447 P.3d 726
Alaska2019Background
- Neighbors Lacher and McCavit own adjacent littoral lots on Wasilla Lake; McCavits built a dock in 1992 and later added an unpermitted 16x20 foot extension (2011–2012) projecting toward the Lachers' frontage.
- The Lachers alleged the extension unreasonably interfered with their riparian/littoral rights and constituted a private nuisance; they also initially sued DNR for failing to enforce a regulation but DNR was dismissed.
- The superior court found for the Lachers, concluded the dock unreasonably interfered with their littoral rights and was a private nuisance, and ordered partial removal of the dock; it also awarded the Lachers attorney’s fees under Alaska R. Civ. P. 82.
- On appeal the McCavits challenged the findings on unreasonable interference, nuisance, and the fee award; they also argued standards of proof and preservation issues.
- The Alaska Supreme Court announced a new rule: riparian/littoral rights are rights of reasonable access and use of adjacent navigable/public waters, subject to a reasonableness balancing test; because the superior court had not applied this rule, the Court vacated the injunction, vacated the fee award, and remanded for application of the reasonableness test.
Issues
| Issue | Plaintiff's Argument (Lacher) | Defendant's Argument (McCavit) | Held |
|---|---|---|---|
| Whether the dock unreasonably interfered with plaintiffs' riparian/littoral rights | Dock extends into plaintiffs' frontage and obstructs their reasonable access/use | Dock is a lawful littoral use; preponderance standard applied; extension serves valid uses | Court announced and required application of a new reasonable-use balancing test; vacated judgment and remanded to apply it |
| Whether the dock constituted a private nuisance | Interference with access/use is a substantial, unreasonable interference with property enjoyment | If access/use interference is not unreasonable, no nuisance; nuisance claim overlaps riparian-rights claim | Court held nuisance should be considered only after applying the riparian/littoral reasonableness analysis and remanded |
| Appropriate standard of proof for nuisance and riparian-rights interference | (Implicit) preponderance sufficient to prove claims | Argued higher standard (clear and convincing) might apply | Court held preponderance is the proper standard in private nuisance cases and no plain error occurred |
| Award of attorney's fees to Lachers under Rule 82 | Lachers are prevailing party and entitled to fees, including time tied to DNR litigation | Fees tied to claims against DNR and pre-remand outcome should be reconsidered | Fee award vacated because remand and new rule may alter prevailing-party determination; superior court to reassess on remand |
Key Cases Cited
- Wernberg v. State, 516 P.2d 1191 (Alaska 1973) (recognizes private riparian/littoral right of access to navigable waters)
- Classen v. State, Dep't of Highways, 621 P.2d 15 (Alaska 1980) (limits on scope of access right; access retained even if some incidental uses affected)
- State, Dep't of Nat. Res. v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010) (public trust limits on wharf-out rights and clarification of scope of riparian rights)
- Fernandes v. Portwine, 56 P.3d 1 (Alaska 2002) (preponderance is the proper burden for private nuisance cases)
- Riddle v. Lanser, 421 P.3d 35 (Alaska 2018) (definition and assessment of private nuisance under Alaska law)
- Spenard Action Committee v. Lot 3, Block 1, Evergreen Subdivision, 902 P.2d 766 (Alaska 1995) (applied higher burden where statutes imposed quasi-criminal nuisance sanctions)