McCarrey v. Kaylor , 2013 Alas. LEXIS 41 ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID McCARREY and DONNA )
McCARREY, ) Supreme Court No. S-14114
)
Appellants, ) Superior Court No. 3AN-10-07799 CI
)
v. ) OPINION
)
RONALD KAYLOR and ) No. 6767 – March 29, 2013
JEAN K. KAYLOR, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, John Suddock, Judge.
Appearances: Brent R. Cole, Law Offices of Marston &
Cole, P.C., Anchorage, for Appellants. Calvin R. Jones,
Jones & Colver, LLC, Anchorage, for Appellees.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices.
CARPENETI, Chief Justice.
I. INTRODUCTION
Two couples own adjoining lots in Anchorage, located directly north and
south of each other. Title to the southern lot originated from a federal land patent, which
reserved a right-of-way across the northern boundary of the lot. A road currently runs
through the right-of-way. The owners of this lot proposed building a fence with a locked
gate on the north side of the road, along the northern boundary of their lot; the fence
would have impeded access to a cleared area on the northern neighbors’ lot that the
neighbors use for parking and storage. The northern neighbors obtained a permanent
injunction preventing this limitation on access to the southern part of their lot. The
southern neighbors appeal, arguing that the superior court denied them due process or,
alternatively, erred in finding that their lot is subject to a public right-of-way. Because
the superior court made no findings whether the federal land patent’s right-of-way offer
of a common law dedication was accepted, we remand to the superior court to determine
whether there has been acceptance of the offer of dedication.
II. FACTS AND PROCEEDINGS
David and Donna McCarrey own a house and property (lot 14) on East
136th Avenue in South Anchorage. Ronald and Jean Kaylor own a house and lot on East
135th Avenue, directly north of the McCarreys. The McCarreys’ deed shows that the
land is subject to a 50-foot right-of-way “for roadway and public utilities” across the
north boundary of the lot. East 136th Avenue currently runs through this right-of-way.
The lots are located north of DeArmoun Road between Elmore Road and Davis Road.
The Kaylors have lived in their house since early 1988. According to the
Municipality of Anchorage’s tax records, their house was built in 1981. An aerial photo
from 1980 shows a dirt road in the right-of-way from Davis Road going west to
approximately lot 15, the lot to the west of the McCarreys’ lot. At some point, the
Kaylors began to use an area on the southern boundary of their lot for storing a boat, two
motor homes, and a mobile greenhouse, and for parking.1 In addition, the Kaylors have
1
When this use began was disputed: According to the Kaylors, they have
used East 136th Avenue and this area for at least 15 years; the McCarreys contended that
the Kaylors only began storing vehicles in the cleared area in 2005. An aerial
(continued...)
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a tenant who uses the area to park her car; the tenant is elderly and reportedly would
have difficulty accessing her apartment from the north side of the house.
The McCarreys’ home was built in 2003, and they bought it in December
2009. On May 21, 2010, the McCarreys’ attorney informed the Kaylors that the
McCarreys were going to build “a six foot residential grade chain link fence on the
northern boundary of [the McCarreys’] property beginning on or about Monday, May
24, 2010.” The proposed fence, on the Kaylors’ property line between their property and
the road, would have blocked the Kaylors’ access to East 136th Avenue. He also told
the Kaylors that the McCarreys planned to install a gate in the fence; if the Kaylors
wished to use the gate, they needed to give the McCarreys 72-hour notice.
The Kaylors filed suit to establish a prescriptive easement in the right-of­
way and obtain an injunction preventing the McCarreys from building the fence. After
the parties unsuccessfully tried to settle the case, the court set an injunction hearing for
early August.
On July 8, the Kaylors filed the affidavit of Daniel Bolles, a consultant in
zoning and land-use issues. Bolles had worked for the Municipality of Anchorage for
about 30 years in various positions, including surveying, construction, and code
enforcement. In his affidavit Bolles indicated that the original patent from which title for
the McCarreys’ lot derived “established a public roadway easement.” He also stated that
the easement was “now being used as East 136th Avenue.” The day before the hearing,
the Kaylors filed a memorandum of law discussing two issues: whether the McCarreys’
proposed fence would interfere with a public right-of-way and whether the Kaylors had
1
(...continued)
photograph from 1995 shows a cleared area on the southern boundary of the Kaylors’
lot.
