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Lake Colleen Enterprises Inc. v. Estate of Michael Raymond Mark, et al. (12/26/97), 951 P 2d 427
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
LAKE COLLEEN ENTERPRISES, )
INC., ) Supreme Court No. S-7759
) Superior Court No.
v. ) 4FA-95-1483 CI
ESTATE OF MICHAEL RAYMOND ) O P I N I O N
MARK, MARGUERITE E. BISCOE, )
Personal Representative of )
the Estate of Michael )
Raymond Mark, and RAY MARK, )
SR., Individually, )
Appellees. ) [No. 4924 - December 26, 1997]
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Jay Hodges, Judge.
Appearances: William R. Satterberg, Jr., The
Law Offices of William R. Satterberg, Jr.,
Fairbanks, for Appellant. Daniel E. Winfree,
Winfree Law Office, Fairbanks, for Appellee
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
Public access easements are easements reserved by the
state to ensure access to state land and water. The question
here is whether a dedicated public access easement may be used as
an access way for an adjoining private parcel. We answer in the
affirmative, because the state had an interest in the adjoining
parcel when the easement was created, and the right to use the
easement was not destroyed when the state's interest was
II. FACTS AND PROCEEDINGS
The Estate of Michael Raymond Mark (Mark) administers a
fourteen-acre parcel in Healy adjacent to a seven-acre parcel
owned by Lake Colleen Enterprises (Colleen). Both parcels have
frontage on the Parks Highway, and Colleen's southern boundary is
adjacent to another road. See Appendix.1
Beginning in January 1982, Mark leased his parcel from
the state under the now repealed Remote Parcel Program. The
leased land was subject to "[a] 25 foot wide access easement
along all lot lines." Mark's property was platted in 1987. The
plat showed a twenty-five-foot public access easement along all
boundaries except the boundary with the Parks Highway. A plat
note stated that "all remote parcels are subject to a 25 foot
public access easement along all upland boundaries."2 Mark
obtained title to his parcel from the state in 1991, "subject to
platted easements and reservations." The 979-foot southern
boundary of Mark's lot forms the northern boundary of Colleen's
In 1983 Colleen's predecessors contracted to buy from
the State of Alaska what is now Colleen's lot. The contract
called for a twenty-one year pay out, and the state retained
legal title to the property until the contract price was fully
paid. The state transferred title to Colleen's immediate
predecessor in 1995. That same year Colleen purchased the
A hotel was constructed on Colleen's property. In
April 1995 Colleen cleared the twenty-five-foot easement on the
Mark lot and put in a gravel drive. Colleen uses this drive for
access to the rear of the hotel and to maneuver trucks making
deliveries to the hotel. In response, Mark built a fence on the
boundary, blocking most of Colleen's access from the easement;
however, Mark left a twenty-five-foot wide opening in the fence
for access to the Colleen property. Parts of the fence were
later torn down.
Colleen sued Mark to enjoin interference with its
access along the easement. Mark counterclaimed, seeking
injunctive relief barring Colleen from using the easement and
seeking damages for, among other things, trespass and conversion
of timber and gravel. After the parties settled the damages
claims, Mark moved for summary judgment. The court granted the
motion, holding that the easement only permits access to state
land and navigable or public waters, not to the Colleen property.
Final judgment was entered in accordance with the order granting
summary judgment. Colleen appeals.
The parties generally agree that there are three
statutory sections and two regulatory sections which are
potentially relevant to the resolution of this case. They are:
Wherever state land is surveyed for
purposes of private use, legal rights-of-way
and easements shall be reserved for access
and, where appropriate, for utility services
to each parcel of land. A right-of-way or
easement shall be located to assure adequate
and feasible access for the purposes for
which the right-of-way or easement was
intended. Where necessary and appropriate
for the use intended or where required by
local subdivision ordinances, the director
shall arrange for the development of surface
access as part of the land availability
program. The direct cost of local access
development shall be borne by the recipient
of the land unless otherwise provided by
state statutes or regulations.
