      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      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@appellate.courts.state.ak.us.


               THE SUPREME COURT OF THE STATE OF ALASKA

JAMES DAULT and SHALA                          )
DOBSON,                                        )        Supreme Court No. S-14328
                                               )
                Appellants,                    )        Superior Court No. 3PA-10-01559 CI
                                               )
      v.                                       )        OPINION
                                               )
EDWARD SHAW,                                   )        No. 6847 – November 29, 2013
                                               )
                Appellee.                      )
                                               )


              Appeal from the Superior Court of the State of Alaska, Third

              Judicial District, Palmer, Eric Smith, Judge.


              Appearances: Richard Deuser, Law Office of Richard

              Deuser, Wasilla, for Appellants. DanaLyn Dalrymple,

              Dalrymple Law, P.C., Palmer, for Appellee.


              Before: Carpeneti, Chief Justice, Fabe, Winfree, and

              Stowers, Justices, and Matthews, Senior Justice.*


              MATTHEWS, Senior Justice.

              WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting.


I.    INTRODUCTION
              In the doctrine of adverse possession there is a presumption that the use of
a private drive across the property of another is permissive and does not give rise to an


      *
             Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
easement. But the presumption does not apply where a drive was not originally
established by the other property’s owner for his or her own use. The main question here
is whether this presumption applies to the facts of this case. We hold that it does because
the drive at issue was constructed by the original subdivision developers for their own
use.
II.    FACTS AND PROCEEDINGS
       A.     The Subdivision And The Trail
               Lots 4 through 40 of the North Shore Subdivision extend along the north
shore of Blodgett Lake. The subdivision was approved by the Matanuska-Susitna
Borough in 1966. The subdivision plat is attached as Appendix A to this opinion. A
ridge created by a lateral moraine bisects most of the lots so that they slope steeply down
to the lake to the south and to what was originally swampy ground to the north. All of
the lots border a platted road on the north, North Shore Drive. The lots are not large for
a rural subdivision. For example, lot 28, which is ow ned by appellants James Dault and
Shala Dobson, extends along the lake shore for only some 88 feet, while the distance
from the lake to North Shore Drive is about 210 feet.
              When the lots in the subdivision were first offered for sale in the late 1960s
North Shore Drive was not improved or readily passable. The developers first tried
showing the lots by boat. Subsequently they bulldozed a trail along the ridge. The
superior court found that the purpose of this trail was “so that prospective buyers could
gain access to the property.” The trail does not appear on the subdivision plat. But by
the time lots were sold, the deeds to most lots referred to the trail, reserving to the
subdivision developers as grantors “an easement for right-of-way purposes twenty (20)
feet in width and upon the North One-half (N 1/2) of said lot.” For reasons that are not
explained, no reservation was made with respect to lot 28.



                                            -2-                                       6847

         B.   The Controversy
              The trail is the source of controversy in this case. The appellee, Edward
Shaw, is the owner of lots 33 and 34 of the North Shore Subdivision. Appellants Dault
and Dobson (Dault) own lot 28. The controversy came to a head in 2009. Shaw had a
house on lots 33 and 34 that was built by his predecessors in title, the Rices, more than
30 years earlier. By 2009 North Shore Drive had been improved for many years and was
fully passable. But Shaw continued to use the trail as the access route to his house up to
where it merged with North Shore Drive at lot 26. The trail thus crossed lots 27 through
32, including Dault’s lot 28. In 2009 the only lot with a dwelling between the point of
merger at lot 26 and Shaw’s house was lot 32, where a cabin owned by Carol and Oliver
Krein was located. The Kreins also used the trail as their means of access to North Shore
Drive.
              Dault purchased lot 28 in 2006. In 2009 in preparation for constructing a
house on the lot, he built a driveway from his house site to North Shore Drive. The trail
merged with this driveway so that access along the trail to the lots to the west was not
blocked. Dault built a shed where the trail had been. Shaw’s house was not then
occupied. When Shaw’s brother, Michael Shaw, discovered that a driveway was being
constructed, he asked Dault about the project. Dault assured Michael that the new
driveway would provide safer access to Shaw’s property, but Michael expressed concern
over the lack of a Borough permit. During a subsequent conversation, Dault said that he
did not believe that he needed a Borough permit. Michael had by then discovered the
grantor easements on some of the lots, including his brother’s, and based on them, told
Dault to remove the obstruction from the trail.
              Subsequently, Edward Shaw’s attorney contacted Dault, demanding that
the trail be restored based on “the actual grant of easement in [Dault’s] deed” and “the
theory of prescriptive easement.” Dault responded, disputing both the existence of a

                                           -3-                                      6847

granted easement and the factual basis for an easement by prescription. Shaw then filed
the complaint in the present case.
         C.   Pleadings And Motions
              Shaw filed the complaint on May 12, 2010. It alleged that Shaw acquired
his lots from his mother’s personal representative in August of 2008, and that his mother,
Alice Tauscher, acquired them from the Federal National Mortgage Association in 1988.
The complaint alleged that there is a dwelling on the property, that access to the dwelling
is “via an improved driveway running over and through a number of lots in the
subdivision, including Lot 28” and that Shaw and his predecessors have utilized the
driveway “openly, continuously, hostilely, and in an uninterrupted fashion for a period
of time in excess of 10 years.” The complaint’s final allegation of fact was that Dault
blocked the driveway and refused to reopen it. Shaw requested an injunction requiring
Dault to reopen the driveway and a declaration that a prescriptive easement runs through
Dault’s property “in accordance with the defined and historical usage by [Shaw] and his
predecessors-in-interest.”
              In his answer Dault admitted the existence of the trail, and his
reconfiguration of it, but denied that the requirements for a prescriptive easement were
satisfied. Dault also posed a number of affirmative defenses, including the availability
of the public right of way bordering Shaw’s property, estoppel, laches, and failure to join
indispensable parties — referring to other lot owners whose property is traversed by the
trail.
              After some discovery was conducted, Shaw moved for what he termed a
“Declaratory Judgment.” This was understood by the parties and the court to be a
motion for summary judgment. Shaw’s memorandum in support of his motion related
the ownership history of lots 33 and 34, in relevant part as follows. The subdivision plat
was recorded by Helen Clements on September 7, 1966. On August 9, 1968, John and

                                            -4-                                      6847

Ina Boss and Louis and Mary Odsather (who other evidence established as the
subdivision developers) deeded lots 33 and 34 to Herbert and Lalladge Rice. This deed
was recorded on July 17, 1979. A trustee’s deed to a mortgage company was recorded
February 11, 1988. Shaw’s memorandum noted that this presumably resulted from a
foreclosure. In short order, the mortgage company conveyed the property to the Federal
National Mortgage Association, which in turn sold it to Alice Tauscher by deed recorded
October 14, 1988. Finally, as noted in the complaint, Tauscher’s estate conveyed the
property to Shaw in a deed recorded April 22, 2008.
              According to Shaw, Tauscher occupied the property from the time of her
purchase in 1988 until her death on August 25, 2007, with the exception of a six-week
period in 1999. Shaw claimed to have also occupied the property as his principal
residence at times, including the six-week period in 1999 when Tauscher did not live
there. The property was rented from March 2008 until November 2008. Since then it
has been vacant and listed for sale. At all times since Tauscher’s initial purchase, the
trail was the sole means of access to the house on the property.
              Shaw’s argument as set out in the memorandum supporting his motion was
that the ten-year prescriptive period was satisfied by Tauscher’s use of the trail from
1988 until her death in 2007, and for the additional year that it was used by renters. This
use, Shaw argued, also served to satisfy the requirements of continuity and notoriety.
As to the requirement of hostility, Shaw’s memorandum stated:
              There is a fundamental presumption that the use of land by an
              alleged easement holder was permissive unless the claimant
              proves a distinct, positive assertion of a right hostile to the
              owner. However, the presumption does not arise if the
              roadway was not established by the owner of the servient
              estate for its own use but for many years was the means of
              passage to the dominant estate [citations omitted].



