    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

JOHN REEVES and FAIRBANKS                    )
GOLD CO., LLC,                               )        Supreme Court Nos. S-15461/15482
                                             )
            Appellants and                   )        Superior Court No. 4FA-12-02133 CI
            Cross-Appellees,                 )
                                             )        OPINION
    v.                                       )
                                             )        No. 7219– January 26, 2018
GODSPEED PROPERTIES, LLC                     )

and GOLD DREDGE 8, LLC,                      )

                                             )

            Appellees and                    )

            Cross-Appellants.                )

                                             )


            Appeal from the Superior Court of the State of Alaska,
            Fourth Judicial District, Fairbanks, Bethany Harbison, Judge.

            Appearances: Joseph W. Sheehan, Sheehan Law Office,
            Fairbanks, for Appellants/Cross-Appellees. Michael C.
            Kramer, Kramer and Associates, and Robert John, Law
            Office of Robert John, Fairbanks, for Appellees/Cross-
            Appellants.

            Before: Fabe, Chief Justice, Stowers, Maassen, Bolger, and
            Carney, Justices. [Winfree, Justice, not participating.]

            STOWERS, Justice.

            FABE, Chief Justice, with whom CARNEY, Justice, joins, dissenting in
            part.
I.    INTRODUCTION
             Two adjoining landowners dispute the creation and continuing validity of
an easement for ingress and egress to and from property near Fairbanks. The superior
court held that a valid easement was created but had been extinguished by prescription.
We are asked to decide whether one party’s mining activities — placing gravel piles,
equipment, and a processing plant in the easement — were sufficient to prescriptively
extinguish the entire easement. We hold that they were not. Although the processing
plant extinguished the portion of the easement on which it stood, the evidence presented
regarding the gravel piles and equipment was insufficient to support extinguishing the
entire easement.
II.   FACTS AND PROCEEDINGS
      A.     Facts
             Alaska Gold Company owned a considerable amount of property near
Fairbanks in the early 1980s. In 1982 John Reeves purchased a lot from Alaska Gold —
MS-851 — that contained an old gold dredge, which he turned into a tourist attraction.
The parties refer to this property as “Gold Dredge 8.” MS-851 was located southwest
of MS-1724, a separate lot owned by Alaska Gold. Alaska Gold allowed Reeves to cross
MS-1724 to reach Gold Dredge 8.1




      1
            A sketch of the relevant properties is attached as an Appendix to this
opinion. Reeves also owned the Byrne Fraction, which connected the easement to Gold
Dredge 8.

                                          -2-                                     7219

             In 1986 Alaska Gold sold MS-1724 to Alice Ellingson. Alice married
Harold Ellingson shortly thereafter. The deed contained a reserved easement for Alaska
Gold to cross MS-1724 to reach its other properties:
             SPECIFICALLY RESERVING UNTO THE GRANTOR, its
             successors and assigns a dedicatable easement for ingress,
             egress, and utilities, 100 feet in width, along the southerly
             boundary of Side Claim On Bench Off No. 2 Above
             Discovery On Engineer On R.L. Placer, United States
             Mineral Survey No. 1724 beginning at its intersection with
             the westerly boundary of the Old Steese Highway right of
             way and proceeding South 59°37' West approximately
             500.00 feet to Corner No. 1 of said claim; Thence North
             70°09' West approximately 728.2 feet to Corner No. 2 of said
             claim.
Alaska Gold owned MS-1709, the property at the terminus of the reserved easement.
Pete Eagan, Alaska Gold’s manager beginning in 1986, used the easement occasionally
to travel to Alaska Gold’s land beyond the easement. Eagan was friendly with the
Ellingsons, and he was aware of the easement to cross MS-1724. He also gave Reeves
permission to use Alaska Gold’s easement to access Gold Dredge 8.
             Alice and Harold Ellingson erected a gold plant on MS-1724 soon after
Alice purchased the property from Alaska Gold.2 The plant began operating in 1988.
At Reeves’s suggestion, the Ellingsons also erected an elevated footbridge spanning the
easement so that tourists could walk from Gold Dredge 8 to the gold plant to view the
mining operations. Eagan commonly drove off the easement onto other portions of the
Ellingsons’ property with the Ellingsons’ knowledge.




      2
              The deed conveyed the property to Alice Ebenal, but she changed her name
to Alice Ellingson after marrying Harold. Alice and Harold built the gold mine together.
Harold died before trial.

                                          -3-                                     7219

             In 1996 Reeves sold Gold Dredge 8 to Holland America, which in turn sold
it to Godspeed Properties. In 2000 Reeves bought Alaska Gold’s remaining property in
the area. This included part of MS-1709 — the parcel next to MS-1724 — at the
terminus of the easement. In 2002 the Ellingsons shut down the gold plant, and in 2009
Godspeed purchased MS-1724 from Alice Ellingson. Thus, at the time of this litigation,
Godspeed owned Gold Dredge 8 and MS-1724, while Reeves owned MS-1709, the
parcel at the end of the easement crossing MS-1724.
             Reeves informed Godspeed of the easement and offered to sell it to
Godspeed. The parties negotiated between 2009 and 2012 but were unable to come to
an agreement. During this time Godspeed developed MS-1724 as an integrated tourist
attraction with Gold Dredge 8; it built a small-gauge railway through the property for
visitors to view Gold Dredge 8 and learn about mining in the area.
             In 2012 Reeves was granted plat approval to subdivide MS-1709. The plat
memorialized Reeves’s plan to dedicate the easement through MS-1724 to public use as
the access for the subdivision. Reeves constructed a rough dirt road through the
easement. In response, Godspeed built a gravel berm across the easement and blocked
access.
      B.     Proceedings
             Godspeed filed a complaint against Reeves seeking declaratory relief and
to quiet title. Godspeed also moved for and was granted a preliminary injunction barring
Reeves from constructing the road until a court determined whether the easement was
valid. After considerable motion practice, the superior court ruled that the 1986 deed
from Alaska Gold to Ellingson created a valid easement. The court also concluded that
“John Reeves and [Reeves’s company] Fairbanks Gold Company, LLC are the
successors-in-interest to Alaska Gold Company.” The parties proceeded to trial on the



                                          -4-                                     7219

main remaining issue: whether the easement was extinguished by prescription during
the time that the Ellingsons owned MS-1724 and Alaska Gold owned MS-1709.
              During the trial, Alice Ellingson testified that she and Harold poured the
concrete foundation for the gold plant in 1986 and that it was “all concrete and steel and
it . . . probably [weighed] . . . a couple hundred tons.” The plant was “pretty
sophisticated,” cost close to a million dollars to install, and occupied “not quite half” of
the easement.3 She explained that equipment, conveyor belts, and sand, gravel, and
sewer rock surrounded the plant. She also testified that the plant was in continuous
operation until 2002 when it was dismantled. Both Alice and Eagan testified that the
footbridge between Reeves’s property and the gold plant was high enough to drive
underneath.
              There was also considerable testimony about the condition of the remainder
of the easement. Alice testified that Harold built berms out of sewer rock around the
property. One year, he also blocked the main gate with a berm in the winter and
unblocked it in the spring. And she testified that there were piles of material in the
easement that were continually being built up and moved as they were sold. Hatton
Franciol, a former employee of the Ellingsons, testified that cars had been parked on the
easement and that, based on a picture taken when the Ellingsons owned MS-1724, a pile
of rock spanned almost the entire easement at one end. But he also explained that miners
berm off the entrance to mines at the end of the season to comply with safety regulations.
Like Alice, he testified that the material piles in the easement were for sale and




       3
               It is clear from aerial photographs of the area that Alice meant the gold
plant occupied almost half of the width of the easement where it was situated, not half
of the entire easement.