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a prescriptive easement. The McCarreys did not file a response or object to the Kaylors’
filings.
Superior Court Judge John Suddock held an injunction hearing on
August 5. The court heard testimony from Bolles and Robert Stevens, a friend of the
Kaylors who had visited them often and done remodeling work on their residence.
Bolles testified about the origin of the right-of-way on the McCarreys’ lot.
According to Bolles, the lots in the area “were set up as the Rabbit Creek Small Tracts”
and “each parcel receiv[ed] patent at the time of sale.” Typically each patent had a right-
of-way, which in some cases later became “more formal paved roads.” Bolles identified
photographs he had taken near the Kaylors’ and McCarreys’ lots, including pictures of
municipal signs at the intersections of East 136th Avenue and Davis Road, and East
136th Avenue and Elmore Road. Based on the Municipality’s grid map, Bolles testified
that the map “identifie[d] the . . . right-of-way and its width and location so that at such
time that the neighborhood wishes to pave it, then the municipality has boundaries in
which . . . to govern . . . [the] work that’s going to go on there.”
Discussing aerial photographs the McCarreys had obtained, Bolles
identified a “trail system” existing at earlier times in the area. For example, he testified
that in the 1985 photo Elmore Road was “not built” as a through street then, and neither
was East 136th Avenue, but he said that “it’s obvious . . . that there’s a trail through [the
rights-of-way on parcels 20-16] and somebody’s driving through there.” Bolles testified
that East 136th Avenue was built from Davis Road to lot 15 by 1980 and was extended
to Elmore Road in the early 2000s. He testified that at the time East 136th was extended
to Elmore Road, the Municipality and the property owners of the affected lots “upgraded
. . . the trail that was . . . in the 50 foot easement down to lot 17”; he agreed that the
extension of East 136th “simply recognized the right-of-way . . . that existed before.”
Bolles said that East 136th had not, as of the time of the hearing, “been developed to
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municipal standards.” He testified that there was no restriction in the patent limiting who
could use the right-of-way and that, in his opinion, the owners of the lots lying between
East 135th and East 136th could ask for a driveway permit for access to East 136th. He
indicated that the Kaylors “have what was identified under municipal code as a through
lot,” which he described as “a lot other than a corner lot in which you have frontage to
two streets.”
Stevens testified that he had done several building and remodeling projects
on the Kaylor home and had also visited the home many times on social visits. He
testified that at least starting in the mid-1990s many people used the cleared area for
parking when they visited the Kaylors. He said at the hearing that he had built a deck
for Jean Kaylor 18 years before, and at that time lumber trucks accessed the Kaylor
property from the south to bring in the materials for the job. According to Stevens, the
road to access the southern portion of the Kaylors’ lot at that time was dirt but “pretty
easy to drive down.” Stevens indicated that he accessed the Kaylors’ lot from both East
135th Avenue and East 136th Avenue. He also said that the apartment the Kaylors
rented out was in the back of the house and the Kaylors had rented it out since the early
1990s.
After Stevens testified, the court asked the parties to clarify the factual
dispute. The court thought the dispute was about interpretation of the patent and whether
the Kaylors “ha[d] unlimited access from 136th onto [their] lot or can that [access] be
entirely or partially blocked by Mr. and Ms. McCarrey.” The court did not think there
was a factual dispute in the case “if you set aside the prescriptive easement issue.”
The McCarreys agreed with the court that the question whether “the right-
of-way benefit[ted] only the McCarrey parcel and not the Kaylor parcel” was “a pure
legal question.” The Kaylors initially argued that the “intent” or purpose of the right-of­
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way was a disputed factual issue, but the court considered it a legal question. The
superior court then found as a matter of law:
[T]here [was] a 1961 devolution of property from the United
States to a series of landowners that retained along the north
side of lots 13 to 20, including lot 14 which is the McCarrey
property, a 50 foot right-of-way for a road. By history
there’s been on the stretch that runs between — from Davis
Street past [the] McCarrey/Kaylor lots, there’s been a road
there for a long time and then more recently with the upgrade
. . . of Elmore Road in the early 2000s, . . . East 136th . . . is
punched all the way through, running east/west from Elmore
all the way to Davis. It’s recognized on municipal plats as a
roadway, they term it 136th Avenue, it’s in logical sequence
with 135th and 137th. It’s signed by the Municipality at both
ends. It’s open to public access. Any[one] present in the
courtroom or any[one] present in Anchorage or [a] tourist or
an Afghani could legally drive from Elmore to Davis, it’s a
road. It’s a road consistent with the 1961 deed conveying the
McCarrey property from the United States to somebody else.
