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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ray M. Collins and Carol J. Collins v. David W. Hall and Margaret R. Hall, as Trustees of the D&M Hall Community Property Trust, dated March 14, 2005 (9/27/2019) sp-7410

Ray M. Collins and Carol J. Collins v. David W. Hall and Margaret R. Hall, as Trustees of the D&M Hall Community Property Trust, dated March 14, 2005 (9/27/2019) sp-7410

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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

RAY  M.  COLLINS  and  CAROL  J.                               )  

COLLINS,                                                       )     Supreme  Court  No.  S-16795  



                              Appellants,                      )     Superior Court No.  1JU-14-00771 CI  



          v.                                                   )     O P I N I O N  



DAVID W. HALL and MARGARET R.   )                                    No. 7410 - September 27, 2019  


HALL, as Trustees of the D&M Hall                              )  


Community Property Trust, dated                                )  


March 14, 2005,                                                )  


                              Appellees.                       )  




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


                    Judicial District, Juneau, Philip M. Pallenberg, Judge.  


                    Appearances:  Joseph W. Geldhof, Law Office of Joseph W.  


                    Geldhof, Juneau, for Appellants. Lael A. Harrison, Faulkner  


                    Banfield, P.C., Juneau, for Appellees.  


                    Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  


                    and Carney, Justices.  


                    CARNEY, Justice.  



                    This case concerns a boundary dispute between the Collinses and the Halls,  


who  are adjoining  property  owners in a recreational subdivision  on an island  near  


Juneau. The Collinses alleged that structures on the Halls' property encroached onto the  

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Collinses' property and violated the subdivision's restrictive covenants.  They brought  


claims for quiet title and trespass based on boundaries recorded in a 2014 survey of their  


lot.    This  survey was prepared by the same surveyor  who  had initially  platted  the  


subdivision in the mid-1970s; the 1970s survey in turn referred to a survey monument  


established in 1927.  


                    The Halls responded that the Collinses' surveyor had used the wrong point  


of beginning for his subdivision survey; that a surveyor they had hired in 2012 found the  


true point of beginning based on the 1927 survey; that the correct property boundary lay  


some distance from where the Collinses claimed; and that the supposedly encroaching  


structures were fully on the Halls' land.  The Halls argued that their proposed boundary  


line conformed accurately to the recorded documents and deeds while the Collinses' did  


not.  The superior court found that the boundary advocated by the Halls was correct and  


issued a judgment quieting title based on their 2012 survey, though it acknowledged that  


its decision could cloud title for other property owners on the island.  The court also  


found that the restrictive covenants at issue had been abandoned and concluded they  


could not be enforced against the Halls.  


                    We conclude that the superior court's findings as to the boundary location  


and restrictive covenants were not clearly erroneous, and we therefore affirm the court's  


decision on those issues.  But because the superior court's findings and conclusions did  


not address one of the Collinses' trespass claims, we remand for consideration of that  




          A.        Facts  


                    Carol and Ray Collins own property designated as Lot 14, Area 1, in the  


Colt Island Recreational Development subdivision on Colt Island, near Juneau.  David  

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and   Margaret   Hall,  as  trustees   of   the   D&M Hall                                   Community   Property   Trust,   own  

adjoining land designated as Lot 15, Area 1, in the same subdivision.                                                        

                        The Collinses acquired title to their property by deed in 1990 and co-owned                                     

it   with   another   family   until   2013,   when   the   co-owners   deeded   their   interest   to   the  

                  1   Their 2013 deed, which they recorded, identifies their property as:  "Lot 14,  


Area 1, Colt Island Alaska Recreational Development, according to Plat No. 75-11, U.S.  


Survey No. 1755, Juneau Recording District, First Judicial District, State of Alaska."  


                        The Halls acquired title to their lot by deed in 1994 and recorded their deed  


shortly afterward.  In 2005 they transferred the property to a community property trust  


and again recorded the deed. Their deed, like the Collinses', identifies their property as:  


"Lot Fifteen (15), Area One (1), Colt Island Recreational Development according to Plat  


75-11, U.S. Survey 1755, Juneau Recording District, First Judicial District, State of  




                        The Collinses and Halls each have a cabin on their lot. The Halls' property  


also has a separate "shop" building, which they built, and an outhouse built by Lot 15's  


previous owner.   The parties dispute the location of the boundary line between their  


properties and whether the shop and outhouse encroach onto the Collinses' property.  


Both lots are also close to a right of way known as Totem Pole Trail, though the exact  


location of the lot boundaries relative to the trail is disputed.  


                        Each party's deed states that the party's lot is subject to any recorded  


easements and restrictive covenants. These include a June 1976 declaration of protective  


covenants for the entire subdivision.  At issue are Covenant 5 of the declaration, which  


requires a 20-foot setback from any lot line for "[a]ll cabins, buildings, and storage  




                        They apparently shared the lot with another family until that family deeded  


their interest in the property to the Collinses in 2013.  

                                                                          -3-                                                                        7410  

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facilities of any type," and Covenant 9, which requires all toilet facilities to have a "self-                                                                                                                                                                   

contained chemical holding tank" and to comply with state and federal waste disposal   


                                           Because much of this case centers on the various surveys done on Colt                                                                                                                                                       

Island and on the discrepancies among them that gave rise to the boundary dispute, a                                                                                                                                                                                             

summary of relevant surveys, along with the monuments and markers associated with                                                                                                                                                                                     

them and the boundaries they purport to establish, is useful.                                                                                                             

                                           1.                   U.S. Survey 1755                          

                                           Colt Island was first surveyed in 1927 by Fred Dahlquist, a surveyor for the                                                                                                                                                     

then-existing General Land Office, when the federal government conveyed the entire                                                                                                                                                                                

island to a private owner as a homestead.                                                                                            Dahlquist's survey, titled U.S. Survey 1755,                                                                                  

used an existing survey marker on nearby Admiralty Island, USLM 1285, as a reference                                                                                                                                                                 



                        His field notes provide a bearing and distance from USLM 1285 to his beginning  



point on the northwest corner of Colt Island, which he designated as "Cor. No. 1. M.C." 


The superior court referred to this point as "Meander Corner 1."   Because Meander  


Corner  1  was  an  "unsafe  place"  to  set  a  monument  -  vulnerable  to  erosion  or  


submersion - Dahlquist established a "witness corner" on a rock a short distance from  

                     2                     Surveyor John W. Bean, who later surveyed Colt Island and platted the                                                                                                                                                           

subdivision,   testified   that   USLM stands                                                                                          for   "United   States   location   monument"   or  

"United States land monument" and refers to a permanent monument, usually marked                                                                                                                                                                             

by a heavy brass or aluminum cap, established in a public land survey as a reference for                                                                                                                                                                                    

subsequent surveys of the surrounding area.                                                                                                    

                     3                     According to Bean, "M.C." stands for "meander corner," or a corner where  


meander lines meet.  A meander line on a survey marks the mean high tide line of a  


shoreline or water body boundary; because tides vary, a meander line may not reflect the  


actual  high  tide  line  at  a  later  date,  but  it  may  still  be  used  to  determine  property  


boundaries and areas for legal purposes.  


