Legislature(2003 - 2004)
05/18/2003 10:45 AM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 93 - ADVERSE POSSESSION Number 1862 CHAIR McGUIRE announced that the next order of business would be CS FOR SENATE BILL NO. 93(JUD) am, "An Act relating to limitations on actions to quiet title to, eject a person from, or recover real property or the possession of it; relating to adverse possession; and providing for an effective date." Number 1870 SENATOR THOMAS WAGONER, Alaska State Legislature, sponsor, said that the purpose of SB 93 is to provide more protection to Alaska's private landowners, both large and small, by limiting the ability of others to take private property via adverse possession. He described adverse possession as an outdated doctrine used to transfer land from an owner who is not making use of his/her property to someone who is making use of it. Current law imposes a time limit during which an action can be brought to recover property; specifically, AS 09.10.030 states that the action must be brought within 10 years. Senate Bill 93 would change that provision such that a landowner could bring an action to recover property at any time if his/her interest in the property is recorded under AS 44.17. SENATOR WAGONER said that AS 09.45.052 deals with adverse possession when "color or claim of title is involved." The time limit in this provision is seven years, which is not changed by SB 93. Additionally, proposed provisions of SB 93 ensure that there will still be reasonable ways of settling disputes, and that certain public services will be retained. He warned that some provisions of SB 93 are contentious. He turned attention to page 2, line 17, subsection (c), and said it allows public utilities to continue to gain easements for utility purposes after 10 years of use. SENATOR WAGONER then read a letter he wrote to Tom Irwin, Commissioner, Department of Natural Resources (DNR) [original punctuation provided]: Dear Commissioner: It has been brought to my attention that there is some concern that the wording in Section 4 subsection (c) of Senate Bill 93 would give public utilities the ability to gain interest in easements on state land. This issue and similar issues have been discussed many times with our legal department. I have been told from the Legislative Legal department that public utilities would not have any more rights than they currently have, and currently they cannot take state of federal lands through adverse possession. It is not my intent, or the intent of the legislature to give public utilities the ability to gain an easement on state or federal land for utility purposes. Number 2054 SENATOR WAGONER said that SB 93 would not to abolish all aspects of adverse possession; instead, its purpose is to eliminate the possibility that a landowner will lose property to a squatter who has no claim to the property. He noted that the state and federal government have exempted themselves from adverse possession laws because it is too costly and time consuming to police their vast lands, and SB 93 simply offers that same protection to private property owners. He reiterated his belief that SB 93 will not give rights to any "entity, utility, or other" that such do not already have, adding that it is not his intention to have the bill do so. REPRESENTATIVE GARA asked whether SB 93 takes away or limits the state's rights with regard to public access easements. SENATOR WAGONER said no, and relayed that "there is a section in there that covers that for [the Department of Transportation and Public Facilities (DOT&PF)]." REPRESENTATIVE GARA said that although SB 93 is intended to limit the ability to claim adverse possession, according to his interpretation, the provisions seem only to expand the ability to claim adverse possession. He asked Senator Wagoner to point out the provision that does what he intends. SENATOR WAGONER said, "That was in Section 1, the 10-year time limit." Number 2149 VANESSA TONDINI, Staff to Representative Lesil McGuire, House Judiciary Standing Committee, Alaska State Legislature, clarified that Section 2, proposed AS 09.10.030(b), contains the language Representative Gara is seeking. SENATOR WAGONER noted that that language begins with, "An action may be brought at any time by a person who was seized or possessed of the real property". Number 2171 JONATHAN TILLINGHAST, Lobbyist for Sealaska Corporation ("Sealaska"), explained that taken together, Sections 1 and 2 remove the 10-year statute of limitations for the landowner of record to recover his/her property, and this has the effect of repealing the doctrine of adverse possession for the record owner. However, adoption of Sections 1 and 2, he added, would eliminate the ability of the state and utilities to obtain easements by adverse possession. He noted that in order to rectify this situation, the language in Section 4 is necessary; Section 4 does not expand any rights, it simply puts back the rights that Sections 1 and 2 would eliminate. In response to a question, he indicated that SB 93 will not change anything with regard to easements. REPRESENTATIVE GARA turned attention