Grant v. State

• Citation: 560 P.2d 36
• Decision Date: 16 February 1977
• Docket Number: No. 2855,2855
• Parties: Hugh H. GRANT and John F. Grant, d/b/a Grant and Grant, a partnership, Appellants, v. STATE of Alaska, Appellee.
• Court: Supreme Court of Alaska (US)

Page 36

560 P.2d 36

Hugh H. GRANT and John F. Grant, d/b/a Grant and Grant, a partnership, Appellants, v. STATE of Alaska, Appellee.

No. 2855.

Supreme Court of Alaska.

Feb. 16, 1977.

Fred J. Baxter and James F. Petersen, Juneau, for appellants.

Peter B. Froehlich, Asst. Atty. Gen., and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

OPINION

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

RABINOWITZ, Justice.

The Grants appeal from the superior court's entry of summary judgment in favor of the state in an inverse condemnation action. We reverse the entry of summary judgment and remand to the superior court for further proceedings.

In the late 1960's, the State of Alaska decided to construct an expressway running from the Juneau airport to the downtown area. In November 1972 Ms. Winifred Mathis, the prior owner of the real property involved in this litigation, and eight other owners of property located along the new highway instituted an inverse condemnation action against the State of Alaska for deprivation of their water access to the adjacent Gastineau Channel. ¹

Approximately one month after bringing this inverse condemnation suit, Ms. Mathis sold her property to appellants Hugh and John Grant. The Agreement of Sale entered into by the parties provided Grantor hereby expressly reserves any and all rights and claims she may have against the State of Alaska and the Alaska Department of Highways for damages to the above-described property resulting from the planning and construction of the Glacier Expressway. ²

With the exception of this reservation clause, the Agreement of Sale makes no mention of Mathis' claim for damages arising from the inverse condemnation.

At the time Ms. Mathis conveyed the property to the Grants, the Department of Highways had planned to install a large culvert under the expressway which would permit ingress and egress of small craft to the Mathis property. In 1974, during the construction of the expressway, this culvert, which was located directly in front of the Mathis property, collapsed. On approximately March 13, 1974, the Department of Highways decided that the underpass culvert would not be replaced.

Thereafter, on March 19, 1975, the state and Mathis entered into a 'Stipulation of Settlement and Dismissal with Prejudice' with respect to the inverse condemnation suit. In the stipulation agreement Mathis dismissed 'with prejudice her claim against the State for compensation for the taking of water access to her property caused by construction of the Glacier Expressway. . . .' In this document Mathis further acknowledged 'receipt of the sum of $22,425 as Just Compensation for the taking of water access from her property as described above and damages arising out of or resulting from the taking . . ..'

After Mathis had entered into the stipulated settlement with the state of her claim for inverse condemnation, the Grants, in October 1975, instituted an action against the State of Alaska in superior court. As had Mathis, the Grants grounded their claim for relief against the state on the theory of inverse condemnation. In their complaint, the Grants asserted that they had purchased the property in question from Mathis in reliance upon the state's construction plans for the Glacier Highway. They further alleged that at the time they entered into the Agreement of Sale with Mathis the state contemplated the installation of a culvert directly in front of the subject property in order to provide water access to the property. The gist of the Grants' basis for recovery against the state is found in the following paragraph of their complaint.

Pursuant to the Agreement of Sale, (the Grants) are the individuals that have been denied the water access since the former owner Winifred E. Mathis was compensated by the State of Alaska for the taking based upon the original construction plans providing water access to the subject property upon which the (Grants) relied when purchasing the property in question.

The state filed a motion for summary judgment, or in the alternative, for leave to file a third-party complaint or to require the joinder of Mathis as a necessary party. The motion for summary judgment was grounded on the state's contention that it had compensated Mathis for the loss of water access to the property as was required by the reservation clause in the Agreement of Sale. ³ In the state's view the Grants were now seeking compensation for the very same claim, impairment of water access to the Mathis property, which Mathis had previously asserted and for which she had received over $20,000 in compensation from the state in settlement of this claim. In its order granting summary judgment, the superior court found that there were no genuine issues of material fact and that 'for the reasons urged' by the state the motion should be granted. Thus, we must determine whether the superior court was correct in granting the state's motion for summary judgment in an action in which the Grants claimed an uncompensated taking due to the elimination of water access.

Article I, section 18 of the Alaska Constitution provides that '(p)rivate property shall not be taken or damaged for public use without just compensation.' In Wernberg v....