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Weidner v. Dept. of Transportation (10/8/93), 860 P 2d 1205
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
PHILLIP PAUL WEIDNER, In his Own )
Right and Behalf and On Behalf of ) Supreme Court No. S-4813
All Persons Similarly Situated, )
) Superior Court No.
v. ) 3AN-84-8320 Civil
STATE OF ALASKA, DEPARTMENT OF ) O P I N I O N
TRANSPORTATION AND PUBLIC )
Appellee. ) [No. 4010 - October 8,
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Joan Katz, Judge.
Appearances: Phillip Paul Weidner,
Weidner and Associates, Anchorage, for
Appellant. Rhonda F. Butterfield, Assistant
Attorney General, Anchorage; Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
This case involves a public road built in 1952 and
reconstructed in 1968. A portion of the road traverses privately-
owned property. The State admittedly has a valid easement for
the road as originally built. The private landowner claims,
however, that in reconstructing the road in 1968 the State
changed the course of the road and thereby took an additional
easement over the altered path of the roadway. The State denies
that the path of the road ever changed. Alternatively, the State
argues that even if such a change occurred, the landowner's suit
for inverse condemnation is barred by the applicable statute of
In 1952, the Jackalof Bay/Red Mountain Road (Bay Road)
was constructed by the Alaska Road Commission. When Alaska
became a state the road was transferred to the State under
section 21(a) of the Alaska Omnibus Act of 1959. 48 U.S.C. note
prec. 21. The Bay Road crosses a 20-acre parcel of land
formerly owned by Red and Nelda Calhoun who entered it in 1949.
Currently, Bay Road runs north-south over the Calhoun
property, curving to the right at the north end thereby taking
the path of an inverted "j." At the north end of the property,
an unmaintained road splits off from and later reconnects with
Bay Road. The parties refer to this road as the "Old Road." The
Old Road makes a loop north of Bay Road and reaches a 40-acre
parcel, Government Lot 2 (Lot 2), abutting the Calhoun property
to the north. Weidner has had an ownership interest in Lot 2
since 1975 and owned the entire tract by 1983. The Old Road
provides the only means of access from Bay Road to Lot 2.1
In 1968, the State reconstructed parts of Bay Road,
including the portion that crosses the Calhoun property. In
1981, the Calhouns sought to develop this property. At that
time, the Calhouns had not been on the land since 1962 and were
unaware of any intervening changes. In preparing for
development, their son-in-law, a registered land surveyor,
allegedly found that in reconstructing Bay Road the State had
moved the curve some 50 yards south of the original roadway.
Based on this information, Weidner now claims that Bay Road
originally followed the course of the Old Road and that during
the 1968 reconstruction the State abandoned the Old Road and
moved the northern loop of Bay Road south to its current
location. For purposes of this opinion, the northern loop of Bay
Road as currently located is referred to as the "New Route."
The Calhoun's son-in-law wrote the State concerning the
status of Bay Road. James Sandberg, the State's Chief Right-of-
Way Agent in the Department of Transportation, responded in a
letter dated July 2, 1982, addressed to the Calhouns. Sandberg
In regard to compensation for any new
right-of-way taken in the 1968 construction
by the State, the State at this time is not
liable for payment for these lands being the
time for notifying the State of its oversight
and demanding compensation for the taking has
past the "Statute of Limitations"for such
Sandberg also referred to a portion of Old Road as follows:
As to the recent use by others of any
portion of this old abandoned road, we feel
that this would constitute trespass against
the property owner.
The letter takes no position as to whether the Old Road was (1) a
portion of the original Bay Road allegedly abandoned in 1968; or
(2) a road wholly separate from and coexistent with the original
Bay Road. Based on Sandberg's letter, the Calhouns sought
approval from the Kenai Borough Planning Commission of a
development plan that would extinguish the Old Road access to Lot
2. The Commission approved the plan but made it subject to a
staff recommendation requiring dedication of the Old Road as
access to Lot 2.
