DocketNumber: Supreme Court No. S-16715
Citation Numbers: 447 P.3d 726
Judges: Carney
Filed Date: 8/16/2019
Status: Precedential
Modified Date: 7/19/2022
I. INTRODUCTION
Jerry and Brenda McCavit built a dock extending into Wasilla Lake from their upland property. Their neighbors, Barbara and Louis Lacher, sued the McCavits claiming the dock unreasonably interfered with their riparian rights and constituted a private nuisance. The superior court found for the Lachers and issued an injunction ordering the McCavits to remove a portion of their dock. The McCavits now appeal. Because we announce a new rule of reasonableness regarding riparian or littoral rights, we vacate the superior court's Findings of Fact and Conclusions *729of Law and Order Granting Injunctive Relief and Nuisance Abatement, remand for the superior court to conduct the proper legal analysis, and vacate the superior court's award for attorney's fees and costs.
II. FACTS AND PROCEEDINGS
A. Facts
Barbara and Louis Lacher own property abutting Wasilla Lake. Jerry and Brenda McCavit own adjacent property abutting Wasilla Lake to the east of the Lachers' property. Both families own their respective property up to the ordinary high water mark of Wasilla Lake, making them littoral landowners.
When the McCavits bought their property, neither they nor the Lachers had a dock. For 30 years the Lachers' western neighbors allowed the Lachers to use their dock. But in 2012 or 2013, after several incidents involving the Lachers' grandchildren, the western neighbors asked the Lachers to stop using the dock. The Lachers then began considering building a dock from their own property.
Meanwhile in March 1992, the McCavits were granted a permit from the Alaska Department of Fish and Game (ADFG) to construct a dock from their property into Wasilla Lake.
Both families make use of the lake. The McCavits, their family, and their friends use and frequently park a variety of watercraft at the McCavits' dock during the summer. Jerry McCavit testified that he built the extension to accommodate larger watercraft, to reach deeper water, and to make it easier for his aging father to visit. The Lachers and their family and friends also enjoy using the lake. Their children and grandchildren often use the lake for swimming, boating, fishing, and other recreational uses.
In the spring of 2012 the Lachers informed their daughter, Randy Lacher, about their displeasure with the McCavits' dock and the fact that it was "in front of" their property. Randy, who was then employed by the Alaska Department of Natural Resources (DNR), began making inquiries into her parents' rights regarding the lake and the McCavits' dock. Randy obtained a copy of the agency's "Generally Allowed Uses" regulation. The regulation allows an upland littoral property owner to build a dock for personal, noncommercial use provided the dock is within the "projected sidelines" of the upland littoral property or is built with consent of the neighboring upland littoral property owner.
Later in the summer of 2012 ADFG sent the McCavits a Notice of Violation advising them that their dock extension was constructed in violation of permitting requirements. Although it is possible that the McCavits' construction of the extension could have supported a misdemeanor charge,
B. Trial Proceedings
In early 2013 Randy attempted to have DNR enforce its "Generally Allowed Use" regulation against the McCavits' dock. She was informed that DNR could not enforce the "projected sidelines" language because the Commissioner had found the language vague and ambiguous. After being advised that they would need to pursue a civil suit to obtain the relief they sought, the Lachers sued the McCavits in superior court. They brought three claims: the dock interfered with their riparian rights, constituted a private nuisance, and was a trespass.
The court granted the McCavits' motion to require the Lachers to join DNR as a necessary party because the dock was located on state land. In response the Lachers amended their complaint to allege that DNR violated their due process rights by arbitrarily and capriciously failing to enforce the "Generally Allowed Use" regulation. DNR successfully moved for summary judgment, arguing that it was not required to act, and was dismissed as a party. The court's order held that: (1) the Lachers did not have a "significant property interest" in the submerged lands of Wasilla Lake; (2) at most the Lachers had a right of reasonable access to Wasilla Lake, which "ha[d] not been completely obstructed by the McCavits' dock"; and (3) if DNR had found that the McCavits' dock violated the "Generally Allowed Uses" regulation, that decision would have been arbitrary and capricious because DNR had previously found the term "projected sidelines" vague and ambiguous.