                                           -5-                                       6847

Shaw’s memorandum went on to explain his view of why the presumption of
permissiveness does not apply to this case:
              In this case, the driveway was evidently established by the
              owners of the house when the house was constructed in
              1977. . . . The records of the State Recorder show that the
              owners at that time were Louis and Mary Odsather and John
              and Ina . . . Boss. There is no direct or circumstantial
              evidence that there was a structure on Defendant’s Lot 28
              during the period of time Plaintiff claims that the prescriptive
              easement arose, or that Defendants or their predecessors in
              interest constructed the driveway for their own use. . . . [T]he
              driveway was the only means of passage utilized by Plaintiff
              and his mother to the dominant estate, Lots 33 and 34.
              Dault opposed Shaw’s motion and filed a cross-motion for summary
judgment. In support of his cross-motion, Dault presented multiple affidavits including
affidavits from three long-time owners of lots in the subdivision who testified as to the
circumstances surrounding the construction of the trail, and its intended uses.1 Robert
Dobson purchased lot 23 from the subdivision developers in 1968. In his affidavit, he
stated that the developers created the trail to allow prospective buyers access to the
property to facilitate sales, and that it was understood that the trail was only useable as
a matter of convenience:
              6.     . . . . When a particular lot owner wanted to develop
              his property, and therefore needed the space occupied by the
              access trail on the ridge line, it was understood that the lot
              owner could “knock down” the ridge line, thereby removing
              the access trail in the process.
              7.      After lot development ended the trail on a particular
              lot, the idea was that anyone who had been using the access
              trail would be able to continue using the remaining parts of
              the access trail that still existed but would, if necessary or


       1
              The three affiants were Robert Dobson, Gordon Benedict, and Carol Krein.

                                            -6-                                      6847
              desired, construct their own driveway, leading from the
              public right of way, as the way to drive to their lot.
              8.     My neighbors have, over the years all understood this
              and agreed to this. Any other understanding would have
              rendered many of the lots as unbuildable — no place to put
              improvements as the access trail occupied the only feasible
              place to put improvements.
              9.     The realtor, John Boss of Totem Realty, who I bought
              my lot from, told me that the access trail was for convenience
              and that the public right of way would be the long term way
              to access lots in the subdivision. This made the only sense
              because the lots would not be buildable if you couldn’t build
              where the access trail was located.
              Gordon Benedict testified in an affidavit that he had purchased lot 40 in
1970. Like Dobson, he testified that the developers put in the trail to help with lot sales.
He stated that the trail was also a way to gain access to the ridge line in order to develop
lots. He understood that the “ridge line trail was not intended to be a permanent road.
If it were to remain in place, it would have destroyed the value of the lots as the area that
was buildable would have been largely taken by the presence of the trail.” Benedict also
testified that in approximately 1978 he began excavation work on his lot and also worked
on lots 38 and 39. Essentially, he pushed dirt from the ridge line toward North Shore
Drive, thereby “taking down the hill” and, in the process, obliterating the trail. He stated
that around that time the Borough began to maintain North Shore Drive, including snow
removal. Benedict also testified that in the 90s Alice Tauscher called him about some
changes being made to the trail by another lot owner, Bill Moll. According to Benedict,
Tauscher made no objection to the work, and Benedict had the impression that “she
understood that when people wanted to develop their lots, that they could do so and the
public right of way would then be used to travel to particular lots instead of using the
access trail on the lot where the improvements were being made.”


                                            -7-                                        6847

              Carol Krein testified by affidavit that she and her husband purchased lot 32
in 1969. Krein testified that the agent they dealt with told her with respect to the trail
that everyone eventually would have to put in their own driveway down to North Shore
Drive. Krein also testified that she had discussed the trail with Tauscher on one
occasion, during a conversation regarding an electric meter for Tauscher’s house that
was installed on the Krein property. According to Krein, Tauscher understood that
              the access trail was for convenience and when people wanted
              to use their lots, where the access trail was located, they
              would then build their own driveways off of the public right
              of way. [Tauscher] understood that she was crossing our
              private property and Glenna’s (the next lot owner to the east)
              private property. We were good neighbors and let each other
              cross our private property on the access road. We were good
              neighbors and let her keep the electric meter on our lot.
According to Krein, “Tauscher did not object when various persons in the subdivision
either eliminated or re-routed the access trail on their properties. Nor did we. We all
understood the temporary and conditional nature of the access trail.”
              Dault’s opposition to Shaw’s summary judgment motion was wide­
ranging.2 But his main point was that the element of hostility is missing. He noted that


       2
               Dault filed an affidavit in which he explains that he and Shala Dobson own
and live on another lot in the subdivision, lot 35, which is adjacent to and west of Shaw’s
lots. Dault testified that preparatory to building a house there in 2004 he talked with
Tauscher about bringing earthmoving equipment over the trail, since it is easier to “push
down” than “push up.” According to Dault, Tauscher initially agreed, but “as it turned
out,” he instead brought the equipment in from the public right of way and created a
driveway to his house site by working up-slope. In the process he eliminated the trail on
lot 35, just as development on lots 37-40 had eliminated it there. Why he did not bring
equipment up over the trail was explained by Dault at trial. A few days after Tauscher
agreed that Dault could bring equipment over the trail, Shaw told him that he could not.
              In his affidavit, Dault also explained why the trail precludes lot
                                                                   (continued...)

                                           -8-                                       6847

the trail was constructed by the developers of the subdivision and therefore “[t]he
presumption of consent should apply.” He summed up by stating, “the evidence
presented by Defendants establishes that use of the access trail was by consent. Plaintiff
had the burden on the issue of consent and offered no evidence that consent was absent.”
              Shaw filed a reply to Dault’s opposition and cross-motion, claiming that the
evidence was insufficient to show that Tauscher understood that her right to use the trail
was temporary. Shaw filed his own affidavit stating that there was never a community
understanding that the use of the trail would be temporary. Shaw’s argument continued
to rely on the premise that the presumption that a use is permissive does not apply and
asserted that the burden of proof was on Dault to show that Tauscher’s use was
consensual. But Shaw did not contest the evidence presented by Dault that the trail was
built by the subdivision developers, rather than, as Shaw had asserted in his opening
memorandum, by the original owners of his house.
              The superior court denied Shaw’s motion for declaratory judgment and
Dault’s cross-motion for summary judgment. The court found that there were genuine
issues of material fact that precluded summary judgment. Specifically, the court found
that there were genuine issues as to whether the usage of the trail was permissive. The
court noted that “[w]hether there was community understanding among the property
owners that the use of the trail was permissive is a genuine issue of material fact.” In
addition, the court found that there were genuine issues as to the continuity and duration
of Tauscher’s use of the trail.


       2
              (...continued)
development. The drop off from the ridge line is steep, so the ridge must be leveled to
some extent by pushing material north toward North Shore Drive. In addition, there is
a 75-foot offset requirement from the lake shore as to buildings and 100 feet as to septic
systems. Finally, there are specific distances that must be satisfied between wells and
septic systems. These factors mean that the ridge is the only plausible house site.

                                           -9-                                      6847

       D.      The Trial
               The case proceeded to a bench trial which occupied parts of four days in
March 2011. The evidence presented by Shaw relating to the continuity and duration of
use of the trail by Tauscher was much the same as he had presented in affidavit form in
his motion for declaratory judgment. But he did not present evidence that the trail was
constructed by the original owners of his house.
               The evidence presented by Dault was also similar to the evidence that he
presented in his opposition to Shaw’s motion and in support of his cross-motion for
summary judgment. In particular, the evidence was undisputed that the trail was built
by the subdivision developers to aid them in selling the property and to facilitate
development of the property. Robert Dobson testified:
               When we bought . . . the property . . . they were glad to tell us
               that there was a trail that we could use to get up there . . . they
               put it in so we could get up and see our lots and use our lots.
               And there was not any indication that that’s the way it was
               going to always be.” Carol Krein similarly testified that
               “there was a . . . trail up along the ridge that was built to show
               all the property and our realtor took us over there and showed
               us the lots that were available.
Krein further testified: “[W]e were told when we bought it that that was a trail for the
realtors and that eventually we would have to build our own driveway up from North
[S]hore . . . .”3


       3
              This aspect of Krein’s testimony was objected to as hearsay, but the
testimony was allowed on the grounds that it would serve as background for a
conversation between Krein and Tauscher as to the temporary nature of the trail. The
testimony was also admissible on the issue of the community understanding as to the
nature of the trail. The court had ruled on summary judgment that this was a material
issue in the case. Krein’s testimony was covered by Evidence Rule 803(20), which
excludes from the hearsay rule evidence of reputation in the community arising before
                                                                        (continued...)

                                              -10-                                   6847

         E.   The Superior Court’s Decision
              The superior court issued its decision in a 27-page written order.4 The court
found by clear and convincing evidence that Shaw proved that he had a prescriptive
easement where the trail crossed lot 28. The court found that the continuity and ten-year
duration elements of adverse possession were satisfied by Tauscher’s use from 1988
through 2007. With respect to hostility, the court concluded that the general presumption
that the use of land by an alleged easement holder is permissive did not apply. Instead,
the court applied a presumption that the use of the easement was hostile. The court
wrote:
                    The Alaska Supreme Court set forth the applicable
              analysis relating to hostility in McDonald:
                    The hostility requirement, however, is
                    “determined by application of an objective test
                    which simply asks whether the possessor acted
                    toward the land as if he owned it, without the
                    permission of one with legal authority to give
                    possession.” Still, we will presume that the use
                    of land by an alleged easement holder was
                    permissive unless a claimant proves “a distinct
                    and positive assertion of a right hostile to the
                    owner.” But this presumption does not arise if
                    “a roadway was not established by the owner of
                    the servient estate for its own use but was for
                    many years the only means of passage to the
                    dominant estate.”




         3
             (...continued)
the controversy as to customs affecting lands in the community.
         4
           The text of the court’s order relating to the issue of whether a prescriptive
easement was established is set forth in Appendix B.

