Collins v. Hall

          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 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

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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 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 "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. Dahlquist’s 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 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.

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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. ...