                                            -5-                                       7219

constantly moving. Eagan testified that the process piles4 “were not permanent”; “the
nature of [the] business is that you produce piles of material and then hopefully you’re
[going] to sell them.”
              Eagan further testified that he would visit the property three to six times
each summer. He stated that “Harold ended up having the plant out there and . . . parts
of the easement were blocked. But [Eagan did] know that you could pretty much get
through there,” and it was never “absolutely blocked.” Alice testified that a “substantial”
gate blocked the easement but that it was only meant to keep out the public and that
Reeves had a key to the gate. Reeves testified that the gate was built after he sold the
dredge. And former employees testified that they had seen Reeves using the easement
frequently.
              In its decision the superior court noted that “because of the social
relationship between the Ellingsons and Eagan/Alaska Gold, adversity is difficult to
determine.” As a result the court required “Godspeed [to] show extensive activity in the
easement area.” The court concluded that “operating and maintaining the gold plant
within the easement area for a period of 15 years unreasonably interfered with Alaska
Gold’s ingress and egress along the easement to access MS-1709,” and “[i]t also
unreasonably interfered with a prospective dedication of the easement to the public.”
The court found that the gold plant was a “permanent and expensive improvement that
was difficult and damaging to remove” and that it “completely blocked approximately
half of the easement.” The court further found that sometimes the plant activities
blocked the entire easement or forced someone navigating it to go close to the gold plant
in a manner that would be unsafe for the general public. Finally, the court found that the
Ellingsons had constructed various barriers that restricted public access to the easement.


       4
              These piles were created by material that was produced by the gold plant.

                                            -6-                                      7219
Based on these findings the court concluded that the entire easement had been terminated
by prescription.
              Both parties appeal. Godspeed appeals the superior court’s conclusion that
an easement was created, and Reeves appeals its conclusion that the easement was
terminated by prescription.
III.     STANDARD OF REVIEW
              Whether a deed or plat is ambiguous is a question of law that we review de
novo.5 “When applying the de novo standard of review, we apply our independent
judgment . . . , adopting the rule of law most persuasive in light of precedent, reason, and
policy.”6 When a deed is ambiguous, the trial court’s findings about the parties’ intent
are findings of fact that we review for clear error.7 A decision is clearly erroneous “when
a review of the entire record leaves us with a definite and firm conviction that a mistake
has been made.”8




         5
              HP Ltd. P’ship v. Kenai River Airpark, LLC, 270 P.3d 719, 726 (Alaska
2012).
         6
            Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 507­
08 (Alaska 2015) (alteration in original) (quoting ConocoPhillips Alaska, Inc. v.
Williams Alaska Petroleum., Inc., 322 P.3d 114, 122 (Alaska 2014)).
         7
              Norken Corp. v. McGahan, 823 P.2d 622, 626 (Alaska 1991).
         8
             Chung v. Rora Park, 339 P.3d 351, 353 (Alaska 2014) (quoting Offshore
Sys.-Kenai v. State, Dep’t of Transp. & Pub. Facilities, 282 P.3d 348, 354 (Alaska
2012)).

                                            -7-                                       7219

              Whether an easement was extinguished by prescription presents issues of
both law and fact.9 “We do not disturb a trial court’s findings of fact unless they are
clearly erroneous. We review the application of law to facts de novo.”10
IV.    DISCUSSION
       A.     The 1986 Deed Created An Easement Appurtenant.
              The superior court concluded that Alaska Gold’s transfer of MS-1724 to
Ellingson in 1986 created an easement appurtenant.11 Godspeed contends that this
holding was error because the deed contained ambiguities. Specifically, Godspeed
argues that the deed uses the word “dedicatable” — which is not a word — and does not
specify which property is benefited by the easement.
              “ ‘[T]he touchstone of deed interpretation is the intent of the parties,’ and
‘where possible, . . . the intentions of the parties [will be] given effect.’ ”12 We apply a
three-step test to interpret a deed: first, we “look at the four corners of the document to
see if it unambiguously presents the parties’ intent”; second, “[i]f a deed is ambiguous,
the next step is to consider ‘the facts and circumstances surrounding the conveyance’ to
discern the parties’ intent”; and finally, “[i]n the event that the parties’ intent cannot be



       9
              See HP Ltd. P’ship, 270 P.3d at 726 (holding that creation of easement by
prescription presented mixed issues of law and fact).
       10
              Id.
       11
               An easement appurtenant “is a right to use a certain parcel, the servient
estate, for the benefit of another parcel, the dominant estate.” SOP, Inc. v. State, Dep’t
of Nat. Res., Div. of Parks & Outdoor Recreation, 310 P.3d 962, 969 n.32 (Alaska 2013)
(quoting 25 AM. JUR. 2D Easements and Licenses § 8 (2004)).
       12
               Estate of Smith v. Spinelli, 216 P.3d 524, 529 (Alaska 2009) (alterations in
original) (first quoting Norken Corp., 823 P.2d at 625; then quoting Shilts v. Young, 567
P.2d 769, 773 (Alaska 1977)).