                                           -11-                                      6847
978 P.2d at 84-85 (citations omitted). The Court relied
primarily on McGill v. Wahl, 839 P.2d 393, 397-98 (Alaska
1992), in this respect, in which the Court held:
       However, in this case it would be inappropriate
       for us to presume that the Wahls were acting as
       merely permitted users of the roadway. Such a
       presumption does not arise where a roadway
       was not established by the owner of the servient
       estate for its own use but was for many years
       the only means of passage to the dominant
       estate. Richardson v. Brennan, 92 Nev. 236,
       548 P.2d 1370, 1372 (1976).
Both of these cases involved an allegation of a prescriptive
easement by a person whose driveway crossed the property
of another person. The Court essentially held that in such
cases, hostility is presumed and generally can only be
rebutted by an affirmative act by the landowner of the
subservient estate. As the Court explained in McGill:
       The roadway originally was and continuously
       had been used as access to the lots behind the
       McGills’ property. The roadway existed and
       was used by the Nels Wahls before the McGills
       came to the property. Although other lot
       owners now use Highway 1 to get to their lots,
       the use of the roadway has never changed with
       respect to lot 11. The McGills, having come to
       land burdened by the roadway, cannot now
       claim that the users of the roadway were acting
       merely with their permission. Likewise, the
       McGills without any affirmative action cannot
       now claim that they intended to permit the use
       of the road by the other landowners.
Id.
      This case is virtually identical to McDonald and
McGill. There is no dispute that Ms. Tauscher and plaintiff
crossed lot 28 solely for the purpose of gaining access to their

                             -12-                                  6847

              property. Defendants came to lot 28 well after that use
              began. And they took no affirmative action to block the
              access until 2009. Plaintiff’s use therefore was hostile.
              The superior court went on to state that even if there were no presumption
of hostility, the court would conclude that Tauscher’s use of the trail was hostile because
there was no evidence that the owners of lot 28 did not acquiesce in Tauscher’s use of
the trail, nor was there evidence that Tauscher, or Shaw, ever acknowledged that their
use was subordinate to the owner’s title. The court wrote:
                     The court would reach the same conclusion even
              absent the presumption. In determining whether a use is
              hostile, the court must look to whether the owner of lot 28
              gave his or her permission to use the trail or merely
              acquiesced in that use. In particular, as the Alaska Supreme
              Court explained in Tenala, Ltd. v. Fowler, 921 P.2d 1114,
              1120 (Alaska 1996):
                            In Swift v. Kniffen, 706 P.2d 296, 304
                     (Alaska 1985), we stated that “[t]he hostility
                     element turns on the distinction between
                     acquiescence and permission,” and held that if
                     the true owners merely acquiesce, and do not
                     intend to permit a use, the claimant’s use is
                     adverse and hostile. Therefore, we must decide
                     whether the record reveals that Tenala intended
                     to permit the Mayos’ use or merely acquiesced
                     in that use. In Hubbard v. Curtiss, 684 P.2d
                     842, we stated that “[t]he key difference
                     between acquiescence by the true owner and
                     possession with the permission of the true
                     owner is that a permissive use requires the
                     acknowledgment by the possessor that he holds
                     in subordination to the owner’s title.” Id. at
                     848 (citations omitted).
                    The evidence here supports a finding of acquiescence
              by clear and convincing evidence. First, and perhaps most


                                           -13-                                      6847

              important, there was absolutely no evidence that the original
              owner of lot 28 had any conversation whatsoever with Ms.
              Tauscher regarding her right to use the trail as her driveway
              to her lots. Nor is there any evidence that Ms. Tauscher or
              plaintiff ever acknowledged to that person that her use “was
              in subordination to” that owner’s title. There accordingly is
              no evidence to counter the claim by plaintiff and his brother
              that they always assumed they had the right to cross the
              property and that no one really cared whether they did so.
              The court also found that the use of the trail was notorious, noting that it
was undisputed that Tauscher had used the trail as her driveway and had done so openly
and obviously. After rejecting Dault’s affirmative defense of laches and holding that
other landowners did not have to be joined under Alaska Civil Rule 19, the court directed
entry of judgment declaring that a prescriptive easement existed on the portion of the trail
that crosses lot 28. The court also ordered Dault not to obstruct the easement and
required him to remove the obstruction that was already present.
              The court recognized some problems inherent in this resolution and
encouraged the parties to consider settlement:
                     The court feels constrained to note, however, that
              while plaintiff has thereby won this battle, it is not at all clear
              that this is the best result long-term for any of the parties.
              Because the trail crosses defendants’ property in a manner
              that makes it very difficult to develop, plaintiff’s use of the
              trail will create ongoing difficulties with his neighbor. It
              seems to the court that this is a matter that can and should
              have been resolved through settlement in a manner that
              assured plaintiff access and defendants full use of their land.
              The court encourages the parties to explore settlement in lieu
              of any further legal proceedings.




                                             -14-                                     6847

III.   STANDARD OF REVIEW
              The question in this case is whether an evidentiary presumption was
correctly applied. This is a question of law. We review such questions de novo.5
IV.    DISCUSSION
              On appeal Dault challenges the superior court’s findings concerning
notoriety, continuity, and hostility. In addition, he argues that the court erred in failing
to bar Shaw’s claim on the grounds of laches, that the claim should have been dismissed
for failure to join indispensable parties, and that the location, type, character, and scope
of the easement ordered by the court were insufficiently defined. Because we conclude
that the court erred with respect to hostility, we find it unnecessary to consider Dault’s
other arguments.
       The Superior Court Erred In Holding That The Element Of Hostility Was
       Satisfied.
              The elements underlying a court-ordered prescriptive easement are similar
to the elements for adverse possession of real property, except that adverse possession
focuses on possession, which is ordinarily exclusive, whereas prescriptive easements
focus on use, which is often non-exclusive.6
              To be entitled to a prescriptive easement, a party must prove
              (1) continuity — that the use of the easement was continuous
              and uninterrupted; (2) hostility — that the user acted as the
              owner and not merely one with the permission of the owner;
              and (3) notoriety — that the use was reasonably visible to the
              record owner. A claimant must prove each element by clear




       5
              In re Estate of Fields, 219 P.3d 995, 1002-03 (Alaska 2009).
       6
              Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1119 (Alaska 1996).

                                           -15­                                       6847
              and convincing evidence. Finally a claimant must have
              engaged in the adverse use for at least ten years.[7]
              Until amendments made in 2003, adverse possession was governed by two
statutory sections. The first, AS 09.10.030, provided:
              No person may bring an action for the recovery of real
              property, or for the recovery of the possession of it unless
              commenced within 10 years. No action may 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 action.
Although in form simply a statute of limitations, this section served as the basis for
establishing new title through adverse possession.8
              The other statutory section, AS 09.45.052, allowed claimants under color
of title to establish title after the passage of seven years. Alaska Statute 09.45.052(a),
prior to 2003, provided:
              The uninterrupted adverse notorious possession of real
              property under color and claim of title for seven years or
              more is conclusively presumed to give title to the property
              except as against the state or the United States.
Since the use in question here began, according to Shaw, with Tauscher’s use in 1988
and was terminated when Dault blocked the trail in 2009, these statutes govern Shaw’s
claim as to use of the trail until 2003.
              The 2003 amendments substantially changed and restricted the law of
adverse possession. Alaska Statute 09.10.030(a) and (b) now reads:


       7
             McDonald v. Harris, 978 P.2d 81, 83 (Alaska 1999) (emphasis and internal
citations omitted).
       8
              Cowan v. Yeisley, 255 P.3d 966, 973 n.23 (Alaska 2011); Tenala, 921 P.2d
at 1118.

                                           -16-                                     6847
                     (a)    Except as provided in (b) of this section, 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 under this subsection 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.
                     (b)    An action may be brought at any time by a
              person who was seized or possessed of the real property in
              question at some time before the commencement of the action
              or whose grantor or predecessor was seized or possessed of
              the real property in question at some time before
              commencement of the action, and whose ownership interest
              in the real property is recorded under AS 40.17, in order to
                     (1)    quiet title to that real property; or
                     (2)    eject a person from that real property.
Alaska Statute 09.45.052(a) now provides in relevant part:
              The uninterrupted adverse notorious possession of real
              property under color and claim of title for seven years or
              more, or the uninterrupted adverse notorious possession of
              real property for 10 years or more because of a good faith but
              mistaken belief that the real property lies within the
              boundaries of adjacent real property owned by the adverse
              claimant, is conclusively presumed to give title to the
              property except as against the state or the United States.
              Under these amendments, adverse possession claims are limited to cases
where the claimant either has “a good faith but mistaken belief that the real property lies
within the boundaries of adjacent real property owned by the adverse claimant” or is




                                            -17-                                     6847

asserting a claim under color of title.9 The ten-year statute of limitations set out in
AS 09.10.030(a) does not, because of the language of .030(b), bar a quiet title or
ejectment action by a record owner.
               If Shaw’s claim depended on a period of use after the 2003 effective date
of the amended statutes, substantial questions would exist as to whether and how they
should be applied to prescriptive easement claims.10 But under the view that we take of
this case these questions do not arise because even under the pre-2003 statutes, Shaw’s
claim fails.
               Shaw’s claim fails because the presumption that the use of a drive across
another’s property is permissive applies to this case. The exception relied upon by the
superior court applies only where the “roadway was not established by the owner of the
servient estate for its own use.”11 Here it was undisputed that the trail was established
by the subdivision developers for their own use in marketing the lots and that the
developers allowed lot buyers to use the trail for an indeterminate period. It would not
make sense to presume that the use of a trail as intended by those who owned the land
and built the trail was anything other than consensual. This result is explicitly confirmed
by our case law, which establishes that the presumption of permissive use is reversed
only when “the driveway existed when [the alleged servient estate owner] first bought




         9
            Cowan, 255 P.3d at 972-73; Hansen v. Davis, 220 P.3d 911, 915 n.7
(Alaska 2009).
         10
            See Minutes, House Jud. Comm., Hearing on S.B. 93, 23d Leg., 1st Sess.
at 1428 (May 18, 2003) (testimony of Ronald Baird, real estate attorney) (suggesting
amendments would extinguish “private prescriptive rights”).
         11
               McGill v. Wahl, 839 P.2d 393, 397-98 (Alaska 1992); McDonald, 978 P.2d
at 83.

