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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Estate of Selma Smith v. Spinelli (9/18/2009) sp-6414
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| THE ESTATE OF SELMA SMITH, | ) |
| WILLIAM P. INGRIM, Individually | ) Supreme Court No. S-13128 |
| and as Personal Representative of the | ) |
| Estate of Selma Smith, WALLACE A. | ) Superior Court No. 3AN-06-04048 CI |
| SMITH, WESLEY C. MONSON, | ) |
| THELMA INGRIM WALSTON, and | ) |
| ELIZABETH JENKINS, | ) O P I N I O N |
| ) | |
| Appellants, | ) No. 6414 September 18, 2009 |
| ) | |
| v. | ) |
| ) | |
| CHARLES SPINELLI, CLARK | ) |
| RUSH, LORANE OWSICHEK- | ) |
| CUPPLES, DAVID SCHMID, | ) |
| VICTORIA BLOWER, DAVID | ) |
| WHITE, MATTHEW FINK, | ) |
| PATRICIA LEFEVRE, and | ) |
| CORBETT MOTHE, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Michael Spaan, Judge.
Appearances: Calvin R. Jones, Jones & Colver,
LLC, Anchorage, for Appellants. Richard W.
Maki, David H. Shoup, Tindall Bennett &
Shoup, P.C., Anchorage, for Appellees
Spinelli, Rush, Owsichek-Cupples, Schmid,
Blower, White, and Mothe.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
FABE, Chief Justice.
I. INTRODUCTION
This dispute centers around a 3.38-acre parcel of
coastal land in the Turnagain area of Anchorage. Prior to the
1964 Alaska Earthquake, this parcel consisted of a steep, eroding
bluff and tidal mudflats. The powerful earthquake collapsed the
bluff, spreading it out over the mudflats and transforming the
once unusable parcel into gently sloping, potentially developable
coastal property. Uncertainty regarding this parcels ownership
arose forty years later when the Municipality of Anchorage sought
to construct sewage facilities on it.
The appellants are heirs of the children of Rasmus
Simonson, whose 147-acre 1920s homestead encompassed the disputed
parcel, and heirs of his daughter Selma Smith, who subdivided and
sold the homestead in the 1940s and 50s (collectively, the
Simonson heirs). The Simonson heirs contend that Smiths
subdivision plat shows that she did not sell the bluff and
mudflats when she subdivided the Simonson homestead and that they
thus retain title to the developable land now located where the
bluff and mudflats once stood. The appellees are the current
owners of eight lots in the Simonson subdivision that directly
abut the disputed parcel (collectively, the lot owners). The lot
owners argue that Smith did not intend to retain the bluff and
mudflats when she subdivided the Simonson homestead and that the
superior court correctly awarded them the disputed parcel. They
also contend that the superior courts decision can be affirmed
based on the strip and gore doctrine, which creates a presumption
against a grantors retention of small, useless strips of land,
and on Alaskas Earthslide Relief Act, which provides procedures
for determining property boundaries following an earthslide.
Because the subdivision plat is ambiguous and because
the superior court did not clearly err in concluding that the
evidence surrounding Smiths sale of the Simonson homestead shows
that she did not intend to retain the disputed parcel, we affirm
the superior courts decision to award the disputed parcel to the
lot owners. We do not reach the questions whether the strip and
gore doctrine and the Earthslide Relief Act are applicable to
this case.
II. FACTS AND PROCEEDINGS
A. Facts
In 1927 homesteader Rasmus Simonson obtained 147 acres
of coastal land from the federal government in what is now the
Turnagain area of Anchorage. The northern (seaward) boundary of
the Simonson homestead was the pre-earthquake mean high tide line
of Knik Arm, as established by a 1916 General Land Office (GLO)
survey. Following the deaths of Simonson and his wife, the
Simonson homestead passed to six of their children, including
Selma Smith. In 1946 Smiths siblings deeded the entire property
in trust to Smith, empowering her to plat, subdivide, and sell
it, with the proceeds to be split equally among the children.
Smith proceeded to plat and subdivide the Simonson
homestead, recording several different plats, the last of which
was Plat P-48B, recorded in 1949. Smith sold the eight
northernmost (seawardmost) lots in the subdivision, depicted as
Lots 1-8 in Block C of Plat P-48B, between 1949 and 1952. These
eight lots, which have since changed hands many times, are now
owned by the appellees and are currently vacant. The appellees
and their predecessors in interest purchased these lots with the
understanding that they were buying oceanfront property. The
appellees deeds describe their lots with reference to Plat P-48B.