to page 2, line 22, and noted that it did not specifically mention "public use". He asked why the bill refers to "public access" but not "public use". MR. TILLINGHAST asked for an example of "public use". REPRESENTATIVE GARA then noted that the language on line 23 does specify "trails", and surmised, therefore, that his concern has been addressed. SENATOR WAGONER explained that [the DOT&PF] suggested the language in that part of the bill and has no concerns about it. MR. TILLINGHAST said that the terms "trails" and "public access purposes" were used to specifically preserve the rights of the state and municipalities to acquire access across private lands in order to reach public-use areas and public trails. Number 2265 REPRESENTATIVE ALBERT KOOKESH, Alaska State Legislature, noted that he is chairman of the board of the Sealaska Corporation and a member of Angoon's village corporation. He indicated that Alaska Native corporations will benefit from SB 93, adding that such corporations own a total of 44 million acres of land in Alaska and this makes them the second largest landholder in Alaska next to the state. Senate Bill 93 is important to the corporations because of it is impossible for them to police all of their lands 24 hours a day, seven days a week, all year long. REPRESENTATIVE KOOKESH said that he wants to make sure that Native corporations, as landholders, are protected under the law, because in this regard, they are no different than individual landholders. He asked the committee to be cognizant of the fact that SB 93 is very important to all private landowners, particularly those who own lands "in fee simple." He said he appreciates the sponsor bringing SB 93 forward. CHAIR McGUIRE said that her concern with this bill is that there really is a legitimate public-policy argument favoring the existence of adverse possession. She then briefly relayed some of the circumstances from which adverse possession arose. TAPE 03-71, SIDE B Number 2364 REPRESENTATIVE KOOKESH also asked the committee to be cognizant of the fact that private landowners have to be very careful about maintaining control of their lands, adding that this is particularly true for Native corporations because they know they will not be getting any more land, and so every piece of the 44 million acres of land owned by Native corporations is very dear to them. He said that he wants the committee to make sure that the rights of private landowners are protected. MR. TILLINGHAST, in response to a question, said that one cannot squat on federal, state, or municipal land. He added, "There is ... no better indictment of the doctrine of adverse possession than the zeal with which the government resists any effort to apply that doctrine to it." CHAIR McGUIRE pointed out that under 43 U.S.C.A. 636(d)(1), an exception to the general rule of adverse possession has already been carved out for Native lands. Number 2268 SENATOR SCOTT OGAN, Alaska State Legislature, remarked that SB 93 attempts to change hundreds of years of common law. Regarding the statement made by Representative Kookesh that a landowner can't monitor his/her land 24 hours a day, seven days a week, all year long, Senator Ogan pointed out that under current law, the landowner need only police his/her developed land once every ten years, adding that undeveloped land cannot be adversely possessed. He said that he is confused enough about adverse possession to warrant his asking the committee to consider holding the bill over the interim for the purpose of researching the issue thoroughly and then looking at it from a fresh perspective next session. CHAIR McGUIRE, noting that the committee would be taking a recess for the purpose of a House floor session, asked Senator Ogan to discuss his concerns with the bill's sponsor during that time. The meeting was recessed at 1:27 p.m. to a call of the chair. Number 2185 CHAIR McGUIRE called the meeting back to order at 6:10 p.m. Present at the call back to order were Representatives McGuire, Anderson, Holm, Ogg, Samuels, and Gara. Representative Gruenberg arrived as the meeting was in progress. MR. TILLINGHAST explained that Sealaska has about 280,000 acres of land, which is similar to government land in that it's very remote and hard to police. Most of the land is Alaska Native Claims Settlement Act (ANCSA) land, but a fair amount of it, and a growing proportion of it, is not ANCSA land. He mentioned that Sealaska, like other Native corporations and Native regional corporations, is trying to expand its land base by acquiring non-ANCSA lands, which do not have the protection from adverse possession afforded by federal law to undeveloped ANCSA lands. Sealaska ran into some squatter problems with some non- ANCSA lands in Cordova and on Prince of Wales Island. He said that although Sealaska succeeded in evicting the squatters, it did so at significant cost, and, as a result, Sealaska asked him to look into the possibility of a legislative solution to its problem. MR. TILLINGHAST concurred with Chair McGuire's synopsis of the origins of the doctrine of adverse possession, and noted that the length