The court refused to interpret the right-of-way as benefitting only the McCarrey
property; it found that the right-of-way was “there to benefit the world.” It noted that
“there’s nothing in the wording of the . . . right of way grant that suggests that the
McCarreys can turn off of . . . 136th Avenue at point A, B, C, ad infinitum, of their
property, but that a different condition applies on the north side of the right-of-way.”
The court stated:
The wording i[n] this patent is subject to a right-of-way. A
right-of-way in common parlance is an area in which a group
of people or a political entity can do some specified thing.
It’s delimited as 50 feet in [width] and its purpose is both for
public utility purposes and for a roadway to be located along
the north boundary of the land.
The court suggested that the McCarreys could ask the Municipality for permission to
build the planned fence, but the court considered that a zoning issue and beyond its
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power to decide. It found as a matter of law that “the Kaylors are entitled to an
injunction preventing the McCarreys from limiting their access to their property by a
gated fence.” The court later entered a written injunction prohibiting the McCarreys
from interfering with the Kaylors’ use of the easement. The McCarreys appeal.
III. STANDARD OF REVIEW
Whether the superior court violated a party’s due process rights is a
question of law, which we review de novo.2
Interpretation of a statute is a question of law that we review de novo,
“adopting the rule of law that is most persuasive in light of precedent, reason, and
policy.”3
We have adopted a three-step analysis for interpretation of deeds.4 “The
proper first step in deed construction is to look at the four corners of the document to see
if it unambiguously presents the parties’ intent.” 5 “Whether a deed is ambiguous is a
question of law.”6 If a deed is ambiguous, the next step is to consider “the facts and
2
A.M. v. State, 945 P.2d 296, 302 (Alaska 1997) (citing DeVaney v. State,
Dep’t of Revenue, Child Support Enforcement Div. ex rel. DeVaney, 928 P.2d 1198,
1200 (Alaska 1996)).
3
Pastos v. State, 194 P.3d 387, 391 (Alaska 2008) (quoting Guin v. Ha, 591
P.2d 1281, 1284 n.6 (Alaska 1970)) (internal quotation marks and alterations omitted).
4
Estate of Smith v. Spinelli, 216 P.3d 524, 529 (Alaska 2009) (quoting
Ashley v. Baker, 867 P.2d 792, 794 (Alaska 1994)).
5
Id. (quoting Norken Corp. v. McGahan, 823 P.2d 622, 626 (Alaska 1991))
(internal quotation marks and punctuation omitted).
6
Id. (quoting Norken, 823 P.2d at 626).
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circumstances surrounding the conveyance” to discern the parties’ intent.7 In the event
that the parties’ intent cannot be determined, we rely on rules of construction.8
Ambiguities in public land grants are “resolved strictly against the grantee
and in favor of the government.”9
IV. DISCUSSION
A. The Superior Court Did Not Violate The McCarreys’ Due Process
Rights.
The McCarreys argue that the superior court violated their due process
rights because they did not have adequate notice before the injunction hearing that the
court would consider whether East 136th Avenue was a public road. The McCarreys
point out that the Kaylors alleged in their complaint only that the Kaylors had a
prescriptive easement across the McCarrey property but failed to allege that the
McCarrey property was subject to a public right-of-way or that the right-of-way
established a public road, yet the superior court ruled as a matter of law that East 136th
Avenue was a public roadway. The Kaylors respond that under Alaska Rule of Civil
Procedure 15, issues not raised in the pleadings can nonetheless be tried by the consent
of the parties. The Kaylors maintain that the court acted properly because the McCarreys
did not object at the hearing to any testimony about a public roadway. Additionally, they
argue that the elements for establishing a public prescriptive easement are similar to
those for establishing a private prescriptive easement, so there was adequate notice of the
issues to be tried.
7
Id. (quoting Norken, 823 P.2d at 626).
8
Id.
9
State, Dep’t of Highways v. Green, 586 P.2d 595, 603 n.24 (Alaska 1978).