                                           -18-                                      6847

the property and there is no indication that her predecessors in title built or used the
driveway.”12


      12
              McDonald, 978 P.2d at 85 (emphasis added). Our discussion in Weidner
v. State, Department of Transportation & Public Facilities, 860 P.2d 1205, 1210 (Alaska
1993) casts light on the logic underlying the presumption of permissive use and on the
McGill/McDonald exception to the presumption. In Weidner the question was whether
a road constructed by the State on private property should presumptively be regarded as
having been constructed with the permission of the private landowner. We answered this
question in the negative noting that the circumstances — constructing a permanent public
road on private land — were inconsistent with permission on the part of the landowner.
In reaching this conclusion we discussed Dillingham Commercial Co. v. City of
Dillingham, 705 P.2d 410, 416-17 (Alaska 1985), which applied the presumption of
permissive use in a prescriptive easement context, and McGill. Concerning Dillingham
we noted that the public’s use of land abutting an alley may have been allowed by the
owner “to facilitate public access to the owners’ businesses . . . .” Weidner at 1210.
Comparing these two cases we stated:
                      The distinction between Dillingham and McGill lies in
               the concepts of “permission” and “claim of right.”
               Permission contemplates the servient landowner’s right to
               revoke that permission and prevent further use of the servient
               owner’s land. A claim of right, on the other hand,
               contemplates uninterrupted future use of the property. In
               Dillingham, the public’s use of the land abutting the alleyway
               was consistent with the concept of permission. If the public
               merely used the land in order to gain access to the stores
               along the alleyway, such use did not contemplate unrestricted
               future access so much as permission to use the land as an
               incident to patronizing the stores. In McGill, on the other
               hand, the Wahls built and maintained a road across the
               McGills’ land as the sole access to the Wahls’ property.
               Since access is essential to the beneficial use of one’s land, a
               road providing the sole access to a parcel likely contemplates
               continued use not subject to the permission of another. Thus,
               the maintenance of a sole access, without more, gives notice
               of a claim of right, rather than use subject to permission.
                                                                               (continued...)

                                            -19-                                       6847

              In order to overcome the presumption that the use of the trail was by
permission, Shaw was required to provide “proof of a distinct and positive assertion of




       12
              (...continued)
                     This case is closer to McGill. In 1968, the State
              reconstructed the Bay Road. If a deviation was made, the
              State surely claimed that new portion as part of the land it had
              a right to use. The dedication of State resources to the
              construction and maintenance of a public roadway is not the
              type of land use which one would subject to the permission
              of a servient landowner. In constructing a road, the
              government makes a commitment that contemplates
              continued, unrestricted use of the affected land. In other
              words, once the State determines a roadway is needed for
              public access to a certain region, the State surely does not
              intend such access to be contingent upon the permission of a
              private landowner. Unlike Dillingham, the interests of the
              private landowner and the public are not sufficiently aligned
              for the public’s use to be presumptively permissive. Thus,
              construction and maintenance of a public roadway is a use
              that contemplates a claim of right rather than the owner’s
              permission. Id. at 1210-11 (emphasis added).
Here, to follow the highlighted portions of the Weidner discussion, the new lot owners’
uses of the trail were consistent with the concept of permission. If new lot owners used
the trail to facilitate development of their lots and for access during a transitional period
of subdivision development, such uses did not necessarily contemplate unrestricted
future use of the trail but could be pursuant to an accommodation afforded by the
subdivision developers to make the lots more attractive for sale. Thus, there was a
plausible alignment of interests that was consistent with the concept of permission.
Further, the trail was not the sole access to any of the lots, because a platted street that
was initially undeveloped abutted every lot. Therefore, one could not say that continued
use of the trail without permission was likely contemplated. Finally, since the developers
built the trail for their own purposes, its continued use by lot owners did not involve a
substantial commitment of resources that would be inconsistent with the eventual
cessation of the use of the trail.

                                            -20-                                       6847

a right hostile to the owner.”13 But there was no proof of a distinct and positive assertion
of a right on the part of Tauscher against the owners of lot 28. Nor was there such an
assertion on the part of Shaw, until this controversy arose in 2009. In fact, there is
nothing indicating that Tauscher’s use of the trail as the drive to her house was any
different than the use of the trail by the Rices, the original owners of lots 33 and 34.
              Further, application of the presumption that a use is permissive is consistent
with the undisputed facts of this case. The subdivision developers built the trail to
facilitate sales and as lots were sold, granted permission to the new lot owners to use it.
The duration of the grant of permission from the developers has not been determined.14
But the crucial fact is that the initial use was by permission. A use that is initially
permitted can become adverse only “by proof of a distinct and positive assertion of a
right hostile to the owner of the property.”15 Further, the distinct and positive assertion
of a hostile right must take the form of conduct that would give the owner of the property
notice of hostility and thus of the need to protect the owner’s interests.16 A mere transfer


       13
              McGill, 839 P.2d at 397 (internal quotation marks omitted).
       14
             Also undetermined is the effect of the right-of-way reservation in favor of
the grantor developers contained in most of the initial deeds, but not in the deed for
lot 28. Dault contends that the deed language confirms the temporary nature of the
easement, since the easement is reserved to the grantors and does not mention their
“successors and assigns.” Shaw responds that “nothing in the plain language of these
deeds refer[s] to a ‘temporary’ easement.” Neither party makes a detailed argument,
undoubtedly because the deed to lot 28 contains no such reservation. We express no
view on this question.
       15
               City of Anchorage v. Nesbett, 530 P.2d 1324, 1328-29 (Alaska 1975)
(internal citation omitted).
       16
            Id. at 1330 (“If permissive in its inception, then such permissive character
being stamped on the use at the outset, will continue of the same nature, and no adverse
                                                                           (continued...)

                                           -21-                                       6847

of ownership does not suffice to convert a permitted use to a hostile use.17 As the Idaho
Supreme Court has noted:
              To hold that permission granted automatically expires
              without some action of adverseness would be to require that
              the permission be regranted by the owner of the servient
              estate each time the dominant estate was transferred. Such a
              rule would impose too great a burden of inquiry as to
              property ownership upon servient estate holders.[18]
              The effect of the presumption of permissive use in this case was that Shaw
had the burden of going forward with evidence to rebut the presumption.19 This burden
required Shaw to introduce evidence sufficient to permit a reasonable conclusion that the
use of the portion of the trail crossing lot 28 by the owners of lots 33 and 34 was hostile,
rather than permissive, for a ten-year period.
              The trial court appears to have concluded that acquiescence in the use of
the trail by the owners of lot 28 serves as evidence of hostility. But this conclusion was
erroneous because owner acquiescence is not “a distinct and positive assertion of a right




       16
                 (...continued)
user can arise until a distinct and positive assertion of a right to the owner, and brought
home to him, can transform a subordinate and friendly holding into one of an opposite
nature . . . .” (quoting Scheller v. Pierce Cnty., 104 P.2d 277 (Wash. 1909))); Hunter v.
Shields, 953 P.2d 588, 592 (Idaho 1998) (“Absent unequivocal conduct giving the owner
of the property notice of hostility and adverseness, we will not conclude that a use
initiated with permission has somehow changed to one of hostility.” (quoting Lorang v.
Hunt, 693 P.2d 448, 450 (Idaho 1984))).
       17
              City of Anchorage, 530 P.2d at 1329.
       18
              Hunter, 953 P.2d at 592.
       19
              Alaska R. Evid. 301(a).

                                           -22-                                       6847

hostile to the owner.”20 Moreover, the fact that one owner has acquiesced in a use is not
at all inconsistent with the possibility that an earlier owner permitted it. The court’s use
of acquiescence in this case changed the presumption of permission to a presumption of
hostility and erroneously placed on Dault the burden of proving consent.21
              In concluding that the court erred in finding that Shaw has a prescriptive
easement to use the portion of the trail crossing lot 28, we are aware that this will mean
that Shaw will have to build a driveway on his lots to North Shore Drive. In view of the
steepness of the ridge this may entail considerable earthmoving efforts similar to, or
perhaps more intensive than, those undertaken by the owners of other developed lots in
the subdivision. This burden, however, does not justify imposition of an easement on
lot 28. But the superior court on remand may consider the entry of an order that would
permit Shaw to use the trail for a short period until he is able to build a driveway on his
own property.22


       20
              City of Anchorage, 530 P.2d at 1328-29.
       21
             This is evident from the court’s language quoted supra on p. 14: “There
accordingly is no evidence to counter the claim by plaintiff and his brother that they
always assumed they had the right to cross the property and that no one really cared
whether they did so.”
       22
               The dissent argues that there was a dispute as to whether the developers of
the subdivision were initially the owners of all the lots in the subdivision. We disagree.
Robert Dobson testified at trial that the developers owned the entire subdivision. This
echoed his affidavit submitted in opposition to Shaw’s motion for summary judgment
and in support of Dault’s cross-motion for summary judgment, which in inclusive terms
described the developers as the “developer-owners of the subdivision” “who purchased
the lots from Helen Clements.” James Dault also testified in inclusive terms in his
affidavit relating to the same motions that “Helen Clements sold the land to three couples
who sold lots through the business known as Totem Realty. The lot owners then asked
Gus Scheele to put in the trail.” Likewise in his trial brief concerning the issue of
                                                                             (continued...)