Plat P-48B depicts the northern boundary of the
appellees eight lots with a solid line drawn at what before the
1964 earthquake was the upper edge of a steep, eroding 50-70 foot
bluff with tidal mudflats below. That is, in Plat P-48B, the
northern boundary of the Simonson subdivision was drawn not at
the northern boundary of the Simonson homestead (the 1916 GLO
survey mean high tide line), but rather closer inland, along the
upper edge of the bluff. Plat P-48B thus left unplatted and
undemarcated the largely unusable parcel of bluff and mudflats
that was located between the subdivision boundary and the mean
high tide line. Evidence at trial showed that a plat containing
such a deficiency could not be recorded under modern standards.
Fifteen years after Plat P-48B was prepared, the
violent 1964 Alaska Earthquake triggered soil liquefaction that
caused the bluff to collapse and spread out onto the mudflats,
destroying the houses that had been located on appellees eight
lots, pushing the mean high tide line seaward, and changing the
previously unusable, unplatted parcel into gently sloping,
potentially developable1 land.
The ownership of the unplatted parcel went unexamined
for some forty years following the earthquake. Neither the
Simonson heirs nor the owners of the eight abutting lots paid
property taxes on the parcel or attempted to build on it or sell
it. No Simonson heir took any action to suggest that they owned
the parcel, and several later testified that they never had
reason to believe they had any interest in the parcel until the
present controversy arose. Smith died in 1984. There was no
evidence that she ever conveyed the parcel back to her siblings
for whom she had held the Simonson homestead in trust, and the
parcel was not included in her estate. The parcel remained
undeveloped except insofar as the Municipality of Anchorages Tony
Knowles Coastal Trail was built across a portion of it in the
1980s.
Many decades after the earthquake, while preparing for
the possible construction of sewage facilities in the area, the
Municipality of Anchorage discovered that the parcels ownership
was uncertain. In 2005 a title company identified the parcels
owner as Selma Smith, Trustee. Smith having died, the
Municipality sent a tax bill for the parcel to Smiths son William
Ingrim, who paid it. The Municipality returned the tax money,
however, when it learned that Ingrims ownership of the parcel was
contested by the lot owners.
B. Proceedings
In early 2006 the owners of five of the eight lots
abutting the disputed parcel filed suit against a number of
parties potentially claiming an interest in the parcel, including
Smiths son Ingrim. The lot owners sought to quiet title to the
disputed parcel in their names, arguing that it should be
considered part of their lots, which they purchased with the
understanding that they were buying oceanfront property. They
also alleged claims under the Earthslide Relief Act2 and the
adverse possession statute.3
The Municipality of Anchorage, the Estate of Selma
Smith, Ingrim (individually and as personal representative of
Smiths estate), and some individual Simonson heirs appeared to
defend their claims to the disputed parcel, though there was
initially some controversy about who was participating in the
lawsuit given the large number of Simonson descendants. The
Simonson heirs brought the owners of the remaining three of the
eight lots abutting the disputed parcel into the litigation.
The interests of the Municipality were resolved by
settlement in November 2007. The Municipality obtained an
easement across the disputed parcel for the Tony Knowles Coastal
Trail4 as well as title to all land located north (seaward) of
the 1916 GLO mean high tide line that had formed the northern
boundary of the original Simonson homestead.5
The lot owners and the Simonson heirs filed cross-
motions for summary judgment. The lot owners motion was
procedurally based, focusing on the fact that Smiths estate had
been closed for many years. The Simonson heirs motion was
grounded in a strict interpretation of Plat P-48B, in which, as
described above, the northern boundary of the lot owners property
was drawn inland of the disputed parcel. The Simonson heirs
argued based on the plat that Smith clearly did not sell the
disputed parcel when she subdivided the Simonson homestead and
thus that they retained title to it. Superior Court Judge
Michael Spaan denied the parties cross-motions for summary
judgment and held a bench trial in January 2008.