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The McCarreys’ contention that the superior court denied them due process
has no merit. They admit in their reply brief before us that at the hearing they “disputed
that East 136th Avenue [was] a legally designated public road.” Moreover, the
McCarreys argued to the trial court that the Municipality of Anchorage “determine[d]
whether or not something is a road or a street,” and their position was that the
Municipality “ha[d] not dedicated this as a road.” They also argued at the hearing that
the Municipality did not plow or maintain the right-of-way, so it could not be considered
a road and agreed with the superior court that the question whether the right-of-way
benefitted properties that abutted it was a legal issue, not a factual one. The McCarreys’
arguments at the hearing show that they consented to the court considering the
establishment of a public road.
In addition, the Kaylors raised the question whether East 136th Avenue was
a public road in pleadings they filed before the hearing. Their complaint alleged that the
McCarreys’ lot was “encumbered by a road easement” and that “[a] dirt road . . . is
located on the northern area[] of . . . the defendants’ Lot 14.” Bolles’s July affidavit
described the right-of-way as “a public roadway easement” and said that the easement
was “now being used as East 136th Avenue.” The affidavit further stated that the right-
of-way was “shown as a public easement” on municipal grid maps and “grant[ed] public
access to the lots north and south of the 50 foot easement.” All of this demonstrates that
the McCarreys had actual notice before the hearing that the court would consider
whether a public roadway occupied the right-of-way on their property.
B. The Federal Land Policy And Management Act Did Not Terminate
The Right-Of-Way.
Before us the McCarreys argue that the Kaylors “were required to establish
actual use of the right-of-way as a road prior to 1976.” The McCarreys note that the
patent to their land, and the right-of-way reserved therein, was issued pursuant to the
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Small Tract Act,10 which was repealed by the Federal Land Policy and Management Act
of 1976 (FLPMA).11 Citing an instruction memorandum from the United States
Department of the Interior, Bureau of Land Management (BLM)12and a Nevada state trial
court decision13 the McCarreys argue that the right-of-way on their land was a common
law public right-of-way dedication that would terminate with the 1976 repeal of the
Small Tract Act unless it had been accepted through actual use prior to that year. The
Kaylors agree with the McCarreys that “the roadway provisions of the [Small Tract Act]
were inapplicable” because of its 1976 repeal. The Kaylors nonetheless ask us to affirm
the superior court on the theory that they established the existence of a public road
through prescriptive use. Because the superior court specifically stated it was construing
the deed as a matter of law and did not make factual findings on the elements necessary
to establish a prescriptive easement,14 we decline to affirm the superior court on the
prescriptive use theory.
We next consider the parties’ views that repeal of the Small Tract Act
terminated or otherwise affected the right-of-way at issue here. We have previously held
10
Acts of June 1, 1938, ch. 317, § 1, 52 Stat. 609; July 14, 1945, ch. 298, 59
Stat. 467; June 8, 1954, ch. 270, 68 Stat. 239 (codified at 43 U.S.C. § 682a) (repealed
1976).
11
Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, §
702, 90 Stat. 2743, 2787 (1976).
12
BUREAU OF LAND M GMT ., INSTRUCTION M EMORANDUM N O . 91-196 (Feb.
25, 1991) (hereinafter IM 91-196).
13
Spittler v. Routsis, No. CV08-02467, 2010 WL 2717701 (Nev. Dist. Ct.
Apr. 21, 2010), pending appeal in Nevada Supreme Court (case No. 56681), available
at caseinfo.nvsupremecourt.us/public/caseView.do?CSIID=24810.
14
See Swift v. Kniffen, 706 P.2d 296, 302 (Alaska 1985) (listing the elements
required to succeed on a prescriptive easement claim).
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that “stipulations as to the law are not binding upon the court,” particularly when they
“involve[] a matter of public policy.”15 The legal issue of FLPMA’s effect on the right-
of-way provisions in small tract patents is not limited to the dispute between the parties
here; indeed, the question whether FLPMA terminated these rights-of-way potentially
affects many people who are not parties to this case,16 including the Municipality of
Anchorage.17 Determining what effect the repeal of the Small Tract Act had on the right-
of-way is a legal question to which we apply our independent judgment.18
The Small Tract Act “authorized the sale of public lands classified as
‘valuable for residence, recreation, business or community site purposes.’ ”19 It was
made applicable to Alaska in 1945.20 In 1961, pursuant to the Small Tract Act, the
federal government issued a patent to the McCarreys’ predecessor in interest. The lot
appears to have been part of Small Tract Classification Order No. 97, also identified as
15
Dresser Indus., Inc. v. Alaska Dep’t of Labor, 633 P.2d 998, 1004 (Alaska
1981).
