Swift v. Kniffen

Decision Date13 September 1985
Docket NumberNo. S-364,S-364
Citation706 P.2d 296
PartiesWilliam & Anna SWIFT and David & Ellen Dahl, Rockne & Sandra Wilson, and David & Carol Slater, Appellants, v. Darrell & Marjorie KNIFFEN, Fairhill, Inc., and Lot 14, Block 2 of a portion of the Southwest Quarter of Section 36, Township 1 North, Range 1 West, Fairhill Subdivision, Fourth Judicial District, State of Alaska, Appellees.
CourtAlaska Supreme Court

Charles D. Silvey, Schaible, Staley, DeLisio & Cook, Fairbanks, for appellants.

Patrick T. Brown, Rice, Hoppner, Brown & Brunner, Fairbanks, for appellees.


BURKE, Justice.


Appellants own property in a Fairbanks subdivision and filed suit against the subdivider (appellee) to obtain an easement to a disputed roadway in the subdivision. Four theories were presented at trial: common law dedication, private roadway easement (estoppel), easement by prescription and easement by necessity. After the superior court ruled against them on all four theories, appellants appealed on the first three theories and on the court's denial of their motion for a new trial. In addition, three attorney's fees claims are raised.

We affirm the superior court's judgment on the theories of common law dedication and private roadway easement, but reverse and remand the case for additional factual findings on the Swifts' entitlement to an easement by prescription. On remand, the appellants may ask leave of the trial court to amend their pleadings to allege the creation of a public easement by prescription. Since the final judgment is reversed and remanded we vacate the attorney's fees awards. To avoid the appearance of impropriety, we order that a new judge be assigned to make the findings on remand.


In 1968 Marjorie and Darrell Kniffen purchased a tract of undeveloped land near Fairbanks. The Kniffens held the land until it was subdivided. Ownership was then transferred to Fairhill, Inc., (Fairhill) a development corporation controlled by the Kniffens. Fairhill immediately began to develop the parcel by building roadways.

A number of preliminary plats were submitted to the North Star Borough Planning and Zoning Commission. The Borough rejected one plat, which reflected the disputed roadway as the main access to the subdivision, because the road was not compatible with grade requirements. Consequently, in another plat Fairhill dedicated Fairhill Road, approximately 900 feet north of the disputed road, as access to the subdivision.

The disputed roadway was partially built at the time the Borough rejected it as an access road. The uphill section, between Gruening Way and Peters Road, was subsequently reseeded and is not part of this dispute. At issue here is the downhill portion, between City Lights Boulevard and Gruening Way, which already had tailings on it and could not be reseeded. Fairhill left the road as a driveway to two undeveloped lots and continued to pay taxes on it.

The Kniffens, the subdivision's first residents, moved to Peters Road in 1971. The subdivision's second residents, Bill and Anna Swift, purchased Lots 26 and 27 and began clearing them in early August 1971. They began constructing their home in the spring of 1972 and moved into it in the spring of 1973. David and Ellen Dahl first came to Fairhill in 1973 or 1974 and used the roadway frequently. They purchased Lot 2 in 1981. A number of other people have purchased lots since Fairhill began selling them in 1969.

Many of the subdivision's residents used the disputed roadway daily or a few times each week, especially when Fairhill Road was impassable. Use increased as more people purchased lots and built homes in the subdivision. Mr. Swift recalled first driving on the roadway in 1969. From the time the Swifts bought their lot in 1971 to the time they moved into their new home in 1973, they claim to have used the roadway anywhere from several times a day to several times a week. Once they were living in the subdivision they claim to have used the roadway often. The general public used the roadway periodically as an access road to visit subdivision residents and for recreational vehicle use. Marjorie Kniffen testified that she and her husband used the road once in awhile.

The residents who testified maintained that Fairhill did nothing to suggest to them that the disputed road was not public until 1981. No resident claimed that the Kniffens or any other agent of Fairhill told them that they could use the roadway, but most testified that they had never been told they could not use it. They claim that while other private areas of the subdivision were posted against trespassing, the disputed road never was. They claim that while the Kniffens confronted trespassers on other private areas of the subdivision, the Kniffens never reprimanded people for using the road.

Marjorie Kniffen testified that she stopped trespassers on the road, although she admits she never stopped the Dahls or Swifts. She claims to have posted the road repeatedly against trespassing before 1972, but ceased posting because no property was being damaged and the signs were always ripped up quickly anyway. No residents recalled seeing these postings; however, none except the Swifts lived in the subdivision during those years. In 1972, when use of the road and the surrounding area resulted in property damage, Marjorie Kniffen ran an ad for three months in the local newspaper announcing that snowmachines, motorcycles and cross country vehicles were prohibited in the area and warning the public against future trespassing on the road and in the vicinity. Appellants contend that this ad gave no notice that Fairhill sought to prevent normal vehicular use of the disputed roadway. Marjorie Kniffen also claimed to have blocked the road with snow berms, but none of the witnesses recalled her having done this.

