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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jerry C. McCavit and Brenda D. McCavit v. Barbara Lacher, Louis Lacher, and State of Alaska, Department of Natural Resources (8/16/2019) sp-7398

Jerry C. McCavit and Brenda D. McCavit v. Barbara Lacher, Louis Lacher, and State of Alaska, Department of Natural Resources (8/16/2019) sp-7398

          Notice:   This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  


          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

JERRY  C.  McCAVIT  and                                         )  

BRENDA  D.  McCAVIT,                                            )  

                                                                )     Supreme  Court  No.  S-16715  

                              Appellants,                       )  


                                                                )     Superior Court No. 3PA-13-00918 CI  

          v.                                                    )  


                                                                      O P I N I O N  




and STATE OF ALASKA,                                            )  


DEPARTMENT OF NATURAL                                           )  

RESOURCES,                                                      )  


                                                                      No. 7398 - August  16, 2019  

                              Appellees.                        )  



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


                    Judicial District, Palmer, Vanessa White, Judge.  


                    Appearances:            Kevin  T.  Fitzgerald,  Ingaldson  Fitzgerald,  


                    P.C., Anchorage, for Appellants.  Brian Duffy, Gruenstein,  


                    Hickey,  Havelock  &  Duffy,  Anchorage,  for  Appellees  


                    Barbara Lacher and Louis Lacher.  Notice of non-filing filed  


                    by     Jessica   M.   Alloway,   Assistant   Attorney                        General,  


                    Anchorage, and Jahna Lindemuth, Attorney General, Juneau,  


                    for  Appellee   State  of  Alaska,   Department   of  Natural  



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


                    Justices. [Maassen, Justice, not participating.]  


                    CARNEY, Justice.  

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


                      Jerry and Brenda McCavit built a dock extending into Wasilla Lake from  


their upland property.  Their neighbors, Barbara and Louis Lacher, sued the McCavits  


claiming the dock unreasonably interfered with their riparian rights and constituted a  


private nuisance.  The superior court found for the Lachers and issued an injunction  


ordering the McCavits to remove a portion of their dock.  The McCavits now appeal.  


Because we announce a new rule of reasonableness regarding riparian or littoral rights,  


we vacate the superior court's Findings of Fact and Conclusions of Law and Order  


Granting Injunctive Relief and Nuisance Abatement, remand for the superior court to  


conduct the proper legal analysis, and vacate the superior court's award for attorney's  


fees and costs.  




           A.         Facts  

                      Barbara and Louis Lacher own property abutting Wasilla Lake.  Jerry and  


Brenda McCavit own adjacent property abutting Wasilla Lake to the east of the Lachers'  


property. Both families own their respective property up to the ordinary high water mark  


of  Wasilla  Lake,  making  them  littoral  landowners.1                                     The  Lachers  purchased  their  


property in 1974 and the McCavits purchased their property in 1991.  


                      When the McCavits bought their property, neither they nor the Lachers had  


a dock.  For 30 years the Lachers' western neighbors allowed the Lachers to use their  


           1          Throughout   this   opinion,   we   use   the   terms   "riparian"   and   "littoral"  

interchangeably.  "Riparian" means "[o]f, relating to, or located on the bank of a river                                       

or stream (or occasionally another body of water, such as a lake)."                                           Riparian, BLACK 'S  

LAW  DICTIONARY  (10th ed. 2014).                          "Littoral" means "[o]f, relating to, or involving the                          

coast or shore of an ocean, sea, or lake."                         Littoral,  id.  

                                                                     -2-                                                              7398

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

dock. But in 2012 or 2013, after several incidents involving the Lachers' grandchildren,                                                                     

the western neighbors asked the Lachers to stop using the dock. The Lachers then began                                                                                         

considering building a dock from their own property.                                                                 

                             Meanwhile in March 1992, the McCavits were granted a permit from the                                                                                    

Alaska Department of Fish and Game (ADFG) to construct a dock from their property                                                                                        

                                        2   They completed their dock before the permit expired at year's end.  

into Wasilla Lake.                                                                                                                                                                            

Between 2011 and 2012 the McCavits built a 16x20 foot extension to the original dock.  


They never sought nor were granted a permit for this extension.  The extension was  


attached at a right angle to the original dock,  and  extended  in the direction of the  


Lachers' property.  


                             Both families make use of the lake.  The McCavits, their family, and their  


friends use and frequently park a variety of watercraft at the McCavits' dock during the  


summer.   Jerry McCavit testified that he built the extension to accommodate larger  


watercraft, to reach deeper water, and to make it easier for his aging father to visit.  The  


Lachers and their family and friends also enjoy using the lake.   Their children and  


grandchildren often use the lake for swimming, boating, fishing, and other recreational  




                             In the spring of 2012 the Lachers informed their daughter, Randy Lacher,  


about their displeasure with the McCavits' dock and the fact that it was "in front of" their  


property.                Randy,  who  was  then  employed  by  the  Alaska  Department  of  Natural  


Resources (DNR), began making inquiries into her parents' rights regarding the lake and  


the McCavits' dock. Randy obtained a copy of the agency's "Generally Allowed Uses"  


regulation.  The regulation allows an upland littoral property owner to build a dock for  




                             See  former AS 16.05.870(b) (1987)  (requiring permit for construction  


within anadromous fish habitats).  

