      Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

JAY YUK and HEE SU YUK,                            )
                                                   )    Supreme Court No. S-16242
                      Appellants,                  )
                                                   )    Superior Court No. 3AN-15-08659 CI
      v.                                           )
                                                   )    OPINION
SIDNEY L. ROBERTSON SR. and                        )
THERESA A. ROBERTSON,                              )    No. 7174 – May 26, 2017
                                                   )
                      Appellees.                   )
                                                   )

              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, Mark Rindner, Judge.

              Appearances: John C. Pharr, Law Offices of John C. Pharr,
              P.C., Anchorage, for Appellants. J. E. Wiederholt, Aglietti,
              Offret & Woofter, Anchorage, for Appellees.

              Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
              and Carney, Justices.

              WINFREE, Justice.

I.    INTRODUCTION
              After a surveyor discovered a discrepancy between the location of a
longstanding fence and the boundary between two lots, property owners sued to quiet
title to the fenced-off section of their lot. But the owners of the encroaching fence
claimed adverse possession of the fenced-off section, and the superior court entered
summary judgment in their favor. The property owners who brought the quiet title
action appeal, arguing that the court erred in its application of procedural rules and
substantive law. Seeing no error, we affirm the superior court’s decision.
II.   FACTS AND PROCEEDINGS
      A.     Facts
             A fence between Lots 3 and 4 of A-B-K Commercial Subdivision No. 3 in
Anchorage does not follow the platted boundary line, effectively placing a 6-foot by 300­
foot portion of Lot 4 (the disputed property) on Lot 3’s side of the fence. The lots were
platted in 1967. A municipal sewer easement recorded in 1969 for the “West 10 feet of
Lot 4” wholly encompasses the disputed property. The sewer line was built later that
year, and the parties agree that the municipal easement still exists.
             A 1969 aerial photograph of the area shows no fence or building on either
lot, but the fence appears in its current location in a similar 1979 photograph. Before
Sidney and Theresa Robertson purchased Lot 3 in 1991, Sidney’s parents owned it and
used it for a daycare. The Robertsons bought Lot 3 and the daycare “as a turn-key
operation” and have continued operating it since. Both they and their predecessors used
the disputed property for the daycare’s playground equipment.
             Jay and Hee Su Yuk purchased Lot 4 in 2010; they then commissioned a
property survey that documented a discrepancy between the fence and the boundary line.
In 2011 the Yuks demanded that the Robertsons move the fence to the correct boundary;
the Robertsons refused, claiming they owned the disputed property through adverse
possession. The Yuks repeated their demand in 2015, but the Robertsons again refused.
The Yuks then sued to quiet title to the disputed property.
      B.     Proceedings
             In answer to the Yuks’ quiet title complaint, the Robertsons asserted
adverse possession as an affirmative defense. They moved for summary judgment,
claiming that they had acquired title to the disputed property. The Yuks, in an opposition

                                           -2-                                      7174

and cross motion for summary judgment, claimed that the Robertsons should have raised
adverse possession as a counterclaim and that the Robertsons failed to satisfy the adverse
possession requirements.
             Before the summary judgment hearing the superior court ordered the parties
to read its recent order in Ibarra v. Daugherty1 — an unrelated case in which the court
had found adverse possession of a parcel enclosed by an encroaching fence — and to be
prepared to discuss it at the hearing. After the hearing the court granted the Robertsons’
summary judgment motion and denied the Yuks’. The court observed in a footnote that
the Yuks had failed to distinguish the facts and ruling of Ibarra. Determining that the
Robertsons proved by clear and convincing evidence that they had satisfied the elements
of adverse possession, the court recognized their ownership of the disputed property.
             The Yuks appeal.
III.   STANDARD OF REVIEW
             “We review grants of summary judgment de novo, exercising our
independent judgment to determine whether the parties genuinely dispute any material
facts and, if not, whether the undisputed facts entitle the moving party to judgment as a
matter of law.”2 Under the independent judgment standard, we adopt “the rule of law
that is most persuasive in light of precedent, reason, and policy.”3 “We review de novo




       1
             No. 3AN-11-10737 CI (Alaska Super., June 21, 2012).
       2
             DeVilbiss v. Matanuska-Susitna Borough, 356 P.3d 290, 293 (Alaska 2015)
(quoting Price v. Kenai Peninsula Borough, 331 P.3d 356, 358-59 (Alaska 2014)).
       3
             Id. at 294 (quoting Young v. Embley, 143 P.3d 936, 939 (Alaska 2006)).