                                           -23-                                       6847

V.     CONCLUSION
              For the reasons stated, the judgment of the superior court is REVERSED
and this case is REMANDED with instructions to enter judgment in favor of the
appellants in accordance with the views expressed in this opinion.




       22
               (...continued)
consent, Dault asserted without exception or qualification that “the realtor purchasers of
the platted subdivision hired a local earth mover to construct a trail. . . .” Shaw did not
take issue with any of these assertions and at no point argued that the developers did not
have an ownership interest in all the lots when they built the trail. Nor does he do so on
appeal. Likewise the trial court never suggested that the subdivision developers who
constructed the trail did not have an ownership interest in all the lots over which the trail
passed. See the court’s decision set out in Appendix B, especially pages 2 and 3 where
the trial court refers to the builders of the trail as “the subdivision developer” and “the
original developer.” Indeed the trial court’s understanding of the situation seems well
reflected by a question the court asked of Shaw’s counsel during final argument after
all the evidence was presented. The court referred to “whoever it was who created the
subdivision way back when” as the person who “put in a trail that rendered the lots fairly
undevelopable if in fact that was going to be the right-of-way.”
        The dissent also claims that the trial court made an implicit finding that the
“realtor-developers did not own Lot 28 when they bulldozed the trail. . . .” But there is
nothing in the court’s opinion that implies such a finding. The dissent also refers to the
trial court’s “express finding that there was no evidence the owner of Lot 28 said or did
anything with respect to the trail bulldozed across Lot 28.” But the finding referred to
relates to the absence of any conversation between the owner of lot 28 and Shaw’s
mother, Alice Tauscher. See Appendix B, page 9. Tauscher began to occupy her
property in the subdivision in 1988, at least 20 years after the trail was constructed. The
absence of any conversation with Tauscher in 1988 says nothing about whether the
developers had an ownership interest in Lot 28 when the trail was constructed.

                                            -24-                                       6847

WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting.
              In my view the trial court correctly applied our existing case law, made
findings of fact not clearly erroneous, and did not err by ultimately deciding that Edward
Shaw had a perfected prescriptive easement across the property owned by James Dault
and Shala Dobson (Dault) in the North Shore Subdivision.
              The fundamental issue in this case is whether clear and convincing evidence
demonstrates that Shaw and his predecessors’ use of the trail across Dault and his
predecessors’ property was sufficiently “hostile” to support perfection of a prescriptive
easement, i.e., whether Lot 28’s series of owners acquiesced to, but did not permit, use
of the trail across the lot. The trial court found such clear and convincing evidence, first
by employing a presumption of hostility based on McDonald v. Harris,1 and alternatively
by ignoring that presumption and using the normal hostility standard.2
              The court today holds that the trial court erred in finding that the hostility
requirement was met under either approach because:
              Here it was undisputed that the trail was established by the
              subdivision developers for their own use in marketing the lots
              and that the developers allowed lot buyers to use the trail for
              an indeterminate period. It would not make sense to presume


       1
               978 P.2d 81, 84-85 (Alaska 1999) (describing general presumption of
permission for adverse use of land and exception where “a roadway was not established
by the owner of the servient estate for its own use but was for many years the only means
of passage to the dominant estate” (citing and quoting McGill v. Wahl, 839 P.2d 393,
397-98 (Alaska 1992))). We never have expressed the reverse presumption stated by the
trial court, but the court today does not question it.
       2
              Id. at 84 (“The hostility requirement . . . is ‘determined by application of
an objective test which simply asks whether the possessor acted toward the land as if he
owned it, without the permission of one with legal authority to give possession.’ ”
(emphasis in original) (quoting Nome 2000 v. Fagerstrom, 799 P.2d 304, 310 (Alaska
1990))).

                                           -25-                                       6847

              that the use of a trail as intended by those who owned the
              land and built the trail was anything other than consensual.[3]
But if all that this statement implies really were undisputed, the case would not have
survived summary judgment. Acting as its own fact-finder, the court reaches a view of
the record not shared by the parties or the trial court — that it is undisputed that the
realtor-developers were among Dault’s predecessors in title to Lot 28.
              According to the 1966 recorded plat, the original owner and subdivider of
the property resulting in the North Shore Subdivision was Helen P. Clements. The court
acknowledges that Clements recorded the subdivision plat, and then states that “other
evidence established” that John and Ina Boss and Louis and Mary Odsather were the
subdivision developers.4 I have no quarrel with this latter assertion — evidence in the
record demonstrates that the Bosses and Odsathers were connected to a realty company
and they purchased subdivision lots from Clements as a development project; they
rightfully are described as the subdivision developers, but they were not the original
subdivider. This is an important distinction when considering who was in the chain of
title to Dault’s Lot 28. As the original subdivider, Clements clearly was in that chain of
title. But the realtor-developers were in that chain of title only if they actually acquired
Lot 28 and then conveyed it to a Dault predecessor-in-title, and not merely because the
court labels them “the subdivision developers.”
              Dault’s trial brief stated that Clements had created the subdivision and that
“the realtor purchasers of the platted subdivision hired a local earth mover to construct
[the] trail.” At trial Dault introduced a number of deeds and a real estate contract into
evidence, covering subdivision Lots 26, 29, 30, 31, 32, 33, and 35, all reflecting



       3
              Op. 18.
       4
              Op. 4-5.

                                           -26-                                       6847
conveyances by the realtor-developers (beginning in 1967); these documents also reflect
the realtor-developers’ specific reservation of a 20-foot-wide right-of-way easement on
the north half of the lots, consistent with the trail location. Dault also introduced into
evidence a 2005 deed covering Lot 27, reflecting a sales transaction by the then-current
owners but referencing a 20-foot-wide right-of-way easement on the north half of the lot
that had been reserved in an earlier deed by the realtor-developers.
              Conspicuous by its absence from the record is a deed showing or suggesting
that the realtor-developers ever owned Dault’s Lot 28. The only deed for Lot 28 in the
record is the deed by which Dault came into title. That deed is notable for its lack of
reference to a 20-foot-wide right-of-way easement reserved by the realtor-developers.
Dault testified at trial that to his knowledge there had never been such a reserved
easement on Lot 28, and he identified his predecessors in title as first the Habersetzers
and previous to them George Stepanov. He believed Stepanov got the property “back
in ‘65.”5


       5
               The State of Alaska, Department of Natural Resources, maintains an on-line
data bank of recorded real property transactions, and the recorded transaction documents
are readily accessible public records subject to judicial notice. More than a century ago,
the United States Supreme Court held that, “[w]hile it is ordinarily true that this court
takes notice of only such facts as are found by the court below, it may take notice of
matters of common observation, of statutes, records, or public documents which were not
called to its attention, or other similar matters of judicial cognizance.” N.Y. Indians v.
United States, 170 U.S. 1, 32 (1898). A half-century later, the United States Court of
Appeals for the Tenth Circuit echoed this principle when it held, “[w]hether an appellate
court will for the first time take judicial notice of a judicially notable fact rests largely in
its own discretion. There are numerous cases in which appellate courts have reversed
the lower courts by taking judicial notice for the first time on appeal of a fact which was
not called to the attention of the trial court.” Mills v. Denver Tramway Corp., 155 F.2d
808, 812 (10th Cir. 1946). And the United States Court of Appeals for the Sixth Circuit
has held that “it [is not] necessary that the Court be requested to take judicial notice of
                                                                                 (continued...)

                                             -27-                                         6847

              The trial court’s finding of acquiescence rested on this factual record:
              First, and perhaps most important, there was absolutely no
              evidence that the original owner of lot 28 had any
              conversation whatsoever with [Shaw’s mother (his immediate
              predecessor in title)] regarding her right to use the trail as her
              driveway to her lots. Nor is there any evidence that [Shaw’s
              mother or Shaw] ever acknowledged to that person that her
              use “was in subordination to” that owner’s title. There
              accordingly is no evidence to counter the claim by [Shaw]
              and his brother that they always assumed they had the right
              to cross the property and that no one really cared whether
              they did so.




(...continued)

a fact before it is authorized to do so. The Court may take judicial notice sua sponte.”

United States v. Harris, 331 F.2d 600, 601 (6th Cir. 1964) (citing Weaver v. United

States, 298 F.2d 496, 498 (5th Cir. 1962)).

