Lee v. Konrad
337 P.3d 510
Alaska2014Background
- Dispute over the boundary between Lots 13 (owned by Cody Lee/Stacey Dean) and 14 (sold to Barbara Konrad in 2008) in a 1972 Anchorage subdivision.
- A 1992 survey by Ken Lang marked lot corners; Lee and Lot 14 owners used those marks and in 1999 Lee set fence posts consistent with the Lang line; neighbors treated that fence line as the boundary for years.
- Konrad commissioned surveys after buying Lot 14 (Schuller), which placed the front corner slightly differently; Lee hired Lantech, which found Lang’s 1992 marker and produced results roughly consistent with the fence.
- Lee had placed fill/gravel along the fence after excavating his basement in 2005–06; prior owners of Lot 14 (Sherrie Wilson) knew of and did not object to the fill; some additional fill encroached after Konrad purchased the lot.
- Superior Court accepted Schuller’s survey, found a continuing trespass for fill remaining on Lot 14, ordered removal of encroaching fill, required construction/review of a retaining wall at Lee’s expense, and awarded Konrad attorney’s fees (30% of fee valuation).
- Alaska Supreme Court reviewed: whether boundary was fixed by survey vs. acquiescence; whether fill was trespass (pre- and post-sale); and Rule 82 fee valuation.
Issues
| Issue | Plaintiff's Argument (Lee) | Defendant's Argument (Konrad) | Held |
|---|---|---|---|
| Boundary location | 1992 Lang line and fence posts reflect long-standing mutual agreement (acquiescence); that should control | Schuller survey (Konrad) accurately identifies record boundary; use survey methods | Court: boundary established by acquiescence to the 1992 Lang line (reversed superior court’s acceptance of Schuller) |
| Adverse possession | Claimed prima facie adverse possession based on fence/posts and use | Konrad denied adverse possession; relied on surveys and title records | Not necessary to resolve because boundary was established by acquiescence; court did not reinstate Lee’s adverse-possession beyond what was needed |
| Trespass: fill placed before Konrad’s purchase | Pre-sale encroachment was consented to by prior owner (Wilson); Konrad cannot sue for trespass to pre-purchase intrusion | Konrad: continuing trespass because fill remained and posed ongoing invasion; predecessor’s consent is revocable | Court: pre-purchase encroachment was not a trespass as to Konrad (no standing for that prior intrusion); but post-purchase spill constituted trespass and Lee liable to remove and stop further encroachment |
| Injunctive remedy & retaining wall cost | Opposed being compelled to fund retaining wall review/construction; removal and prevention should be proportionate | Sought injunctive relief, removal of fill, and retaining wall construction at Lee’s expense | Court: ordering removal and prevention is appropriate for post-purchase trespass, but forcing Lee to pay for construction/design of retaining wall was an abuse of discretion; remand for narrower injunctive relief |
| Attorney’s fees valuation under Rule 82 | Lee contested valuation; argued reduced contractual APEA rate should govern | Konrad sought fees valued at attorneys’ usual rates (higher than APEA discount) | Court: vacated fee award and remanded; held superior court erred by valuing fees at usual rates instead of objectively accounting for the contracted APEA $140/hour rate when calculating Rule 82 fees |
Key Cases Cited
- Diehl v. Zanger, 39 Mich. 601 (Mich. 1878) (early articulation of practical location / acquiescence doctrine)
- Arctic Slope Native Ass’n v. Paul, 609 P.2d 32 (Alaska 1980) (discussing valuation of attorneys’ services where reduced or pro bono rates apply)
- Krone v. State, Dep’t of Health & Social Servs., 222 P.3d 250 (Alaska 2009) (permitting objective valuation of attorneys’ services for fee awards in certain contexts)
- Municipality of Anchorage v. Gentile, 922 P.2d 248 (Alaska 1996) (discussing fee valuation guidance referenced by the court)