                                    

only dispute whether the northern boundary of the disputed property terminated at the  



                                                                                                                                                                                                                                                            

top of the bluff or at the pre-earthquake mean high-tide line at the base of the bluff.  



                     B.                   Proceedings  



                                          The owners of Lots 2A-5A sued the Municipality seeking relief under the  

                                                                                                                                                                                                                                                                    

Earthslide Relief Act5  and to quiet title in the disputed property. Because those are both  

                                                                                                                                                                                                                                                                



equitable claims, the lot owners did not request a jury trial.  The Municipality answered  

                                                                                                                                                                                                                                                



the lot owners' complaint, brought legal and equitable counterclaims, and asserted that  

                                                                                                                                                                                                                                                                  



the lot owners' claims were barred by the statute of limitations; the Municipality also  

                                                                                                                                                                                                                                                                



demanded a jury trial "on all issues so triable."  

                                                                                                                         



                     4                    Around   this   time   the   Municipality   sought   to   obtain   easements   from  



landowners   in   order   to   build   the   trail,   but   it   claimed   that   it  was  unsure   about   the  

ownership of the disputed property.                                                                              Although one lot owner stated that she received a                                                                                                        

letter from the Municipality requesting her consent to build the trail, the Municipality                                                                                                                                             

asserted that it never sent any such letters to the lot owners of Block K.                                                                                                                                                          Union Bank   

filed alawsuit related to the construction oftheCoastal Trail; theMunicipality eventually                                                                                                                                                     

settled with Union Bank and received via quitclaim deed Union Bank's interest in the                                                                                                                                                                                

disputed parcel.                                    The superior court determined that Marston received the Beachfront                                                                                                                    

Deed from Ary after he had conveyed property to Union Bank, and therefore Marston                                                                             

did not convey the disputed parcel to Union Bank.                                                                                                              It also concluded that Marston had                                                                 

only conveyed a security interest in the property to Union Bank rather than a fee interest;                                                                                                                                                          

given this conclusion, Union Bank could not have transferred a valid property interest   

in the disputed property to the Municipality.                                                                                            See Wickwire v. City &Borough of Juneau                                                                                            ,  

557 P.2d 783, 785 n.7 (Alaska 1976) (noting that a person must have an interest in real                                                                                                                                                                           

property to convey via quitclaim deed).                                                                 



                     5                    AS 09.45.800-.880.  

                                                                                                         



                                                                                                                                   -5-                                                                                                                        7126
  


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

                         The Municipality next moved for summary judgment to dismiss the lot                                                                



 owners' quiet title claim, arguing that the Municipality was in full possession of the                                                                    

                                  6    The lot owners opposed and filed a Second Amended Complaint  

 disputed property.                                                                                                                          



 adding  a  claim  for  ejectment  under  AS  09.45.630  and  an  equitable  claim  for  the  

                                                                                                                                                          



 cancellation of the quitclaim deed granted by Union Bank to the Municipality.  

                                                                                                                         



             The  superior  court  granted  the  Municipality's  motion  for  partial  summary  

                                                                                                                                               



judgment on the quiet title cause of action because the Municipality was in possession  

                                                                    



 of the disputed parcel; the court noted that "possession is a required element of an action  

                                                                                                                                                      



to quiet title" and that "the appropriate remedy [for a plaintiff not in possession of the  

                                                                                                                                                           

property] is a suit in ejectment rather than a suit to quiet title."7  

                                                                                                          



                         The Municipality then moved for summary judgment on the lot owners'  

                                                                                                                                                  



request to cancel the Municipality's deed from Union Bank, arguing that the lot owners  

                                                                                                                                                    



had an adequate remedy at law and were therefore prohibited from bringing equitable  

                                                                                                                               



 claims. The superior court denied the Municipality's motion but decided to bifurcate the  

                                                                                                                                                            



trial and "first conduct a bench trial on the preliminary issue of who has proper title to  

                                                                                                                                                             



the disputed property." It noted that because "the validity of the parties' competing title  

                                                                                                                                                          



 claims will be most similar to a common law quiet title action - a traditionally equitable  

                                                                                                                                                

 action - the matter of title will be bench tried."8                                        The court also determined that, while  

                                                                                                                                                       



             6           Under   AS   09.45.010   a   party   bringing   a   quiet   title   action  must   be   in  



possession of that property.       



             7           See Davis v. Tant, 361 P.2d 763, 766 (Alaska 1961).  

                                                                                                               



             8           Cf.  Alaska  Const.  art.  1,    16  ("In  civil  cases  where  the  amount  in  

                                                                                                                                                            

 controversy exceeds two hundred fifty dollars, the right of a trial by jury . . . is preserved  

                                                                                                                                               

to the same extent as it existed at common law."); Pacific Coal &Transp. Co. v. Pioneer  

                                                                                                                                                   

Mining Co., 205 F. 577, 579 (9th Cir. 1913); McGill v. Wahl, 839 P.2d 393, 396 (Alaska  

                                                                                                                                                   

 1992).  



                                                                              -6-                                                                      7126
  


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

the Municipality's affirmative defense of adverse possession is traditionally an equitable                                                                                                                                                                                                         



defense and therefore could be tried at the same time as the other equitable claims, "the                                                                                                                                                                                                                            



interests of promoting settlement and providing a more orderly disposition of the case"                                                                                                                                                                                                                          



required that "the matter of adverse possession should not be adjudicated until after there                                                                                                                                                                                                                        



has been a resolution of the title issue."                                                                                



                                                  Following the order bifurcating the trial and in order to narrow the issues                                                                                                                                                                                  



at trial, the lot owners moved for a ruling from the court that P-424, the official plat of                                                                                                                                                                                                                                  



their lots, was ambiguous as to the lots' northern boundary.                                                                                                                                                                   The superior court granted                                                



the motion; it determined that P-424 provided no indication of the original parties' intent                                                                                                                                                                                                                     



and   noted   that   lots   are   presumed   to   extend   to   the   water's   edge   where   there   is   no  

developable land platted between the lots and the water.                                                                                                                                                           9  



                                                  After a seven-day bench trial, the superior court issued its findings of fact  

                                                                                                                                                                                                                                                                                                                       



and conclusions of law.  The court, while acknowledging that P-424 was ambiguous,  

                                                                                                                                                                                                                                                                                         



found that Marston intended to reserve the land between the top of the bluff and the  

                                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                     10               The  court  agreed  with  the  

pre-earthquake  mean  high-tide  line  for  himself.                                                                                                                                                                                                                                                                  

                                                                                                                                                                  



Municipality's  surveyor,  Stan  Ponsness,  and  the  deposition  testimony  of  former  

                                                                                                                                                                                                                                                                                                        



Municipal surveyor, Tom Knox; the two explained that the description of the property  

                                                                                                                                                                                                                                                                            



                         9                        See Estate of Smith v. Spinelli                                                                                  , 216 P.3d 524, 530 (Alaska 2009) (finding                                                                                          



that the boundaries of a plot of land were ambiguous where there was little developable                                                                                                                                                                                                

land between the lots and the water).                                                                           



                         10                       The court also found that the ten-year statute of limitations barred the lot  

                                                                                                                                   

owners' claims because the construction of the Coastal Trail in 1986 provided the lot  

                                                                                                                                                                                                                                                                                                                           

owners with inquiry notice, which started the statute of limitations. The statute therefore  

                                                                                                                                                                                                                                                                                                    

ran well before the lot owners filed suit in 2007.  See AS 09.10.030(a) (setting a ten-year  

                                                                                                                                                                                                                                                                                                  

 statute of limitations on actions for the recovery of real property).  

