*1 higher our 21.09.270 meets held that AS standard, bearing a fair
equal protection legitimate pur- relationship to its
substantial
pose.
IV. CONCLUSION argue right waived its
The Division seeking precluded from a re-
Blue Cross is retaliatory of its taxes. We therefore
fund claim and conclude
consider Blue Cross's subject retaliatory tax-
that Blue Cross is conclude that the Division acted
es. We also retaliatory
reasonably implementing statute, specifically, excluding pay-
tax that Blue made to the Alaska
ments Cross
Comprehensive Insurance Association Health Employers Health Re-
and the Alaska Small retaliatory tax
insurance Association. plain language, policies underly-
statute's statute, agency
ing that and deference interpretation of
expertise and its established statute, all this outcome. Ac-
cordingly, ruling we AFFIRM the made
the Director the Division Insurance.
Finally, because we conclude that the retalia-
tory statute a fair and substantial rela- bears
tionship legitimate purpose, its we also
AFFIRM the court's determination
that AS 21.09.270 is constitutional under equal protection and
Alaska's substantive process
due clauses.
EASTAUGH, Justice, participating. VEZEY, Appellant,
Allen
v.
Angela GREEN, Appellee.
No. S-11353.
Supreme Court of Alaska.
Nov. *2 Connors,
John J. Law Office of John J. Connors, PC, Fairbanks, Appellant. for Associates, Josephson, Josephson Joe P. & PC, Anchorage, Appellee. BRYNER, Justice, Before: Chief MATTHEWS,EASTAUGH,FABE, and CARPENETI, Justices. 1994-1995, ty. In the winter of Allen
OPINION bought parcel a two-thirds interest PER CURIAM. property.2 land that included Green's After
I. INTRODUCTION purchased property, appeal In an earlier decision on brought right por suit to establish her to a case, *3 Angela that Green had we concluded Vezey, tion of the land. She sued the estates by possession established title adverse husband, Elden, of Billie Harrild and Billie's north, south, of a cabin land to the and east son, John, as well as Billie and Elden's who Fairbanks, but we re- she had built near remaining owned the one-third interest. extent to which she manded the issue of the Only Vezey defended. Green maintained adversely possessed land to the west of
had orally promised that Billie Harrild had her remand, superior court her cabin. On the property the to build cabin and that Green acquired
determined that Green had title acquired by property had title over the ad up all of the land to 800 feet west her possession, having open verse made and ex primarily cabin because she had cleared and clusive use of the land since 1982 that includ leading
improved prop- a western trail to the land, cabin, building ed the erty. making property.3 other to the determination, Vezey appeals Allen this superior At the first trial in the court First, raising argues that the two claims. he agequired held that had title to Green the denying in his Alaska trial court erred Civil area, noting prov entire that bluff Green had 60(b) original Rule motion to set aside its until en use of the land from 1982 1993.4
judgment, in which he claimed his dis- superior The court concluded that the rele alleged covery photographs of new aerial parcel roughly rectangular, vant and was misrepresentations Green to one of the north, lot bounded the the justified vacating owners of the the south, Highway Old Richardson Shaw Second, original judgment. he contends east, Creek to the and a line 300 feet from superior concluding court erred in Vezey appealed, the cabin to the west. proved adversely pos- that she had Green every except in respect we affirmed one: We sessed the land to the west of her cabin. findings remanded for further on the extent 60(b) Because the Rule motion was not time- of Green's ly, superior we affirm the court's decision on considering In west of her cabin.5 Green's issue. because the evidence claim, we examined the only supports granting the land Green period between the summer of 1983 and the feet to the west of her we reverse the during it summer of 1998 because was this superior awarding decision of the court presented span time that "Green the most up Green all land to 300 feet west of the evidence of consistent use." cabin. remand, Vezey for relief from On moved
II FACTS AND PROCEEDINGS original judgment trial under Alaska Civ- 60(b)(@) (8). Vezey's il Rule underlying The facts of this case are set Rule 60(b)(2) decision, Vezey argument "newly in based on dis-
out our earlier v. Green ).1 brief, (Vezey Angela in which, Green's photographic evidence ac- covered" Harrild,
grandmother, gave cording Vezey, belied Green's Billie not made
piece family's land on Shaw Creek and demonstrated that she had during prescrip- the land sufficientuse of gift
Bluff. The was not recorded. Betwеen 60(b)8) mid-1990s, Vezey's argument period. tive Rule
1982 and Green constructed misled Har- grounds proper
cabin and cultivated on the contended that Green had John at 28.
