Harvey A. HANSEN and Annette M. Hansen, Appellants,
Marvin P. DAVIS and Arlene Lani Davis, Appellees.
Rehearing Denied Jan. 12, 2010.
Christopher J. Boyette, McCarty & Boyette, Ketchikan, for Appellants.
H. Clay Keene and Blake M. Chupka, Keene & Currall, P.C., Ketchikan, for Appellees.
Before : FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN, Justices.
FABE, Chief Justice.
When William Rodgers sold Lot 53-A in Ketchikan to Marvin and Arlene Lani Davis in 1984, he reserved an easement  across that lot to access the adjacent lot, Lot 52, which he apparently had hoped to buy at a future date. But Rodgers never used the easement to access the adjacent property, and the Davises planted a garden covering most of the easement area and built a greenhouse within the easement. Harvey and Annette Hansen purchased Lot 52 in 2006 and subsequently bought the rights to the easement on Lot 53-A from Rodgers's widow in June 2007. The Hansens then cleared the easement, built a road, and almost completed installing water and sewer lines. In July 2007 the Davises sued the Hansens for trespass, alleging that their adverse use of the easement had extinguished it and that, alternatively,
Rodgers's widow had ineffectively transferred title to the easement to the Hansens. Following a two-day trial, the trial court determined that the easement had been extinguished by the Davises' adverse use Before the Hansens purchased the adjacent property. We conclude that although an easement can be extinguished by prescription, the prescriptive period for adverse use of an easement does not begin until the activity in the easement area by the owner of the servient estate unreasonably interferes with the easement holder's use of the easement. Here, the Davises' level of activity in the easement area was not sufficiently adverse to trigger the prescriptive period until 2003 at the earliest, an insufficient length of time to extinguish the easement. We thus reverse the superior court's decision that the easement was extinguished by adverse use and remand for further proceedings on the question of whether title to the easement was effectively transferred.
II. FACTS AND PROCEEDINGS
Marvin and Arlene Lani Davis and Harvey and Annette Hansen are neighbors in Ketchikan. The Hansens own Lot 52, which is adjacent to the Davises' property, Lot 53-A. On the other side of Lot 53-A is Lot 53-B, which is owned by Stephen and Sherilynn Boehlert.
Lot 53-A and Lot 53-B were originally owned by Mary Woodley-Mateu. When Woodley-Mateu subdivided Lot 53 to create Lot 53-A and Lot 53-B in 1983, she created an access easement across Lot 53-B. Woodley-Mateu sold Lot 53-A to William Rodgers in January 1984, and Rodgers sold the property to the Davises in April. The warranty deed conveying Lot 53-A to the Davises reserved an easement across Lot 53-A to access Lot 52, which Rodgers allegedly had hoped to buy at a future date. The deed described this reservation as " a private easement for access and ingress and utilities and sewer across Lot 53-A, for the benefit of Lot 52, U.S. Survey 2402. Said easement to run along the westerly 15 feet of Lot 53-A along the joint boundary of Lot 53-A and the unsubdivided portion of Lot S, U.S. Survey 2402." The deed's reservation of the easement further provided that " [s]aid easement shall be only for the benefit of Grantor, his grantees, heirs and assigns."
After purchasing Lot 53-A, the Davises sought a legal opinion as to the validity of the easement reserved in the deed. They were advised in a letter dated July 8, 1985 that the easement was not legally enforceable. That fall the Davises began building frames for a garden in the easement area, and by 1987 their garden covered most of the easement. The Davises maintained this garden until the late nineties. The Davises also built a greenhouse within the easement in 2003, but by this time they were gardening less and their garden no longer covered most of the easement. It is undisputed that Rodgers never used the easement to access Lot 52, apparently because Rodgers never owned Lot 52.
The Hansens bought Lot 52 in July 2006. The Davises gave the Hansens limited access across their property in January and February 2007 to remove logs from Lot 52. In early February the Hansens offered the Davises $5,000 to access their property through the Davises' property. But the Davises turned down the offer and asked the Hansens to remove all of the equipment for the logging operation from Lot 53-A. ...