City of Anchorage v. Nesbett, 2040

• Decision Date: 24 January 1975
• Docket Number: No. 2040,2040
• Citation: 530 P.2d 1324
• Parties: CITY OF ANCHORAGE, Appellant, v. Buell A. NESBETT and Stanley J. McCutcheon, Appellees.
• Court: Alaska Supreme Court

Page 1324

530 P.2d 1324

CITY OF ANCHORAGE, Appellant, v. Buell A. NESBETT and Stanley J. McCutcheon, Appellees.

No. 2040.

Supreme Court of Alaska.

Jan. 24, 1975.

William G. Azar, Kennelly & Azar, John R. Spencer, City Atty., Anchorage, for appellant.

Raymond A. Nesbett, Anchorage, for appellees.

OPINION

Before RABINOWITZ, C. J., and CONNOR and BOOCHEVER, JJ.

BOOCHEVER, Justice.

This litigation involves a dispute as to the right of appellant, the City of Anchorage, to maintain a power line on property referred to as Block 34-A, Anchorage, which property is now owned by Buell A. Nesbett and Stanley J. McCutcheon (hereinafter appellees). Until 1960, the land in question was owned by the federal government. In August of 1949, the Bureau of Land Management issued a special land use permit to the City of Anchorage allowing the City to use certain lands for general municipal purposes and to erect a municipally-owned power plant on certain property including Block 34-A. The permit was valid for five years. The City promptly constructed a power line of approximately 50 feet in height running from south to north the full 300 foot width of Block 34-A. (The block is 660 feet long.) As it travels north across Block 34-A, the main power line branches in two places, first to the northwest and then to the northeast, forming a 'Y' at the north end of the property. New lines have been added to the poles subsequent to their erection. The most recent such addition took place in 1970-71 while others had been added during the mid-1950's.

In October of 1950, the City wrote to the Bureau of Land Management relinquishing the special use permit. The then city manager testified that the relinquishment was tendered by mistake as it would not have been submitted had he realized it included the property on which the power lines were located. In August 1954, the City applied for another special land use permit including Block 34-A but this time the application was rejected on or about May 11, 1956.

Block 34-A was subsequently transferred by the United States Government to Joe Blackard and Russell Swank. In return for legal services rendered in aiding Blackard and Swank to obtain the patent to the land, the middle third of Block 34-A (220 feet by 300 feet), was quitclaimed to appellees. These transfers took place in September of 1960 and on January 1, 1961 respectively. Shortly after they acquired title to the land involved herein, appellees became aware of the existence of the power line traversing approximately the middle section of their property.

In 1964, the City approached appellees asking to be granted an easement to anchor a down guy wire. The land affected by the easement was situated between the main north-south line and the northwest branch and partially overlapped the area the City now claims by prescriptive easement. Although appellees cooperated in executing the requested easement, they specifically crossed out on the mimeographed form the clause granting the City the right to maintain a telephone system, and to erect, construct and maintain an electric transmission and distribution system through, over and across the property; and in its stead merely granted permission to erect the anchor assembly. The City did not object to the alteration.

Sometime in 1965-66, appellees were approached by Gene Silberer who informed them that the City was interested in buying the land to expand their power plant. Silberer wished to represent Nesbett and McCutcheon in selling the land to the City. This was agreed to by appellees, but the negotiations proved fruitless. Again in 1970, Silberer, on behalf of appellees, contacted the City concerning the purchase of the land. Appellees indicated a willingness to accept payment in the form of bonds. At this point the City looked into the possibility of claiming the land by adverse possession.

On May 10, 1971, Nesbett wrote to City Manager Sharp requesting that the City take immediate steps to remove the power line. The City replied that the matter had been referred to the City Attorney's Office. On June 11, 1971, pursuant to a telephone call to the City Attorney's Office, Nesbett was informed of the City's claim of a prescriptive easement across his property defined at trial as encompassing an area of ten feet on either side of the power lines.