1. 35 P.3d 18-19 Id. Id. at 19. Id. at 20. Id. Id. at 20. superior the size of her claim when she While the court found that Green
rild about sign "appearance him to an and waiv-
asked had made use of the land of her cabin west order, one-page in action. In a
er" her first by putting a chain over the entrance to the rejected Vezey's court motion on bluff, planting renovated trail to the trees ground opposition that Green's created area, keeping turkeys and chickens "[glood appeals cause" to do so. there, it declined to factor these activities
decision. possession analysis into the adverse because Furthermore, they occurred after 1988. Following the second trial recognized
superior court determined that Green had respects the 2008 differed some
proven adversely possessed that she had testimony: gave differing her 1999 entire western section of the placed camper dates for when she on the began by noting inqui-
superior court that its
ry determining was limited to the western selling site and could not recall rock from the prior But land to 1985. the court did not claim. It that in of Green's found renovating westerly started discrepancies any legal
1982 Green accord these effect by creating
trail a turnaround for cars and they only portions relevant because were
clearing away larger underbrush trees. of the outside our remand order.
The court also determined that discrepancies It that these reasoned went to employees friends and had used and findings that were unassailable because the cleared the western trail from 1982 onwards everything status of other than the western that and noted her use of the access trail portion had been settled
predated her use of the land on which she superior our affirmance of the court's 1999 built her cabin. decision on those issues. superior The court discounted the testimo- Finally, the court concluded that Green ny Raymond Vezey's Kreig, photographic of convincing had established clear and evi- expert, who testified that of the trail widening, clearing, dence that her and con- apparent Kreig
was not before 1986 because supрorted tinual use of the trail her adverse that admitted visible on the claim to the entire of land ground might photos. not be visible in the Vezey 300 feet to the west of her cabin. Instead, the court credited the of appeals. Green and other witnesses that trail had improved
been in 1982 and 1988. III. STANDARDOF REVIEW superior The court also found that Green 60(b) placed
had chains or cables at the end of her Denial aof Civil Rule motion placed
western access road: she one cable is reviewed for abuse of discretion.7 We will
the end of the road where it connected to the conclude that a court has abused its discre road, tion if we come to the "definite and firm
telephone roughly one on the trail 800 conviction,
feet west of her record, and one near her reviewing after the whole ruling."8 the trial court erred in its
house. The noted that two of Green's
neighbors seeing flag- testified to chains and findings court's factual
ging tape places at various and that one of are reviewed for clear
them error 9 and are re flagging stated she understood the jected only when we are "left property belonged
to show that the with definite Green.
The court and firm conviction on the also noted that this witness testi- entire record 10 that a flagging fied that she had seen the two to mistake has been committed." Further, years grant especially strong
three before Green's cabin con- we was defer findings
structed.
ence to a trial court's factual
when
Alaska,
I,
Sengupta v.
Univ.
21 P.3d
1248
of witnesses and appeal. on the in Farrell v. Dome Laboratories, Inc.,14 However, analysis we noted that courts legal trial court's is novo,12 answering legal in de may expand one-year period
reviewed for Rule 60(b)(1)-(8)motions,15 pen- and held that "the questions apply we "the rule law that is dency appeal of an does not extend the one- light precedent, rea persuasive in
most son, year any policy." limit under three clauses first 60(b)." Accordingly, of Rule we deter 60(b) in mined Farrell that a Rule motion DISCUSSION
IV. untimely it because was filed more than Superior Did
A. The Court Not Abuse year original judgment.17 one after the Be Denying Vezey's Its Discretion applicable cause the rule Farrell is to this 60(b) Civil Rule Motion. case and because offers no substantive why untimely reason his motion should be 60(b) Vezey renews his Civil Rule ar accepted,18we decline to reach the merits of
guments appeal, arguing the trial 60(b) Vezey's arguments Rule and conclude in denying its discretion court abused court did not abuse its him failing grant relief from
motion denying discretion his motion. judgment. we need not Vezey's the merits of claim because his reach B. It Error Was To Determine untimely. motion Alaska Civil Rule *5 Acquired Title Green to Land 300 60(b) requires claiming that motions relief by Feet of Her West Cabin Adverse (8) 60b)(1), (2), under Rule and be filed Possession. year judgment. Although
within one of final challenged by Vezey рrove possession final order was filed To adverse Green 60(b) 1999, Vezey's possessed
in Rule motion must show that she November the land for Vezey years.19 acquire by not filed until 2002. ten consecutive To title August argue exempt possession, provide either that he is from adverse she must
seems clear one-year requirement convincing or that it was and evidence that she used during appeal statutory period
somehow tolled of the first land for the in a "continu ous,
judgment, open and he notes that he filed his Rule and notorious" manner that was