                                            -8-                                        7219

determined, we rely on rules of construction.”13 The inquiry under step two “can be
broad, looking at ‘all of the facts and circumstances of the transaction in which the deed
was executed, in connection with the conduct of the parties after its execution.’ ”14
             The language of the 1986 deed states, in relevant part: “SPECIFICALLY
RESERVING UNTO THE GRANTOR, its successors and assigns a dedicatable
easement for ingress, egress, and utilities, 100 feet in width, along the southerly
boundary of . . . [MS] No. 1724.” While “dedicatable” is not a word, its use was plainly
an attempt to create an easement that was capable of being dedicated.15 We conclude that
the use of a slight variation on a well-known and commonly used word does not make
the deed ambiguous; rather, the use of the variant word is akin to a spelling mistake.
“Where it is perfectly plain that a word is misspelled, the courts will construe the deed
according to the meaning of the word intended, rather than according to the meaning of
the word actually used.”16 This is especially true when construing the word as written
“would give no effect to the clause containing the doubtful word.”17 Here “looking




      13
             McCarrey v. Kaylor, 301 P.3d 559, 563 (Alaska 2013) (quoting Estate of
Smith, 216 P.3d at 529).
      14
             Estate of Smith, 216 P.3d at 529 (quoting Norken Corp., 823 P.2d at 629).
      15
              Black’s Law Dictionary defines “dedication” as “[t]he donation of land or
creation of an easement for public use.” Dedication, BLACK’S LAW DICTIONARY (10th
ed. 2014).
      16
             Anderson & Kerr Drilling Co. v. Bruhlmeyer, 136 S.W.2d 800, 803 (Tex.
1940) (quoting Baustic v. Phillips, 121 S.W. 629, 630 (Ky. 1909)).
      17
             Baustic, 121 S.W. at 630.

                                           -9-                                      7219

within ‘the four corners of the document,’ ‘the [word “dedicatable” is] capable of but one
reasonable interpretation.’ ”18 The deed is not ambiguous in this regard.
              But the deed is ambiguous as to whether the easement is an easement
appurtenant or an easement in gross. An easement appurtenant “is a right to use a certain
parcel, the servient estate, for the benefit of another parcel, the dominant estate.”19 “[A]n
appurtenant easement . . . may not be used for the benefit of property other than the
dominant estate.”20 While easements appurtenant run with the land and continue to
benefit the dominant estate, easements in gross are assigned to a specific person and do
not run with the land.21 Here, although the easement is for ingress and egress and is
descendable,22 it is ambiguous whether the easement is an easement appurtenant because
it is not clear, looking at the face of the deed, which parcel of land is to benefit. Because
the deed fails to explicitly state what parcel will be benefited by the easement, the deed
must be considered ambiguous.23



       18
              Estate of Smith, 216 P.3d at 530 (quoting Norken Corp., 823 P.2d at 626).
       19
             SOP, Inc. v. State, Dep’t of Nat. Res., Div. of Parks & Outdoor Recreation,
310 P.3d 962, 969 n.32 (Alaska 2013) (quoting 25 AM. JUR. 2D Easements and Licenses
§ 8 (2004)).
       20
            HP Ltd. P’ship v. Kenai River Airpark, LLC, 270 P.3d 719, 730 (Alaska
2012) (second alteration in original) (quoting RESTATEMENT (THIRD) OF PROPERTY:
SERVITUDES § 4.11 (AM. LAW INST. 2000)).
       21
             See SOP, Inc., 310 P.3d at 968-69 (citing 25 AM. JUR. 2D Easements and
Licenses §§ 8, 120 (2004)).
       22
             The deed uses the operative language “[reserving unto the grantor], its
successors and assigns.”
       23
             “Whether a deed is ambiguous is a question of law.” Estate of Smith, 216
P.3d at 528 (quoting Norken Corp., 823 P.2d at 626).

                                            -10-                                       7219

             Thus, we proceed to apply the second step of our three-step analysis in
interpreting deeds: we consider “ ‘the facts and circumstances surrounding the
conveyance’ to discern the parties’ intent.”24 The relevant inquiry is whether the
easement was intended to benefit another parcel of land or a person.25
             The superior court considered evidence of the parties’ intent, the situation
of the properties, and the purpose and nature of the easement. The court found that “[the
easement] clearly created a servient estate (MS-1724) in favor of a dominant estate
(adjacent Alaska Gold [p]roperty, specifically, MS-1709, which is now divided into MS­
1709 and MS-1709A).” It noted that the “domina[nt] estate is the property at the
terminus of the easement corridor,” MS-1709. This finding is not clearly erroneous.
MS-1709 lies at the end of the easement, so it would be the logical benefited parcel of
an easement for ingress and egress. The evidence shows that Alaska Gold usually
accessed its land by driving across MS-1724. And a 2002 Notice of Reservation of
Rights given by Alaska Gold to Reeves reflects this intent by stating that Alaska Gold
had easements to access its adjoining land. The superior court therefore did not err in
holding that the 1986 deed created a valid easement appurtenant on MS-1724.
      B.	    It Was Error To Conclude That The Entire Easement Was
             Terminated By Prescription.
             The superior court concluded that the entire easement was terminated by
prescription. An easement is terminated by prescription if the party claiming prescription
can “prove continuous and open and notorious use of the easement area for a ten-year




      24
             McCarrey v. Kaylor, 301 P.3d 559, 563 (Alaska 2013) (quoting Estate of
Smith, 216 P.3d at 529).
      25
             See, e.g., SOP, Inc., 310 P.3d at 968-69.

                                          -11-	                                     7219

period by clear and convincing evidence.”26 The prescriptive period is triggered when
“use of the easement ‘unreasonably interfere[s]’ with the current or prospective use of
the easement by the easement holder.”27
             The superior court found that the gold plant was a “permanent and
expensive improvement that was difficult and damaging to remove” and that “operating
and maintaining the gold plant within the easement area for a period of 15 years
unreasonably interfered” with Alaska Gold’s use of the easement. The court also found
that the operation of the plant used the entire easement, that Eagan did not drive next to
the gold plant, and that it would not have been safe for him to do so.
             Reeves disagrees with the superior court and argues: (1) there was no
interference, much less unreasonable interference, with the current or prospective use of
the easement because mining operations ceased before the development of the easement;
(2) the Ellingsons’ property was a mining claim, and therefore mining on the property
should not be considered unreasonable interference; (3) gold plants are movable and
therefore are not permanent improvements; and (4) the gold plant did not entirely block
use of the easement.
             We disagree with Reeves’s third argument and conclude that the superior
court did not err in holding that the gold plant extinguished that portion of the easement
upon which it stood. But we agree with Reeves’s fourth argument that the gold plant did
not entirely block use of the easement. This suggests that the easement was partially




      26
             Hansen v. Davis, 220 P.3d 911, 916 (Alaska 2009).
      27
           Id. (alteration in original) (quoting RESTATEMENT (THIRD) OF PROPERTY:
SERVITUDES § 4.9 (AM. LAW INST. 2000)).