                                                                                           -3-                                                                                          7398  

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

personal, noncommercial use provided the dock is within the "projected sidelines" of the                                                                                       

upland   littoral   property   or   is   built   with   consent   of   the   neighboring   upland   littoral  

                                  3    After receiving the copy of the regulation, Randy contacted Jerry  

property owner.                                                                                                                                                          

McCavit to discuss the dock and whether it was "in front of" the Lachers' property.  


                            Later in thesummer of2012ADFGsent the McCavits a NoticeofViolation  


advising  them that  their  dock  extension  was  constructed  in  violation  of  permitting  


requirements.  Although it is possible that the McCavits' construction of the extension  


could  have  supported  a  misdemeanor  charge,4                                                        ADFG  took  no  further  action.                                       In  


November the Lachers obtained a permit to construct a 10x50 foot dock that would  


extend from their property.  However the Lachers never constructed or made definite  


plans to construct a dock.  


              B.            Trial Proceedings  


                            In  early  2013  Randy  attempted  to  have  DNR  enforce  its  "Generally  


Allowed Use" regulation against the McCavits' dock. She was informed that DNRcould  


not enforce the "projected sidelines" language because the Commissioner had found the  


language vague and ambiguous.  After being advised that they would need to pursue a  


civil suit to obtain the relief they sought, the Lachers sued the McCavits in superior  


court.           They  brought  three  claims:                                   the  dock  interfered  with  their  riparian  rights,  


constituted a private nuisance, and was a trespass.  


                            The court granted the McCavits' motion to require the Lachers to join DNR  


as a necessary party because the dock was located on state land. In response the Lachers  


              3             11 Alaska Administrative Code (AAC) 96.020(a)(2)(B) (2018).                                                           

              4             See AS 16.05.881 ("If a person . . . begins construction on a work or project  


or use for which notice is required . . . without first providing plans and specifications   

subject to the approval of the commissioner . . . , the person or agency is guilty of a  



                                                                                       -4-                                                                                7398

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


amended  their  complaint  to  allege  that  DNR  violated  their  due  process  rights  by  


arbitrarily and capriciously failing to enforce the "Generally Allowed Use" regulation.  


DNR successfully moved for summary judgment, arguing that it was not required to act,  


and was dismissed as a party.  The court's order held that:  (1) the Lachers did not have  


a "significant property interest" in the submerged lands of Wasilla Lake; (2) at most the  


Lachers  had  a  right  of  reasonable  access  to  Wasilla  Lake,  which  "ha[d]  not  been  


completely obstructed by the McCavits' dock"; and (3) if DNR had found that the  


McCavits' dock violated the "Generally Allowed Uses" regulation, that decision would  


have  been  arbitrary  and  capricious  because  DNR  had  previously  found  the  term  


"projected sidelines" vague and ambiguous.  


                    The McCavits also moved for summary judgment on the Lachers' trespass  


claim, arguing that the Lachers did not have title to the lake and therefore could not  


maintain a trespass claim. The superior court agreed and granted summary judgment on  


this claim.  


                    Trial proceeded on the remaining claims of unreasonable interference with  


riparian rights and private nuisance.  The Lachers' witnesses testified that the Lachers'  


preferred location for their potential dock would be on the eastern side of their property,  


which  would  conflict  with  the  McCavits'  existing  dock.                                        But  witnesses  also  


acknowledged that the Lachers could build a dock elsewhere on their property so as not  


to conflict with the McCavits' dock.  


                    After four days of trial the superior court issued its Findings of Fact and  


Conclusions of Law and Order Granting Injunctive Relief and Nuisance Abatement on  


May 7, 2017. The court found that the McCavits' dock unreasonably interfered with the  


Lachers' riparian rights and constituted a private nuisance.  It ordered the McCavits to  


remove a portion of their dock.  

                                                                -5-                                                         7398

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

              C.             Post-Trial Proceedings   

                             Later in May 2017 the Lachers moved for attorney's fees and costs as the                                                                              

prevailing party under Alaska Rule of Civil Procedure 82. They submitted fees and costs                                                                                        

dating from 2012 and including fees incurred as part of their claims against DNR upon                                                                                          

which they had not prevailed.                                     The Lachers asserted that they were entitled to 30% of                                                             


their fees of $120,070, which amounted to $36,021.                                                                                                                                

                                                                                                               The superior court awarded the full  


$36,021 over the McCavits' objection.  The court's order included a handwritten note:  


"The Court is not persuaded that some of plaintiffs' fees must be allocated to their  


litigation against DNR.  The State became a party only due to the McCavits' insistence  


that DNR was a necessary party."  