                                           -3-                                      7174

a superior court’s interpretation of court rules . . . .”4 We also review de novo “whether
an evidentiary presumption was correctly applied.”5
IV.    DISCUSSION
              The Yuks make two procedural claims involving the superior court’s
application of court rules. The Yuks also dispute the superior court’s determination that
the Robertsons satisfied the elements of adverse possession. We affirm the superior
court’s decision in all respects.
       A.     Procedural Claims
              The superior court recognized the Robertsons’ title to the disputed property
notwithstanding the Yuks’ claim that affirmative relief was not available unless the
Robertsons asserted adverse possession as a counterclaim, rather than as an affirmative
defense. The Yuks make the same argument on appeal. But despite the Yuks’ repeated
assertions, prior cases have never required that adverse possession be raised as a
counterclaim in a suit to quiet title.6 And Alaska Civil Rule 8(c) allows the superior
court to treat a mistakenly identified defense as a counterclaim.7 The court did not err

       4
            Shea v. State, Dep’t of Admin., Div. of Ret. &Benefits, 204 P.3d 1023, 1026
(Alaska 2009) (citing Cameron v. Hughes, 825 P.2d 882, 884 n.2 (Alaska 1992)).
       5
            Dault v. Shaw, 322 P.3d 84, 91 (Alaska 2013) (citing In re Estate of Fields,
219 P.3d 995, 1002-03 (Alaska 2009)).
       6
              See, e.g., Glover v. Glover, 92 P.3d 387, 391, 396 (Alaska 2004)
(evaluating appeal of adverse possession claim raised as affirmative defense to original
quiet title complaint); see also Burke v. Maka, 296 P.3d 976, 979-80 (Alaska 2013)
(noting that adverse possession was raised as affirmative defense to original complaint
but deciding appeal based on a different affirmative defense).
       7
              Alaska R. Civ. P. 8(c) (“When a party has mistakenly designated a defense
as a counterclaim, or a counterclaim as a defense, the court on terms, if justice so
requires, shall treat the pleading as if there had been a proper designation.”); see also
                                                                           (continued...)

                                           -4-                                      7174

by granting the Robertsons relief based on their affirmative defense of adverse
possession.
              The Yuks also claim that the superior court violated Alaska Appellate
Rule 214 by citing Ibarra in the final summary judgment order.8 The Yuks argue that
because Ibarra was unpublished, it “should have limited precedential value.” Even
assuming Rule 214 applies to judges — and there is no indication that it does9 — the
court first cited Ibarra in its order prior to the summary judgment hearing as a similar
recently decided case that the parties should be prepared to discuss, and later to help
explain its ultimate decision.10 The court’s references to its prior decision were for
proper purposes and its ultimate citation in its summary judgment order was not error.
      B.      Adverse Possession
              The parties agree that pre-2003 adverse possession law applies to this
case.11 Their arguments focus on former AS 09.10.030, which during the relevant period
provided:



      7
            (...continued)
Jackson v. Nangle, 677 P.2d 242, 251-52 (Alaska 1984) (treating defense as
counterclaim).
      8
              See Alaska R. App. P. 214(d)(1) (“Citation of unpublished decisions in
briefs and oral arguments is freely permitted for purposes of establishing res judicata,
estoppel, or the law of the case. Citation of unpublished decisions for other purposes is
not encouraged.”).
      9
              See Alaska R. App. P. 214(d) (referring only to citations by parties).
      10
              See Hallam v. Holland Am. Line, Inc., 180 P.3d 955, 959 (Alaska 2008)
(noting that “[u]npublished decisions may still have persuasive value”).
      11
            See Cowan v. Yeisley, 255 P.3d 966, 973 (Alaska 2011) (holding that “the
changes to AS[ ]09.10.030 were not intended to be retrospective”).

                                           -5-                                     7174

              A person may not bring an action for the recovery of real
              property, or for the recovery of the possession of it unless the
              action is commenced within 10 years. An action may not be
              maintained for the recovery unless it appears that the
              plaintiff, an ancestor, a predecessor, or the grantor of the
              plaintiff was seized or possessed of the premises in question
              within 10 years before the commencement of the action.[12]
Under that law a claimant must show by clear and convincing evidence “that for the
statutory period [the adverse possessor’s] use of the land was continuous, open and
notorious, exclusive[,] and hostile to the true owner.”13 The Yuks appeal the superior
court’s findings of exclusive and hostile possession.
              We have defined clear and convincing evidence as “that amount of
evidence which produces in the trier of fact a firm belief or conviction about the
existence of a fact to be proved.”14 If an adverse possessor fulfills all four elements for
the ten-year statutory period, then title automatically vests in the possessor.15 “It is well
recognized that a fence, as a matter of law, is ‘one of the strongest indications of adverse
possession.’ ”16 And although adverse possession has four distinct elements, “the main

       12
              Former AS 09.10.030 (1994), amended by ch. 147, §§ 1, 2, SLA 2003; see
Revisor’s notes, AS 09.10.030 (1994) (describing 1994 stylistic changes to 1962
statutory language); see also Dault v. Shaw, 322 P.3d 84, 92 (Alaska 2013) (explaining
effect of 2003 statutory amendment).
       13
            Vezey v. Green, 35 P.3d 14, 20 (Alaska 2001) (quoting Nome 2000 v.
Fagerstrom, 799 P.2d 304, 309 (Alaska 1990)).
       14
            Theresa L. v. State, Dep’t of Health & Soc. Servs., 353 P.3d 831, 838
(Alaska 2015) (quoting Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 187 (Alaska
2009)).
       15
              Cowan, 255 P.3d at 974.
       16
              Penn v. Ivey, 615 P.2d 1, 4 n.4 (Alaska 1980) (quoting Albert v. Declue,
                                                                        (continued...)