Weidner maintains that after the Commission's approval
of the Calhoun's plan he still faced the threat that the Calhouns
would block the Old Road access to Lot 2. To prevent this
occurrence, Weidner purchased the Calhoun property by a general
warranty deed dated September 15, 1982.
By letter dated January 4, 1983, Weidner notified the
State that he was the current owner of the property and that he
considered the State's use of the New Route a trespass. He
demanded that the State either cease using the New Route or
compensate him for its use. In a letter dated January 28, 1983,
the State wrote that
no major relocation [of Bay Road]
occurred on your property; that to the extent
any relocation occurred on your property, it
occurred in 1968 or 1969, well past the
expiration of any applicable statute of
limitations; and that the State has a
prescriptive easement to portions of
relocation, if there are any on your land.
On September 10, 1984, Weidner filed this suit against
the State for a number of claims relating to the alleged
rerouting of Bay Road from the Old Road to the New Route.
Principally, Weidner sued for either an injunction or
compensation due to the State's (1) taking of an easement on the
Calhoun's property for use of the New Route from his predecessor
in interest, and (2) taking of Lot 2's right of access via the
Old Road. Weidner and the State filed motions for summary
judgment. Superior Court Judge Rene Gonzalez granted the State
summary judgment on Weidner's claim for an injunction but denied
The case was subsequently transferred to Superior Court
Judge Joan Katz. The State then filed a second motion for
summary judgment on generally the same grounds as its earlier
motion. Judge Katz granted the State's motion, concluding that
the State had obtained a prescriptive easement for the New Route,
which barred Weidner's suit for inverse condemnation. A final
judgment was entered dismissing Weidner's complaint with
prejudice and awarding the State sixty-five percent of its
attorney's fees and costs ($16,720.97). Weidner appeals.
Judge Katz found that the State's actions in recon
structing Bay Road in 1968 and the passage of ten years created a
prescriptive easement. Thus, Weidner's suit in 1984, sixteen
years after the construction, was not timely. Weidner argues
that the court erred in granting the State summary judgment
because there is a question of fact as to whether any use by the
State of the Calhoun's property was "permissive," that is by
permission of the Calhouns. Further, Weidner argues that all
uses by the State of private property should be conclusively
presumed to be permissive unless the State gives the property
owner notice "in writing and via either institution of
condemnation proceedings or notice of taking that the State was
claiming adverse title." Weidner also contends that allowing the
State to take property by prescriptive easement violates the
United States and Alaska constitutional provisions prohibiting
private property from being taken without just compensation, and
that application of the prescriptive easement doctrine violates a
property owner's due process and equal protection rights.
Weidner also challenges the superior court's award of costs and
attorney's fee against him on the alternative grounds that he is
a public interest litigant and that the award is excessive. We
find that none of Weidner's claims has merit and affirm.
A. Permissive Use
We have held that a public way may be created by public
use of private property for the ten-year prescriptive period.
Dillingham Commercial Co. v. City of Dillingham, 705 P.2d 410,
416-17 (Alaska 1985).
To establish a prescriptive
easement a party must prove that (1) the use
of the easement was continuous and
uninterrupted; (2) the user acted as if he or
she were the owner and not merely one acting
with the permission of the owner; and (3) the
use was reasonably visible to the record
McGill v. Wahl, 839 P.2d 393, 397 (Alaska 1992).
"There is a presumption that the use of land by an
alleged easement holding was permissive." Id. The State can
overcome the presumption of permissive use "by showing that such
use of another's land was not only continuous and uninterrupted,
but was openly adverse to the owner's interest, i.e., by proof of
a distinct and positive assertion of a right hostile to the owner
of the property." Hamerly v. Denton, 359 P.2d 121, 126 (Alaska
1961) (footnote omitted) (emphasis added). Thus, negating
permissive use involves the concepts of openness and adversity.