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Meander Corner 1.                                4  According to his field notes, he marked the rock with a cross and                     

the letters "WC MC1 S1755," to stand for "Witness Corner to Meander Corner 1" of                                                                                                                                           

U.S.  Survey 1755.                                He also established witness corners on two spruce trees nearby, but                                                                                                   

these had apparently been cleared by the time later surveys were done. U.S.                                                                                                                    Survey 1755  

shows meander lines for the entire perimeter of Colt Island but does not subdivide the                                                                                                                                  

island's interior.                           Based on the survey field notes, the distance between WCMC1 and                                                                                                           


USLM 1285 is 3,814.61 feet, and the bearing is N3124'42"E.   

                                   2.               Plat 75-11   

                                   In the mid-1970s, the owners of Colt Island partnered with a developer to                                                                                                               


subdivide the island for recreational use and sale. The developer hired surveyor John W.  


Bean to perform a survey and create a subdivision plat, intending to create 100-by-150- 


foot beachfront lots to sell as cabin lots.  

                                   Bean   began   his   surveying   work   in   1974.     Because   Dahlquist   had  not  


monumented Meander Corner 1, Bean instead attempted to find Dahlquist's witness  


corner, WCMC1.  He later testified that he could not find a rock carved with the labels  


listed in Dahlquist's field notes, but he did eventually find a rock that appeared to be  


marked with a "fine X," which he "accepted to use" as the survey's point of beginning,  


believing it to be WCMC1.  Starting from this point, Bean set up a number of "control  


points," or reference markers - generally rebar stakes that he would label or cover with  

                 4                 Bean testified that if a monument cannot be set at the referenced point or                                                  

is set at an unstable location, a witness corner is a point that refers by bearing and                                                                                                                                

distance to the point where another monument is or should be.                                                                                                       

                 5                 The bearing indicates that, from USLM 1285, the direction of WCMC1 is  


3124'42" east of north.  The field notes do not give this distance or bearing; however,  


they provide the distance and bearing from USLM 1285 to Meander Corner 1 and from  


Meander Corner 1 to WCMC1.  The distance and bearing between USLM 1285 and  


WCMC1 can therefore be mathematically calculated.  


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a plastic or aluminum cap - for the planned subdivision.                                                                                                                                                  These control points were                                                   

placed merely to assist Bean with completing his survey; he did not intend them to be                                                                                                                                                                                                          

survey monuments that future surveyors could use as references, and he later testified                                                                                                                                                                   

that monuments, unlike temporary control points, should be identifiable by name or                                                                                                                                                                                                             

description and durable enough to last a number of years.  As part of this initial work,   

Bean and the developer also had loggers clear Totem Pole Trail, which was planned as                                                                                                                                                                                                            

a 20-foot-wide right of way along the western side of the island; the developer had an  

extra five feet cleared on either side of the trail.                                                                                                                

                                              In 1975 Bean recorded a plat of the subdivision, Plat 75-11. Plat 75-11 was                                                                                                                                                                 


a "paper plat," meaning that it did not record any field work or new monumentation.                                                                                                                                                                                                                       

Instead it referred to U.S. Survey 1755 and its associated monuments.  


                                              3.                    Informal survey by David Hall in 1999  


                                              David Hall performed an "informal survey" of his own lot in August 1999  


to try to determine his property lines in preparation for expanding his cabin. He testified  


that when he bought the property, "[n]obody really knew exactly where the property  


lines were," but "it didn't seem to be a problem" because "everybody was friends."  He  


started his survey from a stake at what he believed was a corner of Lot 18, three lots  


away  from  his  property;  he  apparently  assumed  this  stake  was  from  the  "original  


survey."  Measuring 300 feet from the stake on Lot 18, he found a partially rotted stake  


                       6                      Thesurveyors                                    who testified at trial agreed that at the                                                                                    time, state lawallowed                            

Colt   Island,   as   part   of   an   unorganized   borough,   to   be   subdivided   for   sale   and  

development   based   on   a   paper   plat   that   was   not   field-surveyed   or   recorded.    This  

remained   true   until   1998   when   the   Alaska   legislature   passed   AS   40.15,   requiring  

subdivision plats in unorganized boroughs to be approved by the Department of Natural                                                                                                                                                                                         

Resources and imposing monumentation requirements for those subdivisions.                                                                                                                                                                                                   Ch. 40,   

    10,   SLA   1998;   see   AS   40.15.305   (requiring   approval  of   plats);   AS   40.15.320  

(requiring monumentation).   

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 at what he believed was the northeastern corner of his lot, Lot 15.                                                                                                                                                                                                                                                                                                                              He assumed this too                                                                                    

 "was from the original survey" and replaced it with a piece of rebar.                                                                                                                                                                                                                                                                                                                                                          He then placed                                      

 additional stakes where he believed the boundary between Lot 15 and Lot 14 lay.                                                                                                                                                                                                                                                                                                                                                                                                                The  

 drawing he created afterward indicates that, according to the boundaries he marked, a                                                                                                                                                                                                                                                                                                                                                                                                                              

 generator shed on the Collinses' property - which at the time they co-owned with                                                                                                                                                                                                                                                                                                                                                                                                               

 another family - encroached a few feet onto the Halls' property.  This shed was later                                                                                                                                                                                                                                                                                                                                                                                

removed.     The   Halls'   shop   and   outhouse   lay   fully   within  Lot  15   according   to   the  

boundaries Hall determined.                                                                                                                                                When doing his survey, Hall apparently looked for but                                                                                                                                                                                                                                                                       

 could not find WCMC1.                                                                                                                            

                                                                               4.                                     Survey work by Bean in 2009                                                                                                                              

                                                                               Bean, the surveyor who created Plat 75-11, performed additional surveys                                                                                                                                                                                                                                                                                                                         

 of various lots in the subdivision between the 1970s and the 2000s. Notably, in 2009 he                                                                                                                                                                                                                                                                                                                                                                                                                      

was asked to survey multiple lots, including the Collinses'.                                                                                                                                                                                                                                                                                              In the course of that survey                                                                                              

he placed markers                                                                                                     on what he believed to be the corners of Lot 14, the Collinses'                                                                                                                                                                                                                                                                        

property. He determined the corner locations based on corners he had previously placed                                                                                                                                                                                                                                                                                                                                                                                                

 on a neighboring lot, which in turn were based on the control points he had set in the                                                                                                                                                                                                                                                                                                                                                                                                                  

  1970s.   The boundaries Bean marked in 2009 were different from those Hall had found                                                                                                                                                                                                                                                                                                                                                                                                   

in 1999 by roughly ten feet.                                                                                                                                                     Bean did not attempt to locate Meander Corner 1 or                                                                                                                                                                                                                                                                          

WCMC1 and did not record any surveys of Colt Island at the time.                                                                                                                                                                                                                                                                                                                                            

                                                                               5.                                     Plat 2012-32   

                                                                               In 2012, a few months after the co-owner of the Collinses' lot died, the                                                                                                                                                                                                                                                                                                                                                  

 Collinses   apparently   notified   the   Halls   that   the   Halls'   shop   and   outhouse   were  

 encroaching over the boundary Bean had marked and threatened to sue. In response the                                                                                                                                                                                                                                                                                                                                                                                                                     

Halls hired R&M Engineering, Inc., to perform and record an "as-built survey" of their                                                                                                                                                                                                                                                                                                                                                                                                           

 lot showing "all of [the Halls'] buildings in relationship to the property lines."                                                                                                                                                                                                                                                                                                                                                                                                          Hall  

                                                                                                                                                                                                                                                       -7-                                                                                                                                                                                                                                      7410

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believed that R&M's survey would "supersede[] what [he] did" in 1999, as Hall was not  


a licensed surveyor and had not recorded any of his work.  