11. Id. to the extent and under stated the conditions in them.
12.
Id.
(citing
Moors,
7
Farrell,
"exclusive and hostile to the true owner." property, arguing claim ern that her must determining party's whether a use was possess fail because she failed to use and continuously during ten-year
continuous, notorious, property open and and suffi exelusive, in period between 1983and
ciently apply referenced we a "flexible stan geog that takes into account Alaska's
dard" prior our decision.25 relies on our character
raphy and climate and the of "[wJhile statement that evidence from later question.21 inquiry in land Our into these use, continuity years is relevant of separate requirements overlap involves some possessor may rely adverse not on evidence requirements because these all serve the years expand from later the boundaries of goal putting same of the record owner on argument her claim." His is that there is of an claiman
notice of the existence insufficient evidence the record to t.22 all conclusion Green used of the land years. west of her cabin for ten
Vezey argues that Green did not by convincing prove clear and evidence that Vezey purchased Because an interest statutory property peri she used the for the 1994-1995," the land "in the winter of ad briefing od. much of his addresses possession by verse cannot established portions subject beginning uses of the land after the winter of Vezey reargues previ remand order: issues gain And in 1984-1985.28 order to title to ously decided the trial court in 1999 and issue, any of the western land at Green must previous affirmed this court our decis show actual area awarded.29 only Because the remand order di ion.23 case, As this is not a color of title rected court to make determina gain possession cannot of the entire western regarding tions Green's adverse simply by possession portion land of some cabin,24 to the west of her we only gain the land.30 can therefore title arguments discuss those that deal with "continuous, possessed in to land which she open during and notorious" manner the rele *6 statutory period.31 Although vant the trial
Vezey claims Green did not make
significant court found that acquired to the western Green had title to Thus,
property September parcel, before 1984. Vez- the entire western land that extends
ey challenges possession cаbin, of the west- 300 feet her west of a careful review of I, Vezey (quoting depart
20.
21.
at
Id.
21.
I,
25.
22. See Peters v.
Girl Scout Coun-
Id. at 25.
cil,
519 P.2d
Vezey argues
that his new evidence demon-
Id. at 19.
property,
including
strates that Green's use of
trail,
clearing
sufficiently
her
was not
provides,
28. AS 09.10.030. The statute
in rele-
provide
obvious to
notice to the record owners.
part:
may
vant
"An action
not be maintained
However, we
noted that
the Harrilds had
already
recovery
under
this subsection for the
real
[of
actual notice of Green's use and
of the
property]
appears
plaintiff,
unless it
that the
an
I,
property. Vezey
Vezey
24. See
v. Arctic
Wolff
Fagerstrom,
30. Nome 2000 v.
(Alaska 1977) (''The
doctrine of the law of
(Alaska 1990) ("Absent
title, only proper-
color of
prohibits
the case
the reconsideration of issues
ty actually possessed may
acquired by
adjudicated
previous ap-
which have been
in a
(internal
omitted)).
possession."
citation
case.").
peal in the same
Law of the case is a
policy-based
prevents relitigation
doctrine that
I,
already
We
decided issues.
Id.
