Andersen v. Edwards

• Decision Date: 30 January 1981
• Docket Number: No. 4586,4586
• Citation: 625 P.2d 282
• Parties: Ron C. ANDERSEN, d/b/a J & R Enterprises, Lynn Cluff and Eugene Heyworth, all the named defendants d/b/a Wrangell Mountain Enterprises, Appellants, v. James H. EDWARDS and Maxine D. Edwards, Appellees. File
• Court: Alaska Supreme Court

Page 282

625 P.2d 282

Ron C. ANDERSEN, d/b/a J & R Enterprises, Lynn Cluff and Eugene Heyworth, all the named defendants d/b/a Wrangell Mountain Enterprises, Appellants, v. James H. EDWARDS and Maxine D. Edwards, Appellees.

File No. 4586.

Supreme Court of Alaska.

Jan. 30, 1981.

Keith A. Christenson, Johnson, Christenson & Associates, Anchorage, for appellants.

Olof K. Hellen, Hellen & Partnow, Anchorage, for appellees.

Before RABINOWITZ, C. J., and CONNOR, BURKE and MATTHEWS, JJ.

OPINION

CONNOR, Justice.

Wrangell Mountain Enterprises (hereinafter Wrangell) appeals a jury verdict against it for wrongfully cutting trees beyond the amount reasonably necessary to construct a roadway within a state reserved section line easement. Numerous points are raised on appeal, several of which we find meritorious. Consequently, we reverse the judgment.

In May, 1975, Wrangell, a development partnership, acquired property in the vicinity of McCarthy, Alaska, adjacent to property owned by appellees (hereinafter the Edwardses). Included in the development plans was the construction of a three mile public road running partially along a section line easement, through property owned by the Edwardses and an adjacent parcel of land jointly owned by Mr. Woods, the Schneiders, and Lovernes (hereinafter referred to as the Schneider parcel). Both parcels were obtained through a conveyance from the state. In the contracts for sale of these parcels, the state reserved for "itself, its successors and assigns a 100 foot right-of-way along (the) section line" between the two parcels. ¹ Pursuant to AS 19.10.010, the 100-foot tract was dedicated for use as a public highway. ²

Before construction began, Wrangell obtained a letter from the Alaska Department of Natural Resources, Division of Lands, verifying the width of the easement as a maximum of fifty feet on either side of the section line. Additionally, Wrangell received a letter from the Alaska Department of Highways stating that it had "no objection to the use of (the) subject section line reservation to construct a public access roadway." The letter also stated, however, that the state assumed no liability or responsibility for any damages resulting from the construction and use of an access road. Also, before construction began, Mr. Edwards expressed his concern to Wrangell regarding the impact of the roadway on his property. Wrangell assured him that it "would do as little damage to the area as possible."

In June or July, 1975, Wrangell constructed a roadway along the section line. Although the roadway itself measured approximately twenty-five feet in width, Wrangell cleared the easement to nearly the full 100-foot width.

The Edwardses filed a complaint alleging that Wrangell had wrongfully cut and carried away trees from the Edwardses' and Schneiders' parcels, depriving them of the economic and esthetic value of the trees and lowering the property value of the parcels. The complaint sought damages in excess of $25,000, as well as treble damages under AS 09.45.730. ³ Wrangell filed four counterclaims, two of which it dropped before jury deliberations. ⁴ The jury found the two other counterclaims nonmeritorious. The jury returned a verdict in favor of the Edwardses, awarding $25,000.00 in actual damages which was trebled under AS 09.45.730. This appeal followed.

I. AUTHORITY TO CONSTRUCT THE ROADWAY

The trial court granted a partial directed verdict holding that, as a matter of law, Wrangell possessed the authority to construct the section line roadway. The Edwardses contend in their appellees' brief that this ruling was an error. They did not, however, file a cross-appeal. We refuse to consider appellees' argument since it was not properly raised. ⁵ Alaska Brick Co. v. McCoy, 400 P.2d 454, 457 (Alaska 1965), compels this conclusion. In McCoy, appellee in its brief sought a modification of the judgment increasing the attorney's fee award. Appellee neither filed a cross-appeal nor a cross-statement of points in appellant's appeal. We held: "Orderly procedure will not permit an appellee to attack a judgment for the first time in his brief in the appellant's appeal." Id. Similarly, we will not pass upon this question here.