                                                                                                                                                                                                                 



                                                                                                                                                              -7-                                                                                                                                                  7126
  


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

                                                                                                                                                                                                                                                                                                                                                                                                                                             11  

in the deed led to a conclusion that the lots terminated at the top of the bluff.                                                                                                                                                                                                                                                                                                                                                                      The court   



 found that the platting history also supported the surveyors' conclusions; the northern                                                                                                                                                                                                                                                                                                                                                                       



boundary to the deeded tract was drawn at the top of the bluff on P-67, P-67B, and the                                                                                                                                                                                                                                                                                                                                                                                                         



 "Master Plan" depicting Block K.                                                                                                                                                                       And the court found that plat P-67E clearly listed                                                                                                                                                                                                                       



 fixed bearings and distances from a new fixed point of reference that showed the plats                                                                                                                                                                                                                                                                                                



 as existing inland from the bluff face.                                                                                                                                                                                            Plat 424, which was a re-plat of plat P-67E,                                                                                                                                                                                       



maintained the dimensions of P-67E.                                                                                                                                         



                                                                             The superior court also referred to anecdotal evidence that suggested that                                                                                                                                                                                                                                                                                                                                    



the lots extended only to the top of the pre-earthquake bluff.                                                                                                                                                                                                                                                                                         John Dillman, a municipal                                                                



 appraiser, spoke with then-current and former Block K lot owners in the course of                                                                                                                                                                                                                                                                                                                                                                                                                 



 appraising the value of the Coastal Trail easement through the area; the court found that                                                                                                                                                                                                                                                                                                                                                                                                  



Dillman had concluded that many of the then-current and former owners believed they                                                                                                                                                                                                                                                                                                                                                                                                     



had purchased bluff lots.                                                                                                                            Brooke Marston, son of Marvin Marston, testified that his                                                                                                                                                                                                                                                                                



 father intended to reserve the bluff face and beachfront to protect it from erosion.                                                                                                                                                                                                                                                                                                                                                                                                One  



 former   lot owner,                                                                                        Judy Johanson,                                                                                   spoke to Marston                                                                                              before purchasing her                                                                                                                        lot  and  



testified that Marston told her that her lot extended to the ocean, but the court determined                                                                                                                                                                                                                                                                                                                                                     



that Johanson had misunderstood Marston's promise that no one would build in front of                                                                                                                                                                                                                                                                                                                                                                                                                



her lot.                                    Thus, the court concluded that the lot owners failed to meet their burden of                                                                                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                                                                                                     12              The lot owners appeal.  

proving title to the land superior to the Municipality's title.                                                                                                                                                                                                                                                                                                                                                                                              



                                       11                                    Knox reversed his deposition testimony at trial and stated his belief that the                                                                                                                                                                                                                                                                                                                                     



Beachfront Deed from Ary to Marston indicated that the two had simply forgotten about                                                                                                                                                                                                                                                                                                                                                                                            

the 1943 conveyance.                                                                                                            The court found this explanation unpersuasive; it cited the fact                                                                                                                                                                                                                                                                                           

that the 1949 deed referenced the 1943 deed as evidence that Marston and Ary did not                                                                                                                                                                                                                                                                                                                                                                                                          

 forget what they had already done.                                                                                                                                    



                                       12                                    BecauseMarston hadretained ownershipofthedisputed property,thecourt  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

 concluded that title to the property passed to Marston's foundation upon his death.  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



                                                                                                                                                                                                                                                  -8-                                                                                                                                                                                                                                 7126
  


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

III.       STANDARD OF REVIEW              



                      "We   review   factual   findings   for   clear   error   and   legal   conclusions  



                 13  

de novo."                                                                                                                                   

                     "A factual finding is clearly erroneous if, after reviewing the record in the  



                                                                                                                                           

light most favorable to the prevailing party, we are definitely and firmly convinced that  



                                        14  

                                                                                                                                         

the finding is mistaken."                   "Conclusions about the parties' intent drawn by the trial court  



                                                                                                                                             

after  sifting  and  weighing  .  .  .  evidence  [extrinsic  to  a  deed]  are  conclusions  of  



                 15  

              

fact . . . ." 



                                                                       16  

                                                                                                                                          

                      The interpretation of a statute                     and " '[w]hether a deed is ambiguous [are]  



                                                                                                                                            

question[s] of law,' and '[w]e review legal questions de novo, adopt[ing] the rule of law  

                                                                                                            17   "[W]hether the trial  

                                                                                                                                           

that is most persuasive in light of precedent, reason, and policy.' " 



court applied the correct legal rule in exercising its discretion is a question of law that  

                                                                                                         

we review de novo . . . ."18  

                                        



           13         Baker v. Ryan Air, Inc.               , 345 P.3d 101, 106 (Alaska 2015) (citing                           Simone H.   



v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                           , 320 P.3d 284, 288  

(Alaska 2014)).             



           14         Id . (quoting Simone H., 320 P.3d at 288).  

                                                                                    



           15         Estate of Smith v. Spinelli, 216 P.3d 524, 528 (Alaska 2009) (alteration and  

                                                                                                                                            

omission in original) (quoting Norken Corp. v. McGahan, 823 P.2d 622, 626 (Alaska  

                                                                                                                                    

 1991)).  

              



           16         Jimerson v. Tetlin Native Corp., 144 P.3d 470, 472 (Alaska 2006) (citing  

                                                                                                                                       

Kodiak Island Borough v. Roe, 63 P.3d 1009, 1012 n.6 (Alaska 2003)).  

                                                                                                                          



           17         Estate of Smith, 216 P.3d at 528 (fourth and fifth alterations in original)  

                                                                                                                                   

(footnote omitted) (first quoting Norken Corp., 823 P.2d at 626; then quoting Pastos v.  

                                                                                                                                               

State, 194 P.3d 387, 391 (Alaska 2008) (last alteration in original) (footnote omitted)).  

                                                                                                                                                   



           18         Stanhopev. Stanhope, 306 P.3d1282,1286(Alaska2013)(quoting Hanson  

                                                                                                                                     

v. Hanson, 125 P.3d 299, 304 (Alaska 2005)).  