Following the trial the superior court concluded that
the owners of Lots 1-8 are the rightful owners of the strip of
land north of their lots with ownership extending to the mean
high water line. The superior court found that Plat P-48B was
ambiguous as to whether Smith intended to convey the disputed
parcel along with Lots 1-8 and that the surrounding circumstances
established that Smith did in fact intend to convey the disputed
parcel rather than retain it. The superior court alternatively
reached the same result by way of the presumption contained in
the strip and gore doctrine, which allows a court to award a
narrow strip of land, with little value of its own, that was
mistakenly reserved from a conveyed tract of land to the party
that purchased the larger associated tract. The superior court
rejected the lot owners adverse possession claim based on a lack
of evidence of continuous, open and notorious use of the disputed
parcel, and it declined to reach the lot owners Earthslide Relief
Act claim.
The Simonson heirs appeal.
III. STANDARDS OF REVIEW
The Simonson heirs contend that the superior court
erred in denying their motion for summary judgment. But the
superior court denied the motion due to the existence of genuine
issues of material fact, and an order denying summary judgment on
factual grounds is not reviewable on appeal following a trial on
the merits.6 Accordingly, we address the Simonson heirs
arguments in the context of determining whether the superior
court erred in rendering its final judgment in favor of the lot
owners, rather than whether it erred in denying the heirs motion
for summary judgment.
The Simonson heirs challenge the superior courts
conclusion that Plat P-48B, which is incorporated into the lot
owners deeds, is ambiguous. Whether a deed is ambiguous is a
question of law,7 and [w]e review legal questions de novo,
adopt[ing] the rule of law that is most persuasive in light of
precedent, reason, and policy. 8 The Simonson heirs also
question the superior courts factual determination that Smith
intended to convey the disputed parcel along with Lots 1-8 when
she subdivided the Simonson homestead. Conclusions about the
parties intent drawn by the trial court after sifting and
weighing . . . evidence [extrinsic to a deed] are conclusions of
fact that we review for clear error.9 We will reverse the trial
courts factual findings only when, after a review of the entire
record, we are left with a definite and firm conviction that a
mistake has been made. 10 We review the record with the knowledge
that it is the province of the trial court to judge witnesses
credibility and weigh conflicting evidence.11
IV. DISCUSSION
The lot owners deeds and the deeds of their
predecessors in interest incorporate Plat P-48B by reference.12
The issue before us is thus the proper interpretation of Plat P-
48B with respect to the disputed parcel, which, as discussed
above, consisted of a steep bluff and mudflats at the time the
plat was prepared in 1949. The Simonson heirs argue that Plat P-
48B clearly demarcates Lots 1-8 such that they do not include the
disputed parcel, meaning that the disputed parcel was retained by
Smith after she subdivided and sold the rest of the Simonson
homestead. The lot owners counter that the plat is ambiguous and
that the evidence surrounding the subdivision of the Simonson
homestead shows that Smith did not actually intend to retain the
disputed parcel, meaning that it was conveyed as part of Lots 1-
8.
The superior court determined that Plat P-48B is
ambiguous and vague as to whether Smith conveyed all of the land
owned by her in trust to the original purchasers of Lots 1-8.
The superior court then examined extrinsic evidence of Smiths
intent when she sold Lots 1-8, finally concluding that she did
not intend to retain the disputed parcel.
The Simonson heirs now argue primarily that the
superior court erred in finding that Plat P-48B is ambiguous, and
that because the plat is unambiguous, the superior court should
not have inquired further into Smiths intent. The Simonson heirs
also contend that insofar as the superior court did inquire into
Smiths intent, its conclusion that she did not intend to retain
the disputed parcel was erroneous.
A. Our Three-Step Approach to Deed Interpretation
[T]he touchstone of deed interpretation is the intent
of the parties,13 and where possible, . . . the intentions of the
parties [will be] given effect.14 We have instructed that a
three-step analysis should be employed in interpreting a deed.15
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 . . . .16 If a deed when taken as a
whole is open to only one reasonable interpretation, the
interpreting court need go no further.17 Whether a deed is
ambiguous is a question of law.18
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.19 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. 20 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.21
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.22 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. 23
B. Step One: Ambiguity. The Superior Court Did Not Err in
Determining that Plat P-48B Is Ambiguous.
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 . . . .24 Both sides suggest that we
consider various pieces of evidence outside the four corners of
Plat P-48B in making this initial ambiguity determination. The
lot owners assert by analogy to contract interpretation that
[e]xtrinsic evidence may be considered in assessing whether a
deed is ambiguous. But our approach to deed interpretation is
not identical to our approach to contract interpretation.