Marjorie Kniffen acknowledged that she was aware that people were using the road in the early 1970s, but she did not believe they were subdivision residents. She claims she never saw the Swifts use the road and had no reason to believe they used it regularly before they moved into the subdivision in 1973. However, she admitted that by 1974 she thought the Swifts were using the road and that Mr. Swift had plowed it.

In 1981 several residents informed Marjorie Kniffen that they were pooling their resources to upgrade the subdivision roads and that they planned to grade the disputed road. Marjorie Kniffen objected, claiming it was private property. Fairhill physically blocked the road in October 1981.

Residents of the subdivision, the Wilsons, Slaters, Dahls, and Swifts, filed a complaint in May 1982 against Mr. and Mrs. Kniffen and Fairhill, 1 seeking an easement to the disputed road. Fairhill's answer raised a trespass counterclaim. In December 1982, the Wilsons and Slaters obtained an order dismissing their complaint without prejudice. The counterclaim against them was eventually dismissed in December 1983, just days before the trial commenced.

At trial, the Swifts and Dahls sought judicial recognition of an easement to use the disputed roadway, for the public at large, the subdivision owners, or for the Swifts only under four legal theories. The court ruled for Fairhill on the four easement theories and the trespass counterclaim; however, no damages were awarded for the counterclaim. On appeal, appellants have abandoned their claim to an easement by necessity, but challenge the superior court's rejection of the other three theories.


A common law dedication occurs "when the owner of an interest in land transfers to the public a privilege of use of such interest for a public purpose." Hamerly v. Denton, 359 P.2d 121 (Alaska 1961); see also State v. Fairbanks Lodge No. 1392, Loyal Order of Moose, 633 P.2d 1378 (Alaska 1981); Olson v. McRae, 389 P.2d 576 (Alaska 1964). There are two essential elements of a common law dedication: (1) an owner's offer of dedication to the public and (2) acceptance by the public. 2 6A R. Powell & P. Rohan, The Law of Real Property p 926 (1980). The crux of the offer requirement is that the owner must somehow objectively manifest his intent to set aside property for the public's use. The existence of an intent to dedicate is a factual issue which the claimant must clearly prove. "Passive permission by a landowner is not in itself evidence of intent to dedicate. Intention must be clearly and unequivocally manifested by acts that are decisive in character." Hamerly, 359 P.2d at 125 (footnotes omitted); 6A R. Powell & P. Rohan, supra, p 926. The appellants present three arguments for the existence of an implied dedication.

First, the Swifts and Dahls claim that an intent to dedicate can be inferred from the preliminary plat which included the roadway. While the final plat does not show the disputed roadway, appellants maintain that Fairhill's failure to withdraw its proposed dedication by words or conduct means that the offer is outstanding. We disagree. In some circumstances a recorded plat may evidence intent to dedicate property for public use. 6A R. Powell & P. Rohan, supra, p 926, at 84-89-90. However, even assuming an intent to dedicate can be established from the filing of the preliminary plat, the superior court found that after the plat was rejected, Fairhill engaged in "sufficient activities to negate any presumed intent to dedicate to the public." The court's finding on this factual issue is not clearly erroneous. See Alaska Civil Rule 52(a) (a trial court's findings of fact shall not be set aside unless clearly erroneous).

The Swifts and Dahls also contend that because Fairhill allegedly acquiesced to public use from the time the disputed road was built in 1969 until 1981, an intent to dedicate should be implied. As noted above, a landowner's acquiescence is not sufficient to show an intent to...

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4 cases
  • Reitsma v. Pascoag Reservoir & Dam, LLC
    • United States
    • Rhode Island Supreme Court
    • 20 de junho de 2001
    ... ... '" Id. at 27-28. (Emphasis added.) ...          See also Swift v. Kniffen, 706 P.2d 296, 303-04 (Alaska 1985) ("The sort of permission which would negate the claim of an adverse user is not mere acquiescence ... ...
  • Shultz v. Department of Army, U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 30 de novembro de 1993
    ...and (3) the use was reasonably visible to the record owner." McGill v. Wahl, 839 P.2d 393, 397 (Alaska 1992) (citing Swift v. Kniffen, 706 P.2d 296, 302 (Alaska 1985)). "[A] claimant must show essentially the same elements as for adverse possession." Swift, 706 P.2d at 302. 21 He must overc......
  • Brown v. Laitner, 80118
    • United States
    • Michigan Supreme Court
    • 10 de fevereiro de 1989
    ... ... Paul Fire & Marine Ins. Co. v. Jones, 98 F.2d 448 (C.A. 5, 1938); Feldmann v. Connecticut Mut. Life Ins. Co., 57 F.Supp. 70 (E.D.Mo., 1944); Swift.2d 448 (C.A. 5, 1938); Feldmann v. Connecticut Mut. Life Ins. Co., 57 F.Supp. 70 (E.D.Mo., 1944); Swift v. Kniffen ... ...
  • Sharp v. Howard County
    • United States
    • Maryland Court of Appeals
    • 1 de setembro de 1991
    ...with express trusts created by the will. The clients were advised that the trusts had never been funded. The judge in Swift v. Kniffen, 706 P.2d 296 (Alaska 1985), was disqualified from hearing a case against a developer brought by persons seeking use of a roadway in a subdivision by common......

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