The McCavits also moved for summary judgment on the Lachers' trespass claim, arguing that the Lachers did not have title to the lake and therefore could not maintain a trespass claim. The superior court agreed and granted summary judgment on this claim.
Trial proceeded on the remaining claims of unreasonable interference with riparian rights and private nuisance. The Lachers' witnesses testified that the Lachers' preferred location for their potential dock would be on the eastern side of their property, which would conflict with the McCavits' existing dock. But witnesses also acknowledged that the Lachers could build a dock elsewhere on their property so as not to conflict with the McCavits' dock.
After four days of trial the superior court issued its Findings of Fact and Conclusions of Law and Order Granting Injunctive Relief and Nuisance Abatement on May 7, 2017. The court found that the McCavits' dock unreasonably interfered with the Lachers' riparian rights and constituted a private nuisance. It ordered the McCavits to remove a portion of their dock.
C. Post-Trial Proceedings
Later in May 2017 the Lachers moved for attorney's fees and costs as the prevailing party under Alaska Rule of Civil Procedure 82. They submitted fees and costs dating from 2012 and including fees incurred as part of their claims against DNR upon which they had not prevailed. The Lachers asserted that they were entitled to 30% of their fees of $120,070, which amounted to $36,021.
The McCavits moved for a stay of the superior court's injunction pending this appeal. The superior court denied this motion, but in doing so "clarified" its original decision. The superior court noted that it had "already determined the merits of this case and ... found the McCavit[s'] dock to be a nuisance to the Lacher[s]." In February 2018 we granted the McCavits' motion to stay the injunction pending resolution of this appeal.
The McCavits appeal. They contend that the superior court erred in determining that their dock unreasonably interfered with the *731Lachers' riparian rights and constituted a private nuisance, and that injunctive relief was therefore inappropriate. Because the superior court had not yet ruled on the Lachers' motion for attorneys fees when the McCavits filed their opening brief, we granted their motion to allow supplemental briefing on attorney's fees.
III. STANDARD OF REVIEW
"[W]e will not consider arguments that were not raised below, unless the issues establish plain error, or the issues (1) do not depend upon new facts, (2) are closely related to other arguments at trial, and (3) could have been gleaned from the pleadings."
"[W]hether the superior court applied the correct legal standard"
IV. DISCUSSION
A. The McCavits Did Not Waive Any Of Their Arguments On Appeal.
The Lachers first argue that the McCavits waived several of their arguments on appeal by failing to raise them during the trial proceedings.
B. The Superior Court Applied The Proper Standard Of Proof.
The Lachers also claim that the McCavits waived their argument that the superior court improperly applied the preponderance of the evidence standard of proof because they did not request the court to apply a different standard. The McCavits respond that "[p]arties do not have to invoke burdens of proof and persuasion; they are automatic."
"Preponderance of the evidence is the general burden of persuasion in civil cases."
To demonstrate plain error, the McCavits must prove that "an obvious mistake has been made which creates a high likelihood that injustice has resulted."
C. We Extend Our Rule Of Reasonable Use To Riparian And Littoral Landowners And Remand For The Superior Court To Apply The Rule To Determine Whether The McCavits' Dock Was An Unreasonable Interference With The Lachers' Littoral Rights.
1. Riparian and littoral rights defined
Alaska is unique in that "[t]he people of the state have a constitutional right to free access to and use of the navigable or public water of the state."
Litigation over water rights frequently involves competing consumptive uses, such as a riparian or littoral landowner's right to appropriate a quantity of water for purposes such as agriculture.
Our previous cases regarding non-consumptive uses of water have not involved the rights of riparian neighbors. We have considered competing non-consumptive uses in the context of the natural flow of surface water, specifically surface water drainage,
We must now consider different non-consumptive uses: the right of access and the right to use. Because we have applied the reasonable use rule in other cases involving the non-consumptive use of water, we extend its application to this arena. In applying such a rule, we must consider what rights each littoral landowner has and how those rights affect a neighbor's correlative rights.
a. Right of access
i. Overarching right of access
Before statehood there was a general common law riparian and littoral right of access to "deep" or "navigable waters."