                             The McCavits moved for a stay of the superior court's injunction pending  


this appeal. The superior court denied this motion, but in doing so "clarified" its original  


decision. The superior court noted that it had "already determined the merits of this case  


and . . . found the McCavit[s'] dock to be a nuisance to the Lacher[s]." In February 2018  


we granted the McCavits' motion to stay the injunction pending resolution of this appeal.  


                             The  McCavits  appeal.                                They  contend  that  the  superior  court  erred  in  


determining that their dock unreasonably interfered with the Lachers' riparian rights and  


constituted a private nuisance, and that injunctive relief was therefore inappropriate.  


Because the superior court had not yet ruled on the Lachers' motion for attorneys fees  


when  the  McCavits  filed  their  opening  brief,  we  granted  their  motion  to  allow  

                                                                                           6    We therefore also address  the award of  


supplemental briefing on attorney's fees. 

attorney's fees and costs.  


              5              See  Alaska R. Civ. P. 82(b)(2).               



                             The McCavits originally appealed on June 5, 2017, but  the award for  


attorney's fees and costs was not issued until December 12, 2017.  

                                                                                          -6-                                                                                 7398

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

III.          STANDARD OF REVIEW                   

                          "[W]e will not consider arguments that were not raised below, unless the                                                                  

issues establish plain error, or the issues (1) do not depend upon new facts, (2) are                                                                              

closely related to other arguments at trial, and (3) could have been gleaned from the                                                                               




                          "[W]hether thesuperior court applied thecorrectlegalstandard"  and"used  



the appropriate burden of persuasion"                                         are questions of law.  We consider "whether a  



trial court has applied the correct legal test" to be a question of law.                                                                           We review  


questions of law and a superior court's application of the law to facts de novo, using our  


independent judgment to "adopt the rule of law that is most persuasive in  light of  



precedent, reason, and policy." 

IV.          DISCUSSION  


             A.           The McCavits Did Not Waive Any Of Their Arguments On Appeal.  


                          TheLachers firstarguethat theMcCavitswaived severaloftheir arguments  

             7            Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc.                                                                      , 32   

P.3d 346, 351 (Alaska 2001).                  

             8            Burton  v.  Fountainhead  Dev.,  Inc.,  393  P.3d  387,  392  (Alaska  2017)  


(alteration in original) (quoting Ayuluk v. Red Oaks Assisted Living, Inc. , 201 P.3d 1183,  


 1194 (Alaska 2009)).  


             9            Fernandes v. Portwine, 56 P.3d 1, 4 (Alaska 2002).  


             10           Armstrong v. Tanaka , 228 P.3d 79, 82 (Alaska 2010); see Anchorage  


 Chrysler Ctr., Inc. v. DaimlerChrysler Corp., 129 P.3d 905, 916 (Alaska 2006) ("[W]e  


thinkthesuperior court's failure to make factual findings appropriateto therelevant legal  


test . . . was an error of law, just as erroneous jury instructions are an error of law.").  


             11           Riddle v. Lanser, 421 P.3d 35, 44 (Alaska 2018) (quoting Douglas Indian  


Ass'n v. Cent. Council of Tlingit & Haida Indian Tribes of Alaska , 403 P.3d 1172, 1175  


(Alaska 2017)).  


                                                                                  -7-                                                                           7398

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


on appeal by                              failing to                     raise them during the trial                                                           proceedings.                                  But because the                          

McCavits did raise these issues during the trial proceedings, the issues have not been                                                                                                                                                            


                    B.                  The Superior Court Applied The Proper Standard Of Proof.                                                                                                                    

                                        The Lachers also claim that the McCavits waived their argument that the                                                                                                                                         

 superior court improperly applied the preponderance of the evidence standard of proof                                                                                                                                                          

because they did not request the court to apply a different standard.                                                                                                                                             The McCavits   

respond that "[p]arties do not have to invoke burdens of proof and persuasion; they are                                                                                                                                                                 


                                        "Preponderance of the evidence is the general burden of persuasion in civil                                                                                                                                 



cases."                      A party that wants the court to apply a higher standard of proof must request  

       14                                                                                                                                                                                                                                                   15  

             failure to raise this issue before the trial court fails to preserve the issue for appeal.                                                                                                                                                           


                    12                  The Lachers claim that the McCavits waived their arguments that:                                                                                                                                    (1) the   

Lachers' common law riparian rights were extinguished by                                                                                                                    State, Department of Natural                                  

Resources v. Alaska Riverways, Inc.                                                                      , 232 P.3d 1203 (Alaska 2010); (2) the superior court                                                                                    

used a vague and ambiguous standard for determining littoral property lines; (3) the                                                                                                                                                                   

 superior court erred by maintaining the Lachers' private nuisance claim; and (4) the                                                                                                                                                                  

 superior court improperly considered evidence of view and property value.                                                                                                                                                       

                    13                 Fernandes, 56 P.3d at 5.  


                    14                  See  Lindbo  v.  Colaska,  Inc.,  414  P.3d  646,  651  (Alaska  2018)  ("An  


objection is properly raised only if that party 'provide[d] the superior court with an  


"identifiable opportunity to rule on the issue." ' " (alteration in original) (quoting Reust  


v. Alaska Petroleum Contractors, Inc. , 127 P.3d 807, 816 (Alaska 2005))).  