The director shall reserve easements and
rights-of-way on and across land which is
made available for private use as necessary
to reach or use public water and public and
private land. An easement or right-of-way
reserved under this section may include
trails that have an established history of
use for commerce, recreation, or
The director may, under terms agreed to
in writing by a grantee, lessee, or interest
holder of state land, restrict the use of an
easement or right-of-way reserved under AS
38.04.050, 38.04.055 or other law in order to
protect public safety or property.
11 AAC 53.300:
This section governs easements and
rights-of-way other than those for public
access to and along navigable and public
water. All easements and rights-of-way
reserved under this section must be surveyed
and platted to the accuracy of the adjacent
survey, or to Class III survey standards, if
there is no adjacent survey. Except as
otherwise provided by law, easements reserved
under this section are vested in the public.
Easements and rights-of-way of at least the
following widths must be surveyed and shown
on the plat. When in the public interest, the
director may require the survey and platting
of additional easements or rights-of-way, or
waive these requirements at the time that
survey instructions are issued.
(1) Public Access Easements.
(A) The section line easement is 50 feet
wide on the state side. If the state is the
owner on both sides, then it is a total of
100 feet wide.
(B) The easement for an existing road or
trail that does not already have a reserved
easement or right-of-way is 30 feet on each
side of the centerline of the road or trail.
(2) Utility easements are 20 feet wide,
unless a need is demonstrated for a wider
easement at time of survey and platting.
(3) Pedestrian easements are 20 feet
wide, unless a need is demonstrated for an
easement of a different width at the time of
survey and platting.
(4) For any control stations set by the
United States Coast and Geodetic Survey,
Bureau of Land Management, United States
Geologic Survey, United States Corps of
Engineers, National Geodetic Survey, the
division, or private surveyors to at least
Class I standards, easements must be created
for access to the control station from the
nearest practical property boundary. There
must be an easement with a radius of five
feet around the control station, a pedestrian
access easement five feet wide from the
nearest practical property boundary to the
control station, and, where applicable, a
five-foot-wide direct line-of-sight easement
from the control station to other control
(5) Other easements, as necessary, will
be determined at the time of survey.
(6) Rights-of-way for arterials must be
a minimum of 100 feet wide; rights-of-way for
residential roads must be a minimum of 60
feet wide; and other right-of-way widths, as
necessary, will be determined at the time of
11 AAC 53.900(25):
Unless the context clearly indicates
otherwise, in this chapter
. . . .
(25) "public access easement"means an
easement retained by the state at the time of
disposal of state land, to insure continued
access to state land and access to and along
navigable or public water[.]
The trial court's decision was based on the definition
of "public access easement"set forth in 11 AAC 53.900. The
court ruled that the easement on the Mark property was
for access to State land and access to and
along navigable or public water. Lake
Colleen is not using the easement for access
to or along navigable or public water or for
access to State land. Lake Colleen is using
the easement for access to its own property.
This exceeds the scope of the reservation in
the Mark patent.
Colleen argues that this interpretation too narrowly
defines the scope of the easement. Citing the "plain language"
of AS 38.04.050 and .055, Colleen argues that the easement must
have been intended to ensure access to "each parcel of land" as
stated in section .050, including "private land"as stated in
section .055. Colleen finds support in the language of section
.058, which gives the director authority to restrict the use of
an easement reserved under sections .050 or .055, noting that no
restriction was imposed in this case. Colleen argues that 11 AAC
53.900(25), the regulation defining the term "public access
easement,"is invalid inasmuch as it does not refer to access to
each parcel of land or public and private land as AS 38.04.050
and .055 require.
Mark argues that the statutory directions of sections
AS 38.04.050 and .055 are discretionary. The director is
required to reserve easements as appropriate or necessary for
access to each parcel of land and to reach public water and
public and private land. Here the reservation of access to the
Colleen property was not necessary since the Colleen property was
already accessible from the Parks Highway and another road.
Thus, in this case, literal adherence to the definition of public
access easement creates no conflict with the statutory sections.