                                          -12-                                      7219

prescripted.      We requested supplemental briefing from the parties on partial
prescription.28
               1.	    Alaska law allows for partial extinguishment of an easement
                      prescription.
               In Hansen v. Davis we “follow[ed] the approach adopted by the
Restatement (Third) of Property and many jurisdictions and h[e]ld that an easement can
be extinguished by prescription.”29 We have not previously addressed the possibility of
partial prescription, but we agree with the weight of authority that an easement may be
partially prescripted.
               The Restatement explains that an easement may be “modified or
extinguished” by prescription;30 it further clarifies in a comment that “extinguishment
brought about by prescription may be complete or partial.”31 The treatise The Law of
Easements and Licenses in Land explains, “An easement . . . may be increased in width,

       28
              Reeves also argues that Godspeed’s prescription claim is barred by the
statute of limitations and estoppel and that if the easement was terminated he revived it
after the gold plant was removed. The superior court did not address these issues
because Reeves did not litigate them at trial. We therefore review for plain error and find
none. See Partridge v. Partridge, 239 P.3d 680, 685 (Alaska 2010). A claim for
prescription is based on, not subject to, the statute of limitations. McGill v. Wahl, 839
P.2d 393, 395-97 (Alaska 1992). And estoppel fails because Reeves does not point to
any intention by Godspeed or Alice to deceive him. See Dressel v. Weeks, 779 P.2d 324,
329 (Alaska 1989) (requiring express intention to deceive when real property is
involved). Reeves’s claim that he re-established the easement was not litigated below,
was inadequately briefed on appeal, and is based on facts that the superior court did not
examine because they occurred after the prescriptive period.
       29
               Hansen, 220 P.3d at 916 (citations omitted).
       30
           RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 7.7 (AM. LAW INST.
2000) (emphasis added), cited with approval in Hansen, 220 P.3d at 916.
       31
               Id. § 7.7 cmt. b.

                                           -13-	                                     7219

depth, or height by prescription. Likewise, a servient owner may reduce an easement’s
dimensions by preventing the holder from utilizing a portion of the easement area for the
prescriptive period,”32 and more directly, “[A]n easement may be partially extinguished
. . . .”33 The treatise Powell on Real Property agrees: “The servient owner can extinguish
an easement in whole or in part by adverse uses continued for the prescriptive period.”34
              The rationale underlying the doctrine of prescription supports recognizing
partial prescription. “The doctrine [of prescription] protects the expectations of
purchasers and creditors who act on the basis of the apparent ownerships suggested by
the actual uses of the land.”35 Prescription also “is supported by the rationale that
underlies statutes of limitation[:] [b]arring claims after passage of time encourages
assertion of claims when evidence is more likely to be available and brings closure to
legal disputes.”36 Recognizing partial prescription best allows for legal title to match
apparent title and brings closure to legal disputes in the way that best reflects reality.37


       32
            JON W. BRUCE & JAMES W. ELY, JR., THE LAW                OF   EASEMENTS    AND
LICENSES IN LAND § 7:18 (2017).
       33
              Id. § 10:25, cited with approval in Hansen, 220 P.3d at 916-17.
       34
            4 POWELL ON REAL PROPERTY § 34.21[1] (Richard R. Powell & Michael
Allen Wolf eds. 2017) (emphasis added).
       35
             RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 2.17 cmt. c
(referenced in § 7.7 cmt. a as explaining rationale behind prescription of easements).
       36
              Id.
       37
             Godspeed argues that the language of Hansen precludes partial prescription.
Hansen said, “[T]he prescriptive period is triggered where the use of the easement
‘unreasonably interfere[s]’ with the current or prospective use of the easement by the
easement holder.” Hansen, 220 P.3d at 916 (second alteration in original) (emphasis
added) (quoting RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.9). Godspeed
                                                                          (continued...)

                                           -14-                                       7219

              Godspeed argues that adopting partial prescription “will substantially erode
the hostility element for prescription because doing so will encourage people to stealthily
encroach on easements by expanding their garden, extending their lawn, or building an
addition to their deck.” Easement holders will still be able to use their easements,
Godspeed argues, and will not recognize the infringement of their rights until it is too
late. But this argument understates the “hardi[ness]”38 of easements. The prescriptive
period is not triggered until the owner of the servient estate’s “use of the easement
‘unreasonably interfere[s]’ with the current or prospective use of the easement by the
easement holder.”39 This standard sufficiently guards the rights of the easement holder.40

       37
         (...continued)
notes that Reeves offers no examples of jurisdictions that use “prospective use” language
and recognize partial prescription. But Godspeed points to no case where a court
considered adopting partial prescription and decided not to do so. And our holding in
Hansen that an easement can be extinguished by prescription did not reject the rationales
that underlie prescription; it embraced them.
       38
             7 THOMPSON ON REAL PROPERTY § 60.08 (David A. Thompson ed., 2d ed.
2017) (calling easements “hardier creatures than . . . real covenants and equitable
servitudes” because they are harder to terminate).
       39
             Hansen, 220 P.3d at 916 (quoting RESTATEMENT (THIRD) OF PROPERTY:
SERVITUDES § 4.9); see also RESTATEMENT (FIRST) OF PROPERTY § 506 cmt. c (AM. LAW
INST. 1944) (“For a use of the servient tenement to be adverse to the owner of an
easement, the use must be made without submission to or without being in subordination
to the owner of the easement and must be open and notorious.” (cross-references
omitted)).
       40
              We note that the arguments Godspeed makes against the adoption of partial
prescription here undermine its principal argument that we should conclude prescription
took place in this case. Godspeed’s hypothetical about encroachment on an easement
that goes unnoticed by the easement holder is similar to the facts of this case:
Godspeed’s predecessors in interest erected a gold plant that blocked part of the
easement, but Reeves’s predecessor did not bring a case because it still was able to
                                                                         (continued...)

                                           -15-                                      7219

              The parties agree that if we adopt partial extinguishment, then the standard
set forth in Hansen should apply. This is consistent with the authorities already cited,
which treat partial extinguishment as part of the doctrine of extinguishment by
prescription and not as a separate concept. We therefore hold that Alaska law recognizes
partial extinguishment of easements through prescription and that the standard to show
partial extinguishment is the standard we set out in Hansen.
              2.	    The gold plant partially extinguished the easement.
              The gold plant did extinguish that part of the easement upon which it stood.
The superior court found that the gold plant “cost approximately one million dollars to
erect” and “took years to build and substantial effort to dismantle.” Alice testified that
the plant was “all concrete and steel and it was probably . . . a couple hundred tons,” and
that it was in continuous operation from 1988 until 2002, when it was dismantled. The
testimony established that the plant was in continuous, open, and notorious operation for
more than ten years,41 and the superior court therefore did not clearly err in finding that
the gold plant was a permanent improvement.
              3.	    The gold plant’s operations did not fully extinguish the
                     easement.
              We do not agree with the superior court that the remainder of the easement
was extinguished. “Whether the improvement is an unreasonable interference with the

       40
         (...continued)
access its land. Further, “expanding a garden” and “extending a lawn” are not enough
to trigger extinguishment of an easement by prescription, see Hansen, 220 P.3d at 917,
and “building an addition to [a] deck” may not be in all circumstances, see Titcomb v.
Anthony, 492 A.2d 1373, 1375-76 (N.H. 1985) (holding that an easement was not totally
extinguished because passage on foot was still possible).
       41
             See Hansen, 220 P.3d at 916 (“[A] party claiming that an easement was
extinguished by prescription must prove continuous and open and notorious use of the
easement area for a ten-year period by clear and convincing evidence.”).