of time it takes to acquire property by adverse possess land shrinks as one moves westward; for example, on the east coast it takes approximately 20 years, but on the west coast it can take as few as 5 years. He said that the days when individuals could take land out of corporate ownership are over, and concurred that Native corporations are some of the largest landowners in the state, but added that the state has not adopted a policy of wanting to take land away from Native corporations for the purpose of giving it to private individuals. MR. TILLINGHAST opined that the only continuing social utility of adverse possession is "sort of at the fringes." For example: Cleaning up the fence that got built two feet on the wrong side of the property line; or straightening out access problems, whether it be a public trail or a utility easement or a [DOT&PF] project; or kind of the defective deed problems where somebody is claiming property under color of title but there's something wrong with the deed that they've got. Number 2013 MR. TILLINGHAST said that Sealaska has been working on this type of legislation for several years, but the problem that has arisen in the past is that the drafters took on both the core problem of bad-faith squatters attempting to take property away from the owner and the residual issues in which adverse possession still performs a valuable social function. He relayed that SB 93 is much narrower in that it goes out of its way to preserve the useful part of adverse possession while at the same time getting rid of what he called squatters' rights in which a bad-faith trespasser comes onto someone's land for the express purpose of stealing it. He reviewed one of the problems earlier versions of the legislation had, and assured the committee that SB 93 no longer has that problem. However, in order to fix that particular problem, SB 93 has been worded in such a way as to appear to grant rights of adverse possession to the state and to utilities that they don't already have, though it in fact does not do so. REPRESENTATIVE GARA said he just wants to make sure that the provision defining the state and its subdivisions' rights to adverse possession is not being made narrower than it currently is. He asked whether the state's rights to adverse possession is currently defined in statute. [Chair McGuire turned the gavel over to Vice Chair Anderson.] MR. TILLINGHAST said that the state's rights to acquire property by adverse possession would fall only under the general statute that is being changed by Sections 1 and 2 of SB 93; there is no separate statute specifically pertaining to adverse possession by the state. In response to another question, he said that the state gets its adverse possession rights via AS 09.10.030, as does everybody else. Sections 1 and 2 of the bill take those rights away, and then Section 4 adds those rights back in for the state. Number 1857 DARYL L. REINDL said that both he and the attorney he's hired for his adverse possession action are unable to determine what the language in SB 93 means. He said that he is assuming SB 93 will take away his rights of adverse possession, specifically regarding his action pertaining to land in the Wrangell-Saint Elias National Park and Preserve. He offered details of his action and the process he'd undertaken, and said that he is on the brink of acquiring quiet title. He remarked, however, that perhaps SB 93 will not apply to his situation, though his attorney cannot assure him of that. [Vice Chair Anderson returned the gavel to Chair McGuire.] MR. TILLINGHAST opined that SB 93 would not have any affect on Mr. Reindl's action because Section 5 says that [the changes] apply only to actions that have not been barred before the effective date of the legislation. Mr. Reindl's right has vested, he added, thus SB 93 would have no effect on it. MR. REINDL asked whether the bill differentiates between developed and undeveloped property. MR. TILLINGHAST said it does not. He reiterated that if Mr. Reindl has possessed the land in question for a number of years, he has a vested right to his adverse possession claim, and therefore his claim would not be affected by SB 93. MR. REINDL asked if the same would be true if he were to be starting the exact same process with similar property today. MR. TILLINGHAST said that if such were the case, SB 93 would apply and thus Mr. Reindl's action would be affected. MR. REINDL said he didn't think that was fair. Number 1677 RONALD L. BAIRD, Attorney at Law, noted that he is a real estate lawyer and a condemnation lawyer, has been so for 25 years, and has litigated adverse possession claims. He relayed that he'd sent the committee a letter addressing some of his concerns, adding that he disagrees with most of Mr. Tillinghast's comments. Mr. Baird went on to say: The law of adverse possession is a body of law that the courts use ..., among other legal principles, to decide who owns real estate. It has an ancient history, but it has a current utility, and there's no commentators or judges, that have applied this law in recent cases, that are calling for its repeal. As