                                                                               



                                                                      -9-                                                               7126
  


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

                         "Bifurcation of a trial is generally within the discretion of a trial court, and                                                  



                                                                                                                                                   19  

a ruling on this issue will not be reversed absent an abuse of that discretion."                                                                         The  



                                                                                                                                                    

determination of which party is the prevailing party is also subject to the trial court's  

                                                                                                           20   "We will find an abuse of  

                                                                                                                                                             

                                                                                        

discretion and is reviewable only for abuse of discretion. 

discretion when the decision on review is manifestly unreasonable."21  

                                                                                                    



IV.	         DISCUSSION  



                                                                                                                                            

             A.	         The Superior Court Did Not Abuse Its Discretion When It Bifurcated  

                                                                                                                   

                         The Title Claim From The Ejectment Claim.  



                                                                                                                                                  

                         Despite the Municipality's demand for a jury trial "on all issues so triable,"  



                                                                                                                                                     

the superior court first conducted a bench trial to determine ownership of the parcel  



                                                                                                                                                           

before trying the lot owners' ejectment claim to a jury.  The lot owners argue that the  



                                                                                                                                                      

court erred by denying their right to a jury trial because an ejectment claim is an action  

                                                               22  and because they did not consent to a bench trial.  

                                                                                                                                                                   

at law that must be tried by a jury 



The Municipality responds that the lot owners consented to a bench trial on their title  

                                                                                                                                                          



claim.  We conclude that, although the lot owners were initially entitled to a jury trial,  



they consented to a bench trial on the title claim and therefore waived their right to a jury  

                                                                                                                                                         



trial as to that claim.  

                            



             19	         Sever v. Alaska Pulp Corp.                        , 931 P.2d 354, 361 n.10 (Alaska 1996) (citing                            



A.M.  v. State          , 891 P.2d 815, 828 (Alaska 1995)).                                  



             20          Continental  Ins.  Co.  v.  U.S.  Fid.  & Guar.  Co.,  552  P.2d  1122,  1125  

                                                                                                                                          

(Alaska 1976), disapproved of on other grounds by Farnsworth v. Steiner, 638 P.2d 181  

                                                                                                                                                          

(Alaska 1981).  

                 



             21          Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508  

                                                                                                                                                          

(Alaska 2015) (citing Tufco, Inc. v. Pacific Envtl. Corp., 113 P.3d 668, 671 (Alaska  

                                                                                                                                                  

2005)).  

                



             22          See Shope v. Sims, 658 P.2d 1336, 1339-40 (Alaska 1983) (concluding that  

                                                                                                                                                           

an ejectment claim is an action at law).  

                                                                           



                                                                             -10-	                                                                     7126
  


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

                          The Municipality's answer to the lot owners' complaint timely requested                                                     



                     23  

a jury trial,                                                                                                                                                     

                         and the lot owners later added an ejectment claim, which is an action at law  

                                                                         24    In Shope v. Sims, a case involving competing  

                                                                                                                                                    

                                                                

and therefore eligible for a jury trial. 



mining claims, wereversedasuperior court ruling thatdismissed theplaintiffs' ejectment  

                                                                                                                                                       

claim and ordered a bench trial on the remaining equitable claims.25  We adopted the rule  

                                                                                                                                                                  

from Beacon Theatres, Inc. v. Westover26  and held that "when a case involves both legal  

                                                                                                                                                                



and equitable claims, the facts common to such claims must be tried to a jury if a proper  

                                                                                                                                                            

demand is made."27                         We noted,  "By  implying that the plaintiffs could maintain an  

                                                                                                                                                                   



ejectment claim only after they prevailed in the equitable claims, the superior court was  

                                                                                                                                                                 

essentially requiring the equitable claims to be tried first."28                                                      In the case before us now,  

                                                                                                                                                               



because the lot owners' legal and equitable claims both required showing a legal interest  

                                                                                                                                                           



in the property, they were entitled to a jury trial unless they waived their right to a jury  

                                                                                                                                                                 

trial.29  



             23           See  Alaska R. Civ. P. 38(d) ("A demand for trial by jury made as herein                                                           



provided may not be withdrawn without the consent of the parties.").                                                



             24           See  Alaska  Const.  art.  1,    16  ("In  civil  cases  where  the  amount  in  

                                                                                                                                                                    

controversy exceeds two hundred fifty dollars, the right of a trial by jury . . . is preserved  

                                                                                                                                                      

to the same extent as it existed at common law."); Shope, 658 P.2d at 1338-41.  

                                                                                                                                         



             25           Shope, 658 P.2d at 1338.  

                                                                



             26           359 U.S. 500 (1959).  

                                                                     



             27           Shope, 658 P.2d at 1340.  

                                                                              



             28           Id .  

                                  



             29           See AS 09.45.630 (requiring a party seeking an ejectment to show a legal  

                                                                                                                                                               

estate in real property and a present right to possession of that property); Shilts v. Young,  

                                                                                                                                                            

643 P.2d 686, 689 (Alaska 1981) (observing that a plaintiff in a quiet title action must  

                                                                                                                              

                                                                                                                                              (continued...)  



                                                                                -11-                                                                           7126
  


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

                        A jury trial, once demanded, "shall be by jury, unless . . . the parties or their                                           



attorneys of record, by written stipulation filed with the court or by an oral stipulation   

                                                                                                                             30   Here, after the  

made in open court, consent to trial by the court sitting without a jury."                                                                             



superior court issued its bifurcation order, the parties jointly filed a Proposed Amended  

                                                                                                                                           



Pretrial Order.  That proposed order discussed the logistics for the bifurcated trial and  

                                                                                                                                                      



stated that "the preliminary issue of who has superior title to the disputed parcel shall be  

                                                                                                                                                        



decided during Phase 1 of the trial."  The Municipality argues that this proposed joint  

                                                                                                                                                    



order constituted a written stipulation to a bench trial.  The Municipality further notes  

                                                                                                                                                  



that the lot owners never objected to a bench trial after the superior court issued its order  

                                                                                                                                                   



bifurcating the title issue from the ejectment claim.  We agree and conclude that the lot  

                                                                                                                                                        



owners waived their right to a jury trial as to the title claim.  

                                                                                                             



                        In Hollembaek v. Alaska Rural Rehabilitation Corp., a case involving  

                                                                                                                                          



Hollembaek's  default  on  a  promissory  note,  both  parties  signed  a  pre-trial  order  

                                                                                                                                                  

                                               31  Hollembaek later requested a jury trial, but that request was  

stipulating to a bench trial.                                                                                                                        

                                       

                    32     Hollembaek  argued  on  appeal  that  the  pre-trial  order  could  not  be  

not  timely.                                                                                                                                           

        



considered a waiver of his right to a jury because he did not know that he was agreeing  

                                                                                                                                             

to a bench trial and because he had no authority to waive trial by jury.33                                                         But we noted  

                                                                                                                                    



            29(...continued)  



                                                                                                                                                  

"at least prove that he has a substantial interest in the property and that his title is better  

                             

than that of the defendant[]").  



            30          Alaska  R.  Civ.  P.  39(a);  see  also  Hill  v.  Vetter,  525  P.2d  529,  531  

                                                                                                                                                    

(Alaska 1974).  

                              



            31          447 P.2d 67, 69 (Alaska 1968).  