              Palmer Recording District records show the following series of
conveyances recorded for Lot 28: on January 22, 1974 at Book 79, Page 294, a January
1974 Executor’s Deed from the Estate of Helen P. Clements to George A. and Lora
Stepanov, as tenants by the entirety; on August 2, 2004 as Document 2004-021192-0,
a Corrected Clerk’s Deed conveying Lora Stepanov’s interest to George A. Stepanov;
on August 2, 2004 as Document 2004-021193-0, a Statutory Warranty Deed from
George Stepanov to Douglas L. and Donna M. Habersetzer, as tenants by the entirety;
and on December 29, 2006 as Document 2006-036772-0, a Warranty Deed from
Douglas L. and Donna M. Habersetzer to James M. Dault and Shala Dobson, as tenants
in common. (Document copies are attached in order as Appendix C to today’s decision.)
Due to the poor scanning quality of older documents for the Palmer Recording District,
I was unable to locate recorded documents for Clements’s transaction(s) with the realtor-
developers or for Clements’s earlier transaction with Stepanov.
              It is sufficient for this dissent to take judicial notice of these recorded deeds
for the limited purposes of supporting Dault’s own testimony about the chain of title for
his Lot 28, which the court fails even to acknowledge, and contradicting the court’s
factual determination the realtor-developers indisputably owned Lot 28 when they
bulldozed the trail across it.

                                            -28-                                        6847

              The trial court also responded as follows to Dault’s arguments about how
the community generally understood the trail’s nature:
              There is a further and more substantial difficulty with
              [Daults’] analysis. The evidence regarding what was done on
              [other] properties pertains only to those properties — it
              speaks nothing about what the owner of lot 28 had in mind.
              As the party who would have benefitted from demonstrating that the
realtor-developers owned Lot 28 when they bulldozed the trail across it, Dault had the
burden of producing that evidence; he knew the importance of the information, and he
obviously researched his chain of title. Robert Dobson’s testimony about his personal
1968 understanding that the realtor-developers owned the subdivision is not much
support for the court’s proposition that it is undisputed that the realtor-developers owned
Lot 28 when they bulldozed the trail across it. If the court’s proposition were true, there
would have been no need for Dault to press his argument about an alleged community
understanding that use of the trail was authorized but temporary. Dault pressed that
argument because he could not prove that a predecessor in title played any part in
bulldozing the trail across Lot 28 and he needed to cast doubt on Shaw’s evidence that
Shaw’s predecessors used the trail across Lot 28 as if it were their own.
              There is no place in the trial court record where either Dault or Shaw
asserted that the realtor-developers owned Lot 28 when they bulldozed the trail across
it. There is no place in the trial court record where either Dault or Shaw asserted that the
realtor-developers had the consent of Lot 28’s owner when they bulldozed the trail.
There is no place in the appellate briefing before us where either Dault or Shaw makes
these assertions. Yet the court today finds it undisputed that the realtor-developers
owned Lot 28 when they bulldozed the trail.
              It is undisputed that Clements was the one and only subdivider. It is
undisputed that Clements sold lots to the realtor-developers, although we do not know

                                           -29-                                       6847

when; and that they bulldozed the trail across a number of lots in the subdivision,
including Lot 28, although we do not know when. It is undisputed that for lots the
realtor-developers purchased, bulldozed the trail over, and then sold, they reserved a 20­
foot-wide right-of-way easement along the bulldozed trail. It is undisputed that no such
easement burdens Lot 28.
              But it is not undisputed that an owner of Lot 28 played a part in bulldozing
the trail and therefore gave permission for others to use it. To the contrary, given Dault’s
own testimony and the lack of a reserved easement on Lot 28, evidence in the record
supports both the trial court’s implicit finding that the realtor-developers did not own Lot
28 when they bulldozed the trail and its express finding that there was no evidence the
owner of Lot 28 said or did anything with respect to the trail bulldozed across Lot 28.
The trial court weighed the evidence actually presented and obviously concluded that the
realtor-developers did not have ownership of Lot 28 when they bulldozed the trail;
otherwise Dault would have prevailed at trial. The court today wrongfully reweighs the
evidence and concludes Dobson’s understanding, that when he bought his lot in 1968 the
realtor-developers owned the subdivision, not only outweighs Dault’s own testimony
about the specific chain of title to Lot 28, but is so dispositive that it is indisputable proof
that the realtor-developers owned Lot 28 when they bulldozed the trail.
              Ownership of Lot 28 when the trail was bulldozed was critical to the issue
of permission versus acquiescence, and it was not an undisputed fact simply forgotten
or overlooked by the parties or the trial court. The trial court heard the evidence and
made a finding of fact that should be reviewed only for clear error. This court does a
disservice to the parties and the trial court by abandoning its normal course of appellate
review and becoming its own fact-finder, here finding as a matter of “undisputed” fact,
despite the evidence and the parties’ litigation strategies to the contrary, that the realtor­



                                             -30-                                         6847

developers owned Lot 28 when they bulldozed the trail across it. There is no such
undisputed fact, only the court’s mistaken assumption of a fact not in evidence.
             I dissent.




                                         -31-                                      6847

APPENDIX A - Page 1 of 1   6847
          IN THE SUPERIOR COURT FOR THE STATE OF ALASKA


                   THIRD JUDICIAL DISTRICT AT PALMER


EDWARD SHAW,              )

                          )
           Plaintiff,     )
                          )
v.                        )
                          )
JAMES DAULT and SHALA )
DOBSON,                   )
                          )
           Defendant.      )
__________________________)              Case No. 3PA-10-1559 CI

                                       ORDER

      Trial was held in this case on March 7-9 and 16, 2011. All parties were present,
represented by counsel. Having heard the evidence, the court finds that plaintiff has
demonstrated by clear and convincing evidence that he has a prescriptive easement to the
driveway crossing defendants’ land to his property. The court further finds that
plaintiff’s claim should not be dismissed for failure to join indispensable parties or for
laches.
                                  Factual Background
      Plaintiff Edward Shaw owns lots 33 and 34 in the North Shore Subdivision.
Defendants James Dault and Shala Dobson own lot 28 in that subdivision. Mr. Shaw
accesses his property by means of what he terms a “driveway” and what defendants term
a “trail” that crosses defendants’ property. He claims that he has a prescriptive easement
granting him a property right in the driveway; he seeks declaratory relief to that effect,
as well as an injunction ordering defendants to remove the obstruction they have placed
on the access.

                                  APPENDIX B - Page 1 of 14                         6847
       North Shore Subdivision is located on the north shore of Blodgett Lake. It
basically consists of a ridge with very steep sides that go down to the lake to the south
and a somewhat swampy area to the north. North Shore Drive was originally platted to
go through the swampy area below the ridge – it was not very drivable when the
subdivision was first offered for sale in the 1960's, and little maintenance was done on
the road for many years.
       The subdivision developer bulldozed a trail along the ridge itself so that
prospective buyers could gain access to the property. That trail was used by persons who
bought lots in the subdivision. Since the trail went through each lot, rather than along
one side, the people who bought lots generally moved the trail to the side so they could
build a house. Several landowners in fact filled in the area platted as North Shore Drive,
effectively upgrading the road and making it more passable. These landowners,
including Gordon Benedict, who bought lot 40, used the trail for access until the road
was redone in a way that made it usable. The use of the trail necessarily meant that
people in the further lots were crossing the lots of those closer to the beginning of the
subdivision.
       The court heard a considerable amount of credible evidence that the owners of lots
22 through 26 took a lot of surface gravel off the ridge to flatten it, thereby effectively
eliminating the trail. That gravel was placed in the right of way platted as North Shore
Drive. As best the court can determine, North Shore Drive was relatively passable
sometime in the mid-1990's. There apparently was no objection from anyone who used
the trail when these landowners eliminated the trail and required those passing through
to drive on North Shore Drive.
       Alice Tauscher, plaintiff’s mother, bought lots 33 and 34 in 1988. There was a
building on those lots, which Ms. Tauscher upgraded to some extent. While the parties
greatly dispute the extent to which she and plaintiff lived there over the next 20 years,

                                  APPENDIX B - Page 2 of 14                          6847
there is no dispute that she accessed these lots through the trail that had been bulldozed
by the original developer, as modified by the landowners in the lots over which she
crossed to get to her property.
         As noted above, the trail effectively was eliminated up through lot 26. The trail
did remain on lots 27-35 – it took off up the hill on lot 27, and then crossed the other lots,
ending around lot 35 and passing directly in front of the Kreins’ residence on lot 32 and
Ms. Tauscher’s residence on lots 33 and 34. Some work was done in 1997 to flatten lot
27, and the trail apparently was moved somewhat as a result.                 In addition, at
approximately the same time, a parking lot was constructed next to the trail on lot 28.
But the basic contours of the trail remained as they had been since the time the trail was
built.
         Ms. Dobson’s father bought lot 23 in 1968 and built a house there that his family
mostly used in the summers. Ms. Dobson and her husband, Mr. Dault, spent time with
the family there. They purchased lot 35 in 1997, planning to build a house there. At
some point, they decided to bring in heavy equipment to flatten the ridge, so they could
install a septic. They went to speak with Ms. Tauscher about these plans, and had what
they termed a cordial discussion with her. But after they started construction, Mr. Shaw
told them not to cross his property. They honored that request, so they put in a driveway
and cleared the top of the ridge.
         Defendants purchased lot 28 in 2006 with the intention of putting in a ranch house
there. They did not think that Ms. Tauscher would object to their plan. In 2009, they
built a driveway to that lot, as well as a shed that partially blocked the trail.
         Ms. Tauscher died in 2007, leaving the house to plaintiff.            Plaintiff was
incarcerated at the time. He and his brother, Michael Shaw, decided to put the property
up for sale. Michae1 went to the property in July 2009 for this purpose and found the
driveway blocked. Hearing chainsaws up the driveway, he walked up and found Mr.