                                           -16-	                                     7219

servitude depends on the character of the improvement and the likelihood that it will
make future development of the easement difficult. If the improvement is temporary and
easily removed, it is generally not unreasonable.”42
               Although the gold plant itself was an unreasonable interference, none of
the parties testified to an impediment that continuously blocked the entire easement for
the entire ten-year period. Alice testified that equipment, conveyor belts, and sand,
gravel, and sewer rock surrounded the plant. A former employee testified that cars were
parked in the easement and that a pile of rock spanned almost the entire easement during
one year. This type of temporary activity was insufficient to terminate the easement over
a mining claim.
               In Hansen we considered whether the maintenance of a garden on an
easement was sufficient to terminate an easement and concluded it was not.43 We
explained that “[a]s a matter of law, the maintenance of a garden on the easement area
did not constitute an improvement sufficiently adverse to commence the prescriptive
period.”44 And cars, equipment, and gravel piles are not significantly less moveable than
a garden. In mining country gravel piles, berms, miscellaneous mining equipment, and
vehicles (often broken down) are the “vegetation” one would expect to find “growing”
in the area.
               The weight of authority indicates that equipment, conveyor belts, and sand,
gravel, and sewer rock are insufficient to terminate an easement, at least in a setting like

       42
            RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.9 cmt. c; see also
Hansen, 220 P.3d at 917 (“As a general guideline, temporary improvements to an unused
easement area that are easily and cheaply removed will not trigger the prescriptive
period.”).
       43
               Hansen, 220 P.3d at 917-18.
       44
               Id. at 917.

                                           -17-                                       7219

mining country. “[T]he adversity standard is not met when the owner of a servient estate
uses the easement area for gardening; places obstructions on the easement that the
easement holder can simply go around; or relies on a natural barrier, such as an
embankment, to obstruct the easement holder,” and “parking cars from time to time in
a manner that obstructs the easement does not meet the continuity requirement.”45
Further, “what constitutes unreasonable interference, and thus triggers the prescriptive
period, [is] heavily fact dependent.”46 This includes the manner in which the parties are
using the land.47
              The superior court found that the operation of the gold plant, including the
conveyor belts, jigs, and supporting equipment, made driving past it in the easement
unsafe. The court also found that Eagan never drove past the plant in the easement,
instead taking other routes through the property. Neither of these findings leads to
prescription as a matter of law: “[w]here the easement holder has not used the easement
for some time, or at all, the servient estate owner enjoys wide latitude with respect to use
of the easement area, and a showing of extensive activity will be required to demonstrate
adversity.”48 There is no reason why the Ellingsons should have had to worry about the




       45
              BRUCE & ELY, supra note 32, § 10:25 (citations omitted).
       46
              Hansen, 220 P.3d at 917.
       47
              See id.; BRUCE & ELY, supra note 32, § 10:25.
       48
             Hansen, 220 P.3d at 917. The superior court’s finding that Eagan never
drove past the gold plant in the easement was clearly erroneous. Eagan testified that he
drove under the footbridge between the plant and Gold Dredge 8, which means that he
drove in the easement next to the gold plant. This testimony is uncontradicted.
Regardless, an easement holder does not have to use an easement to maintain title to it.
See id.

                                           -18-                                       7219

safety of someone driving through the easement if no one was driving through the
easement.
              “[T]he servient estate owner[] . . . has a right to use the area in question to
the extent that such use does not unreasonably interfere with the easement holder’s
rights.”49 This allows for maximum value to come from the easement. The question then
is not whether Eagan actively asserted Alaska Gold’s easement rights or whether Eagan
could have driven on the easement at a time when he was not asserting those rights; the
question is whether Eagan could have used the easement if he had insisted on using it.
And more to the point, the question really is whether Eagan could not have used the
easement for the entire ten-year prescriptive period. No evidence established that
Eagan’s use of the easement was unreasonably interfered with for the ten-year period.
              As explained above, we conclude that the easement was terminated by
prescription only where the gold plant sat. This means that the easement still exists in
some form for its entire length but that part of it is narrower in width because of the gold
plant’s obstruction. The superior court found that the gold plant blocked at least half of
the width of the easement. But the only evidence offered to show the location of the gold
plant was several aerial photographs, and none of the photographs show the gold plant
crossing the line that demarcates the boundary of the proposed public road — that is,
none of the photographs show the gold plant extending even 40 feet into the 100-foot
easement. Given that the photographs were the only evidence offered as to the position
of the gold plant, the court’s finding that at least half of the easement was blocked was
clearly erroneous. On remand the superior court should determine the extent to which
the permanent structure of the gold plant occupied the easement and terminate only that
portion of the easement.


       49
              BRUCE & ELY, supra note 32, § 10:25.

                                            -19-                                       7219
              Deciding this appeal calls for an understanding of Alaska history —
particularly Alaska gold mining history and how gold mines operate. Operating an
active gold mine means that gravel piles, berms, and miscellaneous mining equipment
and vehicles will appear and move around the property and disappear over time. This
is part and parcel to owning land in mining country, and the Ellingsons, Eagan, and
Reeves all understood this. To conclude years later that these kinds of mining activities
terminated the easement would ignore the reality of the parties’ mining and other
activities on the ground and would be unjust. We conclude that the easement was only
terminated to the extent the gold plant stood on it and that none of the ancillary mining
activities, rock piles, equipment, and vehicles were sufficient to terminate the remainder
of the easement.50

       50
              We offer several responses to the dissenting opinion. First, the dissent
argues that “the court adopts a doctrine that is new to Alaska law without giving the
parties an opportunity to litigate this issue in the trial court.” But as explained in section
IV.B.1 of our opinion, authoritative treatises “treat partial prescription as part of the
doctrine of prescription and not as a separate concept.” See RESTATEMENT (THIRD) OF
PROPERTY: SERVITUDES § 7.7 &cmt. b (AM. LAW INST. 2000); BRUCE &ELY, supra note
32, §§ 7:18, 10:25; POWELL ON REAL PROPERTY, supra note 34, § 34.21[1]. Thus, partial
extinguishment is simply part of the doctrine of extinguishment by prescription governed
by the regular rules of extinguishment; it is not a new doctrine.
             Second, the parties were given the opportunity to address in detail the
application of partial prescription to the facts of this case. We ordered the parties to file
supplemental briefing as follows:
              1.	    Should Alaska adopt the doctrine of partial extinguishment of
                     an easement by prescription? Why or why not?
              2.	    Regardless of the answer to question 1, what are the elements
                     of partial extinguishment by prescription, and under what
                     circumstances have courts applied this doctrine?
              3.	    Should this doctrine apply to the case at bar? Why or why
                                                                        (continued...)