763 n. 5.
see
the evidence acquired finding that Green has
supports a to the renovated trail. The testimony forty of her cabin. stating described Fairbanks's land feet west
title to flagging that she first saw the two to three testified that 1983 she years before the cabin was built. Ridder trees and
began out the smaller "(alll seeing flagging through also testified to to the west of the underbrush the woods along the woods" what he deemed to be the safety and fire rea cabin site for aesthetic "property line." the area where sons; up she noted that she wanted to clean flagging Fairbanks saw indicated she the land did not wish to take it too far but to the west of the 800-foot line. natural state. consider the nat from its 'We testimony And Ridder's was inconclusive as ural of the land deter characteristics when flagging. and when he saw the where mining party's a of the land was whether use 32 Ridder testified: sufficient to establish adverse comports
and conclude that Green's use with Q you Okay. seeing did recall Where of use a reasonable owner would
the sort flagging of a tree? area on the outskirts of
make of wooded through A All the woods. You asked me improvements that property.33 her tree, flag if I've ever seen on and I Green made before the winter 1984-1985 oh, said, yeah, lots. And here don't making space a cabin and included clear seeing any-oh, might recollect there ing twenty an area feet to the west here, flags along maybe have some been cabin site. Her use of the land therefore me, through just. here. It's hard for ... establishes title to the cabin site and the land record, Q you say maybe For the when twenty feet to the west of it. Green cleared there, through you talking what are twenty-foot portion an additional at the ree- about? department, ommendation of the fire "either '85," according
in '84 or to Green's Property A line. The addition of this evidenceis remand.35 Because Ridder indicated that he believed sufficient claim to the establish Green's line to be west of the 800-foot
land feet to but west boundary, is inconclusive and not to the rest of the land 300 feet west of doеs not establish that Green Notably, the cabin. that even Green testified boundary. western seventy- by 1988 she had cleared some testimony as to the Green's own five feet to the west of her cabin. flagging is also inconclusive. Green testified *7 neighbors, Two of Jan Fairbanks Green's surveyor that she hired a in 1984 but that he Ridder, they and testified that saw William trial, survey. never finished the In the 1999
flagging along edge of the western testified: property. Fairbanks testified she would Q you go say, and dogsleds through along So is it-did ever out
drive the area 1982, 1983, 1984, boundary "Okay. going plot I'm to out the areas of
western 2000, by showing possession
32. Nome
my employees I land where went out to the out- she her friends and "widened
house, I put where chicken trail, saplings, cut and cleared a turnout
coop...." way one-fourth of the in." about Both Green associates, MceTaggert, and one of her John flagged A I marked it. it. I walked they testified that widened the trail and cre- surveyor]. with [the turnaround, ated the and the court noted referring It is not clear what Green was McTaggert's testimony that Green's and was
when she said she "it." Green did "substantially similar" on this issue. testify walking out on thе after original action was filed "to look for the Vezey McTaggert's attacks Green's and flags put up that had on the Dora been testimony credibility grounds, pointing to side, Robinson on the west side." But there discrepancies testimony in Green's and the flags put is no evidence about when the were McTaggert fact took medication for up Vezey whom. testified he had memory problems. questions But these in put flagging thought on what he eredibility volve the of witnesses and inter boundary of his in 1998 when he pretations testimony, supe of their and the bought testimony the Carter findings rior court's factual based on this flagging as to the is thus inconclusive. How give do not rise to a firm and def ever, put up flagging along even if Green had inite conviction thаt the trial court made a
the line 300 feet to the west of her this mistake.37 enough
act alone is not to establish her own
ership parcel Vezey posits photo the entire 300 feet to the also that his I, graphic disproves
west of her cabin. As we stated in superior evidence of actual findings, suggests
"[e}vidence must be suf court's factual and he reasonably diligent ought preferred
ficient alert owner to this evidence to be over the possessor's exercise of dominion and con of Green and her witnesses be use, occupa "objective"
trol. Visible evidence of such as cause of its nature.