16
See Neal v. Brown, 191 P.3d 1030, 1036 n.4 (Ariz. App. 2008) (Snow, J.
dissenting) (noting “considerable” effect of majority’s decision about small tract rights-
of-way because of widespread classifications of small tracts).
17
The grid map from the Municipality in the record shows a number of streets
in the area with the designation “patent roadway reserve.”
18
See Johnson v. Johnson, 239 P.3d 393, 407 (Alaska 2010) (citing Cooper
v. Cooper, 144 P.3d 451, 454 (Alaska 2006)) (noting that independent judgment standard
of review would apply if question involved interpretation of federal statutes).
19
Mountain States Tel. & Tel. Co. v. Kennedy, 711 P.2d 653, 655 (Ariz. App.
1985) (quoting 43 U.S.C. § 682a).
20
State, Dep’t of Highways v. Crosby, 410 P.2d 724, 727 (Alaska 1966).
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Rabbit Creek Additional Unit No. 1.21 The patent was issued “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.”22
The McCarreys argue that the date of repeal of the Small Tract Act was the
date by which the Kaylors had to show that the right-of-way was used as a road.23 The
McCarreys rely on the BLM’s Instruction Memorandum No. 91-196 (IM 91-196), dated
February 25, 1991.24 According to IM 91-196, “small tract rights-of-way [were]
common law dedications to the public to provide ingress and egress to the lessees or
patentees and to provide access for utility services.”25 The memorandum also provided:
21
Notices, Alaska, Small Tract Classification Order No. 97, 20 Fed. Reg.
2871, 2871-72 (Apr. 28, 1955).
22
The classification order specified the location of rights-of-way on the lots
offered for lease and referred to the rights-of-way as easements. Id. at 2872.
23
This issue was not specifically raised before the superior court, although
the McCarreys implied that public roads had to be owned by the Municipality and
contended that the Municipality had not “dedicated” East 136th Avenue as a road.
24
According to the BLM website, instruction memoranda “are temporary
directives that supplement the Bureau Manual Sections” and either “contain new policy
or procedures that must reach BLM employees quickly,” “interpret existing policies,” or
“provide one-time instructions.” U.S. Dept. of the Interior, Bureau of Land
Management, National Instruction Memoranda, available at http://www.blm.gov. (last
visited July 31, 2012). Instruction memoranda are not regulations, so they are entitled
only to limited deference under federal administrative law — that is, we defer to the
interpretation in them only “to the extent that it is persuasive.” Allen v. State, Dep’t of
Health & Soc. Servs., Div. of Pub. Assistance, 203 P.3d 1155, 1165 & n.48 (Alaska
2009); see also Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (noting that
agency interpretations of statutes that are not in regulations are entitled only to limited
deference).
25
IM 91-196, supra note 12, at 1.
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The right-of-way remained available as long as the lands
were classified for small tract use. These rights-of-way were
determined to be common law dedications and had the effect
of a public easement. However, until acceptance by use of
the easement made the dedication complete, the United States
could revoke or modify the offer to dedicate in whole or in
part. Said another way, unless the common law rights-of­
way were actually used for a road or public utilities to serve
a small tract, the dedication disappeared with the termination
of the classification.[26]
The McCarreys infer that repeal of the Small Tract Act terminated all small tract
classifications and, as a result, if the right-of-way had not been used as a roadway before
repeal of the Small Tract Act, the right-of-way “disappeared.”
But IM 91-196 does not discuss how a small tract classification is
terminated. And the language of FLPMA, BLM regulations and notices, and a BLM
instruction memorandum from 1980 all indicate that FLPMA did not automatically
terminate Small Tract Act classifications existing at the time of repeal. Section 102(a)(3)
of FLPMA, codified at 43 U.S.C. § 1701(a)(3), directs review of “existing classifications
of public land that were effected by executive action or statute before October 21, 1976.”