                    Surveyor  Mark  Johnson,  who  led  the  R&M  survey  crew  but  did  not  


personally visit Colt Island, reviewed Dahlquist's U.S. Survey 1755 and his field notes,  


as well as Plat 75-11, prior to beginning his survey.  He instructed his survey crew to  


follow U.S. Survey 1755 as closely as possible, including searching for the monuments  


to which Dahlquist's field notes referred.  According to Johnson, his crew began by  


measuring the bearing and distance given in Dahlquist's field notes from USLM 1285  


to Meander Corner 1.  Johnson indicated that his crew "had no problem finding" a rock  


engraved with a cross and the letters "WCMC1 S1755," which they took to be WCMC1.  


They determined this monument to be 3,813.49 feet from USLM 1285, at a bearing of  


N3124'42"E.  This bearing matched the bearing calculated according to Dahlquist's  


field notes; the distance is roughly one foot off.  Starting from this point, R&M's crew  


located the Halls' lot based on information in Plat 75-11. Johnson stated that Plat 75-11  


on its own was not sufficient to locate any specific subdivision lot because it did not  


record any monuments being set; it had to be used in conjunction with U.S. Survey 1755.  


                    Based on this survey, R&M filed a record of survey, Plat 2012-32.  The  


boundaries of Lot 15 on Plat 2012-32 are roughly 20 feet west and 16 feet south of where  


Bean's 2009 survey placed them.   Based on the Plat 2012-32 boundaries, both the  


outhouse  and  shop  are fully  within  the  Halls'  lot  and  sit  at  least  15  feet  from the  


boundary with the Collinses' lot.  


                    6.        Plats 2014-46 and 2015-37  


                    In July 2014 the Collinses filed suit against the Halls.  Shortly afterward,  


they requested another survey from Bean.  He filed a record of survey, Plat 2014-46,  


confirming the boundaries he had set in 2009. Bean did not go back to look for Meander  


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Corner 1 or WCMC1 while creating Plat 2014-46, though he did compute a location for                                                                                                                                                                                                 

WCMC1 and mark it on the record of survey.                                                                                                               

                                            The   following   year   Bean   amended   Plat   2014-46   and   recorded   the  

amendment as Plat 2015-37.                                                                       For the amended survey, Bean's point of beginning was                                                                                                                          

a monument he placed at a location he believed to be Meander Corner 1.                                                                                                                                                                         He based this                     

determination on his continued assumption that the rock with the faint "X" he had                                                                                                                                                                                               

located in the 1970s was WCMC1. The amended plat showed a slightly different bearing                                                                                                                                                                                 

for Meander Corner 1 than Plat 2014-46 and included an icon marking Bean's assumed                                                                                                                                                                               

WCMC1, but did not change the boundary between Lot 14 and Lot 15 as determined by                                                                                                                                                                                                    

Plat 2014-46.                                    The Collinses assert that this is the correct boundary.                                                                                                                                     According to  

Plat 2015-37, Meander Corner 1 is 3,841.62 feet from USLM 1285 at a bearing of                                                                                                                                                                                                       

                                                 7   This bearing closely coincides with that given in the field notes to U.S.  


 Survey  1755,  S3113'W,  but  the  distance  is  about  22  feet  longer.                                                                                                                                                                There  are  also  


discrepancies between Plat 2015-37 and Plat 75-11 in the bearings and distances of the  


meander lines between Meander Corner 1 and Lot 14.  


                      B.                    Proceedings  

                                            1.                    Pretrial proceedings  


                                            The Collinses filed their complaint for quiet title and trespass against the  


Halls in superior court in July 2014.  They also sought declaratory judgments to:  (1)  


confirm the boundary lines they claimed Bean had monumented in 2009 and (2) find the  


Halls in violation of the restrictive covenants imposing setback restrictions and sewage  


disposal requirements. They alleged that the Halls' shop and outhouse encroached onto  


                      7                     Plat 2012-32 and Plat 2015-37 use slightly different conventions for giving                                                                                                                                                 

bearings.    Plat 2012-32 records the bearing looking northeast from USLM 1285 to                                                                                                                                                                                                    

WCMC1, while Plat 2015-37 records the bearing looking southwest from its purported                                                                                                                                                                           

Meander Corner 1 to USLM 1285.                                                                                       

                                                                                                                                          -9-                                                                                                                                7410

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Lot 14 and that the outhouse dumped sewage "directly into a hole in the ground" instead  


of into a holding tank as required by the covenants. They based their trespass claim both  


on the Halls' outbuildings and on an allegation that the Halls had personally trespassed  


onto the Collinses' land.  


                    TheHalls filedan answer thefollowing month,denying that their structures  


encroached  on  the  Collinses'  land,  alleging  that  Bean  had  never  surveyed  or  


monumented the property boundaries, and raising a number of affirmative defenses. The  


Halls counterclaimed alternatively that Plat 2012-32 established the correct boundaries  


and that they were entitled to possession of the disputed land by adverse possession.  


Finally, they sought declaratory judgments that they had not violated the restrictive  


covenants governing set-backs and sewage disposal based on "inconsistent compliance"  


by other lot owners in the subdivision. The Collinses answered the Halls' counterclaims  


in September 2014, raising various affirmative defenses.  


                    2.        Independent review of surveys  


                    In late 2015, in the course of settlement negotiations, the parties arranged  


to have another surveyor, John Bennett, independently review the relevant documents  


and provide a written opinion on the boundary location.   Bennett worked for R&M  


Consultants, an Anchorage-based company that is separate and independent from R&M  


Engineering, which produced Plat 2012-36.  Despite later disputes about the scope of  


Bennett's work and whether either party could call him as an expert at trial, he was  


eventually permitted to testify.  


                    Bennett submitted his report in December 2015.  He opined that because  


Plat 75-11 did not reflect a monumented field survey but rather adopted the bearings and  


distances of U.S. Survey 1755, the boundaries of Lots 14 and 15 depended on U.S.  


Survey 1755.  He concluded that Plat 2012-32, which surveyor Johnson had created at  


the Halls' request, "most accurately represents the record location of the boundaries for  

                                                              -10-                                                         7410

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Lot 15, Area 1 according to the Colt Island subdivision (Plat 75-11)."                                                                                   He determined   

that   the   monuments   Bean   set  in  2009   did   not   meet   the   requirements   for   original  

subdivision   monuments   and   thus   could   not   control.     He   also   concluded   that   the  

                                                                                                                                                                     8   adverse  

boundaries   in   Plat   2014-46   had   not  been   established   by   acquiescence,   

possession,9  or estoppel.10  



                             3.            Bench trial  


                             A bench trial was held over four daysin lateNovember and early December  

              8              See Lee v. Konrad                      , 337 P.3d 510, 520 (Alaska 2014) ("[A] boundary line                                                         

is   established   by   acquiescence   where   adjoining   landowners   (1)   whose   property   is  

separated by some reasonably marked boundary line (2) mutually recognize and accept                                                                                          

that boundary line (3) for seven years or more.").                                                          Bennett concluded that this doctrine                         

did not apply because there was no mutual acceptance of the boundary line Bean set in                                                                                                 

2009 and in any case the required time period had not run.                                                                      

              9              AS 09.45.052(a) provides:  


                             The  uninterrupted  adverse  notorious  possession  of  real  


                             property under color and claim of title for seven years or  


                             more, or the uninterrupted adverse notorious possession of  


                             real property for 10 years or more because of a good faith but  


                             mistaken  belief  that  the  real  property  lies  within  the  


                             boundaries of adjacent real property owned by the adverse  


                             claimant,  is  conclusively  presumed  to  give  title  to  the  


                             property except as against the state or the United States.  