                                                                                  



            32          Id . at 68.  

                                   



            33          Id .  



                                                                          -12-                                                                     7126
  


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

that Hollembaek's counsel made no specific motion to amend the pre-trial order and that                                                                     



we had previously upheld the binding effect of pre-trial orders in                                                       Fairbanks Publishing   

                                 34   In Hollembaek we determined that "[t]he effect of [Hollembaek's]  

Co. v. Francisco                .                                                                                                     



counsel's signing of the pre-trial order, which was also signed by the judge, was to  

                                                                                                                                                               



officially establish, as a rule governing the trial of the case, that trial was to be without  

                                                                                                                                                     

a jury."35  

    



                                                                     36  

                         In  White  v.  McGinnis,                        the  Ninth  Circuit  interpreted  Federal  Rule  of  

                                                                                                                                                              



Civil Procedure  38(d), which provides that "[a] party waives a jury trial unless its  

                                                                                                                                                              



demand is properly served and filed[;] [a] proper demand may be withdrawn only if the  

                                                                                                                                                             

parties consent."37   White had filed a civil rights claim and made a timely jury demand.38  

                                                                                                                                                                     



The trial court then notified the parties that the case was set for a bench trial, and White  

                                                                                                                                                       

                             39                                                                              40  requires an oral or written  

                                   The Ninth Circuit noted that Rule 39(a)                                        

failed to object.                                                                                   

                  



             34          Id . at 69 (citing             Fairbanks Publ'g Co. v. Francisco                                   , 390 P.2d 784, 799             



(Alaska 1964)).   



             35          Id .  



             36          903  F.2d  699  (9th  Cir.   1990).   



             37          The rule for withdrawal of a demand for a jury  trial under Federal Rule  

                                                                                                                                                          

38(d) is the same as that set out in Alaska Civil Rule 38(d), which provides that "[a]  

                                                                                                                                                            

demand for trial by jury  made as herein provided may not be withdrawn without the  

                                                                                                                                                             

consent of the parties."  

                            



             38           White, 903 F.2d at 700.  

                                                              



             39          Id .  

                                



             40          Federal Rule 39(a) of the Federal Rules of Civil Procedure provides:  

                                                                                                                                         



                         When  a jury  trial  has  been  demanded  under  Rule  38, the  

                                                                                                                                    

                         action must be designated on the docket as a jury action. The  

                                                                                                                                   

                                                                                                                                         (continued...)  



                                                                             -13-                                                                        7126
  


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

stipulation by the parties withdrawing the jury trial demand, but it found that conduct by                                                                    



the parties that evinces consent and appears on the record is sufficient to constitute a                                                                        

                                                           41     The Ninth Circuit subsequently held that White's  

proper withdrawal and waiver.                                                                                                                      

failure to object to a bench trial was sufficient to waive his timely jury demand.42  

                                                                                                                                     



                         Both of these cases support our holding that because the lot owners failed  

                                                                                                                                                       



to object to a bench trial in any meaningful way after the superior court's bifurcation  

                                                                                                                                             



order and the parties' joint filing of the Proposed Amended Pretrial Order, the lot owners  

                                                                                                                                                     



effectively waived their right to a jury trial on the title issue.  We conclude the superior  

                                                                                                                                                   



court did not abuse its discretion in conducting a bench trial on the title claim.  

                                                                                                                                       



             B.	         The Superior Court Did Not Err When It Concluded That The Lot  

                                                                                                                                                  

                         Owners Failed To Prove A Legal Interest In The Disputed Property.  

                                                                                                                                               



                         The lot owners contend that the superior court erred when it failed to grant  

                                                                                                                                                         



them title to the disputed property.   In order to prove their quiet title claims, the lot  

                                                                                                                                                             



owners were required to show that they had a substantial interest in the disputed parcel  

                                                                                                                                                       

and that their interest was superior to the Municipality's interest.43  In order to prove their  

                                                                                                                                                          



ejectment claim, the lot owners were required to show that they had a "legal estate" in  

                                                                                                                                                 

the property and "a present right to possession of the property."44                                                              In a quiet title or  

                                                                                                                                                              



ejectment action, the plaintiffs must prevail on the strength of their own title and not on  

                                                                                                                                                              



            40(...continued)  



                         trial  on  all  issues  so  demanded  must  be  by  jury  unless  .  .  .  the  

                         parties  or  their  attorneys  file  a  stipulation  to  a  nonjury  trial  or  

                         so  stipulate  on  the  record  .  .  .  .   



            41           White, 903 F.2d at 701-03.  

                                                             



            42           Id . at 703.  

                                    



            43           Shilts v. Young, 643 P.3d 686, 689 (Alaska 1981).  

                                                                                                           



            44           AS 09.45.630.  

                                 



                                                                             -14-	                                                                      7126
  


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

                                                                                            45  

the weakness of the defendants' title.                                                            The lot owners claim that they have a substantial                                            



interest   in   the   property   because   (1)   the   plat   and  evidence   produced   at   trial   were  



ambiguous as to the subdividers' intent; (2) they were presumed to have title; and (3) the                                                                                                                          



court clearly erred when it found that Marston intended to reserve title to the disputed                                                                                              



parcel.    And the lot owners argue that their substantial interest in the property was                                                                                                                          



superior to the Municipality's interest because the Municipality had no interest at all in                                                                                                                             



the   property.     The   superior   court   concluded   that   the   lot   owners   failed   to   show   a  



substantial interest in the property, and we hold that the court's conclusion was not error.                                                                                                                  



                                  In order to determine whether the lot owners have a substantial interest in                                                                                                          



the   disputed   property,  we   must   interpret   their   deed.     "The   touchstone   of   deed  



interpretation is the intent of the parties, and where possible, the intentions of the parties                                                                                                             

                                                         46       "We  have  instructed  that  'a  three-step  analysis  should  be  

will   be   given   effect."                                                                                                                                                                                         

employed in interpreting a deed' "47 :  

                                                                                     



                                                   "The proper first step in deed construction is to look to  

                                                                                                                                                                                     

                                  the four corners of the document to see if it unambiguously  

                                                                                                                                                   

                                  presents the parties' intent. . . . "  If a deed when "taken as a  

                                                                                                                                                                                       

                                  whole" is  open to only  one reasonable interpretation,  the  

                                                                                                                                                                                 

                                  interpreting court "need go no further."  "Whether a deed is  

                                                                                                                                                                                      

                                  ambiguous is a question of law."  

                                                                                                        



                                                   Once a court determines that a deed is ambiguous, "the  

                                                                                                                                                                                

                                  next step in determining the parties' intent is a consideration  

                                                                                                                                                       

                                  of the facts and circumstances surrounding the conveyance."  

                                                                                                                                                                                           



                 45               Shilts,  643  P.3d   at   689   (quiet   title   action);   Wright   v.   Prior,   417   P.2d  



602, 603 (Alaska 1966) (ejectment action).                                                



                 46               Estateof Smithv. Spinelli, 216 P.3d 524, 529 (Alaska2009) (alterations and  

                                                                                                                                                                                                                   

omission   omitted)   (quoting   Norken   Corp.   v.   McGahan,   823   P.2d   622,   625  

                                                                                                                                                                                                               

(Alaska 1991); Shilts, 567 P.2d at 773).  

