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Dault v. Shaw

Supreme Court of Alaska

November 29, 2013


Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge. Superior Court No. 3PA-10-01559 CI.

Richard Deuser, Law Office of Richard Deuser, Wasilla, for Appellants.

DanaLyn Dalrymple, Dalrymple Law, P.C., Palmer, for Appellee.

Before: Carpeneti, Chief Justice, Fabe, Winfree, and Stowers, Justices, and Matthews, Senior Justice.[*] WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting.


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MATTHEWS, Senior Justice.

WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting.


In the doctrine of adverse possession there is a presumption that the use of a private drive across the property of another is permissive and does not give rise to an easement. But the presumption does not apply where a drive was not originally established by the other property's owner for his or her own use. The main question here is whether this presumption applies to the facts of this case. We hold that it does because the drive at issue was constructed by the original subdivision developers for their own use.


A. The Subdivision And The Trail

Lots 4 through 40 of the North Shore Subdivision extend along the north shore of Blodgett Lake. The subdivision was approved by the Matanuska-Susitna Borough in 1966. The subdivision plat is attached as Appendix A to this opinion. A ridge created by a lateral moraine bisects most of the lots so that they slope steeply down to the lake to the south and to what was originally swampy ground to the north. All of the lots border a platted road on the north, North Shore Drive. The lots are not large for a rural subdivision. For example, lot 28, which is owned by appellants James Dault and Shala Dobson, extends along the lake shore for only some 88 feet, while the distance from the lake to North Shore Drive is about 210 feet.

When the lots in the subdivision were first offered for sale in the late 1960s North Shore Drive was not improved or readily passable. The developers first tried showing the lots by boat. Subsequently they bulldozed a trail along the ridge. The superior court found that the purpose of this trail was " so that prospective buyers could gain access to the property." The trail does not appear on the subdivision plat. But by the time lots were sold, the deeds to most lots referred to the

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trail, reserving to the subdivision developers as grantors " an easement for right-of-way purposes twenty (20) feet in width and upon the North One-half (N 1/2) of said lot." For reasons that are not explained, no reservation was made with respect to lot 28.

B. The Controversy

The trail is the source of controversy in this case. The appellee, Edward Shaw, is the owner of lots 33 and 34 of the North Shore Subdivision. Appellants Dault and Dobson (Dault) own lot 28. The controversy came to a head in 2009. Shaw had a house on lots 33 and 34 that was built by his predecessors in title, the Rices, more than 30 years earlier. By 2009 North Shore Drive had been improved for many years and was fully passable. But Shaw continued to use the trail as the access route to his house up to where it merged with North Shore Drive at lot 26. The trail thus crossed lots 27 through 32, including Dault's lot 28. In 2009 the only lot with a dwelling between the point of merger at lot 26 and Shaw's house was lot 32, where a cabin owned by Carol and Oliver Krein was located. The Kreins also used the trail as their means of access to North Shore Drive.

Dault purchased lot 28 in 2006. In 2009 in preparation for constructing a house on the lot, he built a driveway from his house site to North Shore Drive. The trail merged with this driveway so that access along the trail to the lots to the west was not blocked. Dault built a shed where the trail had been. Shaw's house was not then occupied. When Shaw's brother, Michael Shaw, discovered that a driveway was being constructed, he asked Dault about the project. Dault assured Michael that the new driveway would provide safer access to Shaw's property, but Michael expressed concern over the lack of a Borough permit. During a subsequent conversation, Dault said that he did not believe that he needed a Borough permit. Michael had by then discovered the grantor easements on some of the lots, including his brother's, and based on them, told Dault to remove the obstruction from the trail.

Subsequently, Edward Shaw's attorney contacted Dault, demanding that the trail be restored based on " the actual grant of easement in [Dault's] deed" and " the theory of prescriptive easement." Dault responded, disputing both the existence of a granted easement and the factual basis for an easement by prescription. Shaw then filed the complaint in the present case.

C. Pleadings And Motions

Shaw filed the complaint on May 12, 2010. It alleged that Shaw acquired his lots from his mother's personal representative in August of 2008, and that his mother, Alice Tauscher, acquired them from the Federal National Mortgage Association in 1988. The complaint alleged that there is a dwelling on the property, that access to the dwelling is " via an improved driveway running over and through a number of lots in the subdivision, including Lot 28" and that Shaw and his predecessors have utilized the driveway " openly, continuously, hostilely, and in an uninterrupted fashion for a period of time in excess of 10 years." The complaint's final allegation of fact was that Dault blocked the driveway and refused to reopen it. Shaw requested an injunction requiring Dault to reopen the driveway and a declaration that a prescriptive easement runs through Dault's property " in accordance with the defined and historical usage by [Shaw] and his predecessors-in-interest."