Bennett determined that adverse possession did not apply because Bean's boundary had  


only been marked since 2009, less than seven years.  


               10            See  Beecher  v.  City  of  Cordova,  408  P.3d  1208,  1214  (Alaska  2018)  


("Equitable estoppel requires proof of three basic elements:  (1) 'assertion of a position  


by conduct or word,' (2) 'reasonable reliance thereon,' and (3) 'resulting prejudice.' "  


(quoting Jamison v. Consol. Utils., Inc., 576 P.2d 97, 102 (Alaska 1978))).  Bennett  


concluded that estoppel could not apply because the Halls had never asserted that the  


Bean monuments reflected the correct boundary, and so the Collinses could not have  


been prejudiced by reliance on such an assertion.  


                                                                                         -11-                                                                                  7410

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2016.   Much of the testimony at trial centered on the various surveyors' attempts to  


locate the monument that Dahlquist had designated as WCMC1 in 1927. The court heard  


testimony from Bean and Johnson, as well as from Randal Davis, another surveyor who  


had been hired in August 2008 to survey a lot near the Collinses' and Halls' lots.  


                    Various other property owners on Colt Island also testified, stating that if  


the court determined the lot boundaries according to R&M's Plat 2012-32, it might cloud  


their title and require them to move their buildings, accesses, and trails.  They testified  


that they had never seen the inscribed rock that Johnson used as WCMC1 until a few  


years prior to trial, apparently suggesting that the monument had been planted or carved  


more recently than 1927. The court also heard testimony from the Halls' predecessor in  


title, George Fisher, who stated that he was unsure of the exact boundaries of Lot 15  


when he bought it and built his cabin.  


                    In December 2016 the court issued a decision on the record in favor of the  


Halls, followed by written findings and conclusions in July 2017.  The court found that  


Bean's surveys contained "significant discrepancies" and that he had identified the  


wrong point of beginning as WCMC1 in the 1970s. After finding that R&M's Plat 2012- 


32 used the correct point of beginning - "a monument engraved with a cross and the  


letters 'WCMC1 S1755' - the court found that Plat 2012-32 "accurately depicts the  


boundary between Lots 15 and 14."  


                    Thecourt also concluded that theCollinseshadnot establishedany grounds  


for adopting their Plat 2014-46 in contradiction of the written descriptions on Plat 75-11  


and U.S. Survey 1755.  Applying a clear and convincing evidence standard, the court  


concluded that no boundary had been established by acquiescence, and that "[no] other  


equitable doctrine . . . would warrant altering the property boundaries."  Finally, the  


court found that the restrictive covenants governing setbacks and sewage disposal had  


effectively been abandoned, as other property owners had maintained outhouses and  

                                                              -12-                                                         7410

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

built structures less than 20 feet from their lot boundaries.  The court concluded that it                                                                                                                                                                                              

would therefore be inequitable to enforce the covenants against the Halls.                                                                                                                                                                          

                                            In July 2017 the court issued a final judgment quieting title in the Halls'                                                                                                                                                 

 favor according to the boundaries in their                                                                                                        Plat 2012-32.                                     The Collinses moved for                                                     

reconsideration,   arguing   that   the   court   had   ignored   a   legal   doctrine   from   an   1878  

Michigan case stating that survey monuments that had been set and relied upon should                                                                                                                                                                                  

                                                                                                                                                                                11          They  argued  that  under  this  

govern,   even   if   the   original   survey   was   erroneous.                                                                                                                                                                                                               

doctrine, Bean's use of the rock with the faint "X," when he was creating Plat 75-11 in  


the  1970s,  should  control  the  location  of  the  subdivision  lots.                                                                                                                                                        The  court  denied  


reconsideration shortly afterward, stating that the theory the Collinses relied on was in  


 fact a version of the doctrine of boundary by acquiescence, which the court had already  


concluded did not apply.  


                                            The Collinses appeal.  


III.                  STANDARD OF REVIEW  


                                            "[W]e review legal questions de novo" and adopt "the rule of law that is  


most persuasive in light of precedent, reason, and policy."12   "Whether a deed or plat is  


                      11                    Diehl v. Zanger                                     , 39 Mich. 601, 605 (1878) (Cooley, J., concurring) ("The                                                                                                                

question is not how an entirely accurate survey would locate these lots, but how the                                                                                                                                                                                             

original   stakes   located   them.").     Justice   Cooley's   concurring   opinion   stated   that   a  

 subsequent surveyor's task was therefore to attempt to find the original monuments, and                                                                                                                                                                                        

if they were "no longer discoverable," attempt to derive their original location from "the                                                                                                                                                                                     

practical location of the [boundary] lines," for instance by considering fences or visible                                                                                                                                                                            

markers.   Id.   

                      12                    Estate of Smith v. Spinelli, 216 P.3d 524, 528 (Alaska 2009) (quoting  


Pastos v. State, 194 P.3d 387, 391 (Alaska 2008)).  


                                                                                                                                        -13-                                                                                                                                7410

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


ambiguous is a question of law" reviewed de novo.                                                     We review factual findings for                        

clear error, reversing the trial court's 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.' "                                                                           


"[T]he determination of a disputed boundary often presents a compound issue involving  

                                                              15     While the "relative weight of different types of  


questions both of law and fact." 

evidence of disputed boundaries ordinarily presents a question of law, . . . the credibility  


of witnesses, including the weight given the opinions of surveyors, the location or  


existence of physical markers, and the timing of events, are questions of fact."16                                                                        We  


accord the superior court's factual findings "particular deference . . . when they are based  


primarily on oral testimony, because the trial court, not this court, performs the function  


of judging the credibility of witnesses and weighing conflicting evidence."17                                                                 "Whether  


there are sufficient findings for informed appellate review is a question of law."18  


IV.	         DISCUSSION  


            A.	          The Superior Court Did Not Err By Concluding That The Boundaries  


                         Recorded In Plat 2012-32 Were Correct.  


                         The Collinses argue that this case turns on "the choice the trial court made  


about which surveyor's work product" deserved priority in setting boundary lines:  the  

             13	         Reeves  v.  Godspeed  Props.,  LLC,  426  P.3d  845,  849  (Alaska  2018).  

             14          Lee  v.  Konrad,  337  P.3d  510,  517  (Alaska  2014)  (quoting  Peterson  v.  Ek,  

93  P.3d  458,  463  (Alaska  2004)).   

             15          Id.   

             16          Id.   

             17          Safar   v.   Wells   Fargo   Bank,   N.A.,  254   P.3d   1112,   1117   (Alaska   2011)  

(quoting   Wee  v.  Eggener,  225  P.3d   1120,   1124  (Alaska  2010)).   

             18          State   v.   Schmidt,   323   P.3d   647,   655   (Alaska   2014)   (quoting  Hooper   v.  

Hooper,   188  P.3d  681,  692  (Alaska  2008)).   