                                            -6-                                        7174

purpose of nearly all the requirements is essentially the same, that is, to put the record
owner on notice of the existence of an adverse claimant.”17 A fence can provide that
required notice.18
              1.     Exclusivity
              The Yuks claim on appeal that the superior court erred in its exclusivity
finding for two reasons: (1) “adverse possession cannot lie against the Municipality,”
and (2) the easement demonstrates that use of the disputed property is shared with the
general public and thus not exclusive. But the superior court correctly determined —
contrary to the Yuks’ arguments — that the municipal sewer easement on the disputed
property did not destroy the Robertsons’ exclusivity. Instead there is “an easement to
use the land for a municipal sewer,” and “regardless of who owns the fee simple estate,”
they hold title “subject to the easement.” The Robertsons cannot adversely possess the
municipal interest, and they did not claim to do so. They instead sought to adversely
possess the Yuks’ interest in the disputed property, subject to the easement.
              Nor does the easement demonstrate that the Robertsons have failed to meet
the exclusivity requirement. Exclusivity requires only that the adverse possessor use the
land “as an average owner of similar property would use it.”19 It is “ ‘not susceptible to

         16
             (...continued)
526 S.W.2d 39, 40 (Mo. App. 1975)) (first citing Knapp v. Wise, 594 P.2d 1023 (Ariz.
App. 1979); then citing Gospel Echos Chapel Inc. v. Wadsworth, 507 P.2d 994 (Ariz.
App. 1973); then citing Cole v. Burleson, 375 So. 2d 1046 (Miss. 1979); and then citing
Swecker v. Dorn, 593 P.2d 1055 (Mont. 1979)).
         17
              Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 830 (Alaska
1974).
         18
              See Penn, 615 P.2d at 4.
         19
              Vezey v. Green, 35 P.3d 14, 22 (Alaska 2001) (quoting Nome 2000 v.
                                                                     (continued...)

                                           -7-                                      7174

fixed standards,’ but rather ‘depend[s] on the character of the land in question.’ ”20 The
record shows a sewer easement on every lot in the subdivision. While using the disputed
property the Robertsons remained subject to the easement — and the possibility that the
municipality could temporarily disrupt their use of the land — as did all the surrounding
landowners.
              The Yuks also cite the adverse possession rule that “the statute of
limitations does not run in favor of those who occupy property held for public use as a
street or highway.”21 Although a sewer easement may serve a public purpose, it is much
different in character from a street or highway. And the same authority states that
“[a]dverse possession may be established as against a nonpublic entity fee owner despite
the existence of easements, including public easements to a county or state.”22 We find
such authority more persuasive than the Yuks’ suggestion that a municipal easement
absolutely bars adverse possession against the private fee owner.

      19
               (...continued)
Fagerstrom, 799 P.2d 304, 309 (Alaska 1990)) (citing Peters, 519 P.2d at 831) (holding
that allowing “moderate use of [the] resources” on the property was not inconsistent with
exclusive use); see also Nome 2000, 799 P.2d at 310 (holding that allowing berry picking
and fishing was “consistent with the conduct of a hospitable landowner, and undermines
neither the continuity nor exclusivity of their possession”); Peters, 519 P.2d at 831
(holding that “occasional use of the beach by clamdiggers or other trespassers does not
destroy . . . exclusivity”).
      20
            Vezey, 35 P.3d at 20 (quoting Nome 2000, 799 P.2d at 309) (citing 3 AM.
JUR. 2D Adverse Possession § 22 (1986)).
      21
              3 AM. JUR. 2D Adverse Possession § 261 (2017).
      22
              Id. § 253; see also 4 TIFFANY REAL PROP. § 1141 (3d ed.), Westlaw
(database updated Sept. 2016) (“Possession may be exclusive notwithstanding that the
land is subject to rights which are mere easements . . . . [N]or is the existence of an
easement over the land in favor of another individual, or of the public, inconsistent with
his acquisition of title.” (footnotes omitted)).