After statehood, in Wernberg v. State we specifically recognized that the right of riparian and littoral landowners of access to deep or navigable waters from their upland properties was a private property right that could not be taken for public use by the government unless it paid just compensation.
*734We revisited the issue in Classen v. State, Department of Highways , setting some limits on the right of access. In that case, a riparian owner challenged the construction of a bridge that would interfere with his floatplane business.
ii. Right to wharf out
Pre-statehood courts considered the right to wharf out as a subsidiary to the right of access, meaning a riparian or littoral landowner only had the right to wharf out as the means by which he or she exercised the right of access.
But the territorial court limited this right: "[T]he use must be reasonable. ... And 'what shall be deemed a reasonable and proper use of a way depends largely on the local situation and on the public usage.' "
Since statehood we have had only one opportunity to discuss the right to wharf out, in State, Department of Natural Resources v. Alaska Riverways, Inc.
b. Right to use
Article VIII, § 16 of the Alaska Constitution establishes a right to common use of public and navigable state waters that protects a riparian and littoral landowner's right to use the water abutting the land: "No person shall be involuntarily divested of his right to the use of waters ... except for a superior beneficial use or public purpose and then only with just compensation and by operation of law."
Other jurisdictions have upheld a riparian right to use water for recreational purposes.
c. Reasonable use rule
We now extend our rule of reasonableness to determine a riparian or littoral landowner's water rights. In so doing we take into account Alaska's unique public trust doctrine and historical common-law rights. Riparian and littoral landowners have the right of reasonable access to and use of adjacent navigable and public waters of the State, as they are defined by the legislature, so long as the access or use is lawful and does not unreasonably interfere with the correlative rights of other riparian or littoral landowners.
2. Reasonableness factors
All riparian and littoral landowners have correlative water rights associated with their upland properties. When one landowner's exercise of his or her right interferes with a neighboring landowner's exercise of the same, the court must compare the two uses. The court must consider: (1) whether the injured landowner's allegedly interfered-with use is reasonable, and (2) whether the use causing the alleged interference is unreasonable.
To determine the reasonableness of each landowner's use, the fact finder must consider various factors in the context of the specific facts and circumstances of the particular case. The Restatement (Second) of Torts helpfully outlines various factors that a court may consider: (1) the use's purpose; (2) the use's suitability; (3) the use's economic value; (4) the use's social value; (5) the extent or amount of harm the use causes; (6) the practicality of adjusting the use or method of use to avoid harm; (7) "the practicality of adjusting *736the quantity of water used"; (8) existing values of the use; and (9) "the justice of requiring the user causing harm to bear the loss."
3. Vacate and remand to apply the rule of reasonableness
Because we are announcing a new rule for the unreasonable interference with riparian or littoral rights, the superior court did not have the benefit of the rule in its application of the law. Pursuant to the rule we now announce, we must vacate the judgment and remand to the superior court to apply it. On remand the superior court must determine the reasonableness of the McCavits' and Lachers' respective littoral uses and conduct the proper balancing test to determine whether the McCavits' use unreasonably interferes with the Lachers' use.
The superior court therefore must first go through the unreasonable interference with riparian or littoral rights analysis to determine whether the McCavits' dock constitutes an unreasonable interference with the Lachers' littoral rights before it can determine whether it constitutes a private nuisance.
D. Private Nuisance
Only if the superior court determines that the McCavits' dock constitutes an unreasonable interference with riparian rights should it consider whether it also constitutes a private nuisance. Alaska Statute 09.45.255 defines private nuisance as "a substantial and unreasonable interference with the use or enjoyment of real property, including water." In Riddle v. Lanser we considered "whether odors emanating from a farmer's storage of [roughly 10 million gallons of] septage on his farmland created a nuisance to adjacent landowners."
Additionally, while the Lachers could have and did bring both riparian rights and nuisance claims, these claims overlapped entirely because the Lachers asserted only that the McCavits' dock affected their interests in the access to and use of the water abutting their land.
E. Attorney's Fees
Alaska Rule of Civil Procedure 82(a) states that, unless otherwise agreed to by the parties or provided by law, "the prevailing party in a civil case shall be awarded attorney's fees." The superior court has broad discretion to determine the prevailing party.
