Yuk v. Robertson
2017 Alas. LEXIS 61
| Alaska | 2017Background
- A fence between Lots 3 and 4 in an Anchorage subdivision was placed off the platted boundary, enclosing a 6' x 300' strip of Lot 4 on Lot 3’s side.
- A municipal sewer easement recorded in 1969 covers the disputed strip; the sewer was built and the easement remains.
- The Robertsons (Lot 3 owners since 1991) and predecessors used the fenced strip continuously as part of a daycare playground; the fence appears in aerial photos by 1979.
- The Yuks purchased Lot 4 in 2010, commissioned a survey showing the encroachment, and demanded the fence be moved in 2011 and 2015; the Robertsons refused, asserting adverse possession.
- The Yuks sued to quiet title; the Robertsons pleaded adverse possession as an affirmative defense and moved for summary judgment, which the superior court granted.
Issues
| Issue | Plaintiff's Argument (Yuk) | Defendant's Argument (Robertson) | Held |
|---|---|---|---|
| Must adverse possession be alleged as a counterclaim rather than a defense in quiet-title suit? | Adverse possession required affirmative relief via counterclaim, not defense. | Adverse possession may be raised as an affirmative defense; court can treat mislabeling under Rule 8(c). | Court affirmed that raising adverse possession as a defense was permissible and Rule 8(c) allows treating a mischaracterized pleading as a counterclaim. |
| Did the superior court err by citing its unpublished Ibarra decision (Appellate Rule 214)? | Citing unpublished Ibarra improperly relied on nonprecedential authority. | Court may consider its prior unpublished decision for persuasive value; Rule 214 limits party citation, not judge use. | Court’s use of Ibarra for persuasive purposes was proper and not reversible error. |
| Does an existing municipal sewer easement defeat exclusivity required for adverse possession? | The municipal easement shows public use, so possession cannot be exclusive; adverse possession cannot run against a municipality. | The easement is a limited right; exclusivity is measured against ordinary owner use and the easement does not negate exclusivity vs. the private fee owner. | Court held the easement did not defeat exclusivity as to the private fee interest; adverse possession may succeed subject to the easement. |
| Did the Robertsons satisfy hostility (vs. permissive use) given their mistaken belief about ownership? | The Robertsons’ mistake and lack of awareness of encroachment mean use may have been permissive; burden on Yuks to show non-permissive use. | Objective test of hostility applies; a fence and owner-like use show hostile possession, and no evidence of permission existed. | Court held hostility was established: the fence and owner-like use overcame presumption of permissive use; adverse possessor’s subjective beliefs irrelevant. |
Key Cases Cited
- DeVilbiss v. Matanuska-Susitna Borough, 356 P.3d 290 (Alaska 2015) (standards for de novo review of summary judgment).
- Price v. Kenai Peninsula Borough, 331 P.3d 356 (Alaska 2014) (independent-judgment standard explanation).
- Vezey v. Green, 35 P.3d 14 (Alaska 2001) (elements of adverse possession and presumption of permissive use).
- Penn v. Ivey, 615 P.2d 1 (Alaska 1980) (fence and enclosed use as strong indication of adverse possession).
- Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974) (objective hostility test; mistaken boundary irrelevant).
- Cowan v. Yeisley, 255 P.3d 966 (Alaska 2011) (timing and non-retroactivity of statutory changes affecting adverse possession).
- Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits, 204 P.3d 1023 (Alaska 2009) (review standard for superior court interpretation of rules).