Talbot's Inc. v. Cessnun Enterprises, Inc.

• Decision Date: 22 July 1977
• Docket Number: Nos. 2561,2671,s. 2561
• Citation: 566 P.2d 1320
• Parties: TALBOT'S, INC., an Alaska Corporation, Appellant and Cross-Appellee, v. CESSNUN ENTERPRISES, INC., John Benson, W. E. Brice, and the Estate of Kingdon G. Brice, Deceased, Appellees and Cross-Appellants.
• Court: Alaska Supreme Court

Page 1320

566 P.2d 1320

TALBOT'S, INC., an Alaska Corporation, Appellant and Cross-Appellee, v. CESSNUN ENTERPRISES, INC., John Benson, W. E. Brice, and the

Estate of Kingdon G. Brice, Deceased, Appellees

and Cross-Appellants.

Nos. 2561, 2671.

Supreme Court of Alaska.

July 22, 1977.

W. C. Stump, George L. Gucker, Ketchikan, Richard Richards, Richards, Watson, Dreyfuss & Gershon, Los Angeles, Cal., for appellant and cross-appellee.

Edward G. King, Ziegler, Ziegler & Cloudy, Ketchikan, for appellees and cross-appellants.

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

OPINION

BURKE, Justice.

This is an appeal from a final judgment of the Superior Court granting appellees a permanent injunction. The injunction prohibits appellant from interfering with appellees' use of an alleged easement across a dock located on certain tidelands in the City of Ketchikan. This marks the second time that this controversy has come before us. In a prior appeal, Talbot's Inc. v. Cessnun Enterprises, Inc., et al., 518 P.2d 1064 (Alaska 1974), we vacated a similar judgment and remanded the matter to the superior court for further proceedings in conformity with our opinion in that case. On retrial, judgment was again entered in favor of appellee. This appeal followed.

In large measure, the facts surrounding this dispute are set forth in our first opinion and will not be repeated here.

Appellant and appellees own adjoining parcels located on tidelands acquired from the City of Ketchikan. The easement claimed by appellees crosses appellant's property and provides access to the waterfront area. In our first opinion we held that the alleged easement was created, if at all, under what we there called the Alaska Tidelands Statute, ¹ particularly AS 38.05.320(b). That section provides, in pertinent part:

(1) Each home rule city and city of the first class granted a conveyance shall prepare an official subdivision plat of the area conveyed showing all structures and improvements and the boundaries of each tract occupied or developed, together with the name of the owner or claimant. The subdivisional plat shall include within the boundaries of each tract occupied or developed such surrounding tide and submerged lands as are reasonably necessary in the opinion of the governing body of the home rule cities and cities of the first class for the use and enjoyment of the structures and improvements by the owner or claimant, but shall not include tide or submerged lands which if granted to the occupant would unjustly deprive an occupant of adjoining lands from his reasonable use and enjoyment of them. (emphasis added)

(5) In making a conveyance to an occupant, the home rule cities and cities of the first class shall include as part of the tract conveyed and in addition to the occupied or developed lands, such additional tide and submerged lands as are reasonably necessary in the opinion of the governing body of the home rule cities and cities of the first class for the occupant's use and enjoyment of the occupied or developed land, but the conveyance shall not include any area which would unjustly deprive an occupant of adjoining lands from reasonable use and enjoyment of those lands or which, if developed, will interfere with navigation. (emphasis added)

Interpreting the foregoing section, we stated:

In effect, the statute gave the City authorities the power to adjudicate an easement by reasonable necessity on application for a conveyance. (emphasis added) ²

While recognizing that there were sufficient interests established by both parties to call for the Ketchikan City Engineer to decide, under AS 38.05.320(b)(6), ³ whether the alleged easement was reasonably necessary to appellees' use of their land, we further held:

This decision, however, does not dispose of the case for, while there was sufficient evidence for the City Engineer to make a decision on the question of conflicting uses, the record does not reflect what he decided. The designation of an easement on the plat was not sufficient to reflect the nature of use, or purpose of the easement, or what it was for. Obviously, there are many types of easements. A review of the deeds from the City to the property owners does not help, for there was no mention in either deed of the easement.

We thus find that this case must be remanded for a determination as to what was found by the City Engineer. To this end both parties should be permitted to introduce evidence which bears upon both the existence of the easement and the type of easement contemplated. (emphasis added) ⁴

At the second trial of the case appellees' witnesses included Lee G. Connel, a surveyor and civil engineer. Connel testified that, while under contract with the City of Ketchikan, he had surveyed the area in question and that he was the person who had placed the contested easement on the tideland subdivision plat forming the basis for appellees' claim.

Connel stated that in his opinion the easement "most definitively was" reasonably necessary for the use and enjoyment of appellees' property. In answer to a question posed by the trial judge, Connel further stated:

(W)hen you say why it was there, why I placed it there(,) I can only give you one answer. I placed it there as an easement for access and I had to place it in that location because I could see no other reasonable location to place it in.

Connel also testified, however, that appellees' property fronts on Water Street for a distance of some 190 feet and that two large doors provide access from Water Street, through appellees' own property, to the waterfront area served by the easement. Connel's opinion that the easement was reasonably necessary appears to have been based upon his own observations of the use made of the easement area and the historical use of that area for ingress and egress.

The evidence clearly established that appellees' and their predecessors in interest had long used the area covered by the alleged easement for ingress and egress, although such use was interrupted by the appellant's blocking of the area once or twice each year. However, the evidence also showed that such use was primarily a matter of convenience. For example, Patrick William Lloyd, whose father had operated a cannery on appellees' property, testified that the easement area was used as the main entrance to the cannery, but admitted during cross-examination that such means of access was merely more convenient. He stated that the doors on Water Street were kept locked mainly to discourage the cannery's workers from visiting a tavern that was opened across the street when it appeared "that perhaps the crew was spending a little more time over there than necessary." John William Thompson testified that the doors along Water Street were occasionally used but that it was more convenient to enter through the easement area. The testimony of these witnesses is consistent with that of the other witnesses who testified at trial.

The judgment now on appeal was based, in part, upon the following findings of fact and conclusions of law: ⁵

FINDINGS OF FACT

XXI

No evidence was adduced to show access to the dock facilities of the plaintiffs' (appellees') predecessors in interest from Water Street. Access from Water Street was not a common method to the cannery, the...