For the reasons that follow, we conclude that the State's use of
the New Route was both open and adverse as a matter of law.
The openness requirement is an objective test: "actual
notice is not required; the true owner is charged with knowing
what a reasonably diligent owner would have known." Nome 2000 v.
Fagerstrom, 799 P.2d 304, 309 n.7 (Alaska 1990). The openness
requirement, then, embodies the principle that a landowner is
responsible for knowing the physical encumbrances on and the
boundaries of the owner's land. This responsibility includes any
changes in existing uses on the land. In the present case, the
State need only show that its continued use of Bay Road over the
New Route was open, and not that the change, if any, from the Old
Road to the New Route was open and obvious to the private
landowner. The State easily satisfies this requirement, as it
cannot reasonably be disputed that maintenance of a public
roadway constitutes an open use of real property.
The question remains whether this use was adverse.
Dillingham and McGill speak to permissive use and the adversity
requirement for a prescriptive easement. In Dillingham, the
superior court granted summary judgment for the City of
Dillingham on its claim for a prescriptive easement over a strip
of private land that abutted a public alley. The public's use of
the strip of land was both continuous and open. The basis of the
prescriptive easement, however, consisted solely of this use by
members of the public. There was no evidence that the city had
ever maintained or otherwise exercised control over the strips of
land abutting the alleyway. We reversed the summary judgment
because an issue of fact existed by reason of the presumption of
permissive use. Dillingham, 705 P.2d at 417. Since the owners
of the servient estate may have allowed the public to use the
land abutting the alley to facilitate public access to the
owners' businesses, a remand was necessary to determine whether
this public use was with the permission of the owners. Id.
In McGill, the McGills owned property that abutted land
owned by the Wahls. For fourteen years, the Wahls used a roadway
over the McGill's property as the sole access route to their
property. We rejected the presumption of permissive use, stating
that "a presumption does not arise where a roadway was not
established by the owner of the servient estate for its own use
but was for many years the only means of passage to the dominant
estate." McGill, 839 P.2d at 397-98.
The distinction between Dillingham and McGill lies in
the concepts of "permission"and "claim of right." Permission
contemplates the servient landowner's right to revoke that
permission and prevent further use of the servient owner's land.
A claim of right, on the other hand, contemplates uninterrupted
future use of the property. In Dillingham, the public's use of
the land abutting the alleyway was consistent with the concept of
permission. If the public merely used the land in order to gain
access to the stores along the alleyway, such use did not
contemplate unrestricted future access so much as permission to
use the land as an incident to patronizing the stores. In
McGill, on the other hand, the Wahls built and maintained a road
across the McGills' land as the sole access to the Wahls'
property. Since access is essential to the beneficial use of
one's land, a road providing the sole access to a parcel likely
contemplates continued use not subject to the permission of
another. Thus, the maintenance of a sole access, without more,
gives notice of a claim of right, rather than use subject to
This case is closer to McGill. In 1968, the State
reconstructed the Bay Road. If a deviation was made, the State
surely claimed that new portion as part of the land it had a
right to use. The dedication of State resources to the
construction and maintenance of a public roadway is not the type
of land use which one would subject to the permission of a
servient landowner. In constructing a road, the government makes
a commitment that contemplates continued, unrestricted use of the
affected land. In other words, once the State determines a
roadway is needed for public access to a certain region, the
State surely does not intend such access to be contingent upon
the permission of a private landowner. Unlike Dillingham, the
interests of the private landowner and the public are not
sufficiently aligned for the public's use to be presumptively
permissive. Thus, construction and maintenance of a public
roadway is a use that contemplates a claim of right rather than
the owner's permission. For this reason, we hold that the
State's construction and maintenance of Bay Road overcomes any
presumption of permissive use. Town of Sparta v. Hamm, 387
S.E.2d 173, 176 (N.C. App. 1990) (town "maintained, however
poorly, and public used [the roadway] and so gave notice . . .
that there was a 'claim of right' to the street, rising to the
required level of 'hostility.'"). Cf. Riddock v. City of Helena,
687 P.2d 1386, 1389-90 (Mont. 1984) (city's visible construction
of a water pipeline on private land was "sufficiently open and
notorious to support [a] finding of a prescriptive easement").