                                            -20-	                                       7219

V.     CONCLUSION
                 We AFFIRM the superior court’s conclusion that the 1986 deed created an
easement appurtenant and AFFIRM its finding and conclusion that the gold plant
extinguished that part of the easement it occupied. We REVERSE the court’s finding




       50
            (...continued)

                        not?

The parties responded and agreed that if this court adopted partial extinguishment, then
the standard set forth in Hansen should apply.
               Third, the dissent argues that if the parties knew that partial extinguishment
was in play at trial, they might have focused their presentation of evidence on more
particular parts of the easement to demonstrate whether those parts were extinguished.
But at trial Reeves’s overall position was that there had been no prescription, so he
presented evidence and testimony to show as little interference with the easement as
possible. Godspeed, on the other hand, contended that the entire easement was
extinguished and accordingly presented evidence and testimony to show as much
interference with the easement as possible. In other words, both parties had every
incentive to offer all of the evidence available to them to prove their respective positions;
all of that evidence relevant to total extinguishment or no extinguishment necessarily
encompassed all evidence of partial extinguishment. Notably, neither party requested
in their supplemental briefing to this court that the case be remanded to the superior court
so additional evidence could be presented on the issue of partial extinguishment, nor did
they argue that the superior court’s factual findings were insufficient.
              Fourth, the dissent suggests that “extensive activity” should not be required
to show unreasonable interference in this case because, unlike in Hansen, the easement
holder used the easement. The superior court required a showing of extensive activity
in this case because the social relationship of the parties made adversity difficult to
determine. We agree with the superior court. And under any standard, equipment,
conveyor belts, and sand, gravel, and sewer rock in mining country do not rise to the
level of unreasonable interference sufficient to terminate an easement. See BRUCE &
ELY, supra note 32, § 10:25. We reiterate, apart from the gold plant no evidence was
admitted and no testimony established that any equipment, conveyer belts, sand, gravel,
or sewer rock remained in place and obstructed the easement for a ten-year period.

                                            -21-                                       7219

and conclusion that the remainder of the easement apart from the location of the gold
plant was terminated and REMAND for further proceedings consistent with this opinion.




                                        -22-                                    7219

FABE, Chief Justice, with whom CARNEY, Justice, joins, dissenting in part.
              I disagree with the court’s analysis and its conclusion that the superior court
erred in finding that the entire easement over the Ellingsons’ property was terminated by
prescription. The court’s decision is based on a theory of partial extinguishment of the
easement, a theory that was never considered by the superior court. As a matter of
procedural fairness, this court should remand to the superior court for the parties to have
an opportunity to present additional evidence on this new, fact-intensive theory. And,
in my view, even under a partial extinguishment theory, the superior court correctly
concluded that the entire easement was extinguished. I therefore agree with the court’s
conclusion that the part of the easement under the gold plant was extinguished, but I
respectfully dissent from the court’s decision that the remainder of the easement was not
also extinguished.
I.	    PRINCIPLES OF PROCEDURAL FAIRNESS PROHIBIT REVERSAL ON
       NEW GROUNDS WITHOUT AN OPPORTUNITY TO BE HEARD.
              Neither party raised the question of partial extinguishment of the easement
in the trial court, nor did the superior court address the question in its ruling.
Importantly, the parties had no reason to believe that the issue of partial extinguishment
would be addressed because none of our prior decisions have adopted or even considered
that doctrine. Hansen v. Davis remains the only Alaska case that has addressed the
question of extinguishment by prescription,1 and that decision made no mention of the
possibility of partial extinguishment by prescription despite a similar fact pattern where
one portion of the easement was occupied by permanent improvements and another
portion was occupied by more temporary improvements.2 So by basing its decision on


       1
              220 P.3d 911, 915-16 (Alaska 2009).
       2
              Id. at 913-14.

                                            -23-­                                      7219
partial extinguishment, the court adopts a doctrine that is new to Alaska law without
giving the parties an opportunity to litigate this issue in the trial court. Procedural
fairness requires that parties be given an adequate hearing, which includes the principle
that “[p]arties must have notice of the subject of proceedings that concern them ‘so that
they will have a reasonable opportunity to be heard.’ ”3
              In Price v. Eastham we considered this issue in a context very similar to
that of the current case.4 There, a group of snowmachiners brought suit against a
landowner, claiming that they had established a prescriptive easement over part of the
land by using the same trail consistently since the 1950s.5 Price, the landowner, argued
that an easement had not been perfected and counterclaimed for injunctive relief against
the snowmachiners.6 Instead of ruling on the prescriptive easement question, the
superior court initially held that an easement had been established under former 43
U.S.C. § 932 (also known as RS 2477), under which sufficient public use of certain types
of land could establish a self-executing grant of land from the federal government.7
Neither party had raised this issue before the superior court.8 On appeal, we held that the
superior court violated Price’s due process rights by ruling on an issue that Price did not
have an opportunity to litigate:



       3
              Price v. Eastham, 75 P.3d 1051, 1056 (Alaska 2003) (quoting Potter v.
Potter, 55 P.3d 726, 728 (Alaska 2002)).
       4
              75 P.3d 1051.
       5
              Id. at 1054.
       6
              Id.
       7
              Id. at 1054-55.
       8
              Id. at 1056.

                                           -24-                                      7219

                     Because Price did not have notice that an RS 2477
              right-of-way was at issue, his due process rights were
              violated. Here, Price did not have an opportunity to be heard
              on the RS 2477 matter; in fact, he reasonably believed that
              RS 2477 was not at issue. Accordingly, we hold that the trial
              court’s failure to give Price notice and an opportunity to be
              heard and to present evidence on the RS 2477 issue at trial
              violated his due process rights, and we therefore reverse the
              superior court’s finding of an RS 2477 right-of-way on
              Price’s land.[9]
              Like the superior court in Price, here the court bases its conclusion on a
doctrine that the parties did not raise before the superior court.10 The parties here “did
not have an opportunity to be heard on the [partial extinguishment] matter.”11 And like
Price, Godspeed “reasonably believed” that partial extinguishment “was not at issue”
here12 because no case in Alaska has previously adopted or even considered that doctrine,
nor did the superior court address the issue in its decision.


       9
              Id.
       10
               Although the issue of partial extinguishment is obviously related to the
broader question of extinguishment by prescription, I believe it is properly considered
a separate issue here. Its status as a distinct question is particularly relevant in light of
the fact that no case in Alaska had previously addressed the question whether the partial
extinguishment doctrine is even recognized in this state.
               In Price, the question of an easement by prescription and an easement under
RS 2477 were closely related in that they both required the claimants to show some of
the same factual elements. Id. at 1056-57. But we concluded that it was a violation of
due process to issue a decision on one type of easement when the parties had no notice
of that issue. Id. at 1056. Under this precedent, it is evident that giving the parties an
opportunity to brief and present evidence about a related issue is not sufficient to satisfy
the principles of procedural fairness in these circumstances.
       11
              See id. at 1056.
       12
              See id.

