McCarrey v. Kaylor

Decision Date29 March 2013
Docket NumberNo. S–14114.,S–14114.
Citation301 P.3d 559
PartiesDavid McCARREY and Donna McCarrey, Appellants, v. Ronald KAYLOR and Jean K. Kaylor, Appellees.
CourtAlaska Supreme Court

OPINION TEXT STARTS HERE

Brent R. Cole, Law Offices of Marston & Cole, P.C., Anchorage, for Appellants.

Calvin R. Jones, Jones & Colver, LLC, Anchorage, for Appellees.

Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

OPINION

CARPENETI, Chief Justice.

I. INTRODUCTION

Two couples own adjoining lots in Anchorage, located directly north and south of each other. Title to the southern lot originated from a federal land patent, which reserved a right-of-way across the northern boundary of the lot. A road currently runs through the right-of-way. The owners of this lot proposed building a fence with a locked gate on the north side of the road, along the northern boundary of their lot; the fence would have impeded access to a cleared area on the northern neighbors' lot that the neighbors use for parking and storage. The northern neighbors obtained a permanent injunction preventing this limitation on access to the southern part of their lot. The southern neighbors appeal, arguing that the superior court denied them due process or, alternatively, erred in finding that their lot is subject to a public right-of-way. Because the superior court made no findings whether the federal land patent's right-of-way offer of a common law dedication was accepted, we remand to the superior court to determine whether there has been acceptance of the offer of dedication.

II. FACTS AND PROCEEDINGS

David and Donna McCarrey own a house and property (lot 14) on East 136th Avenue in South Anchorage. Ronald and Jean Kaylor own a house and lot on East 135th Avenue, directly north of the McCarreys. The McCarreys' deed shows that the land is subject to a 50–foot right-of-way “for roadway and public utilities” across the north boundary of the lot. East 136th Avenue currently runs through this right-of-way. The lots are located north of DeArmoun Road between Elmore Road and Davis Road.

The Kaylors have lived in their house since early 1988. According to the Municipality of Anchorage's tax records, their house was built in 1981. An aerial photo from 1980 shows a dirt road in the right-of-way from Davis Road going west to approximately lot 15, the lot to the west of the McCarreys' lot. At some point, the Kaylors began to use an area on the southern boundary of their lot for storing a boat, two motor homes, and a mobile greenhouse, and for parking.1 In addition, the Kaylors have a tenant who uses the area to park her car; the tenant is elderly and reportedly would have difficulty accessing her apartment from the north side of the house.

The McCarreys' home was built in 2003, and they bought it in December 2009. On May 21, 2010, the McCarreys' attorney informed the Kaylors that the McCarreys were going to build “a six foot residential grade chain link fence on the northern boundary of [the McCarreys'] property beginning on or about Monday, May 24, 2010.” The proposed fence, on the Kaylors' property line between their property and the road, would have blocked the Kaylors' access to East 136th Avenue. He also told the Kaylors that the McCarreys planned to install a gate in the fence; if the Kaylors wished to use the gate, they needed to give the McCarreys 72–hour notice.

The Kaylors filed suit to establish a prescriptive easement in the right-of way and obtain an injunction preventing the McCarreys from building the fence. After the parties unsuccessfully tried to settle the case, the court set an injunction hearing for early August.

On July 8, the Kaylors filed the affidavit of Daniel Bolles, a consultant in zoning and land-use issues. Bolles had worked for the Municipality of Anchorage for about 30 years in various positions, including surveying, construction, and code enforcement. In his affidavit Bolles indicated that the original patent from which title for the McCarreys' lot derived “established a public roadway easement.” He also stated that the easement was “now being used as East 136th Avenue.” The day before the hearing, the Kaylors filed a memorandum of law discussing two issues: whether the McCarreys' proposed fence would interfere with a public right-of-way and whether the Kaylors had a prescriptive easement. The McCarreys did not file a response or object to the Kaylors' filings.

Superior Court Judge John Suddock held an injunction hearing on August 5. The court heard testimony from Bolles and Robert Stevens, a friend of the Kaylors who had visited them often and done remodeling work on their residence.

