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David T. Dias and v. State of Alaska

September 17, 2010

DAVID T. DIAS AND MARIBELLE DIAS, APPELLANTS,
v.
STATE OF ALASKA, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, APPELLEE.



Supreme Court No. S-13570 Superior Court No. 3AN-08-6170 CI Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sen K. Tan, Judge.

The opinion of the court was delivered by: Stowers, Justice.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail corrections@appellate.courts.state.ak.us.

OPINION

Before: Fabe, Winfree, Christen, and Stowers, Justices. [Carpeneti, Chief Justice, not participating.]

I. INTRODUCTION

The Diases obtained land that was adjacent to a public road and subject to an easement and right of way held by the State. The State contacted them to begin using the easement and right of way for road construction. The Diases filed suit in the superior court to quiet title, asserting that the State had only a temporary easement for the removal of gravel and other materials and that the temporary easement had expired. The superior court granted the State's motion for summary judgment, finding that the instrument conveyed to the State the right to construct and maintain a road and perform related activities. The Diases appeal. We agree with the superior court and affirm the grant of summary judgment.

II. FACTS AND PROCEEDINGS

In 1969 Frank Cornelius conveyed an easement and right of way on land he owned in Palmer to the State of Alaska, Department of Highways.*fn1 The conveyance was recorded on a standard form entitled "GRANT OF RIGHT OF WAY EASEMENT." The standard language on the form provided that the grantor conveyed "a perpetual, full and unrestricted easement and right of way."

A typewritten passage on the form described the conveyance as "[a] strip of land 150 feet wide, adjacent to the northwesterly side of Trunk Road (Route 565) . . . [for] a distance of 2000 feet." A consideration of "no/100 dollars" was typed into a corresponding blank on the form. The typewritten description provided that "the State will pay ten cents per cubic yard for gravel or other material removed from above described area." The form provided space to describe the purpose of the conveyance, which was left blank. "Trunk Road FAS 565" was typed into a space provided for "PROJECT NO."

In 1992 Cornelius conveyed a portion of the land that was subject to the easement and right of way to David and Merribelle Dias. In 2007 the State contacted the Diases to negotiate its use of the easement and right of way and the acquisition of additional right of way for the Trunk Road Reconstruction Project. The Diases asserted that the State did not have an existing right of way and refused to convey any additional right of way.

The Diases filed a Complaint for Quieting Title with the superior court, asking the court to quiet their interest in the property free of any interest of the State. The State filed a counterclaim, asking the court to declare that it had "a valid easement for highway right-of-way purposes."

The Diases moved for summary judgment, arguing that the easement and right of way was solely for the removal of gravel and other materials, not construction of a public road, and that it had expired. The State filed a cross-motion for summary judgment, arguing that the instrument granted it a perpetual right to use the easement and right of way for highway construction and maintenance.

The superior court granted the State's summary judgment motion, concluding that the 1969 instrument granted "the State a valid and enforceable easement and right-of-way over the [Diases'] property for the purpose of constructing ...


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