BLM’s current regulations indicate that lands segregated under the Small Tract Act
remain segregated,27 and BLM has published notices terminating Small Tract Act
classifications after 1976.28 Finally, in The Small Tract Act: Guide Book for Managing
26
Id. at 2 (first emphasis in original) (second emphasis added).
27
43 C.F.R. § 2091.7-1(a)(1) (2010) (“Lands classified under the authority
of . . . the Small Tract Act (43 U.S.C. § 682a) are segregated from the operation of public
land laws including the mining laws . . . except as provided in the notice of realty
action.”).
28
See, e.g., Realty Action; Termination of Classification and Opening Order:
(continued...)
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Existing Small Tract Areas, Instruction Memorandum No. 80-540, the BLM noted that
“[t]he classification and accompanying segregation[]continue until revoked, even though
the [Small Tract Act] has been repealed.”29 We thus conclude that repeal of the Small
Tract Act did not by itself end a small tract classification.
In any event, it is unlikely that FLPMA had any effect on the right-of-way
at issue here because FLPMA applies to public, not private, lands.30 “Public lands” are
lands “owned by the United States within the several States.”31 The McCarreys’ lot was
not public land in 1976 — it passed out of federal ownership in 1961. According to the
BLM’s regulations, issuance of a patent ends the segregative effect of a classification
order as to the land in the patent.32 In addition, even in IM 91-196 the BLM states:
Upon issuance of a small tract patent, the Secretary is
deprived of all rights to the lands except those specifically
28
(...continued)
Alaska, 67 Fed. Reg. 8310, 8310 (Feb. 22, 2002); see also Termination of Classification
of Public Land for Small Tract Classification Number 368, and Opening Order;
California, 63 Fed. Reg. 48,753, 48,753-54 (Sept. 11, 1998); Termination of
Classifications of Public Lands for Small Tract Classification Numbers 236, 243, and
388, and Opening Order; California, 63 Fed. Reg. 10,036, 10,036-37 (Feb. 27, 1998).
29
BUREAU OF LAND M GMT ., THE SMALL TRACT A CT : G UIDE BOOK FOR
M ANAGING EXISTING SMALL TRACT A REAS 1-46 (1980) (hereinafter G UIDE BOOK ).
30
See 43 U.S.C. § 1701; Columbia Basin Land Protection Ass’n v.
Schlesinger, 643 F.2d 585, 601-02 (9th Cir. 1981) (holding that lands in which U.S. had
retained mineral rights were not “public lands” under FLPMA); United States v. City &
Cnty. of San Francisco, 446 F.Supp.2d 1140, 1143-44 (E.D. Cal. 2006) (holding that
certain provisions of FLPMA regulate only public, not private, lands).
31
43 U.S.C. § 1702(e) (2006).
32
43 C.F.R. § 2091.2-2(a)(3) (2010) (“The segregative effect of a Notice of
Realty Action automatically terminates . . . [u]pon issuance of a patent or other document
of conveyance.”).
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reserved to the United States. Under a common law
dedication, fee title lies with the owner of the land subject to
the easement of the public for the use of the land. The
government transfers all its interest in and jurisdiction over
the lands as completely as if the patent had been made subject
to a right-of-way in favor of a named holder of such right-of­
way. The government has no legal power, except under
eminent domain proceedings . . . to eliminate this restriction
from the patent.[33]
We therefore hold that repeal of the Small Tract Act in 1976 did not terminate or revoke
the right-of-way at issue here.
C. The Right-Of-Way Grant Created An Offer Of Dedication For A
Public Roadway.
We next consider the nature of the interest created by the federal patent.
This requires interpreting the language of the patent, or deed, issued to the McCarreys’
predecessor in interest. The first step in deed interpretation is deciding whether the deed
is ambiguous.34 The patent was issued subject to a right-of-way not to exceed 50 feet in
width for roadway and public utilities purposes, so the size and purpose of the right-of­
way are not ambiguous. But the parties disagree about the nature of the right-of-way.
The McCarreys contend that the right-of-way is a common law dedication, although they
suggest that the right-of-way created a private road that was intended to benefit only
owners of federally-issued small tracts. The Kaylors argue that the superior court
correctly held that the right-of-way in fact contains a public road.
33
IM 91-196, supra note 12, at 3.