tion, fencing, noted, permanent superior and construction of Vezey's photo
improvements, provides particularly compel graphic expert admitted that some of Grеen's
ling possession."36 Flag improvements might evidence of actual not be visible on the
ging non-permanent is a photographs, marker and without aerial and various witnesses use, permanent
more indications of improvements such as testified to noticeable in the Thus, erecting permanent Vezey's of land or im trail. photographic evidence
provements, flagging alone is not suffi does not undermine the court's find support finding
cient to ings improvements line 800 that Green made
feet to the west of Green's cabin. For these trail. reasons, we conclude that the evidence stipulated at trial that the supports only the conclusion that Green path telephone from the road to her cabin established of the land feet longstanding public "а trail." ar
west of her cabin. gues longstanding to a Simple C. Green's Fee Interest in the *8 trail possession. do not constitute adverse Trail Is Limited. leading that Given the road cabin trail," also that "longstanding public maintains there is insuffi- was a Green can
cient support superior evidence to the through court's not claim title to the trail possession.
determination that Green established title Adverse is a doctrine
the trail. superior only The found that applies private property, that and began
Green's use of the trail in public private when Green cannot make a asset (citations omitted). review, judge's
36. 35 at findings P.3d dard of and a factual shall not be overturned unless we are with a "left 52(a); Adrian, 37. See Alaska R. Civ. P. Adrian v. dеfinite and firm conviction on the whole record (Alaska 1992) (explaining that (internal judge that the made a mistake" cita- judge's accept decision to witness's version of omitted)). tions subject "clearly events is to the erroneous" stan- Although evidence, use of the doctrine.38
through the weight on this there some was relied, forty much more evidence on which he in- simple title to the land has fee
Green property, including of her cluding
feet to the west that the evidence Green blocked road point property" began, that "her that trail, subject to an ease at the property is
the her portion prop- through her she cleared the western passes the trail
ment where simi the easement
property. And because erty, along that she boundary, length public marking linе its western and that
larly the entire runs neighbors portion her considered the western trail, pursu the trail will have use of property." Vezey's that crosses of the land to "her The evi- to the trail easement be
ant supporting superior dence court's deci-
land. following: sion includes v. CONCLUSION along did substantial work 60(b) was not Vezey's Rule motion Because trail, turning road, in effect it into a and she filed, superior AFFIRM the timely we point corresponded chained it at the off denying that The decision motion. court's to what she as her land-about claimed supports finding presented evidence feet to the west of her cabin. Green testi- adversely possessed the trail that Green my property, keep "it's a claim this is fied, forty to the leading to her feet out, put sign up." so I Her cаbin, but not all of the land 800 west of her neighbor eorroborated her near William Therefore, west. feet to the description driveway of where her Ridder's is AFFIRMED court's decision on issue began. granting previous Even its to the west of Green's as to the feet and that one use the trail had become public, to the remainder cabin but REVERSED as (and adversely possess public cannot land to the westand REMANDED ofthe 300feet that at she therefore shares in an ease- most entry judgment superior court for to the road), chaining ment over the off of the opinion. consistent with this strong road is evidence of the extent of her that the claim to the land road crosses.
CARPENETI, Justice, with whom
BRYNER, Justice, joins, dissenting. clearing Chief around the addition cab- rоad, working on the Green did site CARPENETI, Justice, with whom clearing canopy." "under She testified BRYNER, Justice, joins, dissenting. Chief just focusing "instead of on the Today's Opinion looks to a clearing I out the-between road started supporting superior court's