V. CONCLUSION
Because we announce a new rule of reasonableness, we VACATE the superior court's Findings of Fact and Conclusions of Law and Order Granting Injunctive Relief and Nuisance Abatement, REMAND for the superior court to conduct the proper legal analysis, and VACATE its award of attorney's fees and costs.
Throughout this opinion, we use the terms "riparian" and "littoral" interchangeably. "Riparian" means "[o]f, relating to, or located on the bank of a river or stream (or occasionally another body of water, such as a lake)." Riparian , Black's Law Dictionary (10th ed. 2014). "Littoral" means "[o]f, relating to, or involving the coast or shore of an ocean, sea, or lake." Littoral , id.
See former AS 16.05.870(b) (1987) (requiring permit for construction within anadromous fish habitats).
11 Alaska Administrative Code (AAC) 96.020(a)(2)(B) (2018).
See AS 16.05.881 ("If a person ... begins construction on a work or project or use for which notice is required ... without first providing plans and specifications subject to the approval of the commissioner ..., the person or agency is guilty of a misdemeanor.").
See Alaska R. Civ. P. 82(b)(2).
The McCavits originally appealed on June 5, 2017, but the award for attorney's fees and costs was not issued until December 12, 2017.
Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc. ,
Burton v. Fountainhead Dev., Inc. ,
Fernandes v. Portwine ,
Armstrong v. Tanaka ,
Riddle v. Lanser ,
The Lachers claim that the McCavits waived their arguments that: (1) the Lachers' common law riparian rights were extinguished by State, Department of Natural Resources v. Alaska Riverways, Inc. ,
Fernandes ,
See Lindbo v. Colaska, Inc. ,
We have similarly ruled that a party must raise an argument regarding the allocation of a burden of proof below in order to preserve the issue for appeal. See Reust ,
Lindbo ,
Fernandes ,
The statutes at issue were AS 09.50.170 -.240, which govern abatement of illegal uses of premises. Spenard Action Comm. ,
Fernandes ,
AS 38.05.126(a), (b) ; see also State, Dep't of Nat. Res. v. Alaska Riverways, Inc. ,
See Alaska Const. art. VIII, § 16 ; see also AS 38.05.126(c) ("Ownership of land bordering navigable or public water does not grant an exclusive right to the use of the water and a right of title to the land below the ordinary high water mark is subject to the rights of the people of the state to use and have access to the water for recreational purposes or other public purposes for which the water is used or capable of being used consistent with the public trust."); Alaska Riverways, Inc. ,
See AS 38.05.505 ; AS 46.15.250.
See, e.g. , Tulkisarmute Native Cmty. Council v. Heinze ,
AS 46.15.010 -.270.
See Ostrem v. Alyeska Pipeline Serv. Co. ,
See Braham v. Fuller ,
See Pankratz v. State, Dep't of Highways ,
Braham ,
See Columbia Canning Co. v. Hampton ,
See Dalton v. Hazelet ,
Classen v. State, Dep't of Highways ,
See Dalton v. Hazelet ,
Id. at 274-75.
Alaska Const. art. VIII, § 16.
Classen v. State, Dep't of Highways ,
See Alaska Riverways, Inc. ,
See e.g. , Taylor v. Tampa Coal Co. ,
See Braham v. Fuller ,
See G & A Contractors, Inc. v. Alaska Greenhouses, Inc. ,
Restatement (Second) of Torts § 850A (1979).
We leave it to the superior court on remand to consider that the Lachers have not yet built a dock, and that therefore "[o]ne riparian's right to make a new use may be affected by the fact that other riparians have already put the water to use ... [and] [t]o allow the new use [may] wholly or partially destroy the existing use" unless the two uses can coexist without substantial harm to the other.
The unreasonable interference with riparian or littoral rights cause of action affects only those rights that a landowner has by virtue of owning land abutting a body of water. While an individual has a private property interest in his or her riparian or littoral right as discussed above, this right is incident to land ownership and does not connote title. See State, Dep't of Nat. Res. v. Alaska Riverways, Inc. ,
The Lachers made no claim of interference with any of their upland property rights (such as noise, offensive odors, or pollution). Their only claimed interest was to their rights of access to and use of the water.
Lee v. Konrad ,