                    15                  We have similarly ruled that a party must raise an argument regarding the  


allocation of a burden of proof below in order to preserve the issue for appeal.  See  


Reust, 127 P.3d at 816 ("[The party's] failure to offer proposed language that would have  


correctly allocated the burden of proof means that [it] did not provide the superior court  


with an 'identifiable opportunity to rule' on the issues it now raises." (quoting Manes v.  



                                                                                                                            -8-                                                                                                                   7398

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

When a party fails to preserve such an issue for appeal, we review it for plain error.                                                       16  


                       To demonstrate plain error, the McCavits must prove that "an obvious  




mistake has been made which creates a high likelihood that injustice has resulted." 


Such a mistake is not present in this case.  In Fernandes v. Portwine we explicitly held  


that preponderance of the evidence is the appropriate standard of proof for nuisance  

          18   The McCavits primarily rely on Spenard Action Committee v. Lot 3, Block 1,  


Evergreen Subdivision19 to argue that clear and convincing evidence should apply.  But  



we  distinguished  Spenard  Action  Committee  in  Fernandes.                                                    In  Spenard  Action  


Committee the statutes at issue were "quasi-criminal nuisance statutes"21 that imposed  


heavy sanctions and therefore demanded a higher burden.22  In Fernandes we rejected  


the suggestion that the higher burden was appropriate in the absence of such concerns  


           15          (...continued)  


Coats, 941 P.2d 120, 125 n.4 (Alaska 1997))).  

           16         Id.  

           17         Lindbo, 414 P.3d at 652(quoting                        Small v. Sayre          , 384 P.3d 785, 786 (Alaska           


           18         Fernandes, 56 P.3d at 5.  


           19          902 P.2d 766 (Alaska 1995).  They also refer to an unpublished decision,  


Trails North, Inc. v. Seavey, to support their argument.  Nos. S-8425/S-8505, 1999 WL  


33958785 (Alaska Dec. 1, 1999).  


           20          56 P.3d at 5.  


           21         Id. at 5.  


           22          The statutes at issue were AS 09.50.170-.240, which govern abatement of  


illegal uses of premises.  Spenard Action Comm., 902 P.2d at 774. The severe sanctions  


discussed in the case dictate that "[a]ll personal property used in the nuisance must be  


removed and sold, and the building used in the nuisance must be closed for one year."  


Id. at 775; see also AS 09.50.210(a).  


                                                                       -9-                                                               7398

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

and held that a preponderance of the evidence standard applied in private nuisance                                                    



                The McCavits have failed to demonstrate that the present case demands the  


higher standard employed in Spenard Action Commitee.   The superior court did not  


plainly err by applying the preponderance of the evidence standard of proof.  


            C.	        We Extend Our Rule Of Reasonable Use To Riparian And Littoral  


                       Landowners AndRemandForTheSuperiorCourt ToApplyTheRule  


                       To Determine Whether The McCavits' Dock Was An Unreasonable  


                       Interference With The Lachers' Littoral Rights.  


                       1.	         Riparian and littoral rights defined  


                        Alaska is unique in that "[t]he people of the state have a constitutional right  



to  free  access  to  and  use  of  the  navigable  or  public  water  of  the  state."                                                       This  


constitutional right does not create a private cause of action; rather, the constitutional  


right of free access to and use of navigable or public water is a right shared by the  

           25  and enforced by the State.26  


            23	        Fernandes, 56 P.3d at 5.                

            24         AS   38.05.126(a),   (b);   see   also   State,   Dep't   of   Nat.   Res.   v.   Alaska  

Riverways,  Inc.,  232  P.3d  1203,  1211  (Alaska  2010).                                             Wasilla  Lake  is  one  such  


navigable water held in trust by the State.                                   Wasilla Lake           , A  LASKA   DEP 'T OF               FISH   &  


&LakeID=205 (last visited July 11, 2019).                       

            25         See Alaska Const. art. VIII,  16; see also AS 38.05.126(c)  ("Ownership  


of land bordering navigable or public water does not grant an exclusive right to the use  


of the water and a right of title to the land below the ordinary high water mark is subject  


to the rights of the people of the state to use and have access to the water for recreational  


purposes or other public purposes for which the water is used or capable of being used  


consistent with the public trust.");  Alaska Riverways, Inc. , 232 P.3d at 1212 (quoting  


AS 38.05.126(c)).  


            26         See AS 38.05.505; AS 46.15.250.  


                                                                       -10-	                                                                 7398

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

                         Litigation over water rights frequently involves competing consumptive                                          

uses, such as a riparian or littoral landowner's right to appropriate a quantity of water for                                                               

                                                      27    Alaska has adopted the Water Use Act to regulate the  

purposes such as agriculture.                                                                                                                              

                                                                                        28     But  the  McCavits'  dock  is  not  a  

appropriation  and  consumptive  use  of  water.                                                                                                              


consumptive use of water; the McCavits built a structure in the water and the Lachers  


allege that the placement of the structure affects their property rights.  