Bolles testified about the origin of the right-of-way on the McCarreys' lot. According to Bolles, the lots in the area “were set up as the Rabbit Creek Small Tracts” and “each parcel receiv[ed] patent at the time of sale.” Typically each patent had a right-of-way, which in some cases later became “more formal paved roads.” Bolles identified photographshe had taken near the Kaylors' and McCarreys' lots, including pictures of municipal signs at the intersections of East 136th Avenue and Davis Road, and East 136th Avenue and Elmore Road. Based on the Municipality's grid map, Bolles testified that the map “identifie[d] the ... right-of-way and its width and location so that at such time that the neighborhood wishes to pave it, then the municipality has boundaries in which ... to govern ... [the] work that's going to go on there.”

Discussing aerial photographs the McCarreys had obtained, Bolles identified a “trail system” existing at earlier times in the area. For example, he testified that in the 1985 photo Elmore Road was “not built” as a through street then, and neither was East 136th Avenue, but he said that “it's obvious ... that there's a trail through [the rights-of-way on parcels 20–16] and somebody's driving through there.” Bolles testified that East 136th Avenue was built from Davis Road to lot 15 by 1980 and was extended to Elmore Road in the early 2000s. He testified that at the time East 136th was extended to Elmore Road, the Municipality and the property owners of the affected lots “upgraded ... the trail that was ... in the 50 foot easement down to lot 17”; he agreed that the extension of East 136th “simply recognized the right-of-way ... that existed before.” Bolles said that East 136th had not, as of the time of the hearing, “been developed to municipal standards.” He testified that there was no restriction in the patent limiting who could use the right-of-way and that, in his opinion, the owners of the lots lying between East 135th and East 136th could ask for a driveway permit for access to East 136th. He indicated that the Kaylors “have what was identified under municipal code as a through lot,” which he described as “a lot other than a corner lot in which you have frontage to two streets.”

Stevens testified that he had done several building and remodeling projects on the Kaylor home and had also visited the home many times on social visits. He testified that at least starting in the mid–1990s many people used the cleared area for parking when they visited the Kaylors. He said at the hearing that he had built a deck for Jean Kaylor 18 years before, and at that time lumber trucks accessed the Kaylor property from the south to bring in the materials for the job. According to Stevens, the road to access the southern portion of the Kaylors' lot at that time was dirt but “pretty easy to drive down.” Stevens indicated that he accessed the Kaylors' lot from both East 135th Avenue and East 136th Avenue. He also said that the apartment the Kaylors rented out was in the back of the house and the Kaylors had rented it out since the early 1990s.

After Stevens testified, the court asked the parties to clarify the factual dispute. The court thought the dispute was about interpretation of the patent and whether the Kaylors “ha[d] unlimited access from 136th onto [their] lot or can that [access] be entirely or partially blocked by Mr. and Ms. McCarrey.” The court did not think there was a factual dispute in the case “if you set aside the prescriptive easement issue.”

The McCarreys agreed with the court that the question whether “the right-of-way benefit[ted] only the McCarrey parcel and not the Kaylor parcel” was “a pure legal question.” The Kaylors initially argued that the “intent” or purpose of the right-of-way was a disputed factual issue, but the court considered it a legal question. The superior court then found as a matter of law:

[T]here [was] a 1961 devolution of property from the United States to a series of landowners that retained along the north side of lots 13 to 20, including lot 14 which is the McCarrey property, a 50 foot right-of-way for a road. By history there's been on the stretch that runs between—from Davis Street past [the] McCarrey/Kaylor lots, there's been a road there for a long time and then more recently with the upgrade ... of Elmore Road in the early 2000s, ... East 136th ... is punched all the way through, running east/west from Elmore all the way to Davis. It's recognized on municipal plats as a roadway, they term it 136th Avenue, it's in logical sequence with 135th and 137th. It's signed by the Municipality at both ends. It's open to public access. Any[one] present in the courtroom or any[one] present in Anchorage or [a] tourist or an Afghani could legally drive from Elmore to Davis, it's a road. It's a road consistent with the 1961 deed conveying the McCarrey property from the United States to somebody else.

The court refused to interpret the right-of-way as benefitting only the McCarrey property; it found that the right-of-way was “there to benefit the world.” It noted that “there's nothing in the wording of the ... right of way grant that suggests that the McCarreys can turn off of ... 136th Avenue at point A, B, C, ad infinitum, of their property, but that a different condition applies on the north side of the right-of-way.” The...

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