Sourdough Chapter 49 Anchorage & Southcentral Alaska
Arctic Trails Chapter 71 Fairbanks, Alaska
Right-of-Way News and Spotlights
See below for Chapter 71 news and blog items:
Supreme Court of Alaska: 411 P.3d 560, January 26, 2018
Two adjoining landowners dispute the creation and continuing validity of an easement for ingress and egress to and from property near Fairbanks. The superior court held that a valid easement was created but had been extinguished by prescription. We are asked to decide whether one party’s mining activities—placing gravel piles, equipment, and a processing plant in the easement—were sufficient to prescriptively extinguish the entire easement. We hold that they were not. Although the processing plant extinguished the portion of the easement on which it stood, the evidence presented regarding the gravel piles and equipment was insufficient to support extinguishing the entire easement.
Charlie Parr, SR/WA, was recognized at the Arctic Trails Chapter 71 Christmas party for his role as one of the founding members of Chapter 71, for his expert work over the years in the right-of-way field, and for his continuous role as member and mentor within our chapter. See the news article above for more about his life and his work. Congratulations and Thank You, Charlie!
Archived Chapter 71 News and Spotlights
See below for archived Chapter 71 blogs:
Who owns the right to store natural gas in a depleted reservoir? Did you know that “pore space” is “mineral”? For an interesting discussion of that question and the nature of surface and subsurface rights, see the Alaska Supreme Court’s May 6, 2016 decision in City of Kenai v. Cook Inlet Natural Gas Storage, State of Alaska Department of Natural Resources, and Cook Inlet Region Inc. (No. 7101): 373 P.3d 473
Depending on the dates involved and other circumstances, the mere filing of a homestead application can segregate the land applied for from the public domain. Such segregation could prevent the imposition of a section line easement when the land is surveyed. That was the finding of the Alaska Supreme Court on October 16, 2015 in Luker v. Sykes, Opinion No. 7059. Open question: Could this principle also influence how the various Public Land Order (PLO) rights of way affect the land applied for? (This case involves land south of Chena Hot Springs Road near Grange Hall Road.-cp)
In 1961, BLM issued a patent for a Small Tract in the Anchorage area. The patent contained the following language: “This patent is subject to a right-of-way not exceeding 50 feet in width, for roadway and public utilities purposes, to be located along the north boundary of said land.” In an interesting March 2013 opinion, the Alaska Supreme Court interpreted that language as an express common law dedication which required some form of acceptance, either by a public body or by actual use. Because the Superior Court had not made specific findings of acceptance, the case was remanded for determination whether there had been acceptance. (One of the things that makes this interesting is that the 50’ strip is within East 136th Avenue!) The case, McCarrey v. Kaylor, (301 P.3d 559) is worth a read. – CLP
For an interesting read about the “hostility” element required to establish an easement by prescription, see Dault v. Shaw, Alaska Supreme Court Opinion No. 6847 dated November 29, 2013. This opinion cites (and quotes very extensively from) many prior opinions of the Court on prescriptive easements. There is a vigorous dissent, and the Superior Court decision being appealed is attached to the Opinion. You do not normally get this much information in one Opinion. (322 P.3d 84)
For a comprehensive treatise on Highway Rights of Way in Alaska, see the monograph with that title authored by John Bennett, PLS, SR/WA. This paper, first published in 1993, was updated and revised in January 2013. It covers the history and uses of highway rights of way, citing statutes, regulations, court and IBLA decisions among other sources. Bennett addresses RS 2477, section line easements, PLO’s, and other means by which rights of way are created, defined, and used. This is an essential reference for all involved in any aspect of the right of way profession.
Chapter 49 Educational Courses Anchorage, Alaska
Chapter 71 Educational Courses Fairbanks, Alaska
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