                                                                             -14-	                                                                     7410

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


"original 1975 subdivision plat" Bean created or Plat 2012-32, which the Collinses claim  


"shift[s] the entire subdivision boundaries."  They argue that in adopting Plat 2012-32  


- and its point of beginning, the rock inscribed with "WCMC1 S1755" - the superior  


court effectively selected "a new survey point of beginning over three decades after the  


boundaries on Colt Island were established."   They contend that the property deeds  


should control; the deeds' references to Plat 75-11, they argue, require the court to adopt  


the actual point of beginning Bean used when creating Plat 75-11.  They also argue that  


the  court  should  follow  "long-established  surveying  principles"  giving  priority  to  


boundaries set by the original surveyor; they contend that Bean "is the original surveyor  


of the Colt Island subdivision" because he prepared Plat 75-11. They point to the "actual  


creation and use of access trails . . . [and] construction of cabins on the lots established  


by  Plat  75-11"  as  evidence  of  both  their  own  and  the  Halls'  reliance  on  Bean's  


boundaries and imply that this would have put a subsequent surveyor on notice of the  


point of beginning Bean used in the 1970s.  


                    The Halls respond that the Collinses' claim rests not on the deeds but on  


"an unrecorded error in the 1970s."  They argue that the point of beginning for Plat 75- 


11 is meant to be the witness corner Dahlquist monumented in 1927, as established by  


"overwhelming" evidence at trial, including Bean's own testimony.  They contend that  


the superior court correctly determined this rock to be the rock inscribed with "WCMC1  


S1755" used by Johnson's crew.  They argue that Bean's use of the rock with the faint  


"X" was an error that cannot be controlling on future surveyors because it was not  


recorded; subsequent surveyors could not have known just based on Plat 75-11 that Bean  


had used a different rock than Dahlquist.  And they point out that the superior court  


considered the location of Totem Pole Trail but did not find it sufficient to establish the  


lot boundaries.  

                                                               -15-                                                         7410

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

                    1.	       The  deeds  unambiguously  define  the  subdivision  lots  according  

                             to  U.S.  Survey  1755.  

                    To determine what land  was  conveyed to the Collinses and the Halls, we  

must   first   look   at   the   deeds.    The   intent   of   the   parties   is   "[t]he   touchstone   of   deed  


interpretation"  and  will  be  given  effect  where  possible.                    We  apply  a  three-step  analysis  


to   interpret   deeds.                                                                                                       

                                First, we  "look at the four corners of the  document to  see if it  


                                                                        We   "need   go   no   further"   if   the   deed  

unambiguously presents  the parties'  intent." 


"   'taken  as  a  whole'  is o   pen  to  only  one  reasonable  interpretation."                     However,  if  the  

deed   is   ambiguous,   the   second   step   is   to   consider   "   'the   facts   and   circumstances  


surrounding   the   conveyance'   to   discern   the   parties'   intent."                     Finally,   if   we   cannot  

discern  the  parties'  intent,  we  turn  to  rules  of  construction.24  

                    The   Collinses   are   correct   that   the   deeds   are   unambiguous   and   should  

control, but they are incorrect  to conclude that the boundaries established  in the deeds  

are   those   Bean   set   and   eventually   recorded   in   Plat   2014-46;   rather,   the   boundaries  

depend on the monuments  associated with U.S. Survey 1755.  The Collinses' deed -  

like  the  Halls'  -  expressly  identifies  their  lot  "according  to  Plat  No.  75-11,  U.S.  Survey  

No.   1755."   And  Plat  75-11,  which established  no  permanent  monuments  of  its  own,  

specifically  refers  to  U.S.  Survey   1755  for  its  point  of  beginning.    

          19        Estate   of Smith   v.   Spinelli,   216   P.3d   524,   529   (Alaska   2009)   (quoting  

Norken  Corp.  v.  McGahan,  823  P.2d  622,  625  (Alaska   1991)).   

          20       McCarrey  v.  Kaylor,  301  P.3d  559,  563  (Alaska  2013).  

          21        Id.  (quoting  Estate  of  Smith,  216  P.3d  at  529).  

          22        Estate  of  Smith,  216  P.3d  at  529  (quoting  Norken  Corp.,  823  P.2d  at  626).  

          23       McCarrey,  301  P.3d  at  563  (quoting  Estate  of  Smith,  216  P.3d  at  529).  

          24        Id.   

                                                             -16-	                                                      7410

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


                    The superior court did not explicitly conclude whether the deeds or the  


recorded surveys to which they referred were ambiguous, but its analysis of the deeds  


and surveys reflects an implicit conclusion that they were not:  


                    Property lines are determined by the property descriptions  


                    contained in the deeds, and the instruments referenced in the  


                    deeds. In this case, those instruments are Plat 75-11 and U.S.  


                    Survey 1755.   Because Plat 75-11 does not establish any  


                    monuments, the property lines created by Plat 75-11 flow  


                    from WCMC1 established by U.S. Survey 1755.  


In its factual findings the court elaborated:  


                    The  correct  point  of  beginning  for  Plat  75-11  .  .  .  is  a  


                    monument  created  by  U.S.  Survey  1755  called  "Witness  


                    Corner to Meander Corner 1" ("WCMC1").  Plat 75-11 is a  


                    "paper  plat"  that  establishes  no  monuments,  but  it  is  an  


                    accurate  representation  of  U.S.  Survey  1755.                         Therefore,  


                    monuments  established  by  U.S.  Survey  1755  are  used  to  


                    locate  lots  created  by  Plat  75-11.                     U.S.  Survey  1755  


                    established  only  one  monument,  WCMC1.                                 Therefore,  


                    WCMC1 is the correct point of beginning for Plat 75-11.  


Taken together, the superior court's findings and conclusions reflect a determination that  


the deeds unambiguously describe the lots based on WCMC1, which in turn can be  


unambiguously identified by bearing, distance, and description from U.S. Survey 1755.  


We agree:  the deeds are unambiguous.  The court therefore did not err when it turned,  


not to extrinsic evidence of the parties' intent, but to the factual question of which rock  


was the witness corner identified in U.S. Survey 1755.  

                    2.	       The superior court did not clearly err by finding that the rock  


                              marked "WCMC1 S1755" was the witness corner identified in  


                              U.S. Survey 1755.  


                    The  superior  court  concluded  that  "[t]he  monument  used  by  R&M  


Engineering [to create Plat 2012-32] is the monument created by U.S. Survey 1755 and  

                                                              -17-	                                                       7410

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


therefore the correct point of beginning for Plat 75-11."  Although there was somewhat  


conflicting evidence at trial, the court's finding is amply supported by the record.  


                    First, Bean testified that when he surveyed Colt Island in the 1970s, he  


could  not  locate  a  rock  marked  as  Dahlquist  had  described,  with  the  inscription  


"WCMC1 S1755"; Bean eventually found a rock with a "fine X" that he concluded was  


WCMC1, in part because it lay along the correct bearing from USLM 1285 as given in  


U.S.  Survey 1755.   He extrapolated a location for Meander  Corner 1 based on his  


assumption that the rock with the faint "X" was WCMC1 and used that point to start his  


survey.  But while the bearing from USLM 1285 to Bean's Meander Corner 1 closely  


matches the bearing recorded in U.S. Survey 1755, the distance between them does  


not - it is about 22 feet longer than Dahlquist's field notes record.  And Bean admitted  


that  while  conducting  an  unrelated  survey  in  2002,  he  saw a  rock  with  the  letters  


"WCMC1 S1755" vertically inscribed, located approximately 22 feet from the rock with  


the faint "X," which he believed he had missed earlier because the inscription had not  


been chalked.  