34
Estate of Smith v. Spinelli, 216 P.3d 524, 529 (Alaska 2009) (citing Norken
Corp. v. McGahan, 823 P.2d 622, 626 (Alaska 1991)) (“Whether a deed is ambiguous
is a question of law.”).
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A dedication is “[t]he donation of land or creation of an easement for public
use.”35 Dedications can be either express or implied.36 Express dedications can be
statutory or common law.37 “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.’ ”38 “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.”39 Whether
there has been a common law dedication is usually a factual issue related to the intent of
the dedication.40 But in this case both parties agreed in the superior court that the
government’s intent was a legal issue. The Kaylors initially told the court that there was
a factual issue about intent, but they later agreed with the court that intent could be
derived by interpreting the patent. We too agree that the government’s intent in creating
the right-of-way is a legal question because the patent was issued by the federal
government pursuant to a statutory and regulatory scheme; the government’s intent can
be derived from the wording of the patent as well as interpretation of statutes and
regulations.41
35
BLACK ’S LAW D ICTIONARY 473 (9th ed. 2009) (emphasis added).
36
JON W. BRUCE & JAMES W. ELY , JR ., THE LAW OF EASEMENTS AND
LICENCES IN LAND § 3:10 (2011).
37
Id.
38
Swift v. Kniffen, 706 P.2d 296, 300 (Alaska 1985) (quoting Hamerly v.
Denton, 359 P.2d 121, 125 (Alaska 1961)).
39
Id. at 301 (citations omitted).
40
Id.41
Cf. State, Dep’t of Highways v. Green, 586 P.2d 595, 602-03 (Alaska 1978)
(continued...)
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Nothing in the patent’s language suggests that the government intended to
limit use of roads created in the rights-of-way to small tract owners. The patent did not
identify a dominant estate or limit access only to small tract owners.42 The patent
reserved the right-of-way for a roadway and public utilities. The instruction
memorandum on which the McCarreys rely states, “[I]t is generally accepted that small
tract rights-of-way are common law dedications to the public to provide ingress and
egress to the lessees or patentees and to provide access for utility services.” 43 We
previously identified the purpose of Small Tract Act rights-of-way as “provid[ing] rights-
of-way for ‘access streets or roads’ and for public utilities.”44 We noted that the
regulatory language authorizing the rights-of-way “suggest[ed] the Secretary’s concern
with reserving access for other lots within the boundaries of the small tract lease area.”45
We agree with the Arizona Court of Appeals that the rights-of-way in small tracts were
intended “to avoid imposing the heavy burden on local governments of subsequently
having to acquire an easement when the time came to install utilities and roadways.”46
The BLM has consistently considered small tract rights-of-way to be
common law dedications to the public. As early as 1957, the Solicitor General’s Office
41
(...continued)
(interpreting patent as legal issue, using rules of construction related to public land
grants).
42
Cf. Branch v. Occhionero, 681 A.2d 306, 308-09 (Conn. 1996) (noting that
both dominant and servient estates must be identified to create easement appurtenant);
Mackiewicz v. Metzger, 750 N.E.2d 812, 817 (Ind. App. 2001) (same).
43
IM 91-196, supra note 12, at 1 (emphasis added).
44
Green, 586 P.2d at 601 (quoting 43 C.F.R. § 271.16(c) (1954)).
45
Id.46
City of Phoenix v. Kennedy, 675 P.2d 293, 295 (Ariz. App. 1983).
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in the Department of Interior advised the BLM that the rights-of-way reserved under the
Small Tract Act were common law dedications to the public for utilities and roads.47 The
two BLM instruction memoranda we have discussed also describe the rights-of-way as
common law dedications.48 Because the BLM has not, as far as we are aware,
promulgated regulations to the effect that these rights-of-way are common law
dedications, we need only defer to the BLM’s interpretation to the extent we find it
persuasive.49 We find the BLM’s interpretation persuasive in light of the purpose of the
Small Tract Act and the longstanding nature of the interpretation 50 and hold that the
right-of-way at issue here was an express offer of common law dedication to the public.