                                            -25-                                       7219

             As we have explained, “[b]ecause basic fairness requires an opportunity to
present relevant evidence, applying an unanticipated body of law could be an abuse of
discretion if doing so were to make different outcome-determinative facts relevant.”13
We have in many contexts remanded cases to the superior court when a novel legal
theory was presented in a manner that prevented one or both parties from presenting
evidence related to that theory. For example, in a different type of easement case, we
remanded the question whether the dedication of an easement had been accepted when
“neither party expressly presented the theory of common law dedication to the superior
court.”14 And in a case where the superior court allowed amendment of the pleadings
after trial to include a breach of contract claim, we vacated and remanded the decision
to allow presentation of evidence related to damages for breach of contract because one
party had not had the opportunity to present evidence to support its position on
damages.15
             Here, neither the parties nor the superior court raised the issue of partial
extinguishment, and the superior court made no factual findings relating to a partial
extinguishment theory. The parties accordingly focused their arguments on the simpler
question whether the entire easement was extinguished; they might have emphasized
different facts or legal arguments had they known that they would need to address the

      13
             Frost v. Spencer, 218 P.3d 678, 682 (Alaska 2009); see also Bruce L. v.
W.E., 247 P.3d 966, 977 (Alaska 2011) (applying the reasoning of Frost to reverse a
superior court decision that had relied on an issue not raised by the parties).
      14
             McCarrey v. Kaylor, 301 P.3d 559, 568 (Alaska 2013).
      15
             Alderman v. Iditarod Props., Inc., 32 P.3d 373, 395-97 (Alaska 2001). See
also Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 396 (Alaska 2013)
(remanding for further proceedings when trial court’s decision relied on new argument
made at oral argument on summary judgment without the other party having an
opportunity to respond).

                                         -26-                                      7219

question whether separate parts of the easement had been extinguished.16 For example,
the parties presented some evidence about rock piles and other equipment or structures
incidental to the gold plant that interfered with use of the easement. The superior court
did not make detailed findings about those other obstructions, considering them part of
the plant’s operation, which it determined sufficiently interfered with the prospective use
of the easement as a public means of ingress and egress to extinguish the entire
easement.17    As we have concluded in analogous situations, adopting a partial
extinguishment theory here means the court is “applying an unanticipated body of law”
that might “make different outcome-determinative facts relevant.”18 The fact that the
parties did not have an opportunity to address this issue or present facts relevant to this
theory before the superior court, therefore, creates a procedural fairness problem.
              Because the court has concluded that the partial extinguishment doctrine
applies to this case, I believe it is most appropriate to remand this fact-specific inquiry
to the superior court for an opportunity for presentation of additional evidence on this
theory and for the superior court’s determination whether the easement was partially or
fully extinguished. This is the approach we have followed in other cases involving fact­




       16
               Cf. Frost, 218 P.3d at 682 (considering whether the court’s application of
a different body of law “would, if announced at the outset of the trial, have reasonably
led [the parties] to present different evidence or to place more emphasis on some of the
evidence that [they] did present”).
       17
             See Hansen v. Davis, 220 P.3d 911, 915 (Alaska 2009) (holding that
easement may be extinguished when owner of servient estate “unreasonably interferes
with the current or prospective use of the easement” (emphasis added)).
       18
              Frost, 218 P.3d at 682.

                                           -27-                                       7219

intensive easement issues,19 and I believe we should adhere to that established practice
here.
II.	    EVEN UNDER A PARTIAL EXTINGUISHMENT THEORY, THE
        SUPERIOR COURT DID NOT CLEARLY ERR.
              But even if it were appropriate to decide this case on the factual record
developed below — without providing an opportunity for the parties to present evidence
now that they know that the doctrine of partial extinguishment applies — I would affirm
the superior court’s decision. I agree with the court’s conclusion that the portion of the
easement under the gold plant was extinguished, but I disagree with its conclusion that
the remainder of the easement was not also extinguished. We held in Hansen that
“permanent and expensive improvements that are difficult and damaging to remove will
trigger the prescriptive period.”20 Here, the superior court found that the gold plant was
a steel and concrete structure that cost nearly a million dollars to install, while other
temporary improvements at times occupied and interfered with the remainder of the
easement.    The superior court focused its analysis on the way these and other

        19
              We remanded for further fact-finding in Price after reviewing the superior
court’s conclusion that a prescriptive easement had been created (a conclusion the
superior court had reached independent of the RS 2477 easement question discussed
above). See Price v. Eastham, 75 P.3d 1051, 1059 (Alaska 2003). We noted that the
superior court had not “define[d] the extent of the prescriptive easement over Price’s
land” and therefore we “remand[ed] for a determination of the scope of this easement”
rather than answering that question ourselves. Id.
              In Hansen, similarly, after deciding the issue of prescriptive extinguishment
we were left with the question whether the easement had been effectively transferred to
new owners. 220 P.3d at 918. We remanded this issue for further factual findings,
explaining that “[q]uestions concerning a property’s chain of title are often
fact-intensive, and the trial court is in the best position to address questions of fact.” Id.
Accordingly, we “decline[d] to decide this issue as a matter of law and remand[ed] for
a hearing on the quiet title action.” Id.
        20
              Hansen, 220 P.3d at 917.

                                            -28-	                                       7219

improvements interfered with public access to the easement. An easement can be
extinguished by use that interferes with a prospective use of it,21 and Reeves currently
intends to use the easement for a public road. I would therefore conclude that the entire
easement was extinguished, even if each part of the easement is considered separately
under a partial extinguishment theory.
             The creation or extinguishment of an easement by prescription presents
questions of both law and fact:22 The relevant findings of fact are reviewed for clear
error,23 and the application of law to these facts is reviewed de novo.24 But we clarified
in Hansen that for the specific question of “[d]etermining what constitutes unreasonable
interference, and thus triggers the prescriptive period” for extinguishing an easement by
prescription, the analysis “will be heavily fact dependent.”25
             In Hansen we held that “[a]s a matter of law, the maintenance of a garden
on the easement area did not constitute an improvement sufficiently adverse to
commence the prescriptive period.”26 Here, the court relies heavily on Hansen to
conclude that “cars, equipment, and gravel piles are not significantly less moveable than
a garden” and that therefore those impediments were insufficient to extinguish the




      21
             Id. at 915.
      22
            See Op. at 8 (citing HP Ltd. P’ship v. Kenai River Airpark, LLC, 270 P.3d
719, 726 (Alaska 2012)).
      23
             See Op. at 8 (citing HP Ltd. P’ship, 270 P.3d at 726).
      24
             See Op. at 8 (citing HP Ltd. P’ship, 270 P.3d at 726).
      25
             Hansen, 220 P.3d at 917.
      26
             Id.

