Simon v. State, No. S-8801.

CourtSupreme Court of Alaska (US)
Writing for the CourtPER CURIAM.
Citation996 P.2d 1211
PartiesHerbert and Jacqueline SIMON, husband and wife, d/b/a Little Nelchina Farms, Appellants, v. STATE of Alaska and Quality Asphalt Paving, Inc., Appellees.
Docket NumberNo. S-8801.
Decision Date03 March 2000

996 P.2d 1211

Herbert and Jacqueline SIMON, husband and wife, d/b/a Little Nelchina Farms, Appellants,
v.
STATE of Alaska and Quality Asphalt Paving, Inc., Appellees

No. S-8801.

Supreme Court of Alaska.

March 3, 2000.


996 P.2d 1212
Hal P. Gazaway, Hal P. Gazaway, P.C., Anchorage, for Appellants

Ross A. Kopperud, Thomas M. Dillon, Assistant Attorneys General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellees.

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

OPINION

PER CURIAM.

I. INTRODUCTION

Herbert and Jacqueline Simon, d/b/a Little Nelchina Farms, sued the State of Alaska, Department of Transportation and Public Facilities and its contractor, Quality Asphalt Paving, Inc., for damages that the defendants allegedly caused while rebuilding a strip of the Glenn Highway that crosses the Simons' property on an easement reserved for highway purposes. The superior court granted partial summary judgment to the state, entering final judgment against the Simons on three counts relating to the state's use of lands within the highway easement. The Simons appeal that judgment.

996 P.2d 1213
II. FACTS AND PROCEEDINGS

On August 10, 1949, Public Land Order (PLO) 601 withdrew public land in Alaska for the Glenn Highway. After the highway's completion, Congress enacted Public Law 892, providing for disposal of public lands within the original Alaska highway withdrawals "subject to appropriate easements" by the Secretary of the Interior.1 In accordance with PL 892, the Department of the Interior issued PLO 1613, which revoked PLO 601's withdrawal of lands surrounding the Glenn Highway but reserved a 300-foot easement for highway purposes extending 150 feet from each side of the center line of the Glenn Highway. PLO 1613 further provided that lands within this easement "shall not be occupied or used for other than the highways ... except with the permission of the Secretary of the Interior or his delegate...."

At statehood, the federal government conveyed all rights and interest in Alaska's highway lands to the state.2 In 1983 the federal government patented the land currently owned by the Simons to their predecessor, Calvin Gilcrease, who transferred it to the Simons in 1987. The patent reserved the highway easement that ran across it, as established by PLO 1613.

In 1995 the state decided to rebuild and improve the portion of the Glenn Highway running through the Simons' land; Quality Asphalt contracted with the state to perform the job. Quality Asphalt straightened and leveled the roadbed; in doing so it removed gravel, topsoil, and sod from certain areas and shifted them to other areas. All of these changes occurred within the 300-foot easement reserved by PLO 1613.

The Simons filed a superior court action against the state and Quality Asphalt, claiming that the construction project had damaged their land, their water supply, and their farming business. The Simons alleged breach of duty, trespass, waste, conversion, inverse condemnation, and various torts. They argued that the easement created by PLO 1613 only allowed the state to improve the Glenn Highway within its existing roadbed and did not expressly allow it to expand or alter the course of the highway or to use or dispose of any subsurface materials.

The superior court rejected this argument. Finding PLO 1613's language ambiguous as to the precise scope of the easement, the superior court turned to this court's decision in Andersen v. Edwards.3 In Andersen we held that an ambiguous highway easement allowed use of the designated right of way only to the extent reasonably necessary to serve the easement's intended purpose.4 Relying on Andersen, the superior court ruled that as long as the state's changes were reasonably necessary to improve the Glenn Highway, PLO 1613 allowed it to relocate the highway anywhere within 150 feet of the centerline of the original roadbed and to use any subsurface materials in the rebuilding process. Finding undisputed evidence that the improvements were reasonably necessary, the court granted partial summary judgment to the state, dismissed three counts of the complaint that were affected by its ruling, and entered final judgment against the Simons under Alaska Civil Rule 54(b) as to those counts.

III. DISCUSSION

The Simons appeal, contending that the superior court misinterpreted the scope of the state's easement. They insist that the easement did not allow the state to alter the highway's course or to move or use subsurface materials. We disagree.

