McCarrey v. Kaylor
301 P.3d 559
Alaska2013Background
- Two adjoining lots in Anchorage; McCarreys own south lot with a 50-foot right-of-way for road/public utilities along its north boundary, which East 136th Avenue currently uses.
- Kaylors (northern lot) used a cleared area on the southern boundary of their lot for parking and storage, including a tenant parking area.
- McCarreys proposed a six-foot chain-link fence on the north boundary, with a gated access that would block Kaylors’ access to East 136th Avenue.
- Kaylors sought a prescriptive easement and an injunction to prevent fencing; injunction hearing held in August after settlement attempts failed.
- Superior Court held the right-of-way was a public road and enjoined McCarreys from blocking access; court did not consider acceptance of a federal offer of dedication.
- This appeal challenges due process and the interpretation of the federal patent; Supreme Court remands for findings on whether the offer of dedication was accepted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the McCarreys’ due process rights were violated | McCarreys lacked notice East 136th Ave. was a public road | Kaylors argued the issue was raised by pleadings and consent at hearing | No due process violation; notice and consent supported court’s consideration |
| Did FLPMA repeal terminate the right-of-way | Repeal terminated small tract rights-of-way absent pre-use | Repeal did not automatically end classifications; may not affect rights | FLPMA repeal did not terminate the right-of-way; remained as a public easement |
| Nature of the right-of-way—public road or common-law dedication | Right-of-way was private/common law dedication benefiting McCarreys | Right-of-way was a public road for access to multiple parcels | Right-of-way was an express offer of common law dedication to the public; not necessarily limited to small-tract owners |
| Whether acceptance of the dedication was proven | No explicit acceptance presented below | Acceptance may occur by public action or reliance; not decided below | Remanded for findings on whether the offer of dedication was accepted |
Key Cases Cited
- Swift v. Kniffen, 706 P.2d 296 (Alaska 1985) (elements of prescriptive easement; standard for acceptance of dedication)
- State, Dep’t of Highways v. Green, 586 P.2d 595 (Alaska 1978) (statutory interpretation and public road questions in conveyances)
- Estate of Smith v. Spinelli, 216 P.3d 524 (Alaska 2009) (whether a deed is ambiguous is a question of law)
- Crosby v. State, Dep’t of Highways, 410 P.2d 724 (Alaska 1966) (public road/dedication principles in Alaska)
- Green v. Green, 239 P.3d 393 (Alaska 2010) (interpretation of federal statutes and agency interpretations relevant to public lands)