                                    APPENDIX B - Page 3 of 14                           6847
Dault clearing the land for his driveway. The two men had a somewhat acrimonious
discussion, during which, according to Michael Shaw, defendants agreed to talk to the
Borough about their plans. Michael Shaw and Mr. Dault spoke again a few weeks later;
Mr. Dault said he had been too busy to speak with the Borough.
      Plaintiff sent a letter to defendants in April 2010 demanding that they remove the
obstruction. When defendants did not do so, plaintiff filed this action on May 12, 2010.
                                       Analysis
      ....
Prescriptive easement
      The central issue in this case is whether plaintiff has demonstrated that he is
entitled to a prescriptive easement to access his property using what he terms the
driveway across lot 28.
             To be entitled to a prescriptive easement, a party must prove
             (1) continuity–that the use of the easement was continuous
             and uninterrupted; (2) hostility–that the user acted as the
             owner and not merely one with the permission of the owner;
             and (3) notoriety–that the use was reasonably visible to the
             record owner. A claimant must prove each element by clear
             and convincing evidence. Finally, a claimant must have
             engaged in the adverse use for at least ten years.

McDonald, 978 P.2d at 83 (citations deleted). The court will address each criterion in
turn. The court will then evaluate defendants’ related claim that plaintiff has failed
adequately to define the scope of the easement.
      Continuity
      The Alaska Supreme Court stated in McDonald that in determining whether a
person has made continuous and uninterrupted use of an easement, the court may look
to “whether the adverse possessor has used and enjoyed the land as ‘an average owner
of similar property would use and enjoy it.’ ” Id. (citation omitted). Plaintiff has

                                 APPENDIX B - Page 4 of 14                        6847
provided clear and convincing evidence that he and his mother used the easement in the
same manner an average owner of a similarly located parcel, and that he did so for more
than ten years.
       Plaintiff presented highly credible testimony from himself, his brother, his ex-
wife, and a girlfriend who lived with him at the house that he and his mother
continuously used the driveway to get to the house since his mother purchased the
property in 1988. In particular, plaintiff and his brother credibly testified that the house
was her primary place of residence until she passed away in 2007, with the exception of
a brief period of time when plaintiff and his wife lived there. Plaintiff’s ex-wife and
girlfriend corroborated that testimony, although the girlfriend was somewhat confused
as to the exact years involved after 2004. That testimony was further corroborated by
Mr. Benedict and his son, both of whom stated that they saw plaintiff’s mother going to
the house, that they plowed the driveway at times, that they saw tire tracks going up there
in the snow, and that they saw vehicles stuck in the ditch along the driveway.
       Defendants contested this testimony by presenting evidence from other people
with dwellings in the subdivision that they rarely saw plaintiff or his mother at the house.
The problem with this testimony is two-fold. First, plaintiff was in and out of jail
throughout these years, and his mother spent much of that time working a two-week
on/two-week off schedule. Second, and more important, with the exception of Mr.
Benedict, all of these individuals did not live in the subdivision full-time – they primarily
were there during the summer and occasionally during the winter. The court also notes
that with the exception of the Kreins, all of these lot owners lived along Lake Shore
Drive, and so would only have seen plaintiff and/or his mother driving by on that road,
rather than across their property. It therefore is not surprising that the other lot owners
did not see plaintiff or his mother very much.



                                   APPENDIX B - Page 5 of 14                           6847
       Defendants also suggest that any use of the driveway could not have been
continuous in view of plaintiff’s incarceration and the fact that Ms. Tauscher was on the
Slope half of each month. They also note that the driveway was unplowed for what they
believe to be significant periods of time. But “to establish abandonment the period of
non-use must indicate that the adverse user had ceased his use and claim.” Swift v.
Kniffen, 706 P.2d 296, 304 (Alaska 1985). There is no such showing here – after all, the
average lot owner who works on the Slope will only be present at the lot when not
working; the same is true for a person who has had difficulties with the law.
       Nor does the fact that the road was unplowed at times prove a lack of use. The
Alaska Supreme Court addressed this point directly in Swift:
                     The fact that the road was sometimes unplowed and
              impassable for weeks at a time does not signify either
              abandonment or interrupted use. First, failure to plow and
              use a road for a few weeks in winter in Fairbanks does not
              demonstrate that the Swifts no longer intended to use the road
              as an alternative route to their property. Second, interruption
              of possession or use must be caused by the record owner or
              third parties. The Swifts’ use of the roadway was not
              interrupted until the fall of 1981, when the Kniffens
              physically blocked the roadway. Prior to that time, the
              Kniffens apparently posted signs warning against trespassing
              and ran an advertisement. These acts, however, were not
              sufficient by themselves to interrupt the Swifts’ adverse use.
              The roadway’s closure due to snowfall cannot be considered
              an interruption because it was not caused by the Kniffens or
              Fairhill.

Id. (citations omitted). The same logic applies here.
       Defendants contend finally that the alterations made to the trail on lots 27 and 28
interrupted the continuous use of the trail as access to lots 33 and 34. The fact that these
changes were made does not, of itself, mean that plaintiff’s use was not continuous.


                                   APPENDIX B - Page 6 of 14                          6847
Hanson v. Davis, 220 P.3d 911, 916 (Alaska 2009) (“Indeed, so long as the use is
consistent with the rights granted in the easement, the owner of a servient estate may
make substantial use of the easement area.”). Rather, those changes must somehow
affect the use of the trail for its intended purpose of access to plaintiff’s lots.
       The evidence at trial was directly to the contrary. The change to the trail on lot
27 was rather minor and did not impede access to plaintiff’s lot. The modification on lot
28 consisted of a parking lot, which again did not impede access. And since access was
not blocked, the adverse use of the trail by plaintiff and his mother was not interrupted.
Swift, 706 P.2d at 304.
       For these reasons, plaintiff has proven by clear and convincing evidence that he
and his mother used the trail as their driveway continuously from 1988 through at least
2007, a period of more than 10 years.2 Plaintiff therefore has met the first criterion to
demonstrate a prescriptive easement.
       Hostility
       The Alaska Supreme Court set forth the applicable analysis relating to hostility in
McDonald:
              The hostility requirement, however, is “determined by
              application of an objective test which simply asks whether
              the possessor acted toward the land as if he owned it, without
              the permission of one with legal authority to give
              possession.” Still, we will presume that the use of land by an
              alleged easement holder was permissive unless a claimant
              proves “a distinct and positive assertion of a right hostile to


       2
                Defendants do not directly assert that the use was abandoned once Ms.
Tauscher passed away in 2007, nor could they do so. Plaintiff was incarcerated for part
of the time after she dies, and he and his brother decided to put the property up for sale.
This latter action entails that plaintiff never abandoned or had any intent to abandon his
use of the driveway.


                                   APPENDIX B - Page 7 of 14                          6847
              the owner.” But this presumption does not arise if “a
              roadway was not established by the owner of the servient
              estate for its own use but was for many years the only means
              of passage to the dominant estate.”

978 P.2d at 84-85 (citations omitted). The Court relied primarily on McGill v. Wahl, 839
P.2d 393, 397-98 (Alaska 1992), in this respect, in which the Court held:
              However, in this case it would be inappropriate for us to
              presume that the Wahls were acting as merely permitted users
              of the roadway. Such a presumption does not arise where a
              roadway was not established by the owner of the servient
              estate for its own use but was for many years the only means
              of passage to the dominant estate. Richardson v. Brennan, 92
              Nev. 236, 548 P.2d 1370, 1372 (1976).

Both of these cases involved an allegation of a prescriptive easement by a person whose
driveway crossed the property of another person. The Court essentially held that in such
cases, hostility is presumed and generally can only be rebutted by an affirmative act by
the landowner of the subservient estate. As the Court explained in McGill:
              The roadway originally was and continuously has been used
              as access to the lots behind the McGills’ property. The
              roadway existed and was used by the Nels Wahls before the
              McGills came to the property. Although other lot owners
              now use Highway 1 to get to their lots, the use of the
              roadway has never changed with respect to lot 11. The
              McGills, having come to land burdened by the roadway,
              cannot now claim that the users of the roadway were acting
              merely with their permission. Likewise, the McGills without
              any affirmative action cannot now claim that they intended to
              permit the use of the road by the other landowners.