A common law dedication is not complete until the offer has been
accepted.51 Because neither party expressly presented the theory of common law
dedication to the superior court, the court did not have the opportunity to consider
whether the offer of dedication had been accepted. We have previously held that
acceptance of an offer of dedication “may occur through a formal official action or by
47
Memorandum from Associate Solicitor, Division of Public Lands, to the
Director, Bureau of Land Management, Elimination of a Right-of-Way Reservation from
Patent 2 (Aug. 5, 1957).
48
IM 91-196, supra note 12, at 1-3; G UIDE BOOK , supra note 29, at 1-94, 1-97
to -99.
49
Allen v. State, Dep’t of Health & Soc. Servs., Div. of Pub. Assistance, 203
P.3d 1155, 1165 & n.48 (Alaska 2009) (citing Christensen v. Harris Cnty., 529 U.S. 576,
587 (2000)).
50
See Marathon Oil Co. v. State, Dep’t of Natural Res., 254 P.3d 1078, 1082
(Alaska 2011) (noting that more deference is given “to agency interpretations that are
‘longstanding and continuous.’ ” (quoting Premera Blue Cross v. State, Dep’t of
Commerce, Cmty. & Econ. Dev., Div. of Ins., 171 P.3d 1110, 1119 (Alaska 2007))).
51
Swift v. Kniffen, 706 P.2d 296, 301 (Alaska 1985).
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public use consistent with the offer of dedication or by substantial reliance on the offer
of dedication that would create an estoppel.”52 On remand, the superior court should
make findings about whether the offer of dedication has been accepted.
The McCarreys’ contention that the Kaylors cannot benefit from the right-
of-way because they are not small tract owners conflicts with the idea that the right-of­
way was a common law dedication. A common law dedication is a dedication to the
public, even when there is no specific grantee.53 Even though the BLM’s instruction
memoranda indicate that the rights-of-way were intended to benefit small tract owners,
IM 91-196 nevertheless characterizes the rights-of-way as common law dedications and
“public easement[s].”54 The Guide Book contains a solicitor’s opinion concluding that
the regulation authorizing rights-of-way in Small Tract Act classifications was “a clear
and explicit manifestation on behalf of the United States to dedicate a portion of each
small tract to public use.”55
Although the McCarreys rely heavily on a Nevada state trial court
decision56 in their argument, there are many factual distinctions between the cases. The
52
State v. Fairbanks Lodge No. 1392, Loyal Order of Moose, 633 P.2d 1378,
1380 (Alaska 1981) (citing Litvak v. Sunderland, 353 P.2d 381, 384 (Colo. 1960); City
of Carlsbad v. Neal, 245 P.2d 384, 389 (N.M. 1952); Tinaglia v. Ittzes, 257 N.W.2d 724,
730 (S.D. 1977)); see also Safeway, Inc. v. State, Dep’t of Transp. & Pub. Facilities, 34
P.3d 336, 339 (Alaska 2001) (holding that State’s inclusion of street on right-of-way map
was formal official action accepting street dedication).
53
23 A M . JUR . 2D Dedication § 16 (2002).
54
IM 91-196, supra note 12, at 1-2.
55
G UIDE BOOK , supra note 29, at 1-99 (emphasis added).
56
Spittler v. Routsis, No. CV08-02467 2010 WL 2717701, at *2-3 (Nev. Dist.
Ct. Apr. 21, 2010), pending appeal in Nevada Supreme Court (case No. 56681),
(continued...)
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Nevada case involved small tract rights-of-way that were used only as driveways; there
is nothing in the Nevada trial court’s decision to suggest that a road of any type ever
occupied the rights-of-way.57 Here, in contrast, the aerial photographs admitted into
evidence show a dirt road leading past the McCarrey lot as early as 1980. The
McCarreys do not dispute that as of 1980 there was a “right-of-way road” across their
lot.
Finally, the McCarreys argue that the injunction issued by the superior
court was too broad. Because we are remanding to the superior court for findings related
to acceptance of the common law offer of dedication, we do not reach this issue.
V. CONCLUSION
For the foregoing reasons, we VACATE the superior court’s finding that
a public road occupies the right-of-way crossing the McCarreys’ lot and REMAND to
the court for factual findings about whether the offer of common law dedication was
accepted. The court may, in its discretion, hold another hearing or may make findings
on the record already before it. We do not retain jurisdiction.
56
(...continued)
available at caseinfo.nvsupremecourt.us/public/caseView.do?CSIID=24810.
57
Id.-20- 6767