In our view, the fact that the definition of "public
access easement"does not refer to easements whose purpose is to
ensure access to private land does not render the definition
inconsistent with the statutory sections, so long as there is
other regulatory authority authorizing the director to reserve
easements affording access to private land. Sections .050 and
.055 require easements where necessary or appropriate for access
to private land, but the easements do not have to be called
"public access easements." The director has the authority to
reserve easements to private land under 11 AAC 53.300(5), which
authorizes "other easements, as necessary."3
We thus accept the definition of "public access
easement" as governing the scope of this easement. Nonetheless,
in order to conclude that the easement does not provide access to
the Colleen property, it is necessary to answer two questions.
First, was the Colleen property "state land"within the meaning
of 11 AAC 53.900(25) at the time the public access easement was
created? Second, if the answer to the first question is
affirmative, does state land which is served by a public access
easement lose the benefit of the easement upon becoming private
land? For the reasons that follow, we conclude that the Colleen
property was "state land"at the time the easement was created,
and that it did not lose the benefit of the easement upon
becoming private land.
At the time of the survey of the Mark property and the
creation of this easement in 1987, the Colleen property had
already been conveyed by the state under a contract of sale to
Colleen's predecessors. However, legal title remained in the
state. If the purchaser had defaulted, the state would have also
been entitled to equitable title. In our view retention of legal
title in the state suffices to qualify lands subject to a
contract of sale as "state land"within the meaning of the
definition of "public access easement." Given the possibility of
default in the contract of sale and forfeiture of the lands to
the state, the same reasons which make it desirable to ensure
access to land wholly owned by the state apply to lands to which
the state has only legal title. Otherwise, a confusing patchwork
of access rights to public roadways could be created where some
parcels of state land, or former state land, have access to a
road, but others do not, depending on whether and when parcels
have been sold and forfeited.
Further, access once granted under a public access
easement to state land should not be lost once the state conveys
full title to a private owner. Such a result would have the
potential to diminish the value of the property to be conveyed
and thus the consideration which the state would receive. It
would also have the potential to eliminate the only legal or
practical access to a given parcel.
We conclude, therefore, that the superior court erred
in concluding that the public access easement on the Mark
property may not be utilized for access to or from the Colleen
property. This conclusion does not mean, however, that Colleen
may drive on and off the easement at any point along the shared
boundary. Easement usage must be reasonable and appropriate to
the nature of the land and the purpose of the easement. See
Andersen v. Edwards, 625 P.2d 282, 286-87 (Alaska 1981) (holding
that express easement does not grant absolute right to use
easement; use must be reasonable); Smith v. Commissioners of
Public Works, 441 S.E.2d 331, 336-37 (S.C. App. 1994) (holding
that express easement granting access at "any point"necessarily
grants only reasonable access points).
Since Colleen's land was state land at the time of the
survey of the Mark property, the Colleen property is one of the
properties that the easement was intended to serve.
Consequently, the trial court erred in enjoining Colleen's use of
the easement for access to its property. The judgment is
REVERSED and this case is REMANDED for further proceedings
consistent with this opinion.
1 The lot numbered ASLS 87-23 is the Mark property. The
lot numbered ASLS 83-42 is the Colleen property.
2 The plat also contains a dedication signed by the
Director of the State Division of Land and Water Management: "I
hereby . . . dedicate for public or private use as noted, all
easements . . . as shown and described hereon."
3 We observe, however, that the usage in 11 AAC 53.300 of
the term "public access easement"is broader than that term as
defined in 11 AAC 53.900(25). Under section .300(1), a "public
access easement"includes section line easements and easements
for existing roads or trails. Section line easements and
easements for existing roads or trails do not exist merely to
ensure continued access to state land and waters; they often
serve private lands as well. This inconsistency suggests that
either the definition of "public access easement"is too narrow
or that another regulatory category is needed to describe
easements whose purpose is to serve private and public property.
However, this possible inconsistency does not affect the outcome
of this case and does not need to be resolved at this time.