the evidence there, say I it trees and so wouldn't looks- finding Angela Green had ad- factual park-like, but so that there would look question, versely possessed the land old, a fire hazard from old trees wouldn't that the is insuffi- then evidence concludes lying As she that were around whatever." at all of the evidence cient. But if one looks testified, in addition to for the cabin Savell, it that there was Judge before is clear road, doing work on the she did "clear- evidence to sufficient cоnclusion. canopy, ing out end under the the west tree reason, I affirm his decision. For that would end, ones, so...." the smaller and the other Accordingly, I dissent. added.) why the (Emphasis asked «When out, responded: taken begins by characterizing smaller ones were she Opinion "Well, thought I it looked better and resting "primarily" because
Judge Savell's decision I didn't it madeit lessofa firehazard. im- the fact that Green had want cleared and, bam, just house there leading proper- trail look from the proved a western woods, you it Judge put ugly know. wanted
ty. it is true that Savell While *9 jurisdiction No title or under the of the state. eg., Eastham, 1051, Price v. 75 P.3d 1058 See,
38. (Alaska 2003) (stating prescriptive jurisdiction a ease- under the interest to land interests); may government not burden see by mеnt may acquired or state be 38.95.010, provides: also AS which except by any prescription, other manner . conveyance the state. prescription limitations runs No or statute of against title or interest of the state to land the
1134 pretty." clearing husband, This about Janice Fairbanks and her
to William canopy
out the west end under the tree They neighbors, Ridder. were Green's near understanding
supports judge's findings and both testified to their the trial that "[ble- using clearing
cause Green was the trail "property that Green's line" was the ..., necessarily and western she oc- they line that saw on the western cupied requisite the western land the [for of the cabin. Fairbanks referred to the trail/ added.) period]." (Emphasis "Angela's driveway." describing road In prоperty," what she meant "her [Green's] Responding Vezey's attorney's ques- 3. stated, "I proper Fairbanks know where her "nothing tion whether it was true that else" ty started on the drive that went to her being
was done to the other than markings house. There was some kind of construction, no,
the house Green said there on the trees." Fairbanks marked with always going was work on in the "Itlhere
woods, all, a red X a point on trial exhibit the where property; all around that there added.) she always property began,
was believed Green's which (Emphasis work." It is question
true that this answer was to a court noted was to the west of the 300- as to foot line. She confirmed that
1986, twice constantly distinguished but Green be- the west" and where she believed the Green line
tween work on "the road to describing
"the area to the west" in seeing flags the work. to be. Ridder was asked about on trees in the area. He answered: "[HJere clearing
4. The inwork the woodsneed seeing any-oh, might don't recollect there been extensive. As we made clear have here, flags along maybe have been some case,
in our earlier decision in this whether through me, just...." here. It's for hard physical enough claimant's acts are de by ."maybe When asked what he meant pends on quest character of the land in there," through Ridder "Proper responded: land, ion.1 For remote rural three weeks of ty point, followmg line." At ex sheep during year the entire grazing change occurred: enough deemed to be to estаblish adverse Cooper Co., 2 v. Carter Oil a Judge (referring proposed Savell to the approval case we cited with in Nome 2000 v. property line 300 feet to the west of the Fagerstrom.3 Surely question for the land in cabin) if referring asked he was to an area case, in this about which a witness the first just goes up "[that west red line that 7] testified, up take fool to live down?"[ "it'd Answer: "Correct." months," there in the cold winter it was just you The Court: "And called that enough major make property line?" road, access block off that road so as to make "Right." Answer: neighbor "driveway"
it-as testified-a property, flag edge property, that, Shortly Judge interrupted after Savell canopy and do some under parties convenеd the
trees on the Ap counsel for an in-chambers conference. parently addressing "community repute" Vezey, We have relied on counsel for he finding your said: possession.5 of adverse "These are witnesses. It's devas regard, probably strongest tating. put prop evi Two them have now Judge dence in pro erty Savell's estimation was even fighting west than we're farther added.) by Vezey:
vided two today." (Emphasis witnesses called over urged He Green, 14, (Alaska 2001) exhibit, v. photograph, 35 P.3d This is attached to this I). (Vezey dissent as Attachment A. The Attachment con- designations tains that I have added to aid un- 320, (1957).
2. 7
2d
Utah
derstanding
compensate
of the exhibit and to
reproduction.