                                                                                        



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

                                                                                                                                                                                                      



                                                                                                         -15-                                                                                                  7126
  


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

                                      We have noted that "this inquiry can be broad, looking at 'all                                                                                                  

                                      of the facts and circumstances of the transaction in which the                                                                                                   

                                      deed was executed, in connection with the conduct of the                                                                                                        

                                      parties after its execution.' " "Conclusions about the parties'                                                                                     

                                      intent drawn by the trial court after sifting and weighing such                                                                                             

                                      extrinsic evidence are conclusions of fact," which we review                                                                                          

                                      for clear error.          



                                                         Finally, only if the parties' intent cannot be discerned                                                                   

                                      after   an   examination   of   the   deed   itself   and   the   extrinsic  

                                      evidence surrounding its creation should a court resort to                                                                                                         

                                      rules               of          construction.                                    "The                 purpose                      of          rules               of  

                                      construction . . . 'is not to ascertain the intent of the parties to                                                                                                

                                      the transaction.                             Rather, it is to resolve a dispute when it is                                                                          

                                      otherwise impossible to ascertain the parties' intent.' "                                                                                               [48]  



                                      In applyingthefirst step ofdeed interpretation, the superior court examined  

                                                                                                                                                                                                                          



the four corners of plat P-424 - the plat that the lot owners' deeds incorporated by  

                                                                                                                                                                                                                                             



reference - and found that the plat was ambiguous as to the subdividers' intent.  The  

                                                                                           



court noted that P-424 "does not demarcate or specify the location of the mean high  

                                                                                                                                                                                                                                       



water  line.                           Nor  does  the  plat  provide  any  indication  as  to  the  location  of  the  

                                                                                                                                                                                                                                          



pre-earthquake bluff and tidelands in relation to the [lot owners'] lot boundaries."  And  

                                                                                                                                                                                                                                        



the superior court noted that "since [the lot owners'] lots are platted alongside the  

                                                                                                                                                                                                                                           



Knik Arm - with no developable land platted in-between - there is a presumption that  

                                                                                                                                                                                                                                           



title to the abutting tidelands and bluff passed to [the lot owners]."  We agree with the  

                                                                                                                                                                                                                                            



 superior court's finding that P-424 is ambiguous as to the subdividers' intent.  

                                                                                                                                                                                                                             



                                      The superior court then sought to determine the subdividers' intent by  

                                                                                                                                                                                                                                             



considering the facts and circumstances surrounding the conveyance, the second step of  

                                                                                                                                                                                                                                               



deed interpretation.  The court concluded that the lot owners did not have a substantial  

                                                                                                                                                                                                                     



                   48  

                                                                                                                                                                                                                            

                                      Id . (alterations and omissions in original) (footnotes omitted) (quoting  

                                                                                                                     

Norken Corp., 823 P.2d at 625-26, 629).  



                                                                                                                     -16-                                                                                                                        7126  


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

interest in the property, and it found that Marston retained title to the disputed property.                                                                                                                                                                                                                       



The lot owners challenge the superior court's factual findings and argue (1) the court                                                                                                                                                                                                       



interpreted the plat to Block K in a way that ignored the surveying practices of the time,                                                                                                                                                                                                    



ignored that the plat was ruled ambiguous as a matter of law, and assumed consistency                                                                                                                                                                                 



of the plats when such an assumption was actually inconsistent with historical events;                                                                                                                                                                                                



(2)  the court erred in its reading of the report by appraiser John Dillman; (3) the court's                                                                                                                                                                                           



interpretation of Judy Johanson's testimony contradicted her actual testimony; (4) the                                                                                                                                                                                                              



court erred in interpreting Brooke Marston's testimony and erred when it admitted that                                                                                                                                                                                                            



testimony; and (5) the court ignored the fact that Marston never conveyed nor platted the                                                                                                                                                                                                            

                                                                                                                                                                                                                          49        We do not agree with  

disputed parcel, and he did not include the parcel in his estate.                                                                                                                                                                                                                               



the lot owners that the superior court's findings were clearly erroneous.  

                                                                                                                                                                                                                                                             



                                               1.                     The court's interpretation of the platting history  

                                                                                                                                                                                                                                  



                                               The lot owners argue that the court clearly erred when it determined that  

                                                                                                                                                                                                                                                                                                  



the historical plats as drawn supported a finding that their lots did not extend to the mean  

                                                                                                                                                                                                                                                                                             



high-tide line.  The lot owners refer first to the court's earlier determination that plat  

                                                                                                                                                                                                                                                                                                  



P-424  was  ambiguous,  and  they  argue  that  the  plats  created  ambiguity  rather  than  

                                                                                                                                                                                                                                                                                               



resolved it.  Although the superior court did find ambiguity in plat P-424, it found that  

                                                                                                                                                                                                                                                                                                  



the platting history suggested a common scheme of leaving space between the northern  

                                                                                                                                                                                                                                                                                  



boundary of the lots and the mean high-tide line.  The court examined P-67, P-67B, the  

                                                                                                                                                                                                                                                                                                     



"Master Plan," and P-67E, and it noted that each clearly reserved space between the  

                                                                                                                                                                                                                                                                                                    



northern boundary of the property and the mean high-tide line. The superior court found  

                                                                                                                                                                                                                                                                                           



that "the documentary evidence consistently shows that the developers of Turnagain  

                                                                                                                                                                                                                                                                          



                        49                     The lot owners also challenge the superior court's finding that the property                                                                                                                                                       



passed to the Marston Foundation after Marston's death.                                                                                                                                                           But that finding was not                                                         

essential to the result, which was that the lot owners failed to show that they had a                                                                                                                                                                                                                      

substantial interest in the property.                                                                                       We therefore decline to address this issue.                                                                                        



                                                                                                                                                 -17-                                                                                                                                          7126
  


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

Heights Subdivision intended to establish the north boundaries of the bluff lots well back                                                                                                                                                                                                                                                                                                                                         



from the edge of the bluff adjacent to Knik Arm.                                                                                                                                                                                                               The plats involving the bluff lots of                                                                                                                                           



Block K all have the bluff lots terminating at the top of the bluff, approximately 170 feet                                                                                                                                                                                                                                                                                                                                             



from the mean high-water line."                                                                                                         



                                                                     The    lot    owners    highlight    former    surveyor    Clarence    Herschbach's  



testimony; he stated that the northern                                                                                                                                                                       boundary was possibly drawn as a matter of                                                                                                                                                                                       



convenience rather than for accuracy. He testified that at the time of the original platting                                                                                                                                                                                                                                                                                                                        



it was common practice not to survey mud flats because surveying was too expensive                                                                                                                                                                                                                                                                                                



considering   the marginal benefit provided                                                                                                                                                                                       by   the mud flats.                                                                                 He also                                          testified   that  



 surveying practices in the 1940s and 1950s led to mathematically incorrect boundaries.                                                                                                                                                                                                                                                                                                        



