Hal P. Gazaway, Anchorage, for Appellant.
Randall G. Simpson, Greg Dorrington, Jermain Dunnagan & Owens, P.C., Anchorage, for Appellee.
Before: CARPENETI, Chief Justice, WINFREE and CHRISTEN, Justices, and MATTHEWS, Senior Justice pro tem.[*]
MATTHEWS, Senior Justice pro tem.
This case is before us for a second time. In our first decision we held that Lee Williams was entitled to an implied roadway easement over property owned by Larry Fagnani. On remand the superior court ruled that Fagnani was entitled to maintain a locked gate across the roadway, so long as Williams was advised of the combination.
Williams's challenge to this ruling is the main issue now before us. We vacate the ruling and remand with instructions that the superior court determine the facts relevant to the inconvenience that the gate will cause Williams and to Fagnani's justification for the gate. When these facts are determined the court should decide whether the gate unreasonably interferes with Williams's use of the roadway easement.
Williams also argues that the superior court should have awarded him enhanced attorney's fees and that the amount actually awarded was miscalculated. We conclude that the court did not abuse its discretion in
declining to award enhanced fees, but that a minor calculation error was made that should be addressed on remand.
I. THE GATE ISSUE
On remand the superior court entered an order addressing the particulars of the roadway easement. At the outset the court noted that the scope of the easement was in dispute and had to be determined because it had not been considered during the trial. The court then ruled as follows:
All parties seem to agree that the existing road is a 30 foot gravel road. The widening and graveling of the road benefitted all of the users of the road including both the dominant and servient estates. The Court finds that the improvement of the road was a part of the normal development of the dominant estate. Although widened and improved, the road continued to be a private road and was never a public road.
Based on these facts, this Court finds that Williams is entitled to an implied easement over the disputed road. The easement is limited to 30 feet in width. The easement shall be maintained in its current nature, i.e. a gravel road. Williams is not entitled to more intensive use than he now has. Both Williams and Fagnani have a joint obligation to contribute jointly to the costs reasonably incurred for repair and maintenance of the road. Because the road is a " private" road Fagnani is entitled to post signs and to maintain a gated entrance with locks with combinations that allows Williams' access but prevents use by the general public to create a right of way.
Williams moved for reconsideration of this order. He argued that when he purchased the landlocked property there was no gate on the roadway. He argued further that no justification for a gate existed because Fagnani's house is reached from a different driveway, the property crossed by the roadway is not fenced, and no buildings or personal property of value are accessible from the roadway. Williams also argued that he and his wife are seriously inconvenienced by the gate, noting that they are in their late fifties and Mrs. Williams has a bad knee. He described problems regarding the location of the gate as follows:
The approach of the subject road to Hollywood Road is up a steep embankment slope. After their entry onto Hollywood Road, the Williams must cross two lanes before they would be able to stop. There is no pull out and a very limited shoulder on which they may stop. One must exercise great care traveling down ...