the lack of color in its
3. 799 P.2d
I,
the The court and saw the evidence.10 witnesses any consid without knowingly going into this testimony the of finds "inconclusive" first turning into This is of settlement.... eration Ridder about the western William today dismisses The court a blood bath." above, I have noted the property. the As of testimony as obviously very important
this flagging seen Ridder estab fact that the that he Ridder indicated "Because follows: than slightly larger area Green lished line to be west the believed require the trial court sought at trial did not testimony inconclu boundary, is his
300-foot еffect, is, testimony. disregard That to that Green does not establish sive and also con court does. The court what this fact boundary." But the western flagged her flag as to the that Green's cludes have estab testimony would: that Ridder's to But it is sufficient ging is "inconclusive." (slightly) larger tract that was an lished even findings. tes support the trial court's Green hardly to a reason adversely possessed is it. I "I marked tified without contradiction: substantially less property to the cut back surveyor}" in flagged [the it. I walked with And, see, there is as we shall than 300 feet.9 during the trial Vezey's claim response to finding the that to sufficient evidence later, flagged purposes it for that Green flagged her Green hired testified that she of the lawsuit. She followingfind- made the Judge Savеll Jensen, surveyor, who Oswald ings: survey pro complete not began but did proper- that considered Fairbanks "I it. I saying After marked cess. her that went to ty on the drive started Oswald," Green was [it] it. I walked with "Angela's spoke that trail as house. She of asked, say, 'Okay. Just you go out and "[dlid of property to the west driveway" and the case, going this I'm purposes of for place." "Angela's As- the Green house as people-you seope out the areas that kind of are Vezey's own calculations suming that know, occupied by clearing correct, "driveway" extends between "I walk brushing. responded, .. .'" did In the of the house. 300 and 330 feet west flags that had part of one line to look house, junction of trail west side, on put up on thе Dora Robinson been north to the tele- the trail with the route added.) sum, (Emphasis the west side." line, flagging tape, phone there was also surveyor brought a testified that she long saw before Green which Fairbanks marked property in that she on to the house. built her time, purposes of this and that "for it at found that Ridder saw Judge also Savell 1995) (which she walked was filed case" years couple of before flagging "at least flags that had line "to look for the part of the findings are began." These construction Judge side." put up ... on the west been They abundantly supported by evidence. are accepted the inference appears to have Savell clearly erroneous. flags seen this by Fair "Angela's рroperty" side of the west that the tes court twice concludes 7. The had "inconclusive," flags and Ridder were but banks
timony flagging about is by Green or at Green's put there either been ignores our limited role characterization behest,11 a reasonable inference is and that reviewing the factual appellate an cabin, apparently extends now recognized plau- the west of the Judge there was a Savell slightly beyond than 300 feet land. claim for land farther sible on Ridder's and Fair- from the based testimony, but he limited his banks's 52(a) part: provides in relevant 10. Civil Rule ruling from the to the land 300 feet unless "Findings not be set aside of fact shall cabin. erroneous, given regard shall be clearly and due judge opportunity the triаl court in the size court's draconian reduction This credibility of the witnesses." Angela Green's land- the western the cabin down from 300 feet out from Judge the trail west of Savell found: "In consequences for her. have serious feet-will proper- junction with the route things, of the trail Among the outhouse on house, at the other line, flag- telephone was also there north ty, court found was 41.7 feet which the *11 (and
one.12 our own from inferences inferences), decline to draw reasonable In order to reverse the court's general judgment our substitute on the
finding adversely possessed that Green had for the judge's. facts should not We do to the west out to 300 feet from reasons, that.13 For these I respectfully dis necessary it would be to tаke sent. judge's ourselves the trial role in determin-
ing meaning testimony, of witnesses' A
judge
witnesses,
ATTACHMENT
credibility
to draw
...,
ging
52(a)
tape,
long
which Fairbanks
saw
stronger
before
Rule
there must exist a
Green built her house."
overthrowing
finding
basis for
of fact than a
personal
judgment.
mere difference in
Such
month,
recently
upheld
12. As
as last
we
a trial
evidentiary weight and such convictional cer-
finding
"supported by
court
because it was
tainty
present
appellate
must be
that court
permissibly
evidence and reasonable inferences
escape
does not feel able to
the view that the
Marcy,
drawn
the evidence.
"Diblikv.
survey
trial court.
failed to
has
make
sound
(Alaska 2007)
added).
(emphasis
P.3d
proper
or to accord the
effect to all of the
facts,
course,
cogent
giving
regard,
due
In addition to the admonition of Civil Rule
52(a)
appraisal
give
regard
credibility
the trial court's
opportunity
of witness
"due
...
judge
credibility
of the trial court
where that factor is
involved.
witnesses,"
long
appellate
we have
held that the
(Alaska
1964)
Isaacs v.
Jake OLIVIT, Sr., Appellant, v. CITY AND BOROUGH OF JUNEAU; John Hartle; The Juneau Empire; and Tony Carroll, Appellees. 216. S-12 No. Alaska.
Supreme Court of