Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Stephanie E. Joannides and Andrew Guidi, Judges. Superior Court No. 3AN-08-09772 CI
James B. Wright, James B. Wright & Associates, P.C., Anchorage, for Appellants/Cross-Appellees.
Heather L. Gardner, Seattle, Washington, for Appellee/Cross-Appellant.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
Cody Lee and Stacey Dean (collectively referred to as "Lee") and Barbara Konrad dispute the boundary between their lots in an Anchorage subdivision. Lee insists that the boundary line was established by a 1992 survey, which Lee later marked with fence posts. Konrad argues that a survey she commissioned after purchasing her lot in 2008 disclosed the true boundary and that encroachment of fill material caused by Lee along the fenceline between the lots was a trespass. The superior court concluded that Konrad's survey correctly identified the boundary line and that the fill material encroachment was a trespass. The court issued an order requiring Lee to remove the fill material and erect a retaining barrier to prevent future trespass; it declared Konrad the prevailing party and awarded attorney's fees.
This appeal requires us to consider: (1) whether the superior court correctly determined the boundary between the lots; (2) whether the court erred by concluding that dirt and gravel encroaching onto Konrad's property was a trespass, and, if not, whether the court properly ordered Lee to remove the fill material and construct a retaining wall; and (3) whether the court's attorney's fees award was an abuse of discretion. We conclude that because Lee and Konrad's predecessors agreed to the boundary established by the 1992 survey, and marked that boundary with fence posts in 1999, the boundary between the lots was established by acquiescence. We thus reverse the superior court's boundary line finding. We conclude that the superior court correctly found that the fill material encroaching onto Konrad's property after she purchased her lot was a trespass. But the court erred by ordering Lee to remove fill material that encroached onto the property before Konrad purchased it because this fill material was not a trespass as to Konrad. We also hold that it was an abuse of discretion to order Lee to pay for construction of a retaining wall to prevent future encroachment. Because this opinion affects the superior court's prevailing-party analysis, we vacate the award of attorney's fees and remand for redetermination of prevailing-party status and recalculation of attorney's fees; we also note that when it calculated attorney's fees, the superior court applied an erroneous rate for Konrad's attorneys.
II. FACTS AND PROCEEDINGS
Shelik of Subdivision is situated south of Dowling Road and west of Lake Otis Road in Anchorage; it was platted in 1972. The boundary line in dispute in this case separates two properties located on Ivan Drive, Lots 13 and 14 of Block 3 of Shelik of Subdivision. Lot 13 sits south of and uphill from Lot 14; there is a gradual slope from Lot 13 to Lot 14.
In 1989 Cody Lee purchased Lot 13 on Ivan Street under a warranty deed that incorporated the 1972 plat. Lot 14 was owned and occupied by Jack and Jerrie Southern at the time. In 1992 the Southerns hired surveyor Ken Lang to mark their property line. Lang did not provide the Southerns with records or a written explanation of the survey, but he marked Lot 14's corners with stakes labeled with his license number. The survey was largely consistent with the parties' historical usage, though it indicated that the Southerns' flower bed partially crossed the property line onto Lee's property. After the Lang survey, the Southerns remedied this encroachment by moving the flower bed to their side of the property line.
Stacey Dean married Lee in 1997 and moved into his house on Lot 13. In 1999 Lee decided, with the Southerns' permission, to erect a partial fence to mark the property line between Lots 13 and 14. The fence posts were placed consistent with the parties' mutual understanding of the boundary line's location, and Jack Southern offered to help Lee set the fence posts. In an early affidavit Lee estimated the posts were "several inches on [his] side of the line, " but a subsequent review of photos and survey reports led him to believe that a greater setback existed. A 1999 aerial photo indicated that the fence posts defined a straight line segment beginning at the rear of Lots 13 and 14 and ending about a third of the distance between the rear and street front of the lots.
In 2003 the Southerns sold Lot 14 to David and Patty Jo Wilson, who in 2006 sold the property to their daughter, Sherrie Wilson.  The Wilsons and Lee treated the boundary line marked by the fence posts as the true property line without any dispute. Sherrie Wilson stated that she believed the property line extended along her side of the fence line to a light pole on the street.