Weidner's argument that the presumption of permissive
ness cannot be overcome without formal notice from the State that
the State is, in effect, engaged in an act of adverse possession,
is unsupported by case authority. Formal notice that adverse
possession is underway is not required in Alaska, nor, so far as
we are aware, by the court of any other state.2 Jon W. Bruce &
James W. Ely, Jr., The Law of Easements and Licenses in Land
5.04, at 5-19 (1988) ("The landowner need not have actual know
ledge of adverse usage.").
We conclude, based on the above, that the superior
court did not err in determining that the State's use of the New
Route for more than ten years created a prescriptive easement.
B. Due Process
Due process under both the state3 and federal
constitutions has two general requirements: (1) notice; and (2)
an opportunity to be heard. Matanuska Maid, Inc. v. State, 620
P.2d 182, 192-93 (Alaska 1980). A prescriptive easement
satisfies both requirements. First, under the test for a
prescriptive easement, the adverse use must be open and obvious
such that a reasonable person would be aware of the use. See
Nome 2000, 799 P.2d at 309 n.7. We have explained that the
purpose of the open and obvious possession requirement "is to
afford the true owner an opportunity for notice." Id. (emphasis
added). Second, the ten-year prescriptive period, during which a
landowner may bring an inverse condemnation action, provides
ample opportunity to be heard. Due process is not offended by
the State's use of the prescriptive easement doctrine.
C. Equal Protection
Weidner also argues that the State's use of a
prescriptive easement violates the state4 and federal guarantees
of equal protection. He asserts, without supporting argument or
authority, that it is a violation of equal protection for the
State to be able to obtain private property by prescription from
a private individual, but not vice versa. See AS 38.95.010.
This argument, however, misconceives the nature of equal
protection. Equal protection ensures that the State will not
treat an individual or group of individuals differently from all
other individuals. Equal protection does not, however, require
the State to treat all individuals the same as it treats itself.
The Colorado Supreme Court, addressing the same equal protection
challenge, explained the point as follows:
The . . . argument really boils
down to the question of whether the state is
prohibited from enacting a forfeiture scheme
applicable to private property without
according private landowners an opportunity
to exercise the same right of forfeiture
against property held in the public domain.
The answer, we submit, is that the state in
its sovereign lawmaking capacity acts on
behalf of all the people and, as such, is not
constitutionally required to subject the
people's rights to the very same forfeitures
applicable to individual persons within its
jurisdiction. We therefore reject the . . .
equal protection claim.
Board of County Comm'rs v. Flickinger, 687 P.2d 975, 982-83
(Colo. 1984) (citations omitted); cf. Pennsylvania v. New Jersey,
426 U.S. 660 (1976) (per curiam) (a state is not a "person"
within the meaning of the Equal Protection Clause). Thus,
Weidner's equal protection claim is without merit.
D. Takings Clause
Weidner makes the further argument that a prescriptive
easement allows the State to take private property without just
compensation in violation of the takings clauses of the federal
and Alaska constitutions.5 This argument misunderstands the
nature and operation of a prescriptive easement. The theory of
prescriptive easement does not grant the State affirmative
authority to take property without just compensation. Rather,
the prescriptive period -- as with any statute of limitations6 --
requires a private landowner to bring an inverse condemnation
action for public use of private property within a specified
period of time. At the expiration of the prescriptive period,
the landowner's right to bring suit is extinguished, effectively
vesting property rights in the adverse user.7 In the present
case, Weidner's claim for just compensation has been extinguished
by expiration of the prescriptive period. Thus, as Weidner's
predecessors had a right to just compensation for the State's
unauthorized use of their land which they failed to assert in a
timely manner, Weidner too is barred from bringing suit.