                    The developer who hired Bean also testified that during their surveying  


work in 1974, he found a piece of slate inscribed with a cross and the letters "U.S. 1755  


WC."  However, he described the letters as being written horizontally, not vertically.  


The court believed it likely that the developer had "found the right rock but [wa]s  


misremembering" the direction of the inscription.  


                    Additionally, surveyor Davis testified that during his 2008 survey for the  


owners of another nearby lot, he found a rock - likely the same one Bean had seen in  


2002 - that he took to be WCMC1; it lay some distance from the rock with the faint  


"X" and had "scribing perfectly and exactly matching [Dahlquist's] field notes."  He  


testified that he colored the inscription with a paint pen to make it more visible.  The  


exhibits include a photo of a rock marked as Davis described, with a cross and the letters  

                                                              -18-                                                         7410

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

"WCMC1 S1755" vertically inscribed.  Davis measured the distance from this rock to  


USLM 1285, and found it to be 1.12 feet off from the distance calculated according to  


Dahlquist's field notes, a discrepancy he attributed to the fact that in 1927, Dahlquist  


could not have physically measured the distance across water but would have had to  


determine it mathematically, introducing some error.   Davis testified that he did not  


complete his survey because he found a number of temporary markers throughout the  


subdivision that did not match the corners he had computed based on U.S. Survey 1755,  


and he was reluctant to "convolute" the existing "confusion as to . . . where property  


lines were."  


                    Johnson testified that his crew "had no problem finding" the vertically  


inscribed  monument  for  WCMC1  when  they  performed  their  2012  survey.                                              They  


recorded a distance of 3,813.49 feet between USLM 1285 and the rock they determined  


to be WCMC1, which matches the distance Davis measured.  Johnson maintained that  


the R&M crew had computed the correct boundaries based on the monuments identified  


in U.S. Survey 1755, even though R&M's boundaries were shifted north and east of  


where Bean had located them.  He acknowledged that accepting his crew's boundaries  


for Lots 14 and 15 would imply different boundaries than Bean's for adjacent lots as  


well.  But he pointed out that Plat 75-11 contained at least one discrepancy aside from  


the locations of Meander Corner 1 and WCMC1:  the sum of the distances along the  


meander lines on the western shore of the island - where the Halls' and Collinses' lots  


are situated - differed from the sum of the lot lengths in that area by ten feet, though  


they should have matched.  


                    The superior court thoroughly evaluated all of this evidence, noting that the  


distance and bearing fromUSLM1285 to therockJohnsonand Davis used corresponded  


much more closely to those in Dahlquist's notes than the distance and bearing to Bean's  


rock  with  the  faint  "X."              The  court  explicitly  considered  -  and  rejected  -  the  

                                                              -19-                                                        7410

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

suggestion  raised  at  trial  that  the  rock  used  for  Plat  2012-32  was  not  Dahlquist's  


WCMC1, but had instead been inscribed much later. This suggestion was based on two  


facts:  (1) that a number of people had searched unsuccessfully for WCMC1 over the  


years, and (2) that the engravings on the rock found by Johnson's crew were carved  


vertically, not horizontally. The court found it unsurprising that people might fail to find  


the inscription despite searching for it "given the growth of moss and the number of shale  


rocks on Southeast Alaska beaches," especially before the inscription was marked with  


chalk or paint.  And the court reasoned that while it might seem odd for a surveyor to  


carve the letters vertically rather than horizontally, "a forger would have no more reason  


to make them vertical than the original surveyors did."  Finally, the court found that the  


discrepancies between Plat 75-11 and the plats Bean prepared in 2014 and 2015 made  


his surveying work less credible overall.  Based on these findings, the court determined  


that the rock used for Plat 2012-32 was the WCMC1 in U.S. Survey 1755.  


                    Given the superior court's thorough consideration of the evidence before  


it and the deference we accord its credibility determinations on review, we conclude that  


this finding was not clearly erroneous.  


                    3.	        The  superior  court  did  not  clearly  err  by  finding  that  the  


                               markers Bean placed in the 1970s were insufficient to control  


                               future surveys.  


                    The Collinses argue that even if the inscribed rock used for Plat 2012-32  


is Dahlquist's WCMC1, Bean established sufficient markers and monuments when he  


surveyed the subdivision in the 1970s that those boundaries should control. They further  


argue that even if Bean's mid-1970s markers cannot be recovered, the location of cabins,  


other  structures  on  the  island,  and  access  trails  such  as  Totem  Pole  Trail  provide  


evidence of the boundaries' location.  


                                                               -20-	                                                        7410

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

                       The Collinses rely on Michigan Supreme Court Justice Thomas Cooley's                                        


concurrence in the 1878 case                      Diehl v. Zanger           .                                                       

                                                                                 That case dealt with a dispute between  


parties who had treated a fence between their properties as the boundary until a later  


survey demonstrated that the fence - and other fences and buildings in the subdivision  

                                              26  The majority opinion emphasized that the evidence before  


-were incorrectly located. 

the trial court established that "the physical evidences of recognized and long admitted  


bounds . . . were visible and apparent to everybody," and concluded that the trial court  


should have given weight to these long relied upon physical markers even though the  


subsequent survey had shown them to be placed in error.27                                            In his concurrence, Justice  


Cooley stated that the original survey should control even if it contained errors and  


outlined a two-step process for determining an original survey's boundaries.28                                                         Under  


Cooley's framework, a subsequent surveyor should:  


                       direct[]  his  attention  to  the  ascertainment  of  the  actual  


                       location of the original landmarks . . . , and if those [are]  


                       discovered  they  must  govern.                            If  they  are  no  longer  


                       discoverable, the question is where they were located; and  


                      upon that question the best possible evidence is usually to be  


                       found in the practical location of the lines, made at a time  


                      when the original monuments were presumably in existence  


                       and probably well known.[29]  


                       The superior court, however, found that Bean had not set any monuments  


or recorded any work that would govern future surveys. Bean's own testimony supports  


           25          39  Mich.  601,  603-06  (1878)  (Cooley,  J.,  concurring).   

           26         Id.  at  602  (majority  opinion).  

           27         Id.  at  602-03.   

           28         Id.  at  605  (Cooley,  J.,  concurring).   

           29         Id.  

                                                                     -21-                                                                7410

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


this finding.  He acknowledged that he did not put in any monuments in 1974, "[j]ust  


reference points and control points."   He noted that control points were usually not  


intended to be references for future surveyors but were merely there to aid him in  


completing the survey.  He specifically distinguished them from monuments, which he  


said had to be identifiable "with a name or description" and durable enough to "last a  


certain amount of time."  


                    The court also found that lot boundaries were not apparent from fences or  


other markers but had in fact been unclear for decades. Crucially, the Halls' predecessor  


in title to Lot 15, George Fisher, testified that he did not know the exact lot boundaries  


at the time he purchased it.   He was uncertain about the locations of his cabin and  


outhouse relative to his property lines, though he believed he had complied with setback  


restrictions.  He testified that the corners of the lot were not permanently marked either  


when he bought the property or when he sold it to the Halls.  And he testified that the  


only boundary marker present when he purchased Lot 15 - a stake marked with the lot  


number at what he believed was the northeastern corner of the lot - "disappeared  


somehow" by the time he sold it to the Halls.  


                    Davis testified that he too encountered significant discrepancies during his  


2008 survey.  He stated that the markers identified by other property owners were not  


consistent with where his survey would have located the boundaries of Lot 13, the lot he  


was hired to survey. And he noted that none of the markers he saw had a surveyor's cap  


or were sufficiently permanent to qualify as a survey monument.  