In the context of contract interpretation, we have
departed from the cumbersome traditional parol evidence rule by
allowing the use of extrinsic evidence without the need for a
preliminary finding that a contract is facially ambiguous.25
Thus, extrinsic evidence may be consulted in determining whether
a contract is ambiguous as well as in resolving any ambiguity.26
But, as we have recognized, our three-step approach to deed
interpretation differs from our more flexible approach to
contract interpretation and does not allow the use of extrinsic
evidence in making the threshold determination whether a deed is
ambiguous.27 We therefore decline to consider extrinsic evidence
in reviewing the superior courts conclusion that Plat P-48B,
which is part of the lot owners deeds, is ambiguous. A deed is
unambiguous if, looking within the four corners of the document,
the words of the deed taken as a whole are capable of but one
reasonable interpretation.28
The superior court found that [l]ooking within the four
corners of the document Plat P-48B is ambiguous because there is
no express demarcation or reservation of any land north of Lots 1-
8 and the location of the Mean High Water Line is not expressly
represented. The superior court noted that Plat P-48B leaves
indeterminate the distance between the mean high water line and
the boundary of Lots 1-8 by demarcating it with a squiggled line,
thus making it unclear whether the mean high water line
intersects with any portion of the boundary. For these reasons,
the superior court concluded that Plat P-48B is vague as to
whether Smith conveyed all of the land owned by her in trust to
the original purchasers of Lots 1-8.
The Simonson heirs contend that any ambiguity in Plat P-
48B relating to the area and boundaries of the disputed parcel
does not affect the non-ambiguous area of each of Lots 1 through
8 that were conveyed which [have] boundaries [that] are clearly
defined. They point out that the lot owners and their
predecessors in interest have always been aware of the square
footages of their lots, which are shown on Plat P-48B and do not
include the disputed parcel. But we have said that a deed should
be examined as a whole in determining ambiguity,29 and the
entirety of Plat P-48B is incorporated into the lot owners deeds.
Accordingly, Lots 1-8 cannot be viewed in isolation. As the
superior court concluded, Plat P-48Bs failure to demarcate and
reserve the disputed parcel or specify the exact location of the
mean high tide line creates ambiguity regarding Lots 1-8 despite
their seemingly well-defined boundaries.
The Simonson heirs also argue that it is clear that
Lots 1 through 8 were not shown on Plat 48-B as having riparian
rights.30 They point out that there is nothing to prevent a
separation of such interest resulting in one person owning the
riparian rights and privileges associated thereto, and another
person owning the uplands. They argue that Plat P-48B
unambiguously severs the riparian rights from Lots 1-8. But Plat
P-48B does not unambiguously sever the riparian rights from Lots
1-8, as it does not reserve or demarcate the land lying between
the lots and the tidelands and leaves unclear and unspecified the
relationship between the northern boundary of the lots and the
mean high tide line. Moreover, the lot owners counter that the
property line was platted as close as reasonably possible to the
waters edge, giving rise to a presumption that title passed to
the abutting tidelands in the absence of an express reservation
to the contrary.31 And the fact that the lots were platted so
close to the waters edge, without any developable land separating
them from the tidelands, supports the superior courts
determination that Plat P-48B is ambiguous as to whether the lots
were intended to have riparian rights.
Finally, the Simonson heirs assert that platting
standards were loose in early times and it was not normal to name
remnants outside a plat, meaning that the superior courts finding
of ambiguity wrongfully imposes current platting and surveying
standards on Plat P-48B. But this argument focuses on extrinsic
evidence that may not be considered in the course of making the
preliminary determination whether Plat P-48B is ambiguous, so we
decline to consider it.
Accordingly, we conclude that the superior court did
not err in determining that Plat P-48B is ambiguous.
C. Step Two: Intent. The Superior Court Did Not Err in
Determining that Smith Intended to Convey the Disputed
Parcel Along with Lots 1-8.