                         Our previous cases regarding non-consumptive uses of water have not  


involved  the  rights  of  riparian  neighbors.                                        We  have  considered  competing  non- 


consumptive uses in the context of the natural flow of surface water, specifically surface  


water drainage,29 melting permafrost drainage,30  and surface water diversion.31  We have  


generally applied the reasonable use rule allowing the riparian or littoral landowner "to  


make a reasonable use of his land, even though the flow of surface waters is altered  


thereby   and   causes   harm   to   others,   but   incurs   liability   when   his   harmful  


interference . . . is unreasonable."32  


            27           See, e.g.      ,  Tulkisarmute Native Cmty. Council v. Heinze                                       , 898 P.2d 935, 941          

(Alaska 1995).   

            28           AS 46.15.010-.270.  


            29           SeeOstremv. Alyeska Pipeline Serv.Co., 648 P.2d 986, 990 (Alaska1982);  


see also Weinberg v. N. Alaska Dev. Corp., 384 P.2d 450, 452 (Alaska 1963).  


            30           See Braham v. Fuller, 728 P.2d 641, 642 (Alaska 1986).  


            31           See Pankratz v. State, Dep't of Highways, 652 P.2d 68, 75 (Alaska 1982);  


see also G & A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379, 1381  


(Alaska 1974).  


            32           Braham, 728 P.2d at 642-43 (quoting Weinberg, 384 P.2d at 452); Ostrem,  


648 P.2d at 990-91.  


                                                                             -11-                                                                      7398

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

                                  We must now consider different non-consumptive uses: the right of access                                                                                                   

 and the right to use.                                Because we have applied the reasonable use rule in other cases                                                                                           

 involving the non-consumptive use of water, we extend its application to this arena.                                                                                                                                 In  

 applying such a rule, we must consider what rights each littoral landowner has and how                                                                                                                           

those rights affect a neighbor's correlative rights.                                                          

                                                   a.               Right of access         

                                                                    i.               Overarching right of access                                

                                  Before statehood there was ageneral common law riparian and littoral right                                                                                                     

                                                                                                          33   Under this general law, a riparian or littoral  

 of access to "deep" or "navigable waters."                                                                                                                                                                 

 landowner had "the right of access to [deep or navigable] waters for the purpose of  


navigation," upon which the owner could base an "action against an intruder who places  


 obstacles on the shore that prevent him [or her] from having access to the navigable  


waters."34  Several cases affirmatively recognized this general rulebefore Alaska became  


 a state.35  


                                  After statehood, in  Wernberg v. State we specifically recognized that the  


right of riparian and littoral landowners of access to deep or navigable waters from their  


upland properties was a private property right that could not be taken for public use by  


                 33               See  Columbia  Canning  Co.  v.  Hampton,  161  F.  60,  64-65  (9th  Cir.  1908).  

                 34               Id.  

                 35               See  Dalton   v.  Hazelet, 182   F.   561,   572   (9th   Cir.   1910);  Decker   v.  Pac.  

 Coast  S.S.  Co.,   164  F.  974,  976  (9th  Cir.   1908);   Wrangell  Ice  Co.  v.  McCormack  Dock  

 Co.,   7  Alaska   296,   310-11   (D.  Alaska   1925);  Alaska Juneau Gold  Mining   Co.   v.  N.  

Lumber  Mills,   5  Alaska   269,   271 (D.  Alaska   1915),   aff'd,   Worthen  Lumber  Mills   v.  

Alaska  Juneau   Gold  Mining   Co.,  229  F.  966  (9th  Cir.   1916);   Barron  v.  Alexander , 4  

Alaska  591,  596-97  (D.  Alaska  1912);  Thomas  v.  Pelton,  4  Alaska  510,  517  (D.  Alaska  


                                                                                                         -12-                                                                                                   7398

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


the government unless it paid just compensation.                                                                                                          We were particularly concerned that,                                                                

due to Alaska's unique geography and economy, taking such a right from a riparian or                                                                                                                                                                                 

littoral landowner without just compensation would render property valueless or greatly                                                                                                                                                               

                                                  37   Without discussing the full scope of this right, we noted that the right  

reduce its value.                                                                                                                                                                                                                                            

of access includes more than just access to the main stream of a channel.38  


                                         We revisited the issue in Classen v. State, Department of Highways, setting  


some  limits  on  the  right  of  access.                                                                                In  that  case,  a  riparian  owner  challenged  the  


construction of a bridge that would interfere with his floatplane business.39   We held that  


the bridge was not a taking of the landowner's riparian right of access because he "still  


ha[d] unlimited access to the river itself, for whatever use he cho[se] to make of it"; only  


his access to  the air  via the river  was obstructed.40                                                                                                                   Thus,  although  Wernberg had  


broadened the right of access, it was not so broad as to include a riparian or littoral  


landowner's right of access to the air via navigable water.  


