State v. Hillstrand
| Decision Date | 13 May 1960 |
| Docket Number | No. 35,35 |
| Citation | 352 P.2d 633 |
| Parties | STATE of Alaska; Department of Public Works, State of Alaska; Richard Downing, Commissioner of the Department of Public Works, State of Alaska; Lee Hubbard, Director of Highways, Department of Public Works, State of Alaska, Petitioners, v. Earl D. HILLSTRAND and Mary Jane Hillstrand, and M. B. Contracting Co., Respondents. STATE of Alaska; Department of Public Works of the State of Alaska; Richard Downing, Commissioner of Public Works of the State of Alaska, Petitioners, v. John C. ZAK; United States of America; The Bureau of Public Roads of the U. S. Department of Commerce of the United States of America; E. H. Swick, Regional Director of the Bureau of Public Roads of the United States Department of Commerce, Respondents. |
| Court | Alaska Supreme Court |
John L. Rader, Atty. Gen., of Alaska, Warren C. Colver, Asst. Atty. Gen., for petitioner, State of Alaska.
James J. Delaney, Anchorage, for Earl Hillstrand and Mary Jane Hillstrand.
John P. Irvine, Anchorage, for John C. Zak.
Before NESBETT, C. J., and DIMOND and AREND, JJ.
The State of Alaska as petitioner requests interlocutory review of an order of the District Court for the Territory of Alaska, Third Division, denying petitioners' motions for summary judgment.
In an action filed in the United States District Court for the District (Territory) of Alaska at Anchorage on August 17, 1959, the respondents Hillstrand sought to enjoin the State of Alaska and its agents from relocating the Sterling Highway on their property without paying compensation and for damages already done to the property.
The petitioner moved for summary judgment and claims the right to relocate the highway by authority of a reservation in the patent issued by the United States to Hillstrand's predecessor in interest, reserving a right-of-way thereon for roads, roadways, highways, tramways, trails, bridges and appurtenant structures, the reservation having been inserted under authority of an act of Congress. 1
The highway was originally laid out and constructed across a corner of Hillstrand's land in 1946 and 1947 when it was public domain. In the spring and summer of 1959, as a part of a highway improvement program, petitioner relocated and reconstructed the highway across a different portion of Hillstrand's land.
In opposing the motion for a summary judgment respondents maintained petitioner had exhausted its rights under the reservation by constructing the original highway. Respondents Hillstrand also contended that the reservation is inapplicable in any event since their predecessor in interest filed application for the homestead on which the road in question is now located prior to the effective date of the act of Congress under which the reservation was inserted in the patent which ultimately issued.
The respondent Zak sought damages for a widening of the highway which crossed his land. A similar reservation had been inserted in the patent which issued to his predecessor in interest.
The District Court for the District (Territory) of Alaska denied petitioners' motions for summary judgment in the consolidated cases on February 19, 1960.
As grounds for review petitioner alleges:
(1) That the question of law involved is a controlling one.
(2) That an early decision on the question is of tremendous importance to the State which is embarking on an...
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Robinson, Application of
...litigation since this repeal no point has been made of it. See Hillstrand v. State, 181 F.Supp. 219 (D. Alaska), interloc. review denied, 352 P.2d 633 (Alaska); Myers v. United States, 210 F.Supp. 695 (D. Alaska), aff'd in part and rev'd in part, 323 F.2d 580 (9th Cir.). This confirms our v......
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Myers v. United States
...earlier road. Plaintiffs rely principally on Hillstrand v. State of Alaska, 181 F.Supp. 219 (D.Alaska 1960), review denied, Alaska, 352 P.2d 633 (1960), in contending that the construction of the old road in 1949 was an exercise of the reservation and was preclusive of any further exercises......