Finally, Herschbach testified that he worked closely with the surveyor who surveyed the                                                                                                                                                                                                                                                                                                                                                    



disputed parcel and explained that he seemed to be "a mediocre surveyor [by today's                                                                                                                                                                                                                                                                                                                                 



 standards]" but that he "[took] it seriously" and was "better than most" surveyors in                                                                                                                                                                                                                                                                                                                                                         



Anchorage at the time.                                                                                                 The lot owners assert that, although the plats seem to establish                                                                                                                                                                                                                       



a common plan or scheme, the plats really only follow the initial inaccurate survey.                                                                                                                                                                                                                                                                                                                               



                                                                     The   lot   owners'   interpretation  of   the   platting   history   is   one   possible  



interpretation;thesuperior court's interpretation that theplats suggest a commonscheme                                                                                                                                                                                                                                                                                                                               



is another possible interpretation.                                                                                                                                         "When reviewing factual findings we ordinarily will                                                                                                                                                                                                        



not  overturn   a trial court's finding                                                                                                                                                     based   on   conflicting   evidence, and                                                                                                                                                       we will not                                  



re-weigh evidence when the record provides clear support for the trial court's ruling; it                                                                                                                                                                                                                                                                                                                                                           



is the function of the trial court, not of this court, to judge witnesses' credibility and to                                                                                                                                                                                                                                                                                                                                                   

                                                                                                                                                      50              The lot owners failed to present evidence that would  

weigh conflicting evidence."                                                                                                                                                                                                                                                                                                                                                                                             



                                  50                                See In re Adoption of S.K.L.H., 204 P.3d 320, 325 (Alaska 2009) (quoting  

                                                                                                                                                                                                                                                                                                                                                                                                               

 Tessa M. v. State, Dep't of Health & Soc. Servs., 182 P.3d 1110, 1114 (Alaska 2008)).  

                                                                                                                                                                                                                                                                                                                                                                                                                     



                                                                                                                                                                                                                    -18-                                                                                                                                                                                                                                   7126  


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

                                                                                                                       

compel us to find the superior court's findings to be clearly erroneous.  We therefore  



                                                         

affirm the superior court's findings.  



                                                                     

                    2.         Other evidence at trial  



                                                                                                                         

                    In addition to the documentary evidenceof the platting history, the superior  



                                                                                                                               

court evaluated the testimony of several people familiar with the subdivision of the area  



                                                                                                                                

and other documents.  First, the court analyzed the Dillman report, an appraisal of the  



                                                                                                               

disputed parcel commissioned by the Municipality in 1991 as part of the Municipality's  



                                                                                                                               

litigation with Union Bank.  Dillman's report ultimately concluded that Block K was  



                                                                                                                                

incorrectly platted and that the boundary of the plat was actually 170 feet north of the  



                                                                                                                                  

platted boundary. But the superior court focused on Dillman's discussions with Block K  



                                                                                                                               

lot owners, many of whom indicated their belief that they had purchased "bluff lots" that  



                                                                                 

did not extend to the pre-earthquake mean high-tide line.  



                                                                                                              

                    Dillman's ultimate conclusion that the lots extended to the pre-earthquake  



                                                                                                                            

mean high-tide line is consistent with the testimony of Judy Johanson, a former lot owner  



                                                                                                                               

who had signed plat P-424.  Johanson testified in a deposition that Marston told her that  



                                                                                                                       

"no one could ever build in front of [her], that [her] land went clear down to the [water]."  



                                                                                                                                  

But the superior court found that Johanson had misinterpreted Marston's promise; it  



                                                                                                                                 

found that Marston had only meant that no one would build in front of her because he  



                                         

retained ownership of the property.  



                                                                                                                         

                    The lot owners contend that the testimony of Brooke Marston, Marvin  



                                                                                                              

Marston's son, either supports their argument that their lots extend to the pre-earthquake  



                                                                                                                  

mean high-tide line or that it at the very least creates ambiguity in the conveyance  



                                                                                                                             

history.  Brooke testified regarding a variety of statements attributed to his father from  



                                                               -19-                                                         7126
  


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

                                                                                                                                                                                                                                                     51  

conversations that took place over fifty years ago.                                                                                                                                                                                                            The superior court found that                                                                                                     



Brooke's statements supported the conclusion that Marston intended to reserve the bluff                                                                                                                                                                                                                                                                                                       



 face   and  the land                                                                   to the mean                                                    high-water   mark   for   himself.     And it found                                                                                                                                                                       that its   



interpretation of Brooke's testimony was the only way to harmonize the testimony with                                                                                                                                                                                                                                                                                                           



the historical plats, the deed history of the waterfront, and the lot owners' understanding                                                                                                                                                                                                                                                       



of their northern boundary.                                                    



                                                               The evidence presented is subject to different interpretations.                                                                                                                                                                                                                                      Dillman's  



report did indicate that the lots were not properly platted, but his is but one interpretation.                                                                                                                                                                                                                                                                                                                          



And he did speak with lot owners who believed they purchased "bluff lots."                                                                                                                                                                                                                                                                                                    Brooke  



Marston's and Johanson's testimony involved conversations that took place many years                                                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                                                                                          52  Again, we  

ago; there is little documentary evidence to support either set of statements.                                                                                                                                                                                                                                                                                                                         



will not overturn or re-weigh a trial court's factual findings in the face of conflicting  

                                                                                                                                                                                                                                                                                                                                                                 



                               51                              Brooke testified that his father "voiced to [him] that he would not deed out                                                                                                                                                                                                                                                           



land that he owned beyond the face of the cliff, because then he [could not] stop the                                                                                                                                                                                                                                                                                                                

erosion [of the bluff] himself." But he also seemed to indicate that his father had already                                                                                                                                                                                                                                                                                       

 sold much of the land out to the mean high-tide line when he said that "[he was] not                                                                                                                                                                                                                                                                                                               

going to sell anything more, even though [he owns] it, out to beyond the bottom of the                                                                                                                                                                                                                                                                                                                

bluff, so [he] can control it [himself.] [He doesn't] have to go convince people that                                                                                                                                                                                                                                                                                                            

they've got to do it."                                                                            And Brooke testified that his father had an ongoing campaign "to                                                                                                                                                                                                                                    

 stop the bluff from eroding and he would talk to owners that he had already sold to, that                                                                                                                                                                                                                                                                                                         

owned that area."                                                                    The lot owners objected to Brooke's testimony as hearsay, but the                                                                                                                                                                                                                                               

 statements are contradictory and do not influence the result of this appeal.                                                                                                                                                                                                                                           



                               52                              The lot owners additionally contend that, if Marston retained the disputed  

                                                                                                                                                                                                                                                                                                                                                                            

parcel for himself, he would have platted the parcel and conveyed it either through his  

                                                                                                                                                                                                                                                                                                                                                                                                      

will or into the Marston Foundation, where he conveyed other pieces of property before  

                                                                                                                                                                                                                                                                                                                                                                                      

he died.  That mere possibility does not convince us that the superior court's factual  

                                                                                                                                                                                                                                                                                                                                                                                   

 findings are clearly erroneous.  