                     36                   516 P.2d 1191, 1199-1201 (Alaska 1973).                                                                       

                     37                  Id.  at 1200-01.   

                     38                  Id.  at1200. Weanalyzedseveral                                                                     cases fromotherjurisdictions,                                                               articulating  

that a more narrow interpretation would mean only a right of access to the main stream                                                                                                                                                                 


of a channel.  Id.  at 1199-1200.   We noted that these courts were concerned with a  

"floodgate" argument "that compensation for an obstruction downstream from property                                                                                                                                                               


would necessitate compensation to all property upstream."  Id.  at 1200.   But due to  

Alaska's unique features, we found that this floodgates problem would work in reverse;                                                                                                                                                             

a narrow interpretation would render riparian or littoral land valueless because Alaska                             

"has a seacoast longer                                                    than   that of the entire United                                                                  States," "[a] large number                                                              of  

Alaskan communities are located on the shores of bays and inlets," and "[a] substantial                                                                                                                                                   

amount of development in these cities is along the waterfront."                                                                                                                                      Id.  at 1200-01.   

                     39                   Classen v. State, Dep't of Highways, 621 P.2d 15, 16 (Alaska 1980).  


                     40                  Id. at 17.  


                                                                                                                                -13-                                                                                                                        7398

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                                                             ii.            Right to wharf out                   

                              Pre-statehood courts considered the right to wharf out as a subsidiary to the                                                                                   

right of access, meaning a riparian or littoral landowner only had the right to wharf out                                                                                                    


as the means by which he or she exercised the right of access.                                                                                In  Dalton v. Hazelet                          the  


Ninth  Circuit  noted  that  owners  of  "land  bordering  on  or  bounded  by  navigable  



waters . . . ha[ve] the right to a free and unobstructed access to such waters."                                                                                              In Alaska  


Juneau Gold Mining Co. v. Northern Lumber Mills, the territorial court noted that the  


right of access to navigable water meant "access to or from the water in the usual way  


by which such access is attained and enjoyed; and that is dependent upon the purpose for  


which such access is desired, and upon the reasonableness of the manner in which it is  

                                                                                           43     Comparing the right of access to navigable  



proposed to make such right available." 

waters to that of access to a highway, the court explained that a littoral landowner had  

the right to wharf out "not because he [or she] ha[d] a right to erect a structure on the  


 shore, but because he [or she] ha[d] a right of access to the deep water, and . . . [could  


not] enjoy that right except by means of a wharf."44  


                              But   the   territorial   court   limited   this   right:                                                          "[T]he   use   must   be  


reasonable. . . . And 'what shall be deemed a reasonable and proper use of a way depends  


               41             See Dalton v. Hazelet                               ,  182 F. 561, 572-73 (9th Cir. 1910);                                                    Ketchikan  

Spruce Mills v. Alaska Concrete Prods. Co.                                                       , 113 F. Supp. 700, 701-02 (D. Alaska 1953);                                         

Alaska Juneau Gold Mining Co. v. N. Lumber Mills                                                                           , 5 Alaska 269, 271 (D. Alaska                           

 1915),  aff'd,  Worthen Lumber Mills v. Alaska Juneau Gold Mining Co.                                                                                         , 229 F. 966 (9th           

Cir. 1916);                Dalton v. Katalla Co.                             , 4 Alaska 410, 415 (D. Alaska 1911).                                   

               42              182 F. at 537.  


               43              5 Alaska at 271.  


               44             Id.  

                                                                                              -14-                                                                                       7398

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


largely on the local situation and on the public usage.' "                                       It announced that "reasonable       


access,   according  to  circumstances,   [is]   all   the   upland   owner   [is]   entitled   to."                                                  

Additionally, the territorial court noted that it would not intervene if a riparian or littoral  


landowner "has other and equally convenient means of access" to navigable waters or  


if the landowner had not yet reasonably exercised his or her right of access.47  


                       Since statehood we have had only one opportunity to discuss the right to  


wharf out, in State, Department of Natural Resources v. Alaska Riverways, Inc.48   There  


we concluded that Wernberg did not create an independent right to wharf out, and all that  


existed was "the common-law right . . . that was recognized in territorial days."49                                                          We  


noted, however, that this common-law right to wharf out "is limited  by  the state's  


exercise of its authority under the public trust doctrine" as incorporated by the Alaska  

                                                         50   Thus, the right to wharf out is the means by which  

Constitution and Alaska Statutes.                                                                                                         


a  riparian  or  littoral  landowner  may  exercise  his  or  her  right  of  access  to  deep  or  


navigable waters, and it may not be unreasonably obstructed.  This right is a qualified  


right and subject to the State regulations.51  


           45          Id.  at 274 (quoting 14 C               YCLOPEDIA OF             LAW  & P       ROCEDURE  1207 (William   

Mack ed., 1904)).     

           46          Id. at 276 (discussing affirmatively Barron v. Alexander, 4 Alaska 591, 598  


(D. Alaska 1912)).  


           47          Id. at 274-75.  


           48          232 P.3d 1203 (Alaska 2010).  


