Collins v. Hall

          Appeal from the Superior Court of the State of Alaska, No. 1JU-14-00771 CI First Judicial District, Juneau, Philip M. Pallenberg, Judge.

          Joseph W. Geldhof, Law Office of Joseph W. Geldhof, Juneau, for Appellants.

          Lael A. Harrison, Faulkner Banfield, P.C., Juneau, for Appellees.

          Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.

          OPINION

          CARNEY, JUSTICE.

         I. INTRODUCTION

         This case concerns a boundary dispute between the Collinses and the Halls, who are adjoining property owners in a recreational subdivision on an island near Juneau. The Collinses alleged that structures on the Halls' property encroached onto the Collinses' property and violated the subdivision's restrictive covenants. They brought claims for quiet title and trespass based on boundaries recorded in a 2014 survey of their lot. This survey was prepared by the same surveyor who had initially platted the subdivision in the mid-1970s; the 1970s survey in turn referred to a survey monument established in 1927.

         The Halls responded that the Collinses' surveyor had used the wrong point of beginning for his subdivision survey; that a surveyor they had hired in 2012 found the true point of beginning based on the 1927 survey; that the correct property boundary lay some distance from where the Collinses claimed; and that the supposedly encroaching structures were fully on the Halls' land. The Halls argued that their proposed boundary line conformed accurately to the recorded documents and deeds while the Collinses' did not. The superior court found that the boundary advocated by the Halls was correct and issued a judgment quieting title based on their 2012 survey, though it acknowledged that its decision could cloud title for other property owners on the island. The court also found that the restrictive covenants at issue had been abandoned and concluded they could not be enforced against the Halls.

         We conclude that the superior court's findings as to the boundary location and restrictive covenants were not clearly erroneous, and we therefore affirm the court's decision on those issues. But because the superior court's findings and conclusions did not address one of the Collinses' trespass claims, we remand for consideration of that issue.

         II. FACTS AND PROCEEDINGS

         A. Facts

         Carol and Ray Collins own property designated as Lot 14, Area 1, in the Colt Island Recreational Development subdivision on Colt Island, near Juneau. David and Margaret Hall, as trustees of the D&M Hall Community Property Trust, own adjoining land designated as Lot 15, Area 1, in the same subdivision.

         The Collinses acquired title to their property by deed in 1990 and co-owned it with another family until 2013, when the co-owners deeded their interest to the Collinses.^[1] Their 2013 deed, which they recorded, identifies their property as: "Lot 14, Area 1, Colt Island Alaska Recreational Development, according to Plat No. 75 -11, U.S. Survey No. 1755, Juneau Recording District, First Judicial District, State of Alaska."

         The Halls acquired title to their lot by deed in 1994 and recorded their deed shortly afterward. In 2005 they transferred the property to a community property trust and again recorded the deed. Their deed, like the Collinses', identifies their property as: "Lot Fifteen (15), Area One (1), Colt Island Recreational Development according to Plat 75-11, U.S. Survey 1755, Juneau Recording District, First Judicial District, State of Alaska."

         The Collinses and Halls each have a cabin on their lot. The Halls' property also has a separate "shop" building, which they built, and an outhouse built by Lot 15's previous owner. The parties dispute the location of the boundary line between their properties and whether the shop and outhouse encroach onto the Collinses' property. Both lots are also close to a right of way known as Totem Pole Trail, though the exact location of the lot boundaries relative to the trail is disputed.

         Each party's deed states that the party's lot is subject to any recorded easements and restrictive covenants. These include a June 1976 declaration of protective covenants for the entire subdivision. At issue are Covenant 5 of the declaration, which requires a 20-foot setback from any lot line for "[a]ll cabins, buildings, and storage facilities of any type, " and Covenant 9, which requires all toilet facilities to have a "self-contained chemical holding tank" and to comply with state and federal waste disposal regulations.

         Because much of this case centers on the various surveys done on Colt Island and on the discrepancies among them that gave rise to the boundary dispute, a summary of relevant surveys, along with the monuments and markers associated with them and the boundaries they purport to establish, is useful.

         1. U.S. Survey 1755

         Colt Island was first surveyed in 1927 by Fred Dahlquist, a surveyor for the then-existing General Land Office, when the federal government conveyed the entire island to a private owner as a homestead. Dahlquist's survey, titled U.S. Survey 1755, used an existing survey marker on nearby Admiralty Island, USLM1285, as a reference point.^[2] His field notes provide a bearing and distance from USLM 1285 to his beginning point on the northwest corner of Colt Island, which he designated as "Cor. No. 1. M.C."^[3]The superior court referred to this point as "Meander Corner 1." Because Meander Corner 1 was an "unsafe place" to set a monument - vulnerable to erosion or submersion - Dahlquist established a "witness corner" on a rock a short distance from Meander Corner 1.^[4] According to his field notes, he marked the rock with a cross and the letters "WC MCI SI755, " to stand for "Witness Corner to Meander Corner 1" of U.S. Survey 1755. He also established witness corners on two spruce trees nearby, but these had apparently been cleared by the time later surveys were done. U.S. Survey 1755 shows meander lines for the entire perimeter of Colt Island but does not subdivide the island's interior. Based on the survey field notes, the distance between WCMC1 and USLM 1285 is 3, 814.61 feet, and the bearing is N31°24'42"E.^[5]

         2. Plat 75-11

         In the mid-1970s, the owners of Colt Island partnered with a developer to subdivide the island for recreational use and sale. The developer hired surveyor John W. Bean to perform a survey and create a subdivision plat, intending to create 100-by- 150-foot beachfront lots to sell as cabin lots.