The superior court awarded the State sixty-five percent
of its actual attorney's fees and costs ($16,720.97). Weidner
challenges this award on two bases: (1) he is exempt from
attorney's fees as a public interest litigant; or (2) the
percentage of fees awarded is so high as to constitute an abuse
of discretion.8 Judge Katz rejected the public interest litigant
argument in her order awarding attorney's fees, stating:
Mr. Weidner is not a public interest
litigant. There is no indication that the
public at large, or numerous people, would
benefit from this litigation. Mr. Weidner
had significant economic incentive of his own
to bring this lawsuit.
As to the percentage of fees awarded, Judge Katz wrote that
"[t]his percentage is justified in light of the number of issues
raised by plaintiff, his resistance to discovery, and the quality
of the state's work." Neither conclusion was in error.
First, as to Weidner's status as a public interest
litigant, Judge Katz correctly concluded that Weidner had
"sufficient private economic reasons to litigate." Sisters of
Providence v. Department of Health and Social Services, 648 P.2d
970, 986 (Alaska 1982). This economic incentive coupled with the
absence of others who would benefit from Weidner's suit, support
the superior court's denial of public interest litigant status.
Second, as to the percentage of fees awarded, the
amount was within the superior court's discretion. We have
approved fee awards as high as eighty and eighty-six percent of
actual fees. Gates v. City of Tenakee Springs, 822 P.2d 455, 464
(Alaska 1991) (eighty percent); Hausam v. Wodrich, 574 P.2d 805,
811 (Alaska 1978) (eighty-six percent). As in those cases, a
higher percentage of actual fees was justified by the "numerous
claims which required research and response by the" prevailing
party. Gates, 822 P.2d at 464. Thus, we hold that the superior
court's award of sixty-five percent of the State's actual
attorney's fees was not an abuse of discretion.
The judgment of the superior court is AFFIRMED in all
1 An appended map shows all of the physical features
described in this opinion.
2 Iowa, however, has enacted a statutory requirement of
"express notice"for "any easement in real estate . . . claimed
by virtue of adverse possession." Iowa Code Ann. 564.1 (West
3 Alaska Const. art. I, 7 ("No person shall be deprived of
life, liberty, or property, without due process of law.").
4 Alaska Const. art. I, 3 ("No person is to be denied the
enjoyment of any civil or political right because of race, color,
creed, sex, or national origin.").
5 Alaska Const. art. I, 18 ("Private property shall not be
taken or damaged for public use without just compensation.").
6 For example, if the applicable statute of limitations bars
a particular action for breach of contract, we do not conclude
that the defendant had an absolute immunity to breach his
contract with the plaintiff. Rather, the plaintiff simply failed
to bring suit within the specified period of time and, therefore,
may not assert an otherwise potentially meritorious claim.
The various statutes limiting the
bringing of actions to recover land from a
wrongdoer in possession . . . have resulted
in barring the real owner's right to recover
the property and the necessary result has
been to extinguish his title. The law does
not recognize a title which it will not
protect. The result is that the title which
the wrongful possessor has against all but
the real owner is no longer subject to the
former owner's right to recover it . . . .
His title originating in his wrongful
possession becomes absolute by the
extinguishment of the former owner's title.
III American Law of Property 15.2, at 760 (1952).
8 We will not disturb an award of attorney's fees unless the
award evidences an abuse of discretion by the trial court, i.e.,
the award is "manifestly unreasonable." Gates v. City of Tenakee
Springs, 822 P.2d 455, 464 (Alaska 1991).
9 Weidner argues other points in his brief including slander
of title and negligent trespass. We do not address these points,
however, because Weidner neither included them in his points on
appeal nor gave them more than cursory treatment in his briefs.
Alaska R. App. P. 210(e); see Braun v. Alaska Commercial Fishing
& Agric. Bank, 816 P.2d 140, 144-45 (Alaska 1991).