In his answer Dault admitted the existence of the trail, and his reconfiguration of it, but denied that the requirements for a prescriptive easement were satisfied. Dault also posed a number of affirmative defenses, including the availability of the public right of way bordering Shaw's property, estoppel, laches, and failure to join indispensable parties -- referring to other lot owners whose property is traversed by the trail.

After some discovery was conducted, Shaw moved for what he termed a " Declaratory Judgment." This was understood by the parties and the court to be a motion for summary judgment. Shaw's memorandum in support of his motion related the ownership history of lots 33 and 34, in relevant part as follows. The subdivision plat was recorded by Helen Clements on September 7, 1966. On August 9, 1968, John and Ina Boss and

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Louis and Mary Odsather (who other evidence established as the subdivision developers) deeded lots 33 and 34 to Herbert and Lalladge Rice. This deed was recorded on July 17, 1979. A trustee's deed to a mortgage company was recorded February 11, 1988. Shaw's memorandum noted that this presumably resulted from a foreclosure. In short order, the mortgage company conveyed the property to the Federal National Mortgage Association, which in turn sold it to Alice Tauscher by deed recorded October 14, 1988. Finally, as noted in the complaint, Tauscher's estate conveyed the property to Shaw in a deed recorded April 22, 2008.

According to Shaw, Tauscher occupied the property from the time of her purchase in 1988 until her death on August 25, 2007, with the exception of a six-week period in 1999. Shaw claimed to have also occupied the property as his principal residence at times, including the six-week period in 1999 when Tauscher did not live there. The property was rented from March 2008 until November 2008. Since then it has been vacant and listed for sale. At all times since Tauscher's initial purchase, the trail was the sole means of access to the house on the property.

Shaw's argument as set out in the memorandum supporting his motion was that the ten-year prescriptive period was satisfied by Tauscher's use of the trail from 1988 until her death in 2007, and for the additional year that it was used by renters. This use, Shaw argued, also served to satisfy the requirements of continuity and notoriety. As to the requirement of hostility, Shaw's memorandum stated:

There is a fundamental presumption that the use of land by an alleged easement holder was permissive unless the claimant proves a distinct, positive assertion of a right hostile to the owner. However, the presumption does not arise if the roadway was not established by the owner of the servient estate for its own use but for many years was the means of passage to the dominant estate [citations omitted].

Shaw's memorandum went on to explain his view of why the presumption of permissiveness does not apply to this case:

In this case, the driveway was evidently established by the owners of the house when the house was constructed in 1977. . . . The records of the State Recorder show that the owners at that time were Louis and Mary Odsather and John and Ina . . . Boss. There is no direct or circumstantial evidence that there was a structure on Defendant's Lot 28 during the period of time Plaintiff claims that the prescriptive easement arose, or that Defendants or their predecessors in interest constructed the driveway for their own use. . . . [T]he driveway was the only means of passage utilized by Plaintiff and his mother to the dominant estate, Lots 33 and 34.

Dault opposed Shaw's motion and filed a cross-motion for summary judgment. In support of his cross-motion, Dault presented multiple affidavits including affidavits from three long-time owners of lots in the subdivision who testified as to the circumstances surrounding the construction of the trail, and its intended uses.[1] Robert Dobson purchased lot 23 from the subdivision developers in 1968. In his affidavit, he stated that the developers created the trail to allow prospective buyers access to the property to facilitate sales, and that it was understood that the trail was only useable as a matter of convenience:

6. . . . . When a particular lot owner wanted to develop his property, and therefore needed the space occupied by the access trail on the ridge line, it was understood that the lot owner could " knock down" the ridge line, thereby removing the access trail in the process.
7. After lot development ended the trail on a particular lot, the idea was that anyone who had been using the access trail would be able to continue using the remaining parts of the access trail that still existed but would, if necessary or desired, construct their own driveway, leading from the public right of way, as the way to drive to their lot.
8. My neighbors have, over the years all understood this and agreed to this. Any

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other understanding would have rendered many of the lots as unbuildable -- no place to put improvements as the access trail occupied the only feasible place to put improvements.
9. The realtor, John Boss of Totem Realty, who I bought my lot from, told me that the access trail was for convenience and that the public right of way would be the long term way to access lots in the subdivision. This made the only sense because the lots would not be buildable if you couldn't build where the access trail was located.