                    Additionally, the evidence at trial suggested that Totem Pole Trail was not  


a clear, unambiguous marker of the lot boundaries.  Fisher testified that the trail had not  


yet been cleared when he bought his lot in the mid-1970s; once it was cleared, he  


assumed the trail boundary "approximately" demarcated one edge of his lot but stated  


that "it may have been off a little bit."  Multiple residents of Colt Island testified that the  

                                                               -22-                                                         7410

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

edges o    f  the trail did not  exactly coincide with  where they believed the lot boundaries  

lay.   And  the  developer  who  initially  hired  Bean  testified  that  when  he  had  Totem  Pole  

Trail logged,  he  specifically  cleared  the  edges  of  the  trail  partially  into  the  unsold lot  

boundaries,  meaning  that  the  physical  width  of  the  trail  did  not  coincide  exactly  with  the  

platted  boundaries.   

                   It  was  therefore  not   clearly   erroneous   for  the   superior   court  to   find  that  

neither  Bean's  markers  from  the  1970s  nor  other  property  owners'  use  of  their  property  

or   the   island's  access  trails   had   established   the   boundaries   the   Collinses   sought   to  

enforce.  Therefore, because the deeds and related plats are  unambiguous, because  the  

record  supports  the  court's  finding  that  the  rock  used  by  Johnson's  crew  was  WCMC1,  

and  because  no  other  markers  sufficed  to  establish  new  boundaries,  we  conclude  that  the  

superior   court   did   not   err   when   it   determined   the   boundaries   in   Plat   2012-32   to   be  


         B.        The   Superior   Court   Did   Not   Err   When   It  Concluded   That   No  

                   Boundary  Had  Been  Established  By  Acquiescence.  

                   The  Collinses  argue  that  under  the  doctrine  of  boundary  by  acquiescence,  


recently   adopted   in   Lee   v.   Konrad,    the   superior   court   should   have   found   that   the  

boundaries  Bean  set  in  2009  and  recorded  in  Plat  2014-46  were  established  either  by  the  

parties  or  their  predecessors.   They  argue  that  "active  and  continued  use  of  Totem  Pole  

Trail  and  other  obvious  monumentation   showing   subdivision  boundary  lines  for  over  

three   decades"   establishes   the   Halls'   and   their   predecessors'   acceptance   of   Bean's  

boundary  lines.    

                  Lee  v.  Konrad  set  forth  a  three-element  test  for  boundary  by  acquiescence:   

"[A] boundary line is established by acquiescence where adjoining landowners (1) whose  

         30        337  P.3d  510,  520  (Alaska  2014).   

                                                         -23-                                                       7410  

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

property is separated by some reasonably marked boundary line (2) mutually recognize                                                  


and accept that boundary line (3) for seven years or more."                                                                                         

                                                                                                            In that case the owner of  


a subdivision lot set fence posts along the boundary with an adjacent lot, with his  

                                                                                                                                   32   He later  



neighbors' permission and based on survey markers setting the boundary. 

completed the fence; in the meantime his original neighbors and their successors in  


interest "treated the boundary line marked by the fence posts as the true property line  


without any dispute."33                    The neighbors subsequently sold their lot "as-is" to a buyer,  


making no representations that the fence did not reflect the correct boundary.34                                                          Shortly  


afterward, the buyer had her property surveyed and its corners marked; the owner who  


had built the fence, believing that the surveyor had placed a marker incorrectly, filed for  


a declaratory judgment to quiet title and affirm the fence as the correct boundary.35                                                           We  


adopted and applied the stated test for boundary by acquiescence and concluded that the  


neighbors' history of mutual acceptance of the fence posts and fence as the property line  


had established a boundary by acquiescence.36  


                       Here, the superior court concluded that the evidence was not sufficient to  


establish the boundary recorded in Plats 2014-46 and 2015-27 by acquiescence.37                                                                 The  


            31         Id.  

            32         Id.  at  514,  521.  

            33         Id.  at  514.  

            34         Id.  at  514-15.  

            35         Id.  at  515-16.  

            36         Id.  at  520-21.  

            37         The  superior  court  applied  a  clear  and  convincing  evidence  standard  to  the  

test  for  boundary  by  acquiescence,  concluding  that  the  Collinses  had  failed  to  meet  this  


                                                                        -24-                                                                  7410

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

court found that, because the Halls had not accepted the boundary set by Bean in 2009                                                                                                                                                                                                                                                     

and because fewer than seven years had passed between 2009 and the start of the lawsuit                                                                                                                                                                                                                                            

in 2014, they had not acquiesced to Bean's boundaries. The record supports this finding:                                                                                                                                                                                                                                                                            

Hall testified that when Bean placed the boundary markers in 2009, Bean removed stakes                                                                                                                                                                                                                                                 

that Hall had set in 1999.                                                                                      Hall estimated that his 1999 boundary and Bean's 2009                                                                                                                                                                    

boundary differed by about ten feet.                                                                                                                      And it was 2012 when, according to Hall, the                                                                                                                                            

Collinses first threatened to sue over the shop and outhouse, prompting the Halls to                                                                                                                                                                                                                                                                  

obtain and record Plat 2012-32.                                                                                                    

                                                       The superior court also found that no boundary by acquiescence had been                                                                                                                                                                                                              

established prior to 2009.                                                                               The record supports this finding as well:                                                                                                                                 testimony by both                                         

Fisher and Hall indicated that the boundary was not marked at all when the Halls bought                                                                                                                                                                                                                                            

the property.                                          Fisher was unsure of Lot 15's exact boundaries when he bought it, and                                                                                                                                                                                                                    

does not appear to have placed any boundary markers before selling it to the Halls.                                                                                                                                                                                                                                                                 In  

fact, the single boundary marker                                                                                                               that existed when Fisher owned Lot 15 had been                                                                                                                                              

removed by the time of the Halls' purchase:                                                                                                                                         Hall testified that when he went to look at                                                                                                                         

the lot prior to buying it, he saw a single stake labeled "14" on one side and "15" on the                                                                                                                                                                                                                                                         

other, which he assumed marked the boundary; but the stake was gone by the time he                                                                                                                                                                                                                                                                    

                           37                          (...continued)  


burden.  Cf. Nome 2000 v. Fagerstrom, 799 P.2d 304, 309 (Alaska 1990) (requiring clear  


and convincing evidence to prove adverse possession).  We have not had occasion to  


determine whether a party seeking to establish a boundary by acquiescence must meet  


this heightened  evidentiary burden,  and  we decline to do  so  here.                                                                                                                                                                                                                           Neither  party's  


arguments on appeal addressed the standard of proof, and we are reluctant to rule on an  


issue without the benefit of adversarial briefing and argument.  See State v. Ranstead,  

421 P.3d 15, 23 n.53 (Alaska 2018) ("Appellate courts typically do not address issues  


that the parties have not briefed.").  In any case, given the extensive evidence at trial of  


longstanding uncertainty over the correct boundaries, we are doubtful that the Collinses  


would have been able to satisfy even a preponderance standard.  