II. THE SCOPE OF THE USE PERMITTED BY THE EASEMENT

Wrangell contends that the trial court erred in ruling that the state's express reservation permitted Wrangell to use the reservation to the extent necessary to construct a roadway and, thus, that it was a jury question whether the use of the easement was reasonable or excessive. ⁶ Wrangell maintains that "no such requirement of reasonableness exists where there is an expressly reserved and dedicated defined highway right-of-way " Therefore, it asserts that there is an absolute right to clear the right-of-way within the 100-foot limit of the reservation. The Edwardses, on the other hand, argue that only the amount of trees reasonably necessary to construct the roadway may be cleared. We agree with the Edwardses and hold that the trial court did not commit error.

The general rule regarding the scope of the use of a right-of-way easement was stated in Aladdin Petroleum Corp. v. Gold Crown Properties, 221 Kan. 579, 561 P.2d 818, 822 (1977):

"The law appears to be settled that where the width, length and location of an easement for ingress and egress have been expressly set forth in the instrument the easement is specific and definite. The expressed terms of the grant or reservation are controlling in such case and consideration of what may be necessary or reasonable to the present use of the dominant estate are not controlling. If, however, the width, length and location of an easement for ingress and egress are not fixed by the terms of the grant or reservation the dominant estate is ordinarily entitled to a way of such width, length and location as is sufficient to afford necessary or reasonable ingress and egress." ⁷

"To sustain (a) contention (that an easement grants the right to use any and all of a strip of land), the plaintiff must point to language in the deed which clearly and definitely fixes the width of the right of way " Barton's Motel, Inc. v. Saymore Trophy Co., 113 N.H. 333, 306 A.2d 774, 775 (N.H.1973). ⁸ Moreover, it has been generally stated:

"A grant or reservation of a right of way 'over' a particular area, strip, or parcel of ground is not ordinarily to be construed as providing for a way as broad as the ground referred to."

Annot., 28 A.L.R.2d 253, 265 (1953).

In Hyland v. Fonda, 44 N.J.Super. 180, 129 A.2d 899 (N.J.App.Div.1957), the court considered whether the reservation in a deed entitled the grantor's assigns to use the entire reserved strip. The deed stated:

"Reserving, however, unto the party of the first part (Scientific Research Corporation), its successors and assigns the right of ingress and egress for roadway purposes along a strip 25 feet in width along the entire northerly boundary for roadway purposes, together with the right to dedicate said strip, together with any additional land of the party of the first part for roadway purposes whenever a municipality shall accept the same as a public thoroughfare."

129 A.2d at 901. The court stated:

"We cannot say there is no ambiguity on the face of the grant here involved concerning the matter of the physical area over which the defendants have a present right of roadway use. The language of the reservation does not specifically describe the intended roadway as 25 feet in width it provides a 'right of ingress and egress for roadway purposes along a strip 25 feet in width,' etc. This kind of ambiguity is frequently found " (emphasis in original; citation omitted).

129 A.2d at 904. Similarly, here neither the reservation in the contract for sale nor the statutory dedication describe the intended roadway as 100 feet in width. In fact, the statutory dedication states that 100-foot-wide tracts are "dedicated for use as public highways." This is analogous to the grant in Hyland for a right-of-way "for roadway purposes." The express language of the dedication suggests that the legislature intended only that the amount of land necessary for use as public highways be dedicated. Consequently, we believe that the reference to width in the reservation is ambiguous as to whether it refers "to the width of the way, or is merely descriptive of the property over which the grantee may have such a way as may be reasonably necessary." Id. ⁹ Consequently, Wrangell was entitled to make only reasonable use of the right-of-way.

Although the result we reach may generate litigation because of disputes over what constitutes reasonable use, the "result will avoid a construction of the grant of a right of way on and over (a) parcel of land that would unduly restrict its use." Alban v. R. K. Co., 15 Ohio St.2d 229, 239 N.E.2d 22, 25 (Ohio 1968). Moreover, this result will prevent needless destruction of property by insuring that the construction of roadways will be accomplished with care. ¹⁰

III. THE BURDEN OF PROOF

Wrangell contends that the trial court erred in giving instruction No. 14, which provides in part:

"(T)he plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove (that) the defendants wrongfully cut trees and removed timber on plaintiff's property and the adjoining property.

The defendants have the burden of establishing by a preponderance of the evidence all of the facts necessary to prove (that) they cleared away only those trees that were reasonable and necessary for the construction of the roadway."

Wrangell argues that the court erred in imposing on it "the burden of proof or persuasion to establish the reasonableness of the cutting and clearing." We agree.

As a general rule, the plaintiff in a tort action has the burden, throughout the trial, of proving the nature of the harm, the defendant's share in causing the harm, the injuries from the harm, and the damages...