           49          Id. at 1210-11.  


           50          Id. at 1211.  


           51          Id. at 1209, 1212.  


                                                                      -15-                                                                 7398

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

                                            b.             Right to use         

                              Article VIII,  16 of the Alaska Constitution establishes a right to common                                                                    

use of public and navigable state waters that protects a riparian and littoral landowner's                                                                           

right to use the water abutting the land: "No person shall be involuntarily divested of his                                                                                               

right to the use of waters . . . except for a superior beneficial use or public purpose and                                                                                             


then only with just compensation and by operation of law."                                                                                                                              

                                                                                                                                         We noted in Classen that  


the "decision in  Wernberg implied that [this language] is coterminous with riparian  



rights."              Thus, a riparian or littoral landowner has an individual property interest in the  


use of water abutting his or her land, but we have never specified what types of uses this  



may include. 


                              Other jurisdictions have upheld a riparian right to use water for recreational  



purposes.                   We need not specify types of uses allowed because a reasonable use rule  


allows for a riparian or littoral landowner to use the abutting waters in any lawful way  


so long as that use is reasonable.  


                                             c.            Reasonable use rule  


                              We now extend our rule of reasonableness to determine a riparian or littoral  

               52             Alaska  Const.  art.  VIII,     16.  

               53             Classen  v.  State,  Dep't  of Highways,  621  P.2d   15,   17  n.4  (Alaska   1980).   

               54             See  Alaska  Riverways,  Inc.,  232  P.3d  at  1210-11  (observing  that  Wernberg  

"did  not  specifically  address  the  scope  and  limitations"  of  any  riparian  right  except  the  

right  of  access).   In   Wernberg  we  articulated  that  "an  owner  of  land  abutting  a  body  of  

water  (the  riparian  proprietor)  has  an  individual  right  to  use  the  water."    Wernberg  v.  

State,  516  P.2d  1191,  1194  (Alaska  1973).   But  aside  from  stating  this  "general  rule,"  we  

did  not  further  discuss  the  right  and  only  considered  the  right  of  access.   Id.  at   1196,  


               55             See e.g., Taylor v. Tampa Coal Co., 46 So.2d 392, 394 (Fla. 1950); Bino  


v. City of Hurley, 76 N.W.2d 571, 575 (Wis. 1956).  


                                                                                           -16-                                                                                      7398

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

landowner's water rights.                               In so doing we take into account Alaska's unique public trust                                                            

doctrine and historical common-law rights.                                                     Riparian and littoral landowners have the                                           

right of reasonable access to and use of adjacent navigable and public waters of the State,                                                                                    

as they are defined by the legislature, so long as the access or use is lawful and does not                                                                                         

unreasonably    interfere    with   the    correlative    rights    of    other    riparian    or    littoral  

                          56    What is reasonable is a question of fact,57  to be determined by weighing  


a variety of factors.  


                             2.            Reasonableness factors  


                             All riparian and littoral landownershavecorrelativewater rights associated  


with  their  upland  properties.                                     When  one  landowner's  exercise  of  his  or  her  right  


interferes with a neighboring landowner's exercise of the same, the court must compare  


the two uses.  The court must consider:  (1) whether the injured landowner's allegedly  


interfered-withuseis reasonable, and (2) whether theusecausingtheallegedinterference  


is unreasonable.  


                             To determine the reasonableness of each landowner's use, the fact finder  


must consider various factors in the context of the specific facts and circumstances of the  


particular case. TheRestatement (Second)of Torts helpfullyoutlines various factors that  


a court may consider:   (1) the use's purpose; (2) the use's suitability; (3) the use's  


economic value; (4) the use's social value; (5) the extent or amount of harm the use  


causes; (6) the practicality of adjusting the use or method of use to avoid harm; (7) "the  


              56             See   Braham   v.   Fuller,   728   P.2d   641,   642   (Alaska   1986)   (defining  

reasonable use rule in context of melting permafrost);                                                                see also Heston v. Ousler                                , 398   

A.2d 536, 538 (N.H. 1979).                     

              57             See G & A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379,  


 1386 (Alaska 1974); see also Weinberg v. N. Alaska Dev. Corp., 384 P.2d 450, 452-53  


(Alaska 1963).  


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

practicality of adjusting the quantity of water used"; (8) existing values of the use; and                                                                        

 (9)  "the justice of requiring the user causing harm to bear the loss."                                                           58  


                          3.           Vacate and remand to apply the rule of reasonableness  


                          Because we are announcing a new rule for the unreasonable interference  


with riparian or littoral rights, the superior court did not have the benefit of the rule in  


 its application of the law.  Pursuant to the rule we now announce, we must vacate the  


judgment and remand to the superior court to apply it.  On remand the superior court  


must determine the reasonableness of the McCavits' and Lachers' respective littoral uses  


 and  conduct  the  proper  balancing  test  to  determine  whether  the  McCavits'  use  



unreasonably interferes with the Lachers' use.                                                  The superior court must conduct this  


test before it can determine whether the McCavits' dock constitutes a private nuisance.  


An unreasonable interference with a riparian or littoral right might, but also might not,  


be a private nuisance.  While the two torts likely overlap in the present case, they are  

                                                                                                                                60     Moreover,  if  the  


 distinguishable  and  may  not  always  overlap  in  every  instance. 