Gordon Benedict testified in an affidavit that he had purchased lot 40 in 1970. Like Dobson, he testified that the developers put in the trail to help with lot sales. He stated that the trail was also a way to gain access to the ridge line in order to develop lots. He understood that the " ridge line trail was not intended to be a permanent road. If it were to remain in place, it would have destroyed the value of the lots as the area that was buildable would have been largely taken by the presence of the trail." Benedict also testified that in approximately 1978 he began excavation work on his lot and also worked on lots 38 and 39. Essentially, he pushed dirt from the ridge line toward North Shore Drive, thereby " taking down the hill" and, in the process, obliterating the trail. He stated that around that time the Borough began to maintain North Shore Drive, including snow removal. Benedict also testified that in the 90s Alice Tauscher called him about some changes being made to the trail by another lot owner, Bill Moll. According to Benedict, Tauscher made no objection to the work, and Benedict had the impression that " she understood that when people wanted to develop their lots, that they could do so and the public right of way would then be used to travel to particular lots instead of using the access trail on the lot where the improvements were being made."

Carol Krein testified by affidavit that she and her husband purchased lot 32 in 1969. Krein testified that the agent they dealt with told her with respect to the trail that everyone eventually would have to put in their own driveway down to North Shore Drive. Krein also testified that she had discussed the trail with Tauscher on one occasion, during a conversation regarding an electric meter for Tauscher's house that was installed on the Krein property. According to Krein, Tauscher understood that

the access trail was for convenience and when people wanted to use their lots, where the access trail was located, they would then build their own driveways off of the public right of way. [Tauscher] understood that she was crossing our private property and Glenna's (the next lot owner to the east) private property. We were good neighbors and let each other cross our private property on the access road. We were good neighbors and let her keep the electric meter on our lot.

According to Krein, " Tauscher did not object when various persons in the subdivision either eliminated or re-routed the access trail on their properties. Nor did we. We all understood the temporary and conditional nature of the access trail."

Dault's opposition to Shaw's summary judgment motion was wide-ranging.[2] But his main point was that the element of hostility

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is missing. He noted that the trail was constructed by the developers of the subdivision and therefore " [t]he presumption of consent should apply." He summed up by stating, " the evidence presented by Defendants establishes that use of the access trail was by consent. Plaintiff had the burden on the issue of consent and offered no evidence that consent was absent."

Shaw filed a reply to Dault's opposition and cross-motion, claiming that the evidence was insufficient to show that Tauscher understood that her right to use the trail was temporary. Shaw filed his own affidavit stating that there was never a community understanding that the use of the trail would be temporary. Shaw's argument continued to rely on the premise that the presumption that a use is permissive does not apply and asserted that the burden of proof was on Dault to show that Tauscher's use was consensual. But Shaw did not contest the evidence presented by Dault that the trail was built by the subdivision developers, rather than, as Shaw had asserted in his opening memorandum, by the original owners of his house.

The superior court denied Shaw's motion for declaratory judgment and Dault's cross-motion for summary judgment. The court found that there were genuine issues of material fact that precluded summary judgment. Specifically, the court found that there were genuine issues as to whether the usage of the trail was permissive. The court noted that " [w]hether there was community understanding among the property owners that the use of the trail was permissive is a genuine issue of material fact." In addition, the court found that there were genuine issues as to the continuity and duration of Tauscher's use of the trail.

D. The Trial

The case proceeded to a bench trial which occupied parts of four days in March 2011. The evidence presented by Shaw relating to the continuity and duration of use of the trail by Tauscher was much the same as he had presented in affidavit form in his motion for declaratory judgment. But he did not present evidence that the trail was constructed by the original owners of his house.

The evidence presented by Dault was also similar to the evidence that he presented in his opposition to Shaw's motion and in support of his cross-motion for summary judgment. In particular, the evidence was undisputed that the trail was built by the subdivision developers to aid them in selling the property and to facilitate development of the property. Robert Dobson testified:

When we bought . . . the property . . . they were glad to tell us that there was a trail that we could use to get up there . . . they put it in so we could get up and see our lots and use our lots. And there was not any indication that that's the way it was going to always be." Carol Krein similarly testified that " there was a . . . trail up along the ridge that was built to show all the property and our realtor took us over there and showed us the lots that were available.