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.32 After
finding Plat P-48B ambiguous, the superior court examined the
facts and circumstances surrounding the sale of Lots 1-8 by Selma
Smith and found that it was the intent of Smith, as trustee for
herself and her siblings, to convey the disputed strip of
property as part of Lots 1-8. The Simonson heirs primarily
contend, as discussed above, that Plat P-48B is unambiguous and
thus that the superior court should not have inquired into Smiths
intent, but they also argue that the superior court erred in
concluding that Smith did not intend to retain the disputed
parcel. Conclusions about the parties intent drawn by the trial
court after sifting and weighing . . . extrinsic evidence are
conclusions of fact[, which] [t]his court will not disturb . . .
unless they are clearly erroneous . . . .33
In determining that Smith did not intend to retain the
disputed parcel, the superior court made a number of findings:
(1) the disputed parcel would have been surveyed and platted if
Smith had intended to reserve it, especially if, as the Simonson
heirs argued below, she feared liability and intended to reserve
the parcel to create a buffer zone to protect Lots 1-8 from
erosion of the bluff; (2) Smith never reconveyed the disputed
parcel to her siblings as she would have been obligated to do had
she retained it, given that she held the Simonson homestead in
trust; (3) no Simonson heir ever attempted to sell the disputed
parcel even after its value was increased by the earthquake; (4)
the disputed parcel was not included in Smiths probate estate
when she died in 1984; (5) no Simonson heir ever attempted to
develop the disputed parcel after 1978 when development became
permissible; (6) no Simonson heir ever thought they owned any
land around the disputed parcel until the instant dispute arose;
and (7) platting standards at the time Plat P-48B was recorded
were less rigorous than they are today, and the lot owners
experts testimony that the northern boundary of Lots 1-8 was
probably drawn along the top of the bluff as a matter of
convenience was more credible than the contrary testimony of the
Simonson heirs expert. The Simonson heirs contend that these
findings are not sufficient to support the superior courts
ultimate conclusion that Smith did not intend to retain the
disputed parcel.
The Simonson heirs contend that the fact that Smith
never reconveyed the disputed parcel to her siblings is
irrelevant to Smiths intent because no one kn[e]w of the
existence of the parcel. They further point out that the parcel
was not included in Smiths probate estate because her son Ingrim
did not know about the parcel. But the fact that none of the
Simonson heirs was ever told about the parcel seems to support
the superior courts conclusion that Smith did not intend to
retain the parcel, rather than undermining it.
The Simonson heirs also argue that the fact that Smith
and her siblings never attempted to sell or develop the disputed
parcel is not indicative of her intent because in 1978, when the
disputed parcel became legally developable after the earthquake,
Smith was seventy-five years old and most of her siblings were
dead. The heirs also note that the lot owners never attempted to
develop the disputed parcel either. But while these points weigh
in the heirs favor, they are not sufficient to engender a firm
and definite conviction34 that the superior court made a mistake
in ultimately concluding, based on all of the facts, that Smith
did not intend to retain the disputed parcel.
Finally, the Simonson heirs assert that Smith reserved
a right-of-way to the disputed parcel, evidencing an intent to
retain it. However, as the lot owners persuasively counter, this
assertion is founded on a misreading of the plat and ignores
pertinent testimony. It is clear that there is no right-of-way
reserved within the Simonson homestead extending to the disputed
parcel the right-of-way the Simonson heirs refer to is a part of
a neighboring subdivision and is beyond the Simonson property
line. Moreover, the testimony the Simonson heirs reference does
not appear to support their position the testimony of the lot
owners expert recognizes that the right-of-way is not part of the
Simonson subdivision and the testimony of the Simonson heirs
expert is not focused on the right-of-way issue and seems founded
in a misreading of the plat.
The superior courts determination that Smith did not
intend to retain the disputed parcel was not clearly erroneous.
Accordingly, we affirm the superior courts interpretation of Plat
P-48B and its consequent decision to award the disputed parcel to
the lot owners.35
The superior court found [a]lternatively that through
the operation of the legal presumption embodied by the strip and
gore doctrine, the [disputed] strip of land was intended by the
grantor, Selma Smith, to pass to the [lot owners] predecessors in
interest. The strip and gore doctrine, which as the superior
court noted is primarily associated with Texas,36 provides that
unless the grantor explicitly reserves with
plain and specific language in the deed a fee
in a narrow strip of land adjoining the
conveyed land, it is presumed that a grantor
has no intention of reserving a fee in a
narrow, adjoining strip of land when the
strip ceases to be of use by virtue of the
conveyance.[37]
According to the Texas Supreme Court, the strip and
gore doctrine developed because separate ownership of long narrow
strips of land, distinct from the land adjoining on each side, is
a fruitful source of litigation and disputes.38 Additionally,
[w]hen a small parcel of land adjoins a main tract and has no
particular value apart from the main tract, parties ordinarily
would expect it to pass with the grant.39
The strip and gore doctrine is best understood as a
rule of construction that is meant to apply where the parties
intent cannot be discerned by other means.40 We apply rules of
construction as the last step in the deed interpretation process,
but [o]nly if [the first] two steps do not resolve the
controversy . . . .41 In this case, the first two steps have
resolved the controversy we have determined that Selma Smith
intended to convey the disputed parcel along with Lots 1-8 so we
need not reach the question whether the strip and gore doctrine
is applicable here.42 We also need not reach the question whether
the Earthslide Relief Act43 is applicable to this case.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior
courts decision in favor of the lot owners.