Appellees promptly instituted suit for the purpose of compelling the City to remove the power line. In addition, appellees requested reasonable rental for the use of their land by the City from the date that appellees acquired title until the City should remove the poles. Alternatively, appellees requested such damages, to be proven at trial, as would compensate them for the impairment of the economic use of the land occasioned by the presence of the power line. The City answered asserting that it had obtained a prescriptive easement pursuant to AS 09.10.030. ¹

Based upon a finding that the City had maintained the power line in question with the implied permission of the appellees, the superior court judge concluded that no prescriptive easement had been proven. The judge also found that the appellees had established $84,000.00 as proper compensation for the value of the property taken by the City. Concerning the question of rent, the judge held that since there was no substantial evidence as to the rental value of the land, plaintiffs were not entitled to any rental payments. In conclusion, the judge ruled that the City could do one of three things: move the power line, acquire an easement and bury the lines, or pay the compensatory damages established by plaintiffs. Costs and $2,000.00 attorney's fees were awarded to plaintiffs. Defendants have appealed to this court claiming a multitude of errors below.

The primary question facing this court is whether the City's use of appellees' land was adverse, under a claim of right, or permissive.

A second major issue raised by appellant concerns the award of damages. Appellant asserts a variety of infirmities in the damages awarded. The major challenges to the award are that both the method of computation and the time of assessment were improper.

A number of secondary issues are raised by the City including:

1. Whether appellees were barred from bringing the action below by laches, equitable estoppel or the statute of limitations?

2. Should the trial judge have disqualified himself for bias?

3. Did the trial judge err in allowing alleged hearsay into evidence?

4. Did the trial court err in denying appellant's motion for a new trial?

I THE CLAIM OF EASEMENT BY PRESCRIPTION

The requisites for a claim by prescription are essentially the same as for adverse possession except that a prescriptive claim is limited to certain rights in the land of another such as an easement. ²

Possession must be open, notorious, visible, continuous for the statutory period, and under a claim of right. ³ The word 'hostile' is frequently used as a term of art meaning that the claim is 'adverse' or under 'claim of right', and that it is not subordinate to the title of the true owner. ⁴ Here there is no question but that the City's use was open, notorious, visible and continuous for the statutory period. The conflict arises over the question of whether the use was permissive as opposed to 'hostile' or under a 'claim of right'.

It is not disputed that the City's use of the property originated under a permit issued by the United States. While through a mistake the City at one time sent a letter relinquishing the permit, it thereafter applied for a new permit. In doing so, it again recognized the permissive nature of its use of the property. While the application for a renewed permit was denied, this did not alter the permissive use of the property. The rule is well settled that, when possession has begun permissively, it cannot acquire the character of adverse possession until the presumption of continued subservience is rebutted 'by proof of a distinct and positive assertion of a right hostile to the owner of the property.' ⁵

In fact, since title by adverse possession may not be secured against the United States, ⁶ the City argues in its brief on appeal that it continued as a licensee of the federal government until patent was issued to Blackard and Swank in 1960. It is its contention that this event terminated the license and rendered the City's occupancy thereafter adverse to the subsequent owners.

It is true that the conveyance of a servient estate will in most cases constitute a basis for terminating a license. ⁷ But such an implied revocation, without more, does not ipso facto transform a permissive use into an adverse one. ⁸

The effect of the issuance of a patent by the United States to Blackard and Swank was the same as though the United States had executed a quitclaim deed to them. ⁹ Thus, the transfer of the servient estate by patent constituted a conveyance by the United States of its interest in the property. Therefore, the situation presented here is analogous to that of a private landowner's transfer by quitclaim deed of property upon which a license had existed.

The Supreme Judicial Court of Massachusetts dealt with this identical situation in Sturnick v. Watson. ¹⁰ Plaintiff there sought to enjoin the defendant from destroying a brick wall of a building owned by the defendant which was supporting both defendant's and plaintiff's buildings. A license had been given by defendant's predecessors in title to plaintiff's predecessor allowing the use of the wall for support of timbers of plaintiff's building. Some time later, an agreement was entered into whereby plaintiff's predecessors disclaimed any interest in the wall and agreed to remove the timbers whenever requested by defendant's predecessors.

The premises were thereafter conveyed without covenants or any reference to an easement through chain of title to defendant. Thus the plaintiff's predecessors had a license to use the wall to support...