McCavit v. Lacher

          Appeal from the Superior Court of the State of Alaska Third Judicial District, Palmer, No. 3PA-13-00918 CI, Vanessa White, Judge.

          Kevin T. Fitzgerald, Ingaldson Fitzgerald, P.C., Anchorage, for Appellants.

          Brian Duffy, Gruenstein, Hickey, Havelock & Duffy, Anchorage, for Appellees Barbara Lacher and Louis Lacher.

          Notice of non-filing filed by Jessica M. Alloway, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee State of Alaska, Department of Natural Resources.

          Before: Bolger, Chief Justice, Winfree, Stowers, and Carney, Justices.[Maassen, Justice, not participating.]

          OPINION

          CARNEY, JUSTICE.

         I. INTRODUCTION

         Jerry and Brenda McCavit built a dock extending into Wasilla Lake from their upland property. Their neighbors, Barbara and Louis Lacher, sued the McCavits claiming the dock unreasonably interfered with their riparian rights and constituted a private nuisance. The superior court found for the Lachers and issued an injunction ordering the McCavits to remove a portion of their dock. The McCavits now appeal. Because we announce a new rule of reasonableness regarding riparian or littoral rights, we vacate the superior court's Findings of Fact and Conclusions of Law and Order Granting Injunctive Relief and Nuisance Abatement, remand for the superior court to conduct the proper legal analysis, and vacate the superior court's award for attorney's fees and costs.

         II. FACTS AND PROCEEDINGS

         A. Facts

         Barbara and Louis Lacher own property abutting Wasilla Lake. Jerry and Brenda McCavit own adjacent property abutting Wasilla Lake to the east of the Lachers' property. Both families own their respective property up to the ordinary high water mark of Wasilla Lake, making them littoral landowners.^[1] The Lachers purchased their property in 1974 and the McCavits purchased their property in 1991.

         When the McCavits bought their property, neither they nor the Lachers had a dock. For 30 years the Lachers' western neighbors allowed the Lachers to use their dock. But in 2012 or 2013, after several incidents involving the Lachers' grandchildren, the western neighbors asked the Lachers to stop using the dock. The Lachers then began considering building a dock from their own property.

         Meanwhile in March 1992, the McCavits were granted a permit from the Alaska Department of Fish and Game (ADFG) to construct a dock from their property into Wasilla Lake.^[2] They completed their dock before the permit expired at year's end. Between 2011 and 2012 the McCavits built a 16x20 foot extension to the original dock. They never sought nor were granted a permit for this extension. The extension was attached at a right angle to the original dock, and extended in the direction of the Lachers' property.

         Both families make use of the lake. The McCavits, their family, and their friends use and frequently park a variety of watercraft at the McCavits' dock during the summer. Jerry McCavit testified that he built the extension to accommodate larger watercraft, to reach deeper water, and to make it easier for his aging father to visit. The Lachers and their family and friends also enjoy using the lake. Their children and grandchildren often use the lake for swimming, boating, fishing, and other recreational uses.

         In the spring of 2012 the Lachers informed their daughter, Randy Lacher, about their displeasure with the McCavits' dock and the fact that it was "in front of their property. Randy, who was then employed by the Alaska Department of Natural Resources (DNR), began making inquiries into her parents' rights regarding the lake and the McCavits' dock. Randy obtained a copy of the agency's "Generally Allowed Uses" regulation. The regulation allows an upland littoral property owner to build a dock for personal, noncommercial use provided the dock is within the "projected sidelines" of the upland littoral property or is built with consent of the neighboring upland littoral property owner.^[3] After receiving the copy of the regulation, Randy contacted Jerry McCavit to discuss the dock and whether it was "in front of the Lachers' property.

         Later in the summer of 2012 ADFG sent the McCavits a Notice of Violation advising them that their dock extension was constructed in violation of permitting requirements. Although it is possible that the McCavits' construction of the extension could have supported a misdemeanor charge, ^[4] ADFG took no further action. In November the Lachers obtained a permit to construct a 10x50 foot dock that would extend from their property. However the Lachers never constructed or made definite plans to construct a dock.

         B. Trial Proceedings

         In early 2013 Randy attempted to have DNR enforce its "Generally Allowed Use" regulation against the McCavits' dock. She was informed that DNR could not enforce the "projected sidelines" language because the Commissioner had found the language vague and ambiguous. After being advised that they would need to pursue a civil suit to obtain the relief they sought, the Lachers sued the McCavits in superior court. They brought three claims: the dock interfered with their riparian rights, constituted a private nuisance, and was a trespass.

         The court granted the McCavits' motion to require the Lachers to join DNR as a necessary party because the dock was located on state land. In response the Lachers amended their complaint to allege that DNR violated their due process rights by arbitrarily and capriciously failing to enforce the "Generally Allowed Use" regulation. DNR successfully moved for summary judgment, arguing that it was not required to act, and was dismissed as a party. The court's order held that: (1) the Lachers did not have a "significant property interest" in the submerged lands of Wasilla Lake; (2) at most the Lachers had a right of reasonable access to Wasilla Lake, which "ha[d] not been completely obstructed by the McCavits' dock"; and (3) if DNR had found that the McCavits' dock violated the "Generally Allowed Uses" regulation, that decision would have been arbitrary and capricious because DNR had previously found the term "projected sidelines" vague and ambiguous.

         The McCavits also moved for summary judgment on the Lachers' trespass claim, arguing that the Lachers did not have title to the lake and therefore could not maintain a trespass claim. The superior court agreed and granted summary judgment on this claim.

