Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

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

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

          Readers  are r   equested  to  bring  errors to the attention  of  the  Clerk  of  the  Appellate C  ourts,  

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

          corrections@akcourts.us.  



                     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.  



I.        INTRODUCTION  



                                                                                                                         

                    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  


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

                                                                                                                       

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  



issue.  



                                 

II.       FACTS AND PROCEEDINGS  



          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  



                                                               -2-                                                        7410
  


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

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,  

Collinses.                                                                                                                                          



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  

                                                                                                                                                     



Alaska."  

                 



                        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  

                                                                                                                                            



            1  

                                                                                                                                             

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

                                                                                                

their interest in the property to the Collinses in 2013.  



                                                                          -3-                                                                        7410  


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

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   



regulations.    



                                           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                                                                                                                                                                 



                   2  

point.                                                                                                                                                                                                                                                

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



                                                                                                                                                                                                                                                                                   3  

                                                                                                                                                                                                                                                                                         

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.  

                                                                                                                                   



                                                                                                                                      -4-                                                                                                                             7410
  


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

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                                                                                                           



                                                                                                                                                                   5  

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.  

                                                                                                                                            



                                                                                                             -5-                                                                                                   7410
  


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

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                                                                                                                                                                 



                                                                                                                                                                                                                                                                                                    6  

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).   



                                                                                                                                               -6-                                                                                                                                    7410
  


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

 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
  


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

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  

                                                                                                                      



                                                               -8-                                                         7410
  


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

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.  

 S3113'04"W.                                                                                                                                                                                                                                                                 



 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
  


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

                                                                                                                         

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
  


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

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
  


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

                                                                                                                                

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-----------------------

                                                                                                 13  

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                                                           



                                                                                                                                                              14  

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  



                                                                               19  

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



                           20  

to   interpret   deeds.                                                                                                       

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



                                                                   21  

                                                                        We   "need   go   no   further"   if   the   deed  

unambiguously presents  the parties'  intent." 



                                                                                                   22  

"   '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  



                                                                                          23  

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                                        



                                                                             25  

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  



correct.   



         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,  



                                                   30  

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                                                  



                                                                                                       31  

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  

                                                                                                                               (continued...)  



                                                                        -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.  



                                                                                -26-                                                                                 7410  


----------------------- Page 27-----------------------

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.   



                                                                                                   -27-                                                                                              7410
  


----------------------- Page 28-----------------------

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                                                                                                    



claim.    



                                                                                                                                                                                                           42  

                                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  



                                                                                                                         43  

                                                                                                                                                                                             

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.  

                                                         



                                                                                                   -28-	                                                                                           7410
  


----------------------- Page 29-----------------------

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                                                                                                                                                                                                                                               



award.   



                                                          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))).                                                                                                   



                                                                                                                                                                                  -29-                                                                                                                                                                          7410
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC