*1 14 "premises rule." The premises rule holds counsel reflects an expenditure inefficient injuries suffered on the employer's attorney time for a relatively simple "single premises by an employee who is going to or issue Questions case." such as this are com coming from work are compensable.1 It is mitted to the discretion of thus flip side of the "going and coming court.7 We are persuaded not by the show rule" under injuries which occurring off the ing presented by the Municipality that employer's premises while employee is court abused its discretion in concluding that traveling to or from work are not compensa-bl Robertson's counsel's expenditure of time e.2 rule, Under the where the employer was reasonable. provides parking, parking area is consid judgment of the superior court is part ered employer's premises. If the therefore AFFIRMED.
parking separated area is from employ ee's workplace by street, injuries suffered on the street while walking between the
premises are considered compensable just as
they would be if they had occurred on either
premiges.3 agree
We with application this premises rule, as do the courts of most VEZEY, Allen Appellant, states.4 We note that applies rule where, here, employer v. does not own the parking facility but portion leases a of it Angela GREEN, Appellee. for employee parking,5 as well as when the No. S-9440. employer charges the employee for privi lege of parking.6 Supreme Court of Alaska. The Municipality also challenges the 16, Nov. 2001.
superior court's award of attorney's fees of $20,748 to Robertson's counsel for work in court. The Municipality does
not challenge the reasonableness of the hour
ly rate
by counsel,
claimed
per hour,
$250
but
argues that sixty-nine hours as
claimed
1. See 1 Artriur Larson & Lex
Larson,
K.
Larson's
5.
Larson,
See
§
note 1,
supra
13.04[2][al],
at 13-
Compensation
Workers'
(1999).
Law 13.01
Van Deusen
Onondaga
v.
County,
Cf.
45
AD.2d
793, 357 N.Y.S.2d
155 (N.Y.App.Div.
2. See Seville v.
Westours,
Holland America Line
1974). See also P.B. Bell & Assocs. v. Industrial
(Alaska
Inc., 977 P.2d
1999).
103, 106
Comm'n,
William Appellant. by Appellee. appearance
No Justice, FABE, Chief Before: BRYNER, MATTHEWS, EASTAUGH, CARPENETI, Justices.
OPINION FABE, Chief Justice.
I,. INTRODUCTION part of possession of Angela Green took prob- family's The land was grandpar- gift from her ably an oral to Green decade, following lived For the Green ents. gradual- during the summer. She on the land house, surrounding ly cleared built trees, garden following and fruit cultivated a the foundation the house. summers, gradually expanded poultry. grandparents In 1994 her the culti- raised property, planting vated section of the lilac Vezey. in the land to Allen sold their interest installing coop bushes and fruit trees and brought claiming that Green suit she had turkeys. neighbor, for chickens and Art gained possession to the title helped McTaggart, to erect the house itself surrounding house and land. The system, propane and to install a water heat- upheld her claim. now chal- er, wiring, generator. electrical He lenges finding of adverse every worked with on the house sum- well as the court's determination of through Beginning mer from 1982 actually possessed. what Be- land Green nearly complete 1987 Green lived in the pos- cause has demonstrated during arranged house the summers. She part session of but not all of the area award- telephone beginning service around ed, north, east, we affirm as to the and south and dealt with fire authorities to determine portions, portion. but remand as to the west away how far from the house to clear trees. In 1986 Green worked Fairbanks II. AND FACTS PROCEEDINGS year property by whole and visited the snow Angela grandmother, In 1982 Green's Bil- *5 winter; during machine the in 1989 she lived Harrild, piece lie offered Green a property eight on the or nine months. family's land near Shaw Creek. Billie was grand- Green on the lived bluff and with her health, declining grand- in and wanted her mother for a half in month and a the summer daughter to have a home near the Harrilds' but did not come to Alaska in 1998. parcel own. Green selected a of land on a standing Green left trees on much of the bluff, grandpar- across Shaw Creek from her property, undergrowth plant- but cleared and alleged gift ents' house. The was not re- plants ed native over an area of several corded, Harrild, and Billie and Elden the acres. She also cut trees from a wide area Harrild, cousin, grandparents, and John a on the in southern hillside order to clear the However, remained the owners of record. posted view from the cabin. She "No Tres- according testimony, to Green's in the ten passing" signs and built benches in some years following entry property, onto the away put areas up from the house. She a "absolutely" recognized all three the land as entering chain across the road the property, Harrild, hers. John the record owner but did not fence Although the entire area. trial, participation alive at the time of waived improvements entirely the were not visible in agreement this case and indicated his road, neighbor from the a testified that local recognized. Neighbors Green's claims be Junction, away residents as far as Delta consistently testified that Billie referred to twenty Highway, miles down Richardson property, the stranger land as Green's and a Angela knew of the proper- bluff as Green's to buying Green who asked Billie about the ty. against property lien filed re- property around 1987 testified that she told Despite flected this belief: the fact that land him she could not sell the bluff because it owners, records showed the Harrilds as belonged granddaughter. to her Elden and lien property declared that Green held the in Billie Harrild died the winter of 1995- right either in her own or as a constructive trust for Billie. gradually Between 1982 and 1992 Green considerably In 1990 the house was dam- grounds constructed a house and cultivated aged by repaired bluff, vandalism. Green on property She worked on the damage when she returned to Alaska in the summers, over the and worked aas nurse spring. property Witnesses who visited the glassmaker in and California for the rest of year in the summer of that Green year. planned In 1982 she the site of her Alaska, did not visit said that the house house and cleared on the lot. trees vandalized, empty, kept up. looked and not summers of 1983 and in 1984 she lived a camper property, arranged grandparents on the cleared more trees with her that, lives, stumps, and and they oversaw hand exeavation for for the remainder of their
19° Vezey quantities of rock The Harrilds' statements caused and extract and sell small could support property in order to them- to from the Colette double-check records response sug- for the bluff area-a which extraction Harrild. This selves John heavy equipment; accord- gave Vezey was not to involve gests that the Harrilds reason to Green, Billie Harrild ing to both she and already fear that Green owned the land. equipment strongly opposed of such use negotia- while was still property. Harrilds, phone he tions with the received 1991 the Har- between 1988 and Sometime Angela According Vezey, call from Green. to with an extraction rilds executed contract hysterical" Green was "borderline and ob- Earthmovers, allowing company, them to ex- jected purchasing property. to his She family property, cavate rock from the includ- expressed some involvement or interest apparently contract in- the bluff. The testified, say but did not that she option buy for Earthmovers cluded an Green, According it. owned she told Vez- Green, According property. Billie's men- ey during phone call that the land be- capacities declining at time of tal were her, sale, longed that it was not for contract, longer this and she no handled her stay that he was to off of her own finances or affairs. accepted trial court Green's version of the call, on the Earthmovers excavated a trench expressed scepticism Vezey's about day bluff on a when Green was not at home. testimony on and other issues. the workers
When Green returned and found
Vezey pur-
In the winter of 1994-1995
however,
equipment
on the
chased Elden Harrild's one-third interest
told them that
were not allowed to
which included the contested bluff
granted
there.
the workers
excavate
separately purchased
area. He
Billie Har-
hand,
permission to finish the task at
insisted
*6
James,
rild's one-third interest
from her son
they arrange
repair
telephone
line
that
to
attorney
power
who obtained and recorded
of
damaged,
that
had
and ordered them to
closing.
on the same afternoon as the
John
property.
leave the
(who
Harrild
does not contest Green's owner-
in
In 1988 Allen
became interested
bluff)
ship claim to the
retained the remain-
properties. Vezey planned
Shaw Creek area
family
one-third interest
in the
in
in
to consolidate
the area
order
Vezey purchased
property,
After
quarry
purchased property
He
to
for rock.
(Green
him,
brought
against
suit
Har-
John
adjoining
dy-
out
Harrilds' and carried
rild,
Harrild,
the deceased Elden and Billie
namiting and excavation. Green testified
Only Vezey
and Billie's estate.
contested
strongly opposed
that Billie
this use
complaint
that she
action. Green's
stated
grandmother
and that her
was "ab-
given
had
Elden and Billie's interest
in
been
solutely
Vezey.
livid" with
gift,
property through
parol
and that
Vezey approached
pur-
the Harrilds about
possession
open,
had at all times
been
engi-
chasing their land in 1998. He and his
notorious,
of all
and hostile
claims
neer,
Colette,
meetings
Ken
had a number of
trial,
ownership
others. At
claimed
of
Green
that
with the Harrilds. Both testified
property by
possession.
the bluff
adverse
Billie
tone was cordial and
exhibited no hos-
parties presented
Both
detailed witness testi-
tility
Vezey, although Colette testified
toward
Green,
mony regarding
by
the area used
cogni-
Billie Harrild
"in and out of
was
presented two witnesses to attest
to
Green
during
him-
period,
zance"
this
and that he
After
the duration and nature of her use.
into a
self would have been reluctant to enter
trial,
days
Superior
Judge
Court
four
of
According to
contract with her at
times.
by
D.
that Green had
Richard
Savell held
Vezey,
only
the Harrilds mentioned Green
possession acquired title to the en-
adverse
say
they planned
give
her an acre of
Vezey appeals.
tire bluff area.
"Angela's
land.
recalled mention of
Colette
Harrilds,
early meetings
acre"
with the
III
REVIEW
STANDARD OF
testify
but did not
that the Harrilds said the
findings
planned gift
for the future.
review the trial court's
We
fact under
"clearly
erroneous" standard.1 stated in Nome
Fagerstrom
2000 v.
that "in
standard,
Under this
reject
we will
a factual
acquire
order to
title
possession,
adverse
finding only if we are "left with the definite
the claimant
prove,
must
by clear and con
and firm conviction on the entire
vincing
record that
evidence,
...
that for
statutory
a mistake has been committed.2
In addi
period
his use of the
continuous,
land was
tion, we have stated that
open
"[when a
notorious,
trial
exclusive and hostile to
court's decision of a factual
the true owner.9 Continuity, notoriety, and
issue depends
largely on conflicting
testimony,
oral
the trial
exclusivity
use,
explained,
we
are "not
court's competence
judge
credibility
susceptible
to fixed standards," but rather
provides
witnesses
stronger
even a
"depend
basis for
on the character of the
question."
land in
deference
the reviewing court."
10
We use our independent
judgment
1. The statutory period
in reviewing the trial
legal
court's
analysis,4
An
adopt
possession
"the
adverse
rule of law that
claimant
must
most
show
persuasive
light
precedent,
reason,
property for the
stat
policy."
utory period
Our
years.11
review
ten
of the denial
Judge
of a mo
Savell
found
Green had
tion for
summary
used
judgment
the bluff property
is de
novo.6
from 1982 through the
summer of
IV. DISCUSSION
satisfaction of AS
ten-year
09.10.030's
posses
sion requirement
for
adverse
We must consider
three sets of issues.
Because
presented
Green
the most evidence
First, whether Green has met
require-
of consistent use for
period
running from
ments
adverse
possession;
second,
early summer of 1983
early
summer of
whether
the alleged parol gift affects her
1993, we base our
analy
claim;
third, procedural
sis on
years.
those ten
issues
Vezey.
raised
Vezey challenges the evidentiary suf
A. Adverse Possession
ficiency of
court's finding that
Under
09.10.0830,
AS
may
Green used the property during
time;
claim title to the bluff property by adverse
claims that Green admitted to being absent
possession only if
she shows
clear and
in 1991 or
trial,
1992. At
say
did
*7
7
convincing evidence
that
possessed
she has
she had missed a visit
in
year,
one
and
the property for ten
years.8
consecutive
We
briefly
hesitated
as to
year
whether that
was
1. Peters v.
Douglas
Council,
Juneau
Girl Scout
years.
menced within 10
An
may
action
not
826,
(Alaska
519
1974).
P.2d
833
be maintained
recovery
for the
ap-
unless it
pears
plaintiff,
that
ancestor,
an
prede-
a
Foods,
2. Alaska
Inc. v. American
Mut. Ins.
Mfrs.
cessor,
grantor
or the
plaintiff
of the
was
Co.,
842,
(Alaska
482
1971).
P.2d
848
possessed
seized or
premises
question
in
years
within 10
before the
commencement of
3.
Tenala, Ltd. v.
Fowler,
in 1982 and continued
be-
Notoriety
testimony
trial
yond.
and the
Given
have stated that "the fune
We
particular competence to assess the
court's
notoriety requirement
tion of the
is to afford
witnesses,
credibility
its conclusion that
of
opportunity
an
the true owner
notice."
continuously
property is not
used the
requirement
This
is fulfilled when the record
clearly erroneous.
owner knew or should have known of the
duly
possession-"what
adverse
alert own
Exclusivity
known,
charged
er
have
would
owner is
Vezey argues that Earthmover's use
case,
knowing."
with
In this
we need not
property
of the bluff
demonstrates
notice,
question
examine the
of constructive
exclusive.
Green's claim was not
Green also
actual
because
record owners had
notice.
allowed her
to take rock from the
relatives
During
statutory period,
the record own
property.
preclude
These facts do not
bluff
Billie, Elden,
property
ers of the bluff
were
finding
of exclusive use.
undisputed
and John Harrild.
It is
that all
continuity, exclusivity requires
Like
presence
three owners knew of Green's
statutory
"only
the land
used for the
be
Therefore,
notoriety require
the bluff.
period
average
prop
as an
owner
similar
ment has been met.24
erty
would use it."18
Nome
possessors
rural
adverse
allowed
Hostility
pick
others to enter
the land
<order to
hostility
In order
to meet
fish,
group
berries and
but excluded a
requirement,
claimants
family's
campers
who took and burned
prove
they
must
both that
acted as owners
allowing berry-
firewood.19 We held that
and that
did not act
the true
with
picking
fishing
was "consistent with the
permission.25
explained:
owner's
As we have
hospitable
conduct of
landowner." We
find,
suggest,
exclusivity
question
The
did not
or even
determinative
is whether or
camp
had been affected
not the
claimant acted toward the land as
However,
closely
hostility
ers' actions. Green's
situation is
if he owned it.
analogous:
requirement
She allowed moderate use of her
is not satisfied if the adverse
resources,
trespassers
permission
but when uninvited
claimant has the record owner's
rock,
property.
presump-
tried to exeavate
she ordered them off
to use the
There is a
stated,
possesses
tion that one who
As
or uses anoth-
directing
Gireen "acted as an owner"
er's
does so with the owner's
finding
permission.
may
Earthmover
crew to leave. This
adverse claimant
re-
requirement pertains only
the notice
Because
309;
Peters,
18. Nome
at
also
2000, 799 P.2d
see
(possessor
disrupt
23
reject
chal-
by showing that he
same conclusion. We
these
presumption
but this
permis
lenges,
superior
with
and affirm the
court's find-
the owner's land
was not on
sion,
possession.
have
of hostile
that the record owner could
ejected him.26
demonstrated
all of the
Because Green
of her extensive work on
Because
possession, Judge
elements of adverse
Savell
property,
has satisfied the first
properly
concluded
she has established
if
requirement
using the land as
she
of
title to the bluff
In the next see-
presump
it.
has also rebutted the
owned
She
tion,
alleged parol
we will consider how
permissive use. The trial court found
tion of
gift
legal
affects her
claims.
convincing
that Green
clear and
evidence
owner,
property as an
not a tenant
held the
Alleged
B.
Parol
Gift Reinforces
permis
occupancy
Her
was not
or licensee.
Green's Adverse Possession Claim.
dependent
it
on the
sive because
was
permission
the Harrilds.
consent or
of
Vezey argues that because Green
Therefore,
legally hostile to the record
it was
gift
held the
as a
from her
bluff
owners.
grandparents,
possession
permissive.
her
was
Therefore,
claims,
he
she cannot meet
noted,
superior
As the
the Earthm-
hostility requirement
for adverse
presents particularly compel
overs incident
reject
argument
possession
We
because
ling
possession was
evidence that Green's
gift
on a
not the same
of land based
as
others, including
all
hostile to the interests of
possession by permission
the true
of
owner.
By excluding
grandpar
the Harrilds
her
accepts
gift
of land
donee who
asserts
contractors
from the
ents'
property right
independent
the record
of
rights
claimed all
indicated
she
possessor's
owner's. The
use of land
own;
recognize
did not
permissive
circumstances
is not
be
these
any residual
interest held
the Harrilds or
possessor's
claim is not subordinate
cause
any subordination of her own title to theirs.27
title;
it is
an
to the record owner's
instead
challenges
ownership
possessor's
in the
own
assertion
hostility
finding
grounds.
on two
court's
right.
First,
argues
the statute of frauds
property by
prom
all state courts coneur that
bars transfers of real
oral
Almost
ise. Because Green's claim is based on ad
by parol gift may become the
transferred
validity
property through
possessi
verse
and not on the
donee's
adverse
require
prove
on.28 Most
that claimants
itself,
gift
the statute of frauds is irrele
Second,
ownership by
pos
intent
to transfer
vant.
he asserts that Green's
the donor's
convincing
clear
evidence.29 This focus
session could not have been hostile because it
Vezey's
keeping
is in
permissive.
support
was
evidence in
on the record owner's intent
unpersuasive:
wrongly
requiring
posses
of this claim is
He
with our own cases
prove
that record owners
claims that Green herself testified that her
sion claimants
occupancy
permissive,
inaccurately
permit
did not intend to
use of the land
the claimant.30
implies
court reached the
562,
Eldridge
Loftis,
omitted).
v.
723 So.2d
564
(internal
29. See
Id.
and citations
quotations
Andreotti,
(Ala.1998);
Cal.App.2d
224
Andreotti v.
Curtiss,
842,
27. See Hubbard v.
684 P.2d
848
(1964);
713
v. Ar
533,
709,
36
Mertz
Cal.Rptr.
(Alaska 1984) (discussing acknowledgment
(N.D.1997);
294,
564 N.W.2d
Barnwell
endt,
grantee's
title is not subordinate as element
Barnwell,
492,
v.
S.C.
476 S.E.2d
hostility
grantor-grantee relationship).
(1996).
Woerner, Annotation,
28. See V.
Adverse Posses-
§
Tenala,
Fowler,
30. See
Ltd. v.
921 P.2d
Parol
as a gift the strengthens possessor's the based on gift.35 a claims to property by the establishing that possessor the C. Boundaries claims full ownership, Contested Property and that the record owner knows of her claim. We court by found clear and conclude parol gift land, that a prov when convincing evidence that Green adversely by en clear and convincing evidence, estab parcel a by defined telephone lishes presumptions two helpful to the ad north, line to the Shaw east, Creek to the Old possession verse First, claimant. the donee's Richardson Highway south, to the and a line claim to presumptively is hostile 300 feet from the house to the west. The to the donor. explained As we have of the parcel rectangular, with the house closest relationship buyers between and sellers of to the northern border roughly equidis- grantor "once the purported has tant from the east and west borders. To the convey property, neither he grantee nor his east, south and slopes and becomes
believe that
grantee's
possession is sub
a cliff descending to Shaw Creek on the cast
31
ordinate to
grantor's
title."
Similarly, and Old Richardson highway on the south.
gift
when a
made,
has been
and both the
Vezey argues that the area
by
defined
record owner
possessor
and the
believe that
superior court was not adversely possessed
possessor
owns the property,
posses
by Green. He maintains
that
the court's
sor's claim is hostile.
reliance on "natural boundaries" to define
the property is
legal
without
precedent,
Second, when possessor's
claim to
the area
by
defined
the court includes land
property is
gift
founded on a
from the record
not "actually possessed" by Green, and that
owner,
presume
we will
the notoriety
the evidence was insufficient
support
requirement has been satisfied.
"The func
findings.
court's
tion of
notoriety
requirement
is to afford
32
the true owner an opportunity for notice."
Judge Savell's use
road,
When the record owner
gave
creek,
herself
telephone
line as
poses
boundaries
property away, such
may
notice
legal
no
pres
problem
be
in itself. Natural barriers
umed.33
such as
may
rivers
serve as boundaries in
possession
cases.36
presents
In its
below,
decision
the trial court did not
argument
no
why these "natural boundaries"
determinewhether
alleged
gift
initial
are
objectionable.
themselves
land had
place,
taken
although its findings
strongly suggest
gift
that a
was made.34 Be
The more serious issue
raised
cause Green has
stronger
made the
showing Vezey is whether GCireenactually possessed
necessary
prove
with
all of the land
enclosed
those boundaries.
gift,
out a
necessarily
would
also meet
may
Courts
look to a number of factors in
Hubbard,
31. See
684 P.2d
(finding
at 848
claimant
(1)
who shows evidence of
the donor's
grantee purchaser was
possessor
an adverse
(2)
gift
intent
to make a
her own reliance on
where he took
of one
but
gift making
improvements
valuable
inadvertently accepted a
describing
deed
a sec-
property may establish ownership despite the
property).
ond
See,
statute of
eg.,
frauds.
Pyle,
Locke v.
349
813,
(Fla. 1977);
So.2d
Gran,
815
Gran v.
290
32. See Nome 2000,
ments,
compelling
provides particularly
evi
telephone
tween the house and a
line to the
possession.38
of actual
The threshold
dence
supported by
north. This conclusion was
sufficiency
legal
physical
of such
acts
as
evidence,
clearly
and was not
erroneous. To
however,
proof
possession,
varies with the
house,
the immediate north of the
Green
factors,
character of the land.39 Other
such
housing
gen
built the structure
her electrical
people
possessor's
as the
exclusion of other
erator,
tank,
propane
installed
stored
communityrepute,41
property,40
from the
gardening supplies. She also cleared under
possessor,42
intent of the adverse
and the ex
growth
phone
from the woods as far as the
possessor's
perceived
use as
tent
line,
telephone poles
and when the
re
were
43may all be relevant
to a
the record owner
placed, arranged
logs
to haul
the old
to
out
possession.
actual
ev
determination of
Such
In
use as construction material.
the area
particularly
idence is
relevant
this case
line,
telephone
between the house and the
to
predicated
because Green's
both the northeast and northwest of the
gift;
found that
the record
on a
house,
pen.
she raised chickens
a movable
recognized
property claim to the
owners
telephone
line was also the border of the
during
possession period.
bluff
the adverse
Harrilds;
originally
held
not, however, offer clear
The record does
they in
record contains no indication that
evidence of where Green or the record own
give
tended to
Green less than the full north
ers believed the boundaries of the bluff
portion
ern
of the bluff.
inquiry
property to lie. Our
will therefore
physical
focus on the
indicia of use as well as
2. East
the house
apparent
intent of Green and the record
Green's use of the castern area of
possessor
owners. We note that an adverse
property
the claimed
was also sufficient
may
actually
claim title
to that area
purposes
statutory
demonstrate
actual use for
of ad
period,
for the full
from
year
possession.
the first
to the last:
evidence
verse
To the immediate east of
While
house,
years
continuity
planted
garden.
from later
is relevant
Further
2000,
41. See Nome
38. See
Ltd. v.
921 P.2d
(1986).
(Alaska 1996).
Bentley Family
Lynx,
Trust v.
658 P.2d
trial,
39. See Nome
out,
forty
Judge
correctly
feet from the
that
awarded her the
at a distance of some
Savell
property.
eastern area of the bluff
house,
perennials.
in
put
fruit trees and
she
leading
a trail
from the
She also cleared
3. South
the house
edge
In
of
to the
of the bluff.
house southeast
bluff,
up
Green's use of the land between the
the
she set
the northeast area of
Highway
bench, and used the area for
and
house
the Old Richardson
to
picnic
and
table
addition,
In
extract-
outdoor lunches.
the south was less extensive than her use of
throughout
from the
bluff
ed rock
eastern
the eastern area. Given the character of the
however,
possession period.
The extrac-
the adverse
her
are still
activities
suffi
in
corner of the
tion areas were
the northeast
cient to show actual use. Like the eastern
bluff,
top
property,
the
in the
property, at the
of
side of the
the area to the south is
descending steeply
at the bottom of the bluff.
a bluff face
to a natural
southeast corner
boundary:
highway.46
the old Richardson
strong testimony
neighbor
offered
that
area,
signif
Unlike the eastern
there is not a
overlooking
the
Creek"
"bluff side
Shaw
icant flat area
and the
between
house
Billie
area defined
Harrild's house-an
slope;
steep
Ken Colette indicated that
locally
border-was
Green's claimed eastern
only
drop-off began
thirty-five
about
feet
Green,
belong
reputed to
to
Green testi
above,
from the house. As was discussed
grandmother
her
had
fied that she believed
Green extracted rock from the southeast cor
[family's] proper
given
piece
"that
of the
ner of the
at the
of the
base
bluff.
ty
Bentley
across from Shaw Creek."
addition,
to
she cleared trees
the south
Lynx Enterprises, we
Family Trust v.
found
Range
the cabin
order to see the Alaska
possessor
prop
title to
that an adverse
took
period
years,
from her house.
Over
she
erty
highway
slough,
and a
bordered
enlarged the cleared area to the southwest in
part
because the record owner
bring
peaks
order
more mountain
into
highway
possessor
treated
had
originally
view. Green testified that she had
slough
enclosing
posses
as boundaries
planned
plant
along
lilac bushes
parcel
property.44 Following
sor's unified
slope,
keep
cleared southern
but decided to
Trust,
Green,
Bentley Foaomily
evidence that
foliage
the natural
because she "didn't want
owners,
the record
and others in the commu
anything
to look out on
looked citified
nity believed that Green owned land bor
rugged
like that."
Given
nature of the
weighs significantlyin
dered
Shaw Creek
slope,
bluffs south
Green's activities
clear
favor of
claim for
her actual
trees
south and southwest and
part
property.
of the
quarrying for rock to the southeast are suffi
support
finding
cient to
the trial court's
proper
Much of the eastern section of the
adversely possessed
the area.
ty
steep slope descending
is a
to Shaw
testified,
Vezey's engineer
Creek. As
-West
the house
use;
suggested
difficult
might
that a
landowner's use for
area
court found that
had
reasonably
toboggan
be limited to
runs. Be
established title to
required
the actual use
of adverse
property extending
cause
feet
to the west of
possessors
nature
Although
varies with the
of the
speci-
the house.
the court did not
property,45
fy
we
activi
supported
conclude
Green's
what evidence of actual
its
use
conclusion,
ties on the claimed land to the east of the
the record
contains evidence
use,
house are sufficient to show actual
and Green used at least some of the area to the
However,
alleged gift.
of the
Id. at 769.
testimony
community repute,
heard
based in
(Alaska 1983).
44. 658 P.2d
part on the witnesses' conversations with Billie
Harrild,
"Angela's place"
consisted of "the
45. See 3 Am.Jur.2d Adverse Possession
likely
itself."
that "the bluff"
bluff
It seems
(1986).
top
steep
would
but
include
bluff,
sloping
which define a
and would
46. The record
as to
sides
contains no direct evidence
encompass
grandparents
give
both the east and south
whether Green's
intended to
therefore
edge
part
portions
Green the southern
of the claimed
or
in fact nearer
section
the chained
indica-
is also some
There
house.
west of
house.
feet from
than 300
farther
to be
herself
believed
that Green
tion
end
v. Fagerstrom47
extending
the western
of land
owner
provides some
Nome
1980s, she
In the
lot:
grandparents'
of her
actual use
determining what
benchmarks
*13
to
adjacent
land
the
purchasing
into
looked
adverse
to establish
is sufficient
which, if
However,
not clear
it is
west.
the
use
case,
the claimants'
that
we found
In that
supports
uses
physical
any, of Green's
con
disputed property
end of
the north
of
her
finding that
court's
use
while their
possession,
stituted
the house.
from
west
possessors
The
300 feet
not.48
end did
extended
the south
of
for additional
Therefore,
the case
remand
trees,
we
structures,
resid
and
planted
had built
conclu-
in
trial court's
property,49but
findings supporting
of the
north end
ed on the
western
of the
sion,
reconsideration
or for
pre-existing
used
had
the south
boundary of Green's
re
with subsistence
in
trails
connection
litter,
allegedly
up
creation, picked
to
testified
witnesses
and other
Green
claimed
of the
the corners
at
placed stakes
the west
the land
uses of
three
area
the western
use of
property.50 Green's
southwest,
cleared
Green
To the
house.
beyond the use
goes
the bluff
of
house.
view from
improve the
trees
cleared
She
in
2000:
inadequate Nome
found
northwest,
that she
testified
Green
To the
woods, marked her bor
through the
road
Nothing in the
turkeys.
chickens
raised
trees,
chain,
cleared
clearly
awith
der
west
these
to the
how far
indicates
record
west
how far
Depending
poultry.
raised
addition,
beginning
extended.
activities
extended,
they may
suffi
be
these activities
road
an old
and used
cleared
proper
award of
court's
support the
cient
portion of
the western
running across
the house. We
west of
extending 300 feet
ty
across the
a chain
put
property;
claimed
fur
for
trial court
to the
this issue
remand
proper-
neighboring
of
at the border
road
use of
actual
findings regarding Green's
ther
signs.
Trespassing"
"No
ty and mounted
area.
that
High-
Richardson
up from Old
cut
The road
property to
neighboring
across the
way and
Issues
Procedural
D.
invested
top of the bluff.
reach
exhibit
clearing the
Admission
1.
and labor
time
substantial
of
removed
that she
testified
road: She
access
that, "[djuring the
Vezey complains
a swath
from
in diameter
four inches
trees
court,
trial,
its own
course of
through.
enough to drive
wide
marked
motion,
a lien document
admitted
party
Neither
by the defense."
AD
Exhibit
locations
possible
suggests two
The record
evidence, and
into
this exhibit
offered
had
Most
by
cleared
Green.
road
the access
for
at the
admission
objected to its
Vezey
time.
road cuts
testimony
suggests
permits
law
case
argues that no
Vezey
directly to
navigable flat
through
not been
has
admit evidence
judge to
testimony
house,
other
but
the west
action was
Judge
offered,
Savell's
and that
tele-
along the
runs
the road
indicates
adjudica
advocate,
impartial
an
an
that of
prop-
edge
northern
line at the
phone
tor.51
addition,
from
unclear
it
is
erty.
48.l1(c)
"[elxhibits
states
Rule
chain
Civil
of Green's
the location
whether
record
may be
identification
marked
properly
300-foot
correlates
the road
across
the motion
upon
evidence
into
admitted
court, or whether
by the
boundary defined
v. Northern
Chugach
Ass'n
Electric
cites
1990).
51.
(Alaska
period. V. CONCLUSION It is well established that the extent of Because Green proved has the elements of land adversely possessed not under color of possession, adverse we hold that she has title must be by defined possession visible established title to at part least of the the land for the statutory period.1 The au claimed property. alleged parol gift of thoritative treatise Thompson on Real Prop land from grandmother her does not defeat erty notes that possession the must, among claim, but rather strengthens it. Be- elements, other be "during "visible" the time cause Green has made the more difficult necessary to create a bar under the statute showing ordinary possession, adverse of limitations."2 Thompson goes on to ob would also meet the lower standard for ad- serve that possession Howeyv- verse arising from gift. er, it is not the clear extent of ground the Green has claimed demonstrat- must be ed possession actual indicated in way the some entire area and be of such by awarded the character court. Although clearly we show that such AFFIRM the award north, ground as to east, claimed party asserting to and south areas of the property, right we RE- thereto. There must be such MAND for further findings regarding the marks as indicate that the land is under land to the west of the house. the actual control of party claimingit.3 the, principal In fact distinguishes feature that claimed and it description, is the physical not the color of title cases from those adverse claimant, use of the land that determines involving cases not color title-apart from the the boundaries of the may land that acquired be statutory different periods-is in color of under color of title." title description cases the in the document of title defines the boundaries of possessed, Thompson 87.01, Property § Real at 75 whereas in non-color of title cases boundaries (David ed., A. ed.1998). Thomas 2d are defined extent of the actual We made this in Hubbard point v. Curtiss, 684 (Alaska 87.06, P.2d 1984) Id. at supposed "The conveyance accurately must describe the land west, existing clearing In to determine whether land has access road from the order adversely pre-existing possessed. for at least ten trail that went to the bluff at been years doing must a date that ends the ten- east of the there be "some" clear- beginning property. year period. From this a date can of the In addition Green demonstrating pos placed unspecified point calculated. Activities a chain at some be place beginning hung take the road from session before across the west and trespassing" sign can "no date serve to establish boundaries from it. 1988 Green clearing "very did "more" land and sold small adversely but those that quantities" of rock from the bottom of the beginning come after date cannot for Shaw Creek bluff. Given an end of summer ten-year they requirement. not meet do ending ten-year of 1998 date for the appears this case possession period, the boundaries of the ad- have settled on the of the summer of end ending ten-year period versely possessed property 1998 as the date of the must be limited beginning ten-year encompassed by .4 Therefore the to the areas these activities. period was the end of the summer of 1988. But the trial court did not limit itself to the boundary Activities before then can serve as fixing 1982 and 1983 activities in the bound markers, occurring but activities after then Instead, aries of the the court may satisfy not because do not the ten- *15 construction, clearing, garden relied on and year statute. ing place activities that took in 1984 and record shows that Green's activities on later, though encompassed even these new in clearing pre- the land 1982consisted of land.5 The court erred when it relied on by longer The court did not make formal written find- her caused the wish work to be and ings. through Instead, oral court's decision serves to harder but, axes, saws, use of chain findings and, requirement stumps, meet the and conclusions trucks for the area of the house 52(a). directly of Civil Rule The court did not then, the back area the drive and turn- say that the summer of 1993 would be the end of around area was cleared. It was in these ten-year period, late-'80's, but I believe that is the years, through the mid- and import of the court's remarks: turkeys put coops the chicken and were in and, property wire chicken on the as she ex- The boundaries of the evidence, times panded her activities out backwards and exception, periods with minor are the from for- through wards, to clear woods dead trees and thin the the summer of 1993 and that area. period primarily pre- of time all evidence through telephone Trees were cleared to the by plaintiff sented and of events recounted commonly par- line which is by what's called the plaintiff concerning say I allel road to the exception north the struc- exception with rare because with the east/west ture. we can call evidence," what "Earthmover's in Block work went in 1985. contractor presented by there is no evidence the defense eventually-whose statutory period. was hired with whom she falls within the eventually services she terminated. In '85 she transcript I set out here the of the court's snowmachine, early enough go went in in findings concerning Green's activities from 1984 in, believe, testified, McTaggart I as Mr. through 1991. years open numerous would the house after continuing But with the facts. it was constructed for Ms. Green snowma- summer, spring and Ms. Green continued her chine and close it down afterwards. trailer, sleeping waiting Cummings 'activities: on the bluff in a for Mr. to con- bluff, setting up clearing, it on the hand exca- tinue-or to build the foundation and she even- vation, tually excavation of the foundation with em- terminated him and hired Mutt Mont- ployees McTag- gomery hired from the Delta area. Art to build in '87. In 1986 to the summer '87, James, she wintered in Fairbanks and snowma- gart, Scully, brother or cousin Jeff Cummings enough property during cleared to be safe from fire chined into the the winter. began Construction In 1987 be- regard, signifi- this-and, in this I find it structure; public gan rough cant that Ms. Green dealt with officials to live in worked on and, doors, particular, Department pantry; the Delta Fire windows and hired a cabinet up Prepare or fire authorities that she had come man for the kitchen in 1988. area for stove, necessary propane to advise the distance to and wood cabinet stove and '87, practical visiting clear trees to have a fire break. lived in Fairbanks in the winter of during Trees were cut on the south and east of the her also the winter. In 1988 road, property-of improve the house to shelving in, the closets went and other activi- before, yet invisibility to contain-continue from the ties. The as I mentioned were turkeys, heavy equipment telephone road below. The absence of added in '88. In 1985 or 1986 a was that occurred after the "expanded" activities fixing the boundaries. Alaska, Appellant, summer of 1983 STATE of resulting from The evidence of v. not meet the ten-
post-19883 activities does year requirement of AS 09.10.0830. ALASKA, PLANNED PARENTHOOD OF activities, Moreover, even if all of Green's Whitefield, M.D., Jan and Robert occurred, were used no matter when Klem, M.D., Appellees. on the the west measure the boundaries No. S-8580. established and south boundaries justified. still not be Most court would Supreme Court of Alaska. by the approximately twelve acres awarded south, southwest, and west of court lie to the Nov. Apart from the cleared area the house. sits, no more than said to be
where house acre, work was done
one-half of an no other west, all that To the southwest. road, stretching clearing the
done was it, up trespass- putting a no
chain across justify award-
ing sign. The road work can by prescription in the Green an easement land not otherwise
road where it crosses clearing her. The around justify
house to the south and west can
awarding cleared to her. But land so are located hun-
south and west boundaries *16 away clearing. As to
dreds of feet from southwest, south,
the land to the west clearing
between this and these boundaries simply
there no evidence of visible acts of summary, deciding the boundaries of adversely possessed by
the land impermissibly relied on activities that years or more before the
did not occur ten addition, statutory period.
end of the encompassed set the court
boundaries as southwest, south,
much land to the west actually possessed was never control,
by any indicating no activities might when those activities have tak-
matter place.
en I
For these reasons would reverse
judgment court and remand
with directions to redraw the boundaries actually
encompass the land that she ten-year period. applicable for the and, put although years, might planted and trees thinned in in later there trees were were in the direc- areas that are still visible in the 1993 be some it was listed uncertainty, photo, added.) (Emphasis tory garden planted, at the time. A fruit AB.