Id.
       This case is virtually identical to McDonald and McGill. There is no dispute that
Ms. Tauscher and plaintiff crossed lot 28 solely for the purpose of gaining access to their


                                  APPENDIX B - Page 8 of 14                          6847
property. Defendants came to lot 28 well after that use began.          And they took no
affirmative action to block the access until 2009. Plaintiff’s use therefore was hostile.
       The court would reach the same conclusion even absent the presumption. In
determining whether a use is hostile, the court must look to whether the owner of lot 28
gave his or her permission to use the trail or merely acquiesced in that use. In particular,
as the Alaska Supreme Court explained in Tenala, Ltd v. Fowler, 921 P.2d 1114, 1120
(Alaska 1996):
              In Swift v. Kniffen, 706 P.2d 296, 304 (Alaska 1985), we
              stated that “[t]he hostility element turns on the distinction
              between acquiescence and permission,” and held that if the
              true owners merely acquiesce, and do not intend to permit a
              use, the claimant’s use is adverse and hostile. Therefore, we
              must decide whether the record reveals that Tenala intended
              to permit the Mayos’ use or merely acquiesced in that use. In
              Hubbard v. Curtiss, 684 P.2d 842, we stated that “[t]he key
              difference between acquiescence by the true owner and
              possession with the permission of the true owner is that
              a permissive use requires the acknowledgment by the
              possessor that he holds in subordination to the owner’s
              title.” Id. at 848 (citations omitted).

       The evidence here supports a finding of acquiescence by clear and convincing
evidence. First, and perhaps most important, there was absolutely no evidence that the
original owner of lot 28 had any conversation whatsoever with Ms. Tauscher regarding
her right to use the trail as her driveway to her lots. Nor is there any evidence that Ms.
Tauscher or plaintiff ever acknowledged to that person that her use “was in subordination
to” that owner’s title. There accordingly is no evidence to counter the claim by plaintiff
and his brother that they always assumed they had the right to cross the property and that
no one really cared whether they did so.




                                   APPENDIX B - Page 9 of 14                          6847
       Defendants argue that the pattern of activity in the subdivision indicates that
everyone there understood that any use of the trail was by consent of the landowner.
According to defendants, the practice there was that the trail would only be used until the
property was developed, at which time the landowner was entitled to remove the trail
with the expectation that he or she would put in his or her own driveway. Defendants
assert that this expectation entails that any use of the trail was at the sole discretion and
permission of each landowner.
       The evidence at trial leads to a different conclusion. There is no question that the
trail cut across the lots in a manner that rendered them undevelopable were the trail to
remain where it was. But the properties were developed in a manner such that access to
the other lots was guaranteed to those other lot owners. In particular, each person moved
gravel from their property and filled in North Shore Drive, thereby enabling other people
to drive past the lot and gain access. This indicates that to the extent there was an
expectation in the community, the implicit understanding was the access would not be
precluded, it would just be changed. The fact that these other properties were developed
in a manner that destroyed the trail therefore does not entail that use of the trail was
permissive.
       There is a further and more substantial difficulty with defendants’ analysis. The
evidence regarding what was done on these properties pertains only to those properties
– it speaks nothing about what the owner of lot 28 had in mind. And at most, that
evidence indicates only that those landowners were interrupting a use, not that they
intended only to permit the use. As such, what was done on these other lots has
relatively little bearing on the use plaintiff and his mother made on lot 28.
       Defendants point finally to what they term three admissions by Ms. Tauscher and
plaintiff that her use was permissive. According to Mr. Dault, the first occurred during
a conversation he had with Ms. Tauscher about his plans to level lot 35 and put in a

                                   APPENDIX B - Page 10 of 14                          6847
driveway and a septic. Mr. Dault testified on direct that they had a pleasant conversation
for about 10-15 minutes on this topic, during which Ms. Tauscher expressed some
concern about having to put in her own driveway and acknowledged that anyone could
block her access to her home. The court did not find this testimony credible for two
reasons. First, Mr. Dault admitted on cross-examination that in his deposition, he stated
that he never “broached” the topic of a driveway at all; his efforts to explain this
discrepancy were not convincing. Second, Michael Shaw testified credibly that his
mother made it very clear that she did not like Mr. Dault, due to that very conversation,
and that he had never heard his mother say anything about putting in a driveway or about
some community understanding as to the use of the trail. Taken together, these
considerations lead the court to conclude that the topic of access was not discussed when
Mr. Dault met with Ms. Tauscher, much less that she conceded that her use was
permissive.
      The second apparent admission by Ms. Tauscher was during a conversation with
Carol Krein, who owned a cabin on lot 32. Ms. Krein testified that she told Ms.
Tauscher that she was thinking about expanding her house and putting in a septic, which
would mean that she would have to block the trail leading to Ms. Tauscher’s house.
According to Ms. Krein, Ms. Tauscher stated that she was “fine with that.” Ms. Krein
admitted on cross-examination, however, that her affidavit did not use the words “fine
with that.” Having heard the testimony and reviewed the affidavit, the court concludes
that Ms. Tauscher did not voice any objection to Ms. Krein’s plans. But this does not
mean that Ms. Tauscher thereby made some binding admission that she was not entitled
to use the trail as her driveway. These two women were neighbors. Ms. Krein testified
that her plans were very vague, and there is no reason not to conclude that Ms. Krein
made that point to Ms. Tauscher. Under these circumstances, there was no reason for
Ms. Tauscher to get in a fight with her neighbor on the basis of a general statement that

                                  APPENDIX B - Page 11 of 14                        6847
perhaps Ms. Krein would have to block the driveway. The court also notes that given
the description given of Ms. Tauscher by all the witnesses it is unlikely that she was well
versed in the law of prescriptive easements.
       The final admission upon which defendants rely is a refusal by plaintiff and his
wife to allow Mr. Dault to cross their property to do work on lot 35. Defendants contend
that this indicates that even plaintiff viewed the trail as their property and not subject to
an easement by those seeking access to a further lot. But defendants read too much into
this incident. As noted above, Ms. Tauscher was annoyed at Mr. Dault, a feeling shared
by plaintiff. Plaintiff’s action therefore was not an admission so much as an effort to
keep defendants away. The court doubts very much that the issue of some prescriptive
right was going through anyone’s mind at the time of that particular dispute. The court
also notes that defendants had only recently purchased lot 35, and so would have had
some difficulty making a viable claim of access across any of the other lots under a
prescriptive easement theory.
       Notoriety
       In order to demonstrate that a use is notorious, “the adverse user need not
demonstrate that the record owner had actual knowledge of the adverse party’s presence.
The adverse user must show only that a duly alert owner would have known of the
adverse presence.” McDonald, 978 P.2d at 85 (footnotes deleted.) Plaintiff has met his
burden in both respects here. No one denied that Ms. Tauscher and plaintiff used the
trail as their driveway. Indeed, there was ample testimony that both individuals had been
seen using the driveway on many occasions. In addition, there were tire tracks and
footprints in the snow leading up to the house, and vehicles were seen stuck in the ditch
at the bottom. All of these factors indicate both that the owner of lot 28 had actual
knowledge of the presence of Ms. Tauscher and plaintiff and that a duly alert owner



                                   APPENDIX B - Page 12 of 14                          6847
would have known of their presence. Plaintiff therefore has demonstrated by clear and
convincing evidence that his and his mother’s use of the driveway was notorious.
         Scope of the easement
         Defendants assert that plaintiff did not present any evidence as to the scope of the
easement, both with respect to the actual size of the easement and to allowed uses of the
easement. There was, however, extensive evidence that the portion of the trail that was
used as plaintiff’s driveway was readily apparent on the ground, which means that both
defendants and any user of the easement are on notice as to what portion of lot 28 is
covered by the easement. With respect to use, the easement is claimed as a driveway,
which reasonably entails use for access to the property by the lots’ owner and guests, as
well as reasonable maintenance so that the driveway can continue to be used as a
driveway. It is unclear to the court just what more is required, given that the trail has
been used as a driveway for many years and everyone in the area seems to know full well
just what the trail is and how it has been used.
         ....
Relief
         Plaintiff requests a declaratory judgment that he is entitled to a prescriptive
easement for the portion of the trail that has been used as his driveway. Plaintiff also
requests both an injunction directing defendants not to obstruct the easement and an
order directing them to remove any obstructions. Since plaintiff has demonstrated by
clear and convincing evidence that he has a prescriptive easement consisting of that
portion of the trail he has used for his driveway across lot 28, he is entitled to the relief
he has requested.
         The court feels constrained to note, however, that while plaintiff has thereby won
this battle, it is not at all clear that this is the best result long-term for any of the parties.
Because the trail crosses defendants’ property in a manner that makes it very difficult to

                                     APPENDIX B - Page 13 of 14                             6847
develop, plaintiff’s use of the trail will create ongoing difficulties with his neighbor. It
seems to the court that this is a matter that can and should have been resolved through
settlement in a manner that assured plaintiff access and defendants full use of their land.
The court encourages the parties to explore settlement in lieu of any further legal
proceedings.
                                        Conclusion
       For the foregoing reasons, it is ORDERED that:
       1.      Plaintiff has a prescriptive easement consisting of that portion of the trail
crossing lot 28 that he has used as his driveway to access lots 33 and 34.
       2.      Defendants may not obstruct plaintiff’s easement in any manner.
       3.      Defendants shall remove any obstruction to the easement within 60 days
of the date of distribution of this order.
       Dated at Palmer, Alaska this 25th day of April, 2011.


                                                      /s/
                                             ERIC SMITH
                                             SUPERIOR COURT JUDGE




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