Dault v. Shaw, 322 P.3d 84

North Shore Subdivision (lots 4–40) on Blodgett Lake; trail along ridge was bulldozed by developers to market and sell lots; deed reservations granted easements to many lots for right-of-way (20 feet, north half) but lot 28 lacked such reservation.
Shaw owns lots 33–34 and uses the trail to access his house; Dault owns lot 28, which intersects the trail; Shaw claimed a prescriptive easement over the portion crossing lot 28.
In 2009 Dault began constructing a driveway from lot 28 to North Shore Drive and blocked the trail; Shaw filed suit seeking declaratory judgment of a prescriptive easement and an injunction.
Trial evidence showed the trail was initially built by developers for their use; dispute centered on whether Shaw could overcome the permissive-use presumption and prove hostility for ten years.
Superior Court ruled Shaw proved hostile-prescriptive use; on appeal, Alaska Supreme Court reversed, holding the presumption of permissive use applied and hostility was not proven; remanded for judgment in favor of Dault/ Dobson.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether hostility is proven where trail was built by developers for their own use	Shaw contends hostility was shown by use beyond mere permission	Dault argues the trail was created by the developers for their own use and use was permissive	Hostility not proven; presumption of permissive use applies
Whether the pre-2003 statutes governing adverse possession apply to a prescriptive easement	Shaw relies on historical ten-year period prior to amendments	Amendments limit claims to good-faith/mistaken-boundary or color-of-title scenarios	Statutes pre-2003 and 2003 amendments limit claims; here Shaw’s claim fails under the permissive-use presumption
Whether acquiescence can establish hostility under the presumption of permissive use	Shaw argues acquiescence is evidence of hostility	Dault contends acquiescence is not a distinct and positive assertion of a hostile right	Acquiescence does not satisfy hostility; presumption remains permissive; no prescriptive easement
Scope of the easement and relief appropriate	Shaw seeks declaratory judgment and an injunction/removal of obstruction	No right to an easement over lot 28	If hostility absent, no prescriptive easement; remand for defining relief consistent with outcome
Notoriety and continuity considerations	Shaw shows continuous use since 1988; not as important if hostility fails	Continuity/notoriety insufficient without hostility	Not enough to establish prescriptive easement without hostility

McDonald v. Harris, 978 P.2d 81 (Alaska 1999) (hostility presumption and affirmative action to rebut; McGill-based analysis)
McGill v. Wahl, 839 P.2d 393 (Alaska 1992) (roadway used as access not presumed permissive when established for dominant estate)
Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996) (distinction between acquiescence and permission in hostility analysis)
Swift v. Kniffen, 706 P.2d 296 (Alaska 1985) (hostility turns on acquiescence vs. permission; permissive use requires acknowledgment of subordination)
Weidner v. State, Dept. of Transportation & Public Facilities, 860 P.2d 1205 (Alaska 1993) (public roadway use not permissive; contrasts with prescriptive easement concepts)
City of Anchorage v. Nesbett, 530 P.2d 1324 (Alaska 1975) (noting estoppel/permission principles in land-use disputes)