             58           RESTATEMENT  (SECOND) OF  TORTS   850A (1979).                                        

             59           We leave it to the superior court on remand to consider that the Lachers                                                       

have not yet built a dock, and that therefore "[o]ne riparian's right to make a new use  


may   be   affected   by   the   fact   that  other   riparians   have   already   put   the   water   to  

use . . . [and] [t]o allow the new use [may] wholly or partially destroy the existing use"                                                                      

unless the two uses can coexist without substantial harm to the other.  Id.  850 cmt. d.  


             60           Theunreasonableinterferencewithriparian orlittoral rightscauseofaction  


 affects only those rights that a landowner has by virtue of owning land abutting a body  


 of water.  While an individual has a private property interest in his or her riparian or  


 littoral right as discussed above, this right is incident to land ownership and does not  


 connote title.  See State, Dep't of Nat. Res. v. Alaska Riverways, Inc., 232 P.3d 1203,  


 1212-13 (Alaska 2010).  Conversely, a private nuisance cause of action affects the real  


property  or  water  that  a  landowner  holds  title to.                                                AS  09.45.255.                   Because  of  the  


 incidental relationship between land ownership and riparian or littoral rights, affecting  



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

superior court determines on remand that the McCavits' dock is reasonable or that the                                                                                                                                                                      

Lachers'   use   is   unreasonable,   the   McCavits'   dock   necessarily   cannot  be   a   private  


                                        The   superior   court   therefore   must   first   go   through   the   unreasonable  

interference with riparian or littoral rights analysis to determine whether the McCavits'                                                                                                                                            

dock constitutes an unreasonable interference with the Lachers' littoral rights before it                                                                                                                                                                       

can determine whether it constitutes a private nuisance.                                                                                   

                    D.                  Private Nuisance   

                                        Only if the superior court determines that the McCavits' dock constitutes                                                                                                                   

an unreasonable interference with riparian rights should it consider whether                                                                                                                                                                    it also  

constitutes a private nuisance.                                                             Alaska Statute 09.45.255 defines private nuisance as "a                                                                                                           

substantial and unreasonable interference with the use or enjoyment of real property,                                                                                                                                                    

including water."                                     In  Riddle v. Lanser                                        we considered "whether odors emanating from a                                                                                                  

farmer's storage of [roughly 10 million gallons of] septage on his farmland created a                                                                                                                      


nuisance   to   adjacent   landowners."                                                                                                                                                                                                                   

                                                                                                                       There,  the  odors  were  so  significant  and  the  

                                                                                                                                                                                                                                               62  Here  


nuisance was so obvious that we found it unnecessary to conduct a balancing test. 

the nuisance is not so obvious.  


                                        Additionally, while the Lachers could have and did bring both riparian  


rightsand nuisanceclaims, theseclaimsoverlapped entirely becausetheLachers asserted  


only that the McCavits' dock affected their interests in the access to and use of the water  


                    60                  (...continued)  


one's riparian or littoral right necessarily affects the use and enjoyment of one's real  


property  to  some  degree,  but  to  what  degree  depends  entirely  on  the  facts  and  


circumstances of the particular case.  

                    61                  421 P.3d 35, 39, 42 (Alaska 2018) (footnote omitted).  


                    62                  Id. at 45-46.  


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

abutting their land.                                           63  While it is possible that the Lachers could have claimed that the                                                                                                                                              

McCavits' dock affected other property rights - such as view and property value -                                                                                                                                                                                                   

they did not do so.                                           As such, while view and property value may be factors for the court                                                                                                                                          

to consider on remand, they may not become new claims and the Lachers are not entitled                                                                                                                                                                              

to any damages based on loss of view or diminution of property value.                                                                                                                                               

                      E.                    Attorney's Fees   

                                            Alaska Rule of Civil Procedure 82(a) states that, unless otherwise agreed                                                                                                                                                 

to by the parties or provided by law, "the prevailing party in a civil case shall be awarded                                                                                                                                                                     

attorney's fees."                                       The superior court has broad discretion to determine the prevailing                                                                                                                               



                            But because we remand this case and announce a new balancing test that may  



                                                                                                                                                                                         we vacate the superior court's  

"affect the superior court's prevailing-party analysis," 


award of attorney's fees.  

V.                    CONCLUSION  

                                            Because we announce a new rule of reasonableness, we VACATE the  


superior court's Findings of Fact and Conclusions of Law and Order Granting Injunctive  


Relief and Nuisance Abatement, REMAND for the superior court to conduct the proper  


legal analysis, and VACATE its award of attorney's fees and costs.  


                      63                    The   Lachers   made   no   claim   of   interference   with   any   of   their   upland  

property rights (such as noise, offensive odors, or pollution). Their only claimed interest                                                                                                                                                                         

was to their rights of access to and use of the water.                                                                                                                      

                      64                    Lee v. Konrad, 337 P.3d 510, 525 (Alaska 2014).  


                      65                    Id.  

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