_______________________________
1 The parcel was not truly developable until 1978 when
building restrictions on land created by the 1964 earthquake were
lifted.
2 AS 09.45.800.880.
3 AS 09.45.052.
4 Prior to settlement, the Municipality argued that it
had obtained an easement across the parcel by prescription
because the Coastal Trail had been in place and openly used by
the public for more than the statutory period.
5 Because the earthquake pushed the mean high tide line
seaward, it created some usable land located beyond the 1916 mean
high tide line that had formed the northern boundary of the
Simonson homestead; because that land had never been part of the
homestead, it was found to belong to the Municipality.
6 Larson v. Benediktsson, 152 P.3d 1159, 1169-70 (Alaska
2007).
7 Norken Corp. v. McGahan, 823 P.2d 622, 626 (Alaska
1991).
8 Pastos v. State, 194 P.3d 387, 391 (Alaska 2008)
(footnote omitted and alteration in original) (quoting Guin v.
Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
9 Norken, 823 P.2d at 626.
10 Peterson v. Ek, 93 P.3d 458, 463 (Alaska 2004) (quoting
Demoski v. New, 737 P.2d 780, 784 (Alaska 1987)).
11 Id.
12 See 26A C.J.S. Deeds 226 (2001) (A map, plat, plan, or
survey, by virtue of apt reference thereto in a deed, may be
treated as part of, and may be construed with, the deed in
determining the property conveyed.).
13 Norken, 823 P.2d at 625.
14 Shilts v. Young, 567 P.2d 769, 773 (Alaska 1977).
15 Ashley v. Baker, 867 P.2d 792, 794 (Alaska 1994).
16 Norken, 823 P.2d at 626.
17 Id.
18 Id.
19 Id.
20 Id. at 629 (quoting Rizo v. MacBeth, 398 P.2d 209, 211-
12 (Alaska 1965)).
21 Id. at 626.
22 Id.
23 Id. at 625 (quoting 6A R. Powell & P. Rohan, Powell on
Real Property 899[3], at 81A-108 (1991)).
24 Id. at 626.
25 See Alyeska Pipeline Serv. Co. v. OKelley, 645 P.2d
767, 771 n.1 (Alaska 1982) (rejecting the unduly cumbersome
approach whereby resort to extrinsic evidence can take place only
after a preliminary finding of ambiguity in a contract, and
approving of an approach that initially turns to extrinsic
evidence for such light as it may shed on the reasonable
expectations of the parties); see also Restatement (Second) of
Contracts 212 cmt. b (1981) (stating that because meaning can
almost never be plain except in a context, [a]ny determination of
meaning or ambiguity should only be made in the light of the
relevant evidence of the situation and relations of the parties,
the subject matter of the transaction, preliminary negotiations
and statements made therein, usages of trade, and the course of
dealing between the parties); Ferdinand S. Tinio, Annotation, The
Parol Evidence Rule and Admissibility of Extrinsic Evidence to
Establish and Clarify Ambiguity in Written Contract, 40 A.L.R.3d
1384, at 4 (1971) (listing Alaska among the states that have
tended to move away from the traditional and mechanical
complete-on-its-face approach, and to accept evidence of the
parties negotiations and of other relevant and external
circumstances in order to ascertain whether a written contract is
ambiguous (footnote omitted)).
26 Wessells v. State, Dept of Highways, 562 P.2d 1042,
1046 (Alaska 1977) (An ambiguity exists [in a contract] only
where the disputed terms are reasonably subject to differing
interpretation after viewing the contract as a whole and the
extrinsic evidence surrounding the disputed terms.).
27 Ashley v. Baker, 867 P.2d 792, 794 n.1 (Alaska 1994)
(noting that the seemingly rigid three-step formulation [for deed
interpretation] may be out of step with our approach to contract
interpretation, which do[es] not require a threshold finding of
ambiguity before considering extrinsic evidence).