                                          -29-                                      7219

easement by prescription.27 But in Hansen we considered only the garden and
vegetation; we did not consider the effect of the greenhouse occupying the other portion
of the easement because the prescriptive period of ten years had not yet elapsed since the
greenhouse was built.28 And in Hansen, we never held that a permanent building
constructed on part of an easement is insufficient to extinguish the entire easement. If
the easement is considered as a whole, then a gold plant occupying roughly half of the
easement would easily satisfy the Hansen test for prescriptive extinguishment:
“[P]ermanent and expensive improvements that are difficult and damaging to remove
will trigger the prescriptive period.”29 A gold plant consisting of a steel and concrete
structure that cost almost a million dollars to install30 surely qualifies as a “permanent
and expensive improvement” under Hansen.
             Applying this reasoning to the partial extinguishment theory, the superior
court was almost certainly correct to conclude that the portion of the easement under the
gold plant was extinguished.31 The superior court was also correct to conclude that the
gold plant extinguished the entire easement when the plant is viewed in conjunction with
the more temporary improvements occupying much of the remainder of the easement and
the current proposed use of the easement as a public road. Once the gold plant
permanently blocked half of the easement, the rock piles and equipment impeded a large




      27
             Op. at 17.
      28
             Hansen, 220 P.3d at 917-18.
      29
             Id. at 917.
      30
             Op. at 5.
      31
             Op. at 16.

                                          -30-                                      7219

portion of the remaining passable land, thereby “unreasonably interfer[ing]”32 with and
extinguishing that portion of the easement.
              Even considering each portion of the easement entirely separately, the
superior court’s findings were not clearly erroneous in concluding that the portion of the
easement not covered by the gold plant was still extinguished under our Hansen test.
Eagan testified that he may have been forced to drive outside the edges of the easement
at times, because parts of the easement were blocked. Thus, the superior court did not
clearly err in finding that Eagan could not always drive the entire length of the easement,
even if he was sometimes able to drive next to the plant. Nor did it clearly err in finding
that the general public could not safely use the easement while the gold plant intruded
into it. Therefore, the superior court was correct to conclude that this portion of the
easement was extinguished, even when considered separately from the gold plant
portion.
              An easement can be extinguished by prescription if the servient owner’s use
“unreasonably interferes with the current or prospective use of the easement by the
easement holder.”33 There is no indication that the superior court clearly erred in finding
that the gold plant’s operation “unreasonably interfered with a prospective dedication of
the easement to the public.” Indeed, the prospective use of the easement for a public
road was a factor the superior court considered at several points, noting that at the times
when a single vehicle could navigate the easement, it “would not be safe for the general
public” to do so. The superior court also found that additional efforts were made to
restrict access by the general public even if Eagan could drive around barriers to access
Alaska Gold’s property.


       32
              See Hansen, 220 P.3d at 915.
       33
              Id. at 916.

                                           -31-­                                     7219
              Moreover, the nature of the other impediments and blockages is sufficient
to establish that the non-gold-plant portion of the easement was extinguished. In setting
out the standards for termination by prescription under Alaska law, we explained in
Hansen that the doctrine of extinguishment by prescription relies on the longstanding
property law principle of encouraging property owners to protect their rights: “When
satisfied, the various requirements of adverse possession, and similarly prescription,
serve to ‘put [the property owner] on notice of the hostile nature of the possession so that
he [or she], the owner, may take steps to vindicate his [or her] rights by legal action.’ ”34
In light of this principle, we concluded that “[u]se of the easement that unreasonably
interferes with the ‘easement owner’s enjoyment of the easement’ is adequate ‘to give
notice that the easement is under threat.’ ”35 Accordingly, we explained that “[w]here the
easement holder has not used the easement for some time, or at all, the servient estate
owner enjoys wide latitude with respect to use of the easement area, and a showing of
extensive activity will be required to demonstrate adversity.”36 The converse of this
statement is that an easement may be extinguished if the easement holder knew of the
other party’s adverse use and did nothing to stop it.
              In Hansen, it was “undisputed that the easement was unused by an
easement holder from its creation until [the time of the lawsuit].”37 Thus, by Hansen’s
own standard, it would have required a demonstration of “extensive activity” to meet the


       34
          Id. (first alteration in original) (footnote omitted) (quoting Peters v.
Juneau–Douglas Girl Scout Council, 519 P.2d 826, 832 (Alaska 1974)).
       35
            Id. (quoting 7 THOMPSON ON REAL PROPERTY § 60.08(b)(7)(i) (David A.
Thomas ed., 2004)).
       36
              Id. at 917.

       37
              Id.


                                            -32-                                       7219

unreasonable interference test in that case; we found that the claimants had failed to
make this showing. In the current case, by contrast, the parties agree that Eagan, the
local representative of the easement holder, repeatedly used the easement during the
period of the Ellingsons’ adverse use. Yet neither Eagan nor Alaska Gold took any
action to halt the Ellingsons’ use. As the superior court pointed out, “the parties were
not protective of their property rights.”
             In fact, the use of the easement in this case was more extensive than in
Hansen: In contrast to the garden beds in Hansen, the easement here was occupied by
equipment and rock piles that sometimes blocked large portions of the easement.38 So
contrary to the court’s conclusion, the fact that a garden failed the “unreasonable
interference” test in Hansen does not mean that similar (and even more extensive) use
of the easement would fail the test in the current case, where the easement holder knew
of the interference and did nothing to protect its rights. Accordingly, the extensive
interference caused by the rock piles and heavy equipment here satisfies the
“unreasonable interference” test — even when considered independently from the
portion of the easement occupied by the gold plant. I would therefore hold that the
superior court did not clearly err in concluding that the entire easement was extinguished
by prescription.
             For these reasons, I respectfully dissent from the court’s decision to reverse
a portion of the superior court’s decision. I believe that the proper course of action in
this case is to remand to the superior court to allow the parties to supplement their
evidentiary presentations now that they know that the doctrine of partial extinguishment
is the law in Alaska. Here, the newly adopted legal doctrine, “if announced at the outset

      38
             Unlike the garden in Hansen, some rock piles here were not easily
removed: “[P]retty good size equipment” would have been needed to move them; they
could not be moved “by hand.”

                                            -33-                                     7219

of the trial, [would] have reasonably led [the parties] to present different evidence or to
place more emphasis on some of the evidence that [they] did present.”39 But even if we
are to decide the case on the current record, I would affirm the superior court’s factual
finding that the majority of the easement was blocked and that the entire easement was
extinguished.




       39
              Frost v. Spencer, 218 P.3d 678, 682 (Alaska 2000).

                                           -34-                                      7219
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