Fitzgerald v. Puddicombe

• Decision Date: 26 April 1996
• Docket Number: No. S-6579,S-6579
• Citation: 918 P.2d 1017
• Parties: Joanne FITZGERALD, Appellant, v. Craig PUDDICOMBE and John Dunham, Appellees.
• Court: Alaska Supreme Court

Page 1017

918 P.2d 1017

Joanne FITZGERALD, Appellant, v. Craig PUDDICOMBE and John Dunham, Appellees.

No. S-6579.

Supreme Court of Alaska.

April 26, 1996.

Rehearing Denied May 6, 1996.

JoAnne Fitzgerald, Wasilla, pro se.

Patricia R. Hefferan, Kopperud and Hefferan, Wasilla, for Appellees.

Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, Justices.

OPINION

COMPTON, Chief Justice.

I. INTRODUCTION

Craig Puddicombe and John Dunham filed an action to quiet title to property they owned. Joanne Fitzgerald and Michael Connor claimed a right to use a trail through the property. After a bench trial, the superior court denied Fitzgerald's and Connor's claims, quieted title in and awarded partial attorney's fees to Puddicombe and Dunham. Fitzgerald appeals. We reverse.

II. FACTS AND PROCEEDINGS

Puddicombe and Dunham own United States Survey 5265 (USS 5265), located on the Knik River near Metal Creek. They acquired the property in 1983 from Joanne Roberts. Roberts had acquired the property from Doug Sumner, who homesteaded the property.

Sumner entered the property in 1965. He testified that when he first visited the area, there were a number of narrow trails going from Metal Creek onto his homestead. Using a bulldozer, Sumner built a driveway on the property. He testified that the driveway did not precisely follow, but may have roughly paralleled, one or more of the existing trails. He placed a cable across the entrance to the driveway and posted no trespassing signs on the property.

Sumner obtained a patent to the property in 1979. The patent reserved no easements or rights-of-way for the general public or for private individuals.

In 1978 Connor and Fitzgerald staked mining claims in the Metal Creek area. Since then, Connor and Fitzgerald consistently have gained access to their claims through USS 5265.

In 1990, to more carefully limit access to USS 5265, Dunham and Puddicombe installed a more permanent, locking cable across the driveway. Puddicombe offered Connor a key to the cable and an easement across the property. Connor refused the offer and asserted that he did not need permission to pass through the property. Puddicombe and Dunham filed suit to quiet title to the property, naming, inter alia, Connor and Fitzgerald as defendants. ¹

Defendants claimed a right to pass through USS 5265 on the basis of both private and public prescriptive easements, and on the basis of a public right-of-way pursuant to former 43 U.S.C. section 932, Revised Statute (RS) 2477. The superior court rejected all their claims, quieted title in Puddicombe and Dunham, and ordered Connor and Fitzgerald to pay thirty percent of Puddicombe's and Dunham's attorney's fees. Fitzgerald filed a motion for a new trial under Alaska Civil Rule 59, on the ground of newly discovered evidence. The superior court denied the motion without comment.

Fitzgerald claims the superior court erred (1) in its determination that no RS 2477 public right-of-way through USS 5265 exists, (2) in denying her motion for a new trial, and (3) in assessing attorney's fees against her.

III. DISCUSSION

The superior court's determination that no RS 2477 right-of-way through USS 5265 exists was based on factual findings about the use of the property and legal conclusions about whether that use was sufficient to establish an RS 2477 right-of-way. We review factual findings under the clearly erroneous standard. See Oaksmith v. Brusich, 774 P.2d 191, 195 (Alaska 1989); Fairbanks North Star Borough v. Tundra Tours, 719 P.2d 1020, 1024-25 (Alaska 1986). We review de novo the application of law to the relevant facts. See Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220, 1223 (Alaska 1992).

RS 2477 was a congressional grant of rights-of-way which provided: "[T]he right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." 43 U.S.C. § 932, repealed by Pub.L. No. 94-579, Title VII, § 706(a), 90 Stat. 2793 (1976), quoted in Hamerly v. Denton, 359 P.2d 121, 123 (Alaska 1961). The grant was self-executing; an RS 2477 right-of-way would have come into existence automatically if a public highway was established across public land in accordance with the law of Alaska. Shultz v. Dep't of Army, 10 F.3d 649, 655 (9th Cir.1993). Although RS 2477 was repealed in 1976, it nevertheless governs this case since the claimed right-of-way would have existed at the date of repeal. See Dillingham Commercial Co. v. City of Dillingham, 705 P.2d 410, 413 (Alaska 1985).