In 2005 or 2006 Lee excavated a basement crawlspace under his home and placed the fill in his backyard next to the fence posts. Lee approached Sherrie Wilson at the time to inform her that "as [he] placed [the] fill, the slope was tending to partially come onto . . . her side of the property line"; Lee offered to "make it better" if she was concerned about the fill. Wilson stated that she was never bothered by the fill, and did not object or ask Lee to remove it.
Lee did not complete the fence until 2007, eight years after he first erected the fence posts, and 15 years after the 1992 Lang survey. The completed fence followed a straight line from the rear of the lots to about halfway down the common property line, at which point it curved into Lot 13 to abut Lee's house. In 2007 Lee "straightened" approximately 16 feet of the curved fence so that it no longer wrapped back to the house.
In 2008 Sherrie Wilson sold Lot 14 and a mobile home on the property to Barbara Konrad. Wilson sold both "as-is" and "did not represent to [Konrad] or any realtor or buyer any boundary inconsistent with the boundary" marked by the fence. Wilson and Konrad did not discuss the boundary line, nor did they discuss who owned the fence between Lots 13 and 14.
Later that year, Konrad hired John Schuller of ArcTerra Engineering & Surveying to survey her property. Schuller did not locate any monuments on Lot 14, but he did find rebar markers defining three of the four corners of Lot 14. Schuller was unable to locate the fourth corner (the corner at the street front of the boundary between Lots 13 and 14), so, using as reference points rebar markers on the lot and monuments along Ivan Drive and across the street, he placed his own rebar marker to define the street front corner between Lots 13 and 14.
Lee and Dean owned a construction company, and Dean served on the local Zoning and Planning Board; Lee considered Dean and himself to be familiar with land surveying techniques. Believing that Schuller's rebar marker improperly defined the street front corner, Lee removed the marker, thereby destroying the value of the survey.
On June 4, 2008, Konrad wrote a letter to Lee informing him that she intended to have a permanent marker set to mark the survey; Konrad threatened to pursue legal action if Lee removed this marker. The following day Lee responded with a letter explaining why he believed Schuller's survey was erroneous:
Your surveyor did not do a full survey by pulling from monuments at the corners of the Shelik of subdivision. Those monuments were placed before determining the lot locations . . . . The only way to determine where the true corners of the property [are] is to pull not from existing rebar, but from the monuments that determined the original survey in 1972.
Lee suggested that he would be willing to move his fence if "a reputable surveyor using the Boundary Survey method of going back to the monuments" determined that the fence encroached on Konrad's property.
Notwithstanding Lee's letter, Konrad hired Schuller to resurvey the land for another fee. Schuller recalculated the position and determined that the corner was actually three to four inches to the south of where his first survey located it. Schuller marked the corner accordingly. This time Lee did not remove Schuller's rebar marker, but he did remove a wooden lattice that Schuller used as an additional survey marker.
Lee subsequently hired Lantech, Inc., a land and construction survey firm that had previously performed work for Lee and Dean's construction company, to conduct a lot stake survey of Lot 13. Lantech found the fourth survey marker placed by Ken Lang in 1992 that Schuller had been unable to find. Lantech's survey revealed "conflicting corner monumentation for the lots that front along the west side of Ivan Drive, " including Lots 13 and 14. In order to determine the true record position of the lot corners, Lantech surveyed the original subdivision boundary along East 68th Avenue, the existing centerline road control, and several other lot corners within the subdivision. Lantech determined that the front corner was slightly to the northwest of the corner location determined by Schuller's survey and just to the south of Lang's rebar marker but roughly consistent with the fence separating Lots 13 and 14.
In August 2008 Lee sent Konrad and her attorney a copy of the Lantech survey. He demanded that "[s]ince [Konrad's] as built [survey was] determined to be incorrect, " Konrad should: (1) relinquish any claim to his property and acknowledge that the fence properly marked the boundary line; (2) direct Schuller to remove his stakes; (3) refund him the $2, 800 cost of the lot stake survey; (4) make no further claims on his property; and (5) pay for any and all attorney's fees. Konrad's attorney ...