         Bean began his surveying work in 1974. Because Dahlquist had not monumented Meander Corner 1, Bean instead attempted to find Dahlquist's witness corner, WCMC1. He later testified that he could not find a rock carved with the labels listed in Dahlquist's field notes, but he did eventually find a rock that appeared to be marked with a "fine X, " which he "accepted to use" as the survey's point of beginning, believing it to be WCMC1. Starting from this point, Bean set up a number of "control points, " or reference markers - generally rebar stakes that he would label or cover with a plastic or aluminum cap - for the planned subdivision. These control points were placed merely to assist Bean with completing his survey; he did not intend them to be survey monuments that future surveyors could use as references, and he later testified that monuments, unlike temporary control points, should be identifiable by name or description and durable enough to last a number of years. As part of this initial work, Bean and the developer also had loggers clear Totem Pole Trail, which was planned as a 20-foot-wide right of way along the western side of the island; the developer had an extra five feet cleared on either side of the trail.

         In 1975 Bean recorded a plat of the subdivision, Plat 75-11. Plat 75-11 was a "paper plat, " meaning that it did not record any field work or new monumentation.^[6]Instead it referred to U.S. Survey 1755 and its associated monuments.

         3. Informal survey by David Hall in 1999

         David Hall performed an "informal survey" of his own lot in August 1999 to try to determine his property lines in preparation for expanding his cabin. He testified that when he bought the property, "[n]obody really knew exactly where the property lines were, " but "it didn't seem to be a problem" because "everybody was friends." He started his survey from a stake at what he believed was a corner of Lot 18, three lots away from his property; he apparently assumed this stake was from the "original survey." Measuring 300 feet from the stake on Lot 18, he found a partially rotted stake at what he believed was the northeastern corner of his lot, Lot 15. He assumed this too "was from the original survey" and replaced it with a piece of rebar. He then placed additional stakes where he believed the boundary between Lot 15 and Lot 14 lay. The drawing he created afterward indicates that, according to the boundaries he marked, a generator shed on the Collinses' property - which at the time they co-owned with another family - encroached a few feet onto the Halls' property. This shed was later removed. The Halls' shop and outhouse lay fully within Lot 15 according to the boundaries Hall determined. When doing his survey, Hall apparently looked for but could not find WCMC1.

         4. Survey work by Bean in 2009

         Bean, the surveyor who created Plat 75-11, performed additional surveys of various lots in the subdivision between the 1970s and the 2000s. Notably, in 2009 he was asked to survey multiple lots, including the Collinses'. In the course of that survey he placed markers on what he believed to be the corners of Lot 14, the Collinses' property. He determined the corner locations based on corners he had previously placed on a neighboring lot, which in turn were based on the control points he had set in the 1970s. The boundaries Bean marked in 2009 were different from those Hall had found in 1999 by roughly ten feet. Bean did not attempt to locate Meander Corner 1 or WCMC1 and did not record any surveys of Colt Island at the time.

         5. Plat 2012-32

         In 2012, a few months after the co-owner of the Collinses' lot died, the Collinses apparently notified the Halls that the Halls' shop and outhouse were encroaching over the boundary Bean had marked and threatened to sue. In response the Halls hired R&M Engineering, Inc., to perform and record an "as-built survey" of their lot showing "all of [the Halls'] buildings in relationship to the property lines." Hall believed that R&M's survey would "supersede[] what [he] did" in 1999, as Hall was not a licensed surveyor and had not recorded any of his work.

         Surveyor Mark Johnson, who led the R&M survey crew but did not personally visit Colt Island, reviewed Dahlquist's U.S. Survey 1755 and his field notes, as well as Plat 75-11, prior to beginning his survey. He instructed his survey crew to follow U.S. Survey 1755 as closely as possible, including searching for the monuments to which Dahlquist's field notes referred. According to Johnson, his crew began by measuring the bearing and distance given in Dahlquist's field notes from USLM 1285 to Meander Corner 1. Johnson indicated that his crew "had no problem finding" a rock engraved with a cross and the letters "WCMC1 SI755, " which they took to be WCMC1. They determined this monument to be 3, 813.49 feet from USLM 1285, at a bearing of N3T24'42"E. This bearing matched the bearing calculated according to Dahlquist's field notes; the distance is roughly one foot off. Starting from this point, R&M's crew located the Halls' lot based on information in Plat 75-11. Johnson stated that Plat 75-11 on its own was not sufficient to locate any specific subdivision lot because it did not record any monuments being set; it had to be used in conjunction with U.S. Survey 1755.