                                                                                                                                                 



                                                                                                                                                                                                 -20-                                                                                                                                                                                         7126
  


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

                                                                                                       53  

evidence when the record supports those findings.                                                           The record supports the court's                     



findings, and we perceive no clear error.                              



                           We affirmthe superior court's conclusion that thelot owners failed to show                                                               

a substantial interest in the property.                                  54  



              C.	          The  Superior  Court  Did  Not  Err  When  It  Concluded  That  The  

                                                                                                                                                                     

                           Earthslide Relief Act Did Not Apply To The Lot Owners' Property.  

                                                                                                                                                        



                           The lot owners presented an alternative claimfor relief under the Earthslide  

                                                                                                                                                           



Relief  Act,  contending  that  their  lots  shifted  as  a  result  of  the  1964  Good  Friday  

                                                                                                                                                                 



Earthquake and that the Act compels the court to pass title to the "disputed remnant" to  

                                                                                                                                                                           



them.  The Act provides:  

                                



                           If the boundaries of land . . . have been moved by an act of  

                                                                                                                                                

                           God, consisting of an earthslide, so that they are in a location  

                                                                                                                                   

                           different  from  that  at  which,  by  solar  survey,  they  were  

                                                                                                                                         

                           located before the earthslide, an action in rem to recognize  

                                                                                                                                

                           the boundaries as they presently exist and to quiet title within  

                                                                                                                                       

                           the  boundaries  in  the  persons  judicially  found  entitled  to  

                                                                                                                                               

                           title . . . is authorized . . . .[55]  

                                                                             



The lot owners contend that the 1964 earthquake caused the ground underlying their lots  

                                                                                                                                                                        



to liquefy, the bluff to collapse, and the land to "spill[] seaward carrying the houses with  

                                                                                                                                                                      



it. . . .  It is undisputed that the northern boundary of [the land owners'] lots moved  

                                                                                                                                                                 



during the 1964 earthquake.  If flags had been placed on the northern boundary of the  

                                                                                                                                                                        



             53            See   In   re   Adoption   of   S.K.L.H.,   204   P.3d   at   325   (quoting   Tessa   M.,  



 182 P.3d at 1114).       



             54            Because the lot owners failed to show that they have a substantial interest  

                                                                                                                                                                

in the property, we also conclude that the superior court did not err when it declared the  

                                                                                                                                                                         

Municipality to be the prevailing party.  And, because the lot owners failed to show a  

                                                                                                                                                                            

substantial interest in the property, we decline to address the superior court's ruling that  

                                                                                                                                                                       

the lot owners' claims are barred by the statute of limitations.  

                                                                                                      



             55            AS 09.45.800.  

                                   



                                                                                   -21-	                                                                            7126
  


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

lots there can be no question that those flags would have been moved northward."                                                                                



                             In support, the lot owners supplied a scholarly article about the Turnagain                                                             

                                         56    According to the article,  

Heights Landslide.                                                                   



                             The largest of [the slides in the Anchorage area] was along  

                                                                                                                                                  

                             the coastline in the Turnagain Heights area.  

                                                                                                                            



                                                                                        . . . .  

                                                                                                 



                                           Lateral movement of the soil mass during the slide was  

                                                                                                                                                      

                             extensive.  The material from the original bluff line moved  

                                                                                                                                               

                             out into the bay as much as 2,000 ft in some places . . . , and,  

                                                                                                                                                   

                             in general, the outward movement beyond the original bluff  

                                                                                                                                                    

                             line  mirrored  the  extent  of  inland  regression  of  the  slide  

                                                                                                                                                   

                             behind the bluff line.  

                                                                 



                             But the superior court determined that the boundary of the lot owners'  

                                                                                                                                                                        



property had not shifted, despite the fact that the surface had been modified:  

                                                                                                                                                                      



                             The  northern  lot  boundaries  depicted  in  Plats  P-67E  and  

                                                                                                                                                     

                             P-424 were not changed by the 1964 earthquake even though  

                                                                                                                                               

                             the  land  itself  was  modified.                                         Nothing  in  the  vicinity  

                                                                                                                                            

                             interferes with re-establishing the original monuments and  

                                                                                                                                                      

                             dimensions  of  the  Plat  P-424  subdivision.                                                     Although  the  

                                                                                                                               

                             physical location of the mean high-tide changed after the  

                                                                                                                                                       

                             1964 earthquake, the original location of the mean high-tide  

                                                                                                                                           

                             line         was          depicted               on        the        1916            [Bureau               of       Land  

                                                                                                                                               

                             Management's  General  Land  Office]  survey  and  can  be  

                                                                                                                                                        

                             readily re-established by a competent surveyor today. The  

                                                                                                                                                     

                             parcel at issue, therefore, remains north of the original Block  

                                                                                                                                                 

                             K subdivision lots, between the lots and the [mean high- 

                                                                                                                                                 

                             water] line of Knik Arm.  

                                                                        



               56            The article provided by the lot owners in the excerpt of record is a reprint                                                                  



"with minor changes" from the original article.                                                             The original article appears in the                                    

Journal of the Soil Mechanics and Foundation Division                                                                   .   H. Bolton Seed & Stanley D.                              

Wilson,  The Turnagain Heights Landslide, Anchorage, Alaska                                                                            , 93 J. S        OIL  MECHANICS  

& FOUNDATIONS DIVISION  325, 325 (July 1967).                                               

                                      



                                                                                         -22-                                                                                  7126
  


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

                              The lot owners argue that "to read the Act as the superior court does renders                                                                    



it superfluous . . . [because] [i]t is always possible to superimpose the old geographical                                                                         



boundaries on the altered landscape.                                              In that case, the Act would never apply."                                                   But the   



                                                                                                                                                                                            57  

lot owners' argument is refuted by                                           Brown's Boundary Control and Legal Principles                                                                ,  



a learned treatise recognized at trial: "Where a slide results from . . . an [earthquake], the  

                                                                                                                                                                                         



owners undoubtedly own where their bedrock is located. In the Alaskan earthquake the  

                                                                                                                                                                                         



shaking caused land to become fluid, and it ran into the bay.  In such instances land  

                                                                                                                                                                                     



boundaries could not flow with the surface material." (Emphasis added.)  In essence,  

                                                                                                                                                                             



although  the  surface  of  the  property  shifted,  the  boundaries  of  the  property  itself  

                                                                                                                                                                                   



remained in the same place.  