                                           -8-                                      7174

              We affirm the superior court’s determination that the sewer easement did
not negate exclusivity.
              2.     Hostility
              The superior court correctly determined —contrary to the Yuks’ arguments
— that the Robertsons’ active use of the disputed property, coupled with the fence’s
existence, satisfied the hostility element of adverse possession. Although the Robertsons
mistakenly believed that the enclosed property was theirs, the court found that mistake
“immaterial.” Despite the Yuks’ emphasis on a presumption of permissive use, the court
found that the Robertsons’ openly adverse and active use of the property, combined with
the lack of evidence that the use was ever permissive, weighed in the Robertsons’ favor.
The Yuks claim the court erred by (1) not requiring that the Robertsons be aware of the
fence’s encroachment and (2) improperly applying the presumption of permissive use.
              The hostility element requires adverse possessors to “prove both that they
acted as owners and that they did not act with the true owner’s permission.”23 We apply
an objective test to determine hostility, and the adverse possessor’s “beliefs as to the true
legal ownership of the land . . . are irrelevant.”24 The Robertsons mistakenly believed
they owned all of the property the fence enclosed. But their apparent mistake does not
undermine the hostility of their claim. We have held that “the fact that possession was




       23
              Vezey, 35 P.3d at 22 (citing Smith v. Krebs, 768 P.2d 124, 126 (Alaska
1989)).
       24
              Peters, 519 P.2d at 832.

                                            -9-                                        7174

taken under mistake or ignorance of the true boundary lines is immaterial.”25 Instead,
“[t]he question is whether . . . the claimant acted toward the land as if he owned it.”26
             A fence can demonstrate hostile occupation. In Penn v. Ivey we held that
using a driveway enclosed by a fence — which, as in this case, did not follow the correct
boundary — satisfied the hostility element.27 Only the adverse possessors and their
guests were permitted to use the driveway, which we observed was “how a record owner
would use a driveway.”28 Here the Robertsons placed playground equipment near the
fence and allowed staff and children at the daycare to use the disputed property, thereby
using the property as owners would.
             The Yuks further argue that the superior court improperly placed the burden
on them to disprove permissive use. We have in many cases applied a presumption of
permissive use, placing the burden on the adverse possessor to prove by clear and
convincing evidence that the use was not permissive.29 To rebut that presumption
adverse possessors must show they were “not on the owner’s land with permission, and


      25
            Hubbard v. Curtiss, 684 P.2d 842, 848 (Alaska 1984) (citing Norgard v.
Busher, 349 P.2d 490 (Or. 1960)).
      26
             Id. (quoting Peters, 519 P.2d at 832).
      27
             615 P.2d 1, 4 (Alaska 1980).
      28
             Id.
      29
              See, e.g., Vezey v. Green, 35 P.3d 14, 22-23 (Alaska 2001); Ayers v. Day
& Night Fuel Co., 451 P.2d 579, 581 (Alaska 1969); cf. Dault v. Shaw, 322 P.3d 84, 93­
94 (Alaska 2013) (applying the presumption to a prescriptive easement and noting that
“the crucial fact is that the initial use was by permission”).
              We have not applied this presumption in every case. See Penn, 615 P.2d
at 3 (discussing permissive use without applying presumption); Alaska Nat’l Bank v.
Linck, 559 P.2d 1049, 1052-54 (Alaska 1977) (not discussing presumption at all).

                                           -10-                                      7174

that the record owner could have ejected” them.30 That burden can be difficult to
overcome if evidence shows possession began permissively, such as with a lease.31 But
absent such evidence we have held the presumption rebutted when the adverse possessor
“at all times acted as if the land were his and treated it as his”32 and “held the property
as an owner.”33
              The Yuks present no evidence that the Robertsons ever used the disputed
property with permission of the fee owners. And the Robertsons have shown that they
treated the disputed property as their own, occupying the strip and using it for their
daycare. The fence marks the Robertsons’ holding the property as owners, for “[n]o one
seeing the fence . . . could have assumed that the [disputed property] belonged to anyone
other than the owners of the adjoining [lot].”34 The Robertsons have overcome the
presumption of permissive use by clear and convincing evidence.
              We therefore affirm the superior court’s determination that the Robertsons
proved hostile possession of the disputed property by clear and convincing evidence.
V.       CONCLUSION
              Based on the foregoing we AFFIRM the superior court’s decision.


         30
              Vezey, 35 P.3d at 22-23 (quoting Smith v. Krebs, 768 P.2d 124, 126 (Alaska
1989)).
         31
             See Glover v. Glover, 92 P.3d 387, 392, 395 (Alaska 2004) (remanding for
more factual findings on hostility where occupancy began as a lease); Ayers, 451 P.2d
at 581-82 (holding adverse possessor failed to overcome presumption in light of
evidence he made a rent payment to fee owners).
         32
              Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 833 (Alaska
1974).
         33
              Vezey, 35 P.3d at 23.
         34
              Penn, 615 P.2d at 4.

                                           -11-                                      7174