The Simons do not dispute the superior court's finding that the scope of the PLO 1613 easement is ambiguous, but they contend that this ambiguity must be resolved in their favor. Their argument fails under Andersen, however, which makes reasonable necessity the applicable measure. The superior court's finding of reasonable necessity is not clearly erroneous. We adopt the superior court's analysis on this point and set forth

996 P.2d 1214
as an appendix the relevant portion of its decision.5

IV. CONCLUSION

We therefore AFFIRM the judgment.

APPENDIX6

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

Herbert and Jacqueline Simon Husband and Wife, d/b/a Little Nelchina Farm Plaintiffs, v. STATE OF ALASKA, and QUALITY ASPHALT PAVING, INC., Defendants.

CASE NO. 3AN-95-7554 CI

DECISION

The issue here is, does the easement provided by PLO 1613 provide the State with the right to use or discard subsurface materials within the easement for the reconstruction of the Glenn Highway or to lower the elevation of the highway. Determination of this issue depends upon whether PLO 1613 contains express or ambiguous terms.

While the Alaska Supreme Court has not faced the discrete issue before this court, it has reached determinations which provide this court with guidance. It has held that, as a...

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3 practice notes
  • Kelley v. Matanuska Electric Association, Inc., Supreme Court No. S-12488 (Alaska 9/24/2008), Supreme Court No. S-12488.
    • United States
    • Supreme Court of Alaska (US)
    • September 24, 2008
    ...1927). 16. However, the court did correctly identify the easement as a "blanket easement." See supra note 1. 17. See Simon v. State, 996 P.2d 1211, 1214-16 (Alaska 2000); Lake Colleen Enter., Inc. v. Estate of Mark, 951 P.2d 427, 430-31 (Alaska 1997) (citing Andersen v. Edwards, 625 P.2d 28......
  • Labrenz v. Burnett, No. S-12770.
    • United States
    • Supreme Court of Alaska (US)
    • October 16, 2009
    ...and internal quotation marks omitted). 8. Krize v. Krize, 145 P.3d 481, 486 n. 19 (Alaska 2006) (internal quotation marks omitted). 9. 996 P.2d 1211, 1212 (Alaska 10. Id. at 1213. 11. Andersen v. Edwards, 625 P.2d 282, 286 (Alaska 1981) (internal quotation marks omitted). 12. Id. (internal ......
  • Skvorc v. State Personnel Bd., No. S-8398.
    • United States
    • Supreme Court of Alaska (US)
    • March 3, 2000
    ...fall clearly beyond the scope of an initial complaint, it follows that the act does require the filing of a new or amended complaint.71 996 P.2d 1211 Second, even if the court is correct in predicting that the accusation process alone sufficiently protects alleged violators' procedural due ......
3 cases
  • Kelley v. Matanuska Electric Association, Inc., Supreme Court No. S-12488 (Alaska 9/24/2008), Supreme Court No. S-12488.
    • United States
    • Supreme Court of Alaska (US)
    • September 24, 2008
    ...1927). 16. However, the court did correctly identify the easement as a "blanket easement." See supra note 1. 17. See Simon v. State, 996 P.2d 1211, 1214-16 (Alaska 2000); Lake Colleen Enter., Inc. v. Estate of Mark, 951 P.2d 427, 430-31 (Alaska 1997) (citing Andersen v. Edwards, 625 P.2d 28......
  • Labrenz v. Burnett, No. S-12770.
    • United States
    • Supreme Court of Alaska (US)
    • October 16, 2009
    ...and internal quotation marks omitted). 8. Krize v. Krize, 145 P.3d 481, 486 n. 19 (Alaska 2006) (internal quotation marks omitted). 9. 996 P.2d 1211, 1212 (Alaska 10. Id. at 1213. 11. Andersen v. Edwards, 625 P.2d 282, 286 (Alaska 1981) (internal quotation marks omitted). 12. Id. (internal ......
  • Skvorc v. State Personnel Bd., No. S-8398.
    • United States
    • Supreme Court of Alaska (US)
    • March 3, 2000
    ...fall clearly beyond the scope of an initial complaint, it follows that the act does require the filing of a new or amended complaint.71 996 P.2d 1211 Second, even if the court is correct in predicting that the accusation process alone sufficiently protects alleged violators' procedural due ......

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