                                                 

                             We have never interpreted the Earthslide Relief Act.58                                                                    The interpretation  

                                                                                                                                                                 

                                                                                   59   "When we interpret . . . statutory language we  

of the Act presents a question of law.                                                                                                       



begin with the plain meaning of the statutory text. The legislative history of a statute can  

                                                                                                                                                                                        



sometimes suggest a different meaning, but 'the plainer the language of the statute, the  

                                                                                                                                                                                         

more convincing contrary legislative history must be.' "60  

                                                                                                                          



                              The plain language of the Act focuses on whether the property boundaries  

                                                                                                                                                                       



were moved by an earthslide, such that they are in a different location from their original  

                                                                                                                                                                               



               57            WALTER   G.   ROBILLARD,   DONALD  A.   WILSON   &   CURTIS   M.   BROWN,  



    ROWN 'S BOUNDARY CONTROL AND LEGAL PRINCIPLES  412 (5th ed. 2003).                                                                                    

B                                                                                                   



               58            We declined to interpret the Act in                                             Estate of Smith v. Spinelli                                , 216 P.3d     



524, 533 (Alaska 2009), instead ruling on other grounds.                                                                        



               59            See  State,  Dep't  of  Revenue  v.  Municipality  of  Anchorage,  104  P.3d  

                                                                                                                                                                                    

 120, 122 (Alaska 2004) ("We apply our independent judgment to questions of law such  

                                                                                                                                                                                     

as statutory interpretation . . . .").  

                                                                



               60            Hendricks-Pearce v. State, Dep't of Corr., 323 P.3d 30, 35 (Alaska 2014)  

                                                                                                                                                                                  

(footnote  omitted)  (quoting  Ward  v.  State,  Dep't  of  Pub.  Safety,  288  P.3d  94,  98  

                                                                                                                                                                                         

(Alaska 2012)).  

                   



                                                                                           -23-                                                                                     7126
  


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

 location.    The Act does not further explain how a court should make this essentially                                                 



                                        61  

 factual determination.                                                                                                                              

                                              The trial court thus relied on the evidence presented by the  



                                                                                     

 parties, including learned treatises, to make its findings.  



                                                                                                                                                      

                         The Report of the House Judiciary Committee on Committee Substitute for  



                                                                                                                

 House Bill No. 427 suggests the Act's intended applicability:  



                                                                                                          

                        After the earthquake it was found that an area approximately  

                                                                                                                              

                        west of L Street in Anchorage moved about nine feet to the  

                                                                                                                          

                        west  and  four  feet  to  the  north.  This  sliding  of  the  earth  

                                                                                                              

                         created a problem in real property locations and descriptions  

                                                                                                                      

                        because  the  plat   of   the   Original   Townsite   no   longer  

                                                                                                         [62]  

                                                                                                               

                        represents the actual location of the property. 



                         Theexamplereferencedin theReport of the House Judiciary Committee -  

                                                                                                                                                       



 the area west of L Street in Anchorage - was also referenced in a letter from Anchorage  

                                                                                                                                        



 Assistant Attorney Victor Carlson, sent in support of the proposed Earthslide Relief  

                                                                                                                                                

 Act.63      Carlson explained:  

                             



                         For example, in the area termed the "L" Street Slide Area  

                                                                                                                          

                         (roughly  north  of  9th  Avenue  and  west  of  "L"  Street  in  

                                                                                                                               

                        Anchorage) the land has shifted with most of the buildings,  

                                                                                                                  

                        trees, fences, etc. intact.  The owners and others having an  

                                                                                                                               

                         interest in this group approximately of 300 lots describe their  

                                                                                                                            

                        holdings by reference to a certain lot and block of the plat of  

                                                                                                                                

                        the original townsite of Anchorage.  After the earthslide by  

                                                                                                             

                        referring to this plat many property owners would find they  

                                                                                                       



             61         AS    09.45.800   (permitting    actions    only    where    "the    boundaries    of  



 land . . . have been moved by . . . an earthslide, so that they are in                                                 a different location     

from that at which                 . . .  they were located before the earthslide                              " (emphasis added)).     



             62          Report of House Judiciary Committee on Committee Substitute for House  

                                                                                                                                                

 Bill No. 427, House Journal Supp. No. 17 at 1, 1966 House Journal 777.  

                                                                                                                           



             63          Letter  from Victor  D.  Carlson,  Anchorage Assistant City  Attorney,  to  

                                                                                                                                                       

 House Judiciary Committee (Mar. 17, 1966).  

                                                                      



                                                                          -24-                                                                    7126
  


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

                       are   encroaching   on   their   neighbors   and  on   the   public  

                       right-of-way, likewise the streets are encroaching on private                                

                       property.   There is a need to have the official plat represent                  

                       the truth of the land boundaries as shifted.                              [64]  



It is notable that the circumstances described in this letter and by the House Judiciary  

                                                                                                                                       



Committee materially differ from those presented in this appeal.  

                                                                                                                  



                       The west L Street example shows a situation where the earth's surface  

                                                                                                                                          



shifted in the earthslide, carrying with it buildings, trees, fences, streets, etc. located on  

                                                                                                                                                   



the ground above.                  The situation in the lot owners' case is different:  here the surface  

                                                                                                                                           



material liquified and flowed northbound, but there is no evidence in the record that the  

                                                                                                                                                  



underlying bedrock shifted, or that the surface shifted carrying buildings and  other  

                                                                                                                                      



fixtures, and encroaching on others' properties.  

                                                                 



                       Of greater importance, given that the superior court found that the northern  

                                                                                                                                         



boundary of the disputed property lay across the top of the bluff - a finding that we  

                                                                                                                                                  



affirm - it follows that the owners of the disputed properties had no interest in the land  

                                                                                                                                                



that constituted the bluff.  When that land slid northward and flattened out, it became  

                                                                                                                                          



developable by the owners of that land, and new land was also created in the Knik Arm.  

                                                                                                                                                         



But the lot owners' predecessors in interest had no interest in either the shifted bluff land  

                                                                                                                                                



or the new land.  And the boundaries of the lots they own remained readily identifiable.  

                                                                                                                                                         



This result and the superior court's conclusion are entirely consistent with the passage  

                                                                                                                                          



quoted above from Brown's Boundary Control :   "In such instances land boundaries  

                                                                                                                                    

could not flow with the surface material."65  

                                                        



                       We conclude that the superior court did not err in ruling that the Earthslide  

                                                                                                                                      



Relief Act does not apply to the disputed property.  

                                                                                           



            64         Id .  



            65         ROBILLARD ET AL.,  supra  note  55,  at  412.  



                                                                        -25-                                                                       7126  


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

V.                           CONCLUSION  



                                                         We AFFIRM the superior court's decision to bifurcate the trial, AFFIRM                                                                                                                                                                                                            



the superior court's determination that the lot owners did not have a substantial interest                                                                                                                                                                                                                                                         



in the disputed property, and AFFIRMthe superior court's conclusion that the Earthslide  

                                                                                                                                                                                                                                                                                                                                        



Relief Act does not apply to this case.                                                                                                                                  



                                                                                                                                                                                               -26-                                                                                                                                                          7126
  


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

                                                        APPENDIX  -  Page  1  of  1
  



                        Knik  Arm  



Post-1964  Mean  High-Tide  Line  



          Pre-1964  Mean  High-Tide  Line  



                                 Disputed  Parcel                 Lynn  Ary   

                                                                  Community  Park  



       Coastal  Trail  

                                                          1A  



                                              2A 

                                                    



                                   3A  



                        4A  



             5A  



  6A  



                                               

                                      Block K  



                                  -27-                                           7126
  

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