         Trial proceeded on the remaining claims of unreasonable interference with riparian rights and private nuisance. The Lachers' witnesses testified that the Lachers' preferred location for their potential dock would be on the eastern side of their property, which would conflict with the McCavits' existing dock. But witnesses also acknowledged that the Lachers could build a dock elsewhere on their property so as not to conflict with the McCavits' dock.

         After four days of trial the superior court issued its Findings of Fact and Conclusions of Law and Order Granting Injunctive Relief and Nuisance Abatement on May 7, 2017. The court found that the McCavits' dock unreasonably interfered with the Lachers' riparian rights and constituted a private nuisance. It ordered the McCavits to remove a portion of their dock.

         C. Post-Trial Proceedings

         Later in May 2017 the Lachers moved for attorney's fees and costs as the prevailing party under Alaska Rule of Civil Procedure 82. They submitted fees and costs dating from 2012 and including fees incurred as part of their claims against DNR upon which they had not prevailed. The Lachers asserted that they were entitled to 30% of their fees of $ 120, 070, which amounted to $36, 021.^[5] The superior court awarded the full $36, 021 over the McCavits' objection. The court's order included a handwritten note: "The Court is not persuaded that some of plaintiffs' fees must be allocated to their litigation against DNR. The State became a party only due to the McCavits' insistence that DNR was a necessary party."

         The McCavits moved for a stay of the superior court's injunction pending this appeal. The superior court denied this motion, but in doing so "clarified" its original decision. The superior court noted that it had "already determined the merits of this case and... found the McCavit[s'] dock to be a nuisance to the Lacher[s]." In February 2018 we granted the McCavits' motion to stay the injunction pending resolution of this appeal.

         The McCavits appeal. They contend that the superior court erred in determining that their dock unreasonably interfered with the Lachers' riparian rights and constituted a private nuisance, and that injunctive relief was therefore inappropriate. Because the superior court had not yet ruled on the Lachers' motion for attorneys fees when the McCavits filed their opening brief, we granted their motion to allow supplemental briefing on attorney's fees.^[6] We therefore also address the award of attorney's fees and costs.

         III. STANDARD OF REVIEW

         "[W]e will not consider arguments that were not raised below, unless the issues establish plain error, or the issues (1) do not depend upon new facts, (2) are closely related to other arguments at trial, and (3) could have been gleaned from the pleadings."^[7]

         "[W]hether the superior court applied the correct legal standard"^[8] and "used the appropriate burden of persuasion"^[9] are questions of law. We consider "whether a trial court has applied the correct legal test" to be a question of law.^[10] We review questions of law and a superior court's application of the law to facts de novo, using our independent judgment to "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."^[11]

         IV. DISCUSSION

         A. The McCavits Did Not Waive Any Of Their Arguments On Appeal.

         The Lachers first argue that the McCavits waived several of their arguments on appeal by failing to raise them during the trial proceedings.^[12] But because the McCavits did raise these issues during the trial proceedings, the issues have not been waived.

         B. The Superior Court Applied The Proper Standard Of Proof.

         The Lachers also claim that the McCavits waived their argument that the superior court improperly applied the preponderance of the evidence standard of proof because they did not request the court to apply a different standard. The McCavits respond that "[p]arties do not have to invoke burdens of proof and persuasion; they are automatic."

         "Preponderance of the evidence is the general burden of persuasion in civil cases."^[13] A party that wants the court to apply a higher standard of proof must request it;^[14] failure to raise this issue before the trial court fails to preserve the issue for appeal.^[15] When a party fails to preserve such an issue for appeal, we review it for plain error.^[16]

         To demonstrate plain error, the McCavits must prove that "an obvious mistake has been made which creates a high likelihood that injustice has resulted."^[17]Such a mistake is not present in this case. In Fernandes v. Portwine we explicitly held that preponderance of the evidence is the appropriate standard of proof for nuisance cases.^[18] The McCavits primarily rely on Spenard Action Committee v. Lot 3, Block 1, Evergreen Subdivision^[19] to argue that clear and convincing evidence should apply. But we distinguished Spenard Action Committee in Fernandes^[20] In Spenard Action Committee the statutes at issue were "quasi-criminal nuisance statutes"^[21] that imposed heavy sanctions and therefore demanded a higher burden.^[22] In Fernandes we rejected the suggestion that the higher burden was appropriate in the absence of such concerns and held that a preponderance of the evidence standard applied in private nuisance cases.^[23] The McCavits have failed to demonstrate that the present case demands the higher standard employed in Spenard Action Commitee. The superior court did not plainly err by applying the preponderance of the evidence standard of proof.

         C. We Extend Our Rule Of Reasonable Use To Riparian And Littoral Landowners And Remand For The Superior Court To Apply The Rule To Determine Whether The McCavits' Dock Was An Unreasonable Interference With The Lachers' Littoral Rights.

         1. Riparian and littoral rights defined

         Alaska is unique in that "[t]he people of the state have a constitutional right to free access to and use of the navigable or public water of the state."^[24] This constitutional right does not create a private cause of action; rather, the constitutional right of free access to and use of navigable or public water is a right shared by the public^[25] and enforced by the State.^[26]

         Litigation over water rights frequently involves competing consumptive uses, such as a riparian or littoral landowner's right to appropriate a quantity of water for purposes such as agriculture.^[27] Alaska has adopted the Water Use Act to regulate the appropriation and consumptive use of water.^[28] But the McCavits' dock is not a consumptive use of water; the McCavits built a ...