Krein further testified: " [W]e were told when we bought it that that was a trail for the realtors and that eventually we would have to build our own driveway up from North [S]hore . . . ." [3]

E. The Superior Court's Decision

The superior court issued its decision in a 27-page written order.[4] The court found by clear and convincing evidence that Shaw proved that he had a prescriptive easement where the trail crossed lot 28. The court found that the continuity and ten-year duration

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elements of adverse possession were satisfied by Tauscher's use from 1988 through 2007. With respect to hostility, the court concluded that the general presumption that the use of land by an alleged easement holder is permissive did not apply. Instead, the court applied a presumption that the use of the easement was hostile. The court wrote:

The Alaska Supreme Court set forth the applicable analysis relating to hostility in McDonald :

The hostility requirement, however, is " determined by application of an objective test which simply asks whether the possessor acted toward the land as if he owned it, without the permission of one with legal authority to give possession." Still, we will presume that the use of land by an alleged easement holder was permissive unless a claimant proves " a distinct and positive assertion of a right hostile to the owner." But this presumption does not arise if " a roadway was not established by the owner of the servient estate for its own use but was for many years the only means of passage to the dominant estate."

McGill v. Wahl 839 P.2d 393
However, in this case it would be inappropriate for us to presume that the Wahls were acting as merely permitted users of the roadway. Such a presumption does not arise where a roadway was not established by the owner of the servient estate for its own use but was for many years the only means of passage to the dominant estate. Richardson v. Brennan, 92 Nev. 236, 548 P.2d 1370, 1372 (1976).

Both of these cases involved an allegation of a prescriptive easement by a person whose driveway crossed the property of another person. The Court essentially held that in such cases, hostility is presumed and generally can only be rebutted by an affirmative act by the landowner of the subservient estate. As the Court explained in McGill :

The roadway originally was and continuously had been used as access to the lots behind the McGills' property. The roadway existed and was used by the Nels Wahls before the McGills came to the property. Although other lot owners now use Highway 1 to get to their lots, the use of the roadway has never changed with respect to lot 11. The McGills, having come to land burdened by the roadway, cannot now claim that the users of the roadway were acting merely with their permission. Likewise, the McGills without any affirmative action cannot now claim that they intended to permit the use of the road by the other landowners.
This case is virtually identical to McDonald and McGill. There is no dispute that Ms. Tauscher and plaintiff crossed lot 28 solely for the purpose of gaining access to their property. Defendants came to lot 28 well after that use began. And they took no affirmative action to block the access until 2009. Plaintiff's use therefore was hostile.

The superior court went on to state that even if there were no presumption of hostility, the court would conclude that Tauscher's use of the trail was hostile because there was no evidence that the owners of lot 28 did not acquiesce in Tauscher's use of the trail, nor was there evidence that Tauscher, or Shaw, ever acknowledged that their use was subordinate to the owner's title. The court wrote:

The court would reach the same conclusion even absent the presumption. In determining whether a use is hostile, the court must look to whether the owner of lot 28 gave his or her permission to use the trail or merely acquiesced in that use. In particular, as the Alaska Supreme Court explained in Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1120 (Alaska 1996):

In Swift v. Kniffen, 706 P.2d 296, 304 (Alaska 1985), we stated that " [t]he hostility element turns on the distinction between acquiescence and permission," and held that if the true owners merely acquiesce, and do not intend to permit a use, the claimant's use is adverse and

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hostile. Therefore, we must decide whether the record reveals that Tenala intended to permit the Mayos' use or merely acquiesced in that use. In Hubbard v. Curtiss, 684 P.2d 842, we stated that " [t]he key difference between acquiescence by the true owner and possession with the permission of the true owner is that a permissive use requires the acknowledgment by the possessor that he holds in subordination to the owner's title." Id. at 848 (citations omitted).
The evidence here supports a finding of acquiescence by clear and convincing evidence. First, and perhaps most important, there was absolutely no evidence that the original owner of lot 28 had any conversation whatsoever with Ms. Tauscher regarding her right to use the trail as her driveway to her lots. Nor is there any evidence that Ms. Tauscher or plaintiff ever acknowledged to that person that her use " was in subordination to" that owner's title. There accordingly is no evidence to counter the claim by plaintiff and his brother that they always assumed they had the right to cross the property and that no one really cared whether they did so.

The court also found that the use of the trail was notorious, noting that it was undisputed that Tauscher had used the trail as her driveway and had done so openly and obviously. After rejecting Dault's affirmative defense of laches and holding that other landowners did not have to be joined under Alaska Civil Rule 19, the court directed entry of judgment declaring that a prescriptive easement existed on the portion of the trail that crosses lot 28. The court also ordered Dault not to obstruct the easement and required him to remove the obstruction that was already present.

The court recognized some problems inherent in this resolution and encouraged the parties to consider settlement:

The court feels constrained to note, however, that while plaintiff has thereby won this battle, it is not at all clear that this is the best result long-term for any of the parties. Because the trail crosses defendants' property in a manner that makes it very difficult to develop, plaintiff's use of the trail will create ongoing difficulties with his neighbor. It seems to the court that this is a matter that can and should have been resolved through settlement in a manner that assured plaintiff access and ...

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