In order to have completed the grant there must have been " 'either some positive act on the part of the appropriate public authorities of the state, clearly manifesting an intention to accept a grant, or ... a public user for such a period of time and under such conditions' " as to indicate that the grant had been accepted. Id. at 413-14 (quoting Hamerly, 359 P.2d at 123).

RS 2477 granted rights-of-way over "public lands" only. Once the land had passed into private hands, the grant could no longer be accepted. Hamerly, 359 P.2d at 123. Homesteads pass from the public domain to the private as of the date of entry. See Id. ("When a citizen has made a valid entry under the homestead laws, the portion covered by the entry is then segregated from the public domain.... Consequently, a highway cannot be established under the statute during the time that the land is the subject of a valid and existing homestead claim."); see also Dillingham, 705 P.2d at 414. Sumner entered the property in 1965. Therefore, to prove the existence of an RS 2477 right-of-way, Fitzgerald must prove acceptance of the grant before 1965.

Fitzgerald argues that public dedication acceptance of the RS 2477 grant is demonstrated by the use of government money to improve the trail. The superior court found that "Sumner has not been shown to have used government money to build his trail." This finding is fully supported by the record.

Fitzgerald also argues that public acceptance of the grant is manifested by the fact that the trail was "surveyed, platted and described in field survey notes." ² The superior court determined that Fitzgerald had not proven that the statutory grant was accepted by the State. We agree with this determination.

We disagree, however, with the superior court's determination that Fitzgerald did not show pre-entry use sufficient to establish public-use acceptance of the RS 2477 grant.

The extent of public use necessary to establish acceptance of the RS 2477 grant depends upon the character of the land and the nature of the use. See Shultz, 10 F.3d at 655 ("Our decision must take into account the fact that conditions in Alaska present unique questions ... What might be considered sporadic use in another context would be consistent or constant use in Alaska."); Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207, 211 (1945) ("The travel over the road ... was irregular but that was due to the nature of the country and to the fact that only a limited number of people had occasion to go that way."). Although "infrequent and sporadic" use is not sufficient to establish public acceptance of the grant, Hamerly, 359 P.2d at 125, continuous use is not required. Shultz, 10 F.3d at 656; cf. McGill v. Wahl, 839 P.2d 393, 397 (Alaska 1992) (requiring proof of continuous use to establish prescriptive easement). Nor does the route need to be significantly developed to qualify as a "highway" for RS 2477 purposes; even a rudimentary trail can qualify. See Dillingham, 705 P.2d at 414; Shultz, 10 F.3d at 656-57.

In Hamerly, the court rejected an RS 2477 claim where the evidence showed that a total of four individuals used the route on a limited number of occasions during the time when the property through which it passed was open to the public. Hamerly, 359 P.2d at 124-25. It noted that the nature of the road belied public highway status:

The road could not be considered as something that was either necessary or convenient for the accommodation of the public. Where there is a dead end road or trail, running into wild, unenclosed and uncultivated country, the desultory use thereof ... does not create a public highway.

Id. (footnote omitted).

In Dillingham, we held that a road running across private property from the city docks to the town was subject to an RS 2477 right-of-way because roughly the same route had been used in the 1920's and 30's, before the property was withdrawn from the public domain. Dillingham, 705 P.2d at 413-14. The observation, from Hamerly, that a public highway must be "either necessary or convenient for the accommodation of the public" was expressed as a requirement that the claimed right-of-way must have "definite termini." Id. at 414; see also Shultz, 10 F.3d at 657 ("Trails 'running into wild, unenclosed and uncultivated country' do not meet the minimum standard of definiteness (they lack one terminus) nor do they suggest sufficient public use." (citing Dillingham, 705 P.2d at 414)). However, we also held that "[i]f there is a public road on [the property], it may be used for any purpose consistent with public travel." Dillingham, 705 P.2d at 415.

With regard to the existence of a trail across the property, the superior court found:

There is a trail, a well established trail ... that proceeds approximately 22 miles along the Knik River to the general area of the Sumner property. However, that trail has not been shown on any evidentiary standard to have gone through the Sumner/Puddicombe property.

That finding notwithstanding, it is clear that there were trails through the property before 1965. Sumner, the entryman, testified that there were several trails across USS 5265 when he originally homesteaded the property, at least one of which was several decades old. Al Frey testified that a well-defined trail existed in 1954. James Hermon testified that there was "really a good trail" through the property in the 1940's. Although a single trail may not have...