         Based on this survey, R&M filed a record of survey, Plat 2012-32. The boundaries of Lot 15 on Plat 2012-32 are roughly 20 feet west and 16 feet south of where Bean's 2009 survey placed them. Based on the Plat 2012-32 boundaries, both the outhouse and shop are fully within the Halls' lot and sit at least 15 feet from the boundary with the Collinses' lot.

         6. Plats 2014-46 and 2015-37

         In July 2014 the Collinses filed suit against the Halls. Shortly afterward, they requested another survey from Bean. He filed a record of survey, Plat 2014-46, confirming the boundaries he had set in 2009. Bean did not go back to look for Meander Corner 1 or WCMC1 while creating Plat 2014-46, though he did compute a location for WCMC1 and mark it on the record of survey.

         The following year Bean amended Plat 2014-46 and recorded the amendment as Plat 2015-37. For the amended survey, Bean's point of beginning was a monument he placed at a location he believed to be Meander Corner 1. He based this determination on his continued assumption that the rock with the faint "X" he had located in the 1970s was WCMC1. The amended plat showed a slightly different bearing for Meander Corner 1 than Plat 2014-46 and included an icon marking Bean's assumed WCMC1, but did not change the boundary between Lot 14 and Lot 15 as determined by Plat 2014-46. The Collinses assert that this is the correct boundary. According to Plat 2015-37, Meander Corner 1 is 3, 841.62 feet from USLM 1285 at a bearing of S31°13 '04"W.^[7] This bearing closely coincides with that given in the field notes to U.S. Survey 1755, S3TI3'W, but the distance is about 22 feet longer. There are also discrepancies between Plat 2015-37 and Plat 75-11 in the bearings and distances of the meander lines between Meander Corner 1 and Lot 14.

         B. Proceedings

         1. Pretrial proceedings

         The Collinses filed their complaint for quiet title and trespass against the Halls in superior court in July 2014. They also sought declaratory judgments to: (1) confirm the boundary lines they claimed Bean had monumented in 2009 and (2) find the Halls in violation of the restrictive covenants imposing setback restrictions and sewage disposal requirements. They alleged that the Halls' shop and outhouse encroached onto Lot 14 and that the outhouse dumped sewage "directly into a hole in the ground" instead of into a holding tank as required by the covenants. They based their trespass claim both on the Halls' outbuildings and on an allegation that the Halls had personally trespassed onto the Collinses' land.

         The Halls filed an answer the following month, denying that their structures encroached on the Collinses' land, alleging that Bean had never surveyed or monumented the property boundaries, and raising a number of affirmative defenses. The Halls counterclaimed alternatively that Plat 2012-32 established the correct boundaries and that they were entitled to possession of the disputed land by adverse possession. Finally, they sought declaratory judgments that they had not violated the restrictive covenants governing set-backs and sewage disposal based on "inconsistent compliance" by other lot owners in the subdivision. The Collinses answered the Halls' counterclaims in September 2014, raising various affirmative defenses.

         2. Independent review of surveys

         In late 2015, in the course of settlement negotiations, the parties arranged to have another surveyor, John Bennett, independently review the relevant documents and provide a written opinion on the boundary location. Bennett worked for R&M Consultants, an Anchorage-based company that is separate and independent from R&M Engineering, which produced Plat 2012-36. Despite later disputes about the scope of Bennett's work and whether either party could call him as an expert at trial, he was eventually permitted to testify.

         Bennett submitted his report in December 2015. He opined that because Plat 75-11 did not reflect a monumented field survey but rather adopted the bearings and distances of U.S. Survey 1755, the boundaries of Lots 14 and 15 depended on U.S. Survey 1755. He concluded that Plat 2012-32, which surveyor Johnson had created at the Halls' request, "most accurately represents the record location of the boundaries for Lot 15, Area 1 according to the Colt Island subdivision (Plat 75-11)." He determined that the monuments Bean set in 2009 did not meet the requirements for original subdivision monuments and thus could not control. He also concluded that the boundaries in Plat 2014-46 had not been established by acquiescence, ^[8] adverse possession, ^[9] or estoppel.^[10]

         3. Bench trial

         A bench trial was held over four days in late November and early December 2016. Much of the testimony at trial centered on the various surveyors' attempts to locate the monument that Dahlquist had designated as WCMC1 in 1927. The court heard testimony from Bean and Johnson, as well as from Randal Davis, another surveyor who had been hired in August 2008 to survey a lot near the Collinses' and Halls' lots.

         Various other property owners on Colt Island also testified, stating that if the court determined the lot boundaries according to R&M's Plat 2012-32, it might cloud their title and require them to move their buildings, accesses, and trails. They testified that they had never seen the inscribed rock that Johnson used as WCMC1 until a few years prior to trial, apparently suggesting that the monument had been planted or carved more recently than 1927. The court also heard testimony from the Halls' ...