Ray M. COLLINS and Carol J. Collins, Appellants,
v.
David W. HALL and Margaret R. Hall, as Trustees of the D&M Hall Community Property Trust, dated March 14, 2005, Appellees.
Petition for Rehearing Denied December 13, 2019
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[Copyrighted Material Omitted]
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Appeal
from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Philip M. Pallenberg, Judge.
Superior Court No. 1JU-14-00771 CI
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
subdivisions 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 courts findings as to the
boundary location and restrictive covenants were not clearly
erroneous, and we therefore affirm the courts decision on
those issues. But because the superior courts 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
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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 15s
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
partys deed states that the partys 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 "selfcontained 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. Dahlquists survey, titled U.S. Survey
1755, used an existing survey marker on nearby Admiralty
Island, USLM 1285, 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 MC1 S1755," to stand for "Witness
Corner to Meander Corner 1" of U.S. Survey 1755. He also
established witness corners on two spruce trees nearby,
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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 islands interior. Based on the survey field notes, the
distance between WCMC1 and USLM 1285 is 3,814.61 feet, and
the bearing is N31° 2442"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
Dahlquists witness corner, WCMC1. He later testified that he
could not find a rock carved with the labels listed in
Dahlquists 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 surveys 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 didnt 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.
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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. ...