28 Norken, 823 P.2d at 626 (holding that a deed was
ambiguous where it warranted quiet enjoyment but also reserved
gravel rights because quiet possession of the premises and
removal of the gravel are mutually exclusive); see also Ashley,
867 P.2d at 793-94 (holding that deed granting a 1/2 interest in
lot 13 . . . specifically the 1 acre lot with apt C located on it
was open to three possible interpretations and therefore
ambiguous); Ault v. State, 688 P.2d 951, 955 (Alaska 1984)
(noting that the phrase in addition to existing highway created
ambiguity in a deed); Dimond v. Kelly, 629 P.2d 533, 540 (Alaska
1981) (noting that a deed conveying title to various buildings
was ambiguous regarding what land was conveyed along with the
buildings); Shilts v. Young, 567 P.2d 769, 773-74 (Alaska 1977)
(noting that a deed was ambiguous where it described property
with reference to a survey map that could not be located).
29 Norken, 823 P.2d at 626; see also 9 Thompson on Real
Property 82.13(b)(2), at 668 (David A. Thomas ed., 2d ed. 1999)
(The intent of parties must be ascertained from the whole
instrument and not from isolated portions thereof.).
30 The parties use the word riparian to discuss rights to
the tidelands in this case, though that term is usually used to
refer to rights to streams or rivers. See Blacks Law Dictionary
1352 (8th ed. 2004) (defining riparian as [o]f, relating to, or
located on the bank of a river or stream (or occasionally another
body of water, such as a lake)).
31 See, e.g., Olde Severna Park Improvement Assn, Inc. v.
Gunby, 936 A.2d 365, 373 (Md. 2007) (When waterfront property is
conveyed, there exists a presumption that the property is
accompanied by the riparian rights to those waters.); McAdam v.
Smith, 350 P.2d 689, 692-93 (Or. 1960) (recognizing that a
conveyance of the upland passes title to land in the bed of the
river or way and applying this presumption to conveyances
involving abutting tideland as well); see also 78 Am. Jur. 2d
Waters 44 (2002) (discussing the presumption arising from a
conveyance of the upland).
32 Norken, 823 P.2d at 626.
33 Id.
34 Id. (internal quotation marks omitted).
35 The Simonson heirs argue that in order to prevail the
lot owners must demonstrate by clear and convincing evidence that
their deeds should be reformed so as to encompass the disputed
parcel. See Groff v. Kohler, 922 P.2d 870, 874 (Alaska 1996)
([A] party will be able to obtain reformation of an instrument
only if that party can clearly and convincingly show that both
parties had an identical intention as to the terms to be embodied
in the proposed written conveyance and the writing executed by
them is materially at variance with that intention. (internal
quotation marks, emphasis, and alterations omitted)). Because we
find that Plat P-48B is ambiguous, we do not think it is
necessary that the clear and convincing standard required for
reformation be met.
36 See Robert G. Natelson, Modern Law of Deeds to Real
Property 8.23, at 217 (1992) (Some courts . . . notably but not
exclusively those of Texas apply a presumption known as the
strip and gore doctrine . . . . (footnote omitted)).
37 Moore v. Energy States, Inc., 71 S.W.3d 796, 799 (Tex.
App. 2002). The phrase strip and gore doctrine also appears to
be used at times to refer to narrower, related presumptions
regarding strips of land along highways or railroad rights of
way. See, e.g., Blendu v. United States, 79 Fed. Cl. 500, 507
n.7 (Fed. Cl. 2007); 9 Thompson on Real Property, supra note 29,
82.13(e), at 682-83.
38 Cantley v. Gulf Prod. Co., 143 S.W.2d 912, 915 (Tex.
1940).
39 Natelson, supra note 36, 8.23 at 218.
40 See Miller v. Crum, 314 S.W.2d 389, 395 (Tex. Civ. App.
1958) (The strip and gore doctrine is a rule of construction of a
deed based on public policy to discourage separate ownership of
narrow strips of land and applies only to ambiguous deeds,
whether the ambiguity is found in the deed itself or arises from
an attempt to apply the description on the ground.).
41 Norken, 823 P.2d at 626.
42 We note in passing that the superior courts decision to
grant the disputed parcel to the lot owners seems consistent with
the strip and gore doctrine.
43 AS 09.45.800.880.
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