                                                                                                                                                                        -25-                                                                                                                                                                7410

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

bought his lot.               Additionally, the Halls' outhouse, which allegedly encroaches onto the                                                               

Collinses' property, was built by Fisher; as the superior court noted, this either indicates                                                            

that the original boundary marker did not coincide with Bean's 2009 line or that Fisher                                                                      

                                                                                              38   And none of the photos in evidence  

did not recognize and accept the 2009 boundary.                                                                                                         

appear to show a fence or other marker in the boundary area sufficient to constitute a  


"reasonably marked boundary line."39  


                          It was thus not error for the superior court to conclude that none of the  


elements of the Konrad test had been met and that no boundary by acquiescence had  


been established to alter the boundaries recorded in the deeds and associated plats.  


             C.	          The  Superior  Court  Did  Not  Clearly  Err  By  Finding  That  The  


                          Restrictive Covenants Had Been Abandoned.  


                          The Collinses argue that the superior court's findings and conclusions "did  


not meaningfully address the issue of compliance with the covenant requirements" and  


assert that this issue requires remand.  They contend that adoption of Plat 2012-32 will  


cause "additional problems regarding land use and covenant application," presumably  


not only with regard to the Halls' outbuildings but also for other Colt Island property  


owners.  The Halls respond that the superior court's finding that the covenants at issue  


had been abandoned was "well-supported by the record."  


                          Contrary to the Collinses' assertion that the court failed to meaningfully  


address the covenants, the court's findings of fact and conclusions of law explicitly  


discuss them, albeit briefly.   The court found that trial testimony established "that a  


number of buildings on Colt Island are less than [20] feet from property lines and that  


there are a number of other outhouses on the Island . . . [that] have never been the subject  


             38           See  Lee,  337  P.3d  at  520.  

             39           Id.  

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of violation complaints."                                        The court therefore determined that "[t]o the extent the[]                                                                          

covenants would prohibit pit privies or require the Halls' outhouse and shop to be farther                                                                                                       

from Lot 14, they have been abandoned."                                                                      The court concluded that enforcing the                                                      

covenants against the Halls, given the other unchallenged and longstanding violations,                                                                                                  

would be inequitable.                                 

                                We have held that "covenants will be deemed waived if the 'evidence                                                                                      

                                                                                                                     40  Failureto enforceacovenant against  

reveals substantial and general noncompliance.' "                                                                                                                                               

a  single  party  or  property  is  not  sufficient  to  establish  abandonment,  but  more  


widespread lack of enforcement may be.41                                                                   Here, the record establishes that multiple  


property owners on Colt Island had violated the setback restrictions and sewage disposal  


requirements.  One property owner, for instance, admitted that he had built a woodshed  


"right along the edge of the property" and had not "thought about the setbacks at the  


time."              Another  acknowledged  that  his  cabin  might  be  in  violation  of  the  setback  


requirement.  Multiple witnesses with property on the island testified that there were  


other outhouses.  The Halls' outhouse had in fact been built by Fisher years before the  


Halls bought Lot 15. And, as the Halls point out on appeal, the declaration of protective  


covenants entrusts enforcement to a homeowners' association - but no homeowners'  


association was ever formed.  


                                The  record  thus  shows  that  neither  the  setback  requirements  nor  the  


prohibition on outhouses had been enforced against either the Halls or other property  


owners violating them, prior to this lawsuit. It was not error for the superior court to find  


                40              Kalenka  v.  Taylor,  896  P.2d  222,  226  (Alaska  1995)  (quoting  B.B.P.  Corp.  

v.  Carroll,  760  P.2d  519,  523-24  (Alaska   1988)).   

                41              See  id.   

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that the covenants had been abandoned and conclude that they were unenforceable                                                                                             

against the Halls.                         

                D.	             We Remand For Findings And A Determination On The Collinses'                                                                                          

                                Physical Trespass Claim.                       

                                The   Collinses   argue   that,   even   if   the   boundaries   in   Plat   2012-32  are  

adopted,   uncontroverted   evidence   at   trial   showed  that   the   Halls   trespassed   on   the  

Collinses' property.                              They contend that they are therefore entitled at least to nominal                                                                        

damages and imply that the trial court erred by failing to make findings on the trespass                                                                                                    



                                A trespass is "an unauthorized intrusion or invasion of another's land."                                                                                                         


Even a trespasser who does not cause any harm to the land may be liable for nominal  



damages simply based on the fact of the intrusion.                                                                              The Collinses raised two distinct  


trespass claims.   The first - that the Halls' shop and outhouse encroach onto their  


land - is resolved by the adoption of Plat 2012-32's boundaries.   But their second  


trespass claim alleged that David Hall personally trespassed on their property in June  


2013.  The Collinses assert on appeal that this second claim does not depend on which  


boundary line controls.  


                                The superior court's findings and conclusions do not address this second  


trespass claim at all, instead simply stating that the Collinses' "claims are denied in their  


entirety."  But the record contains evidence bearing on this claim:  Ray Collins testified  


at trial that he had twice found David Hall "underneath the building" on the Collinses'  


property, "taking some building materials."  Photo exhibits purport to show Hall on the  


Collinses' land between the two families' cabins. And Hall admitted that he had walked  

                42              Lee v. Konrad                    , 337 P.3d 510 at 522 (quoting                                         Mapco Express, Inc. v. Faulk                                         ,  

24 P.3d 531, 539 (Alaska 2001)).                               

                43              Id. at 522 n.36.  


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onto the Collinses' property without their permission in June 2013, apparently to return                                                                                                                                                                                                                                                                  

items that the Collinses or their former co-owner had placed on the Halls' land.                                                                                                                                                                                                                                                                                       In  

closing argument, the Collinses' counsel specifically distinguished the two trespass                                                                                                                                                                                                                                                            

claims and noted that the second did not depend on the boundary location:                                                                                                                                                                                                                  

                                                          [T]here [are] multiple claims of trespass. And I think there's                                                                                                                                                                     

                                                         proof of an obvious trespass on the part of Mr. Hall.                                                                                                                                                                                       The  

                                                          evidence, both by Mr. Collins and Mr. Hall, basically admits                                                                                                                                                                        

                                                          that wherever you draw the line - whether it's the Bean line                                                                                                                                                                                     

                                                          [i.e., Plat 2014-46], Mr. Hall's self-survey line, or the R&M                                                                                                                                                                           

                                                          line [i.e., Plat 2012-32] - he was on property belonging to                                                                                                                                                                                             

                                                          Ray and Carol Collins.                                                                              

The Collinses sought nominal damages for this claim, proposing $5 as an appropriate                                                                                                                                                                                                                                               


                                                          Without the relevant findings or conclusions, we have no basis on which                                                                                                                                                                     

to review the superior court's denial of this claim.44  We therefore remand specifically  

for consideration of the Collinses' claim that David Hall physically trespassed onto their  


property in June 2013.  We express no opinion as to the merits of this claim.  


V.                           CONCLUSION  

                                                          Because the superior court's decision is supported by the record on the  


issues of the location of the boundary line, boundary by acquiescence, and enforcement  


of the covenants, we AFFIRM the court's decision on these issues. Because the superior  


court's decision contained no findings or conclusions asto the Collinses' second trespass  


claim, its denial of this claim is REVERSED and REMANDED.  


                             44                          See State v. Schmidt                                                                 , 323 P.3d 647, 668 n.107 (Alaska 2014) ("[A] superior                                                                                                                                             

court's order must contain specific findings of fact and conclusions of law to permit                                                                                                                                                                                                                                                                  

meaningful reviewby                                                                           this court."(alteration in original) (quoting                                                                                                                                       Simpsonv. Murkowski                                                                             ,  

 129 P.3d 435, 448 n.65 (Alaska 2006))).                                                                                                   

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