it currently stands, it serves three policies. The first is, recorded title documents often contain errors by laymen, surveyors, title companies, and, yes, lawyers [too] make mistakes. The second principle is that what adverse possession says [is that] eventually we must conform the record title to what has actually occurred on the ground, after giving the record title owners multiple opportunities to vindicate their rights. It says, and it has said for centuries, that ownership of property is not free of obligations: You must come forward like any other litigant, eventually, and assert your right or you lose it. So it prevents stale claims from being in the court. So the doctrine does not condone thievery of property from the rightful owner; it decides who the rightful owner is and has been. It has been helping to decide that question for centuries. The doctrine in its various forms has been applied in more than 20 cases in Alaska since statehood. ... The result in none of those cases has been analyzed by either [Legislative Legal and Research Services] or anybody else to say this is the changes we're making; none of the justices in any of those 20 cases ever called upon or questioned the basic principles of adverse possession, suggesting its repeal. The doctrine is followed in all other 49 states. The bill before you is justified as eliminating the rights of squatters. My question to you [is], who are these squatters and do they constitute a significant problem. A squatter, as the bill proponents would make it out, is someone who knowingly goes on remote land, without any belief in their ownership, remains there for 10 uninterrupted years, and then goes to court and brings a very expensive proceeding to vindicate their title. So defined, there's no such squatter that's ever appeared in a reported case of the Alaska Supreme Court. Number 1527 MR. BAIRD continued: Common sense says that these squatters are probably not there. I own property up by Talkeetna that's eight miles from the nearest road. I've seen people go in there over the years with the view that they're going to live there year around, and what happens is they stay there about two years. Why? Because it's darn hard work to live out in the rural area. All you have to do is put up one year's worth of firewood to realize that it's not ... an easy thing to do in the state of Alaska. But this bill assumes that those people are there in significant numbers, they stay for eight more years than my experience [shows], and they're the sort of people that are going to hire lawyers and come in and understand this complex body of law and apply it. I submit to you that the squatter is mythical. But let's assume that he's not. What the committee has ... not been told is how this bill affects the numerous cases where adverse possession has actually been applied. Senator Robin Taylor, when he spoke against this bill on the Senate floor, described cases from his own personal practice, [and] ... said the results would be different than ... [the] outcome he obtained for his client. And if we took the committee through these cases, ... my prediction would be you would not come away with an unequivocal conviction that injustice has been done. But Senator Taylor also raised the question about the constitutionality of this. And apparently Mr. Tillinghast addressed that question with [Legislative Legal and Research Services], and you have a memorandum dated May 8 from [Legislative Legal and Research Services] attempting to address that. Mr. Tillinghast stated that there has never been litigation addressing the relationship between adverse possession and the just compensation clause of the Alaska [State] Constitution. That is simply incorrect. The case is Alt v. State, 688 P.2d 951, 1984. Does this bill track that case? I don't know. Did [Legislative Legal and Research Services] address whether this bill tracks that case. It certainly did not. Number 1428 MR. BAIRD went on to say: What they appear to say in this memo, they agree that there's no constitutional law. And with my ethical duty clearly in mind, I'm telling you this: Alt v. State is a controlling case that has not been addressed and you do not have a legal judgment rendered on that. But even beyond that, you do not have a legal judgment on the federal constitutional law of just compensation - for which not only is there an issue but there is at least a fiscal risk if not a fiscal impact - which I'd be glad to take a question on after I've completed my remarks. So what has happened here is, you've got a body of common law - it's not in the statutes, it fills 342 sections in Corpus Juris Secundum, a legal encyclopedia; ... [and] the bill before you wipes all of that law off and then attempts to come back and provide what is socially useful. I submit that that is an inherently flawed approach to dealing with the squatter if the squatter is a problem and if we could define him. But ... the drafters have not yet addressed at least two other problems that are out there in the case law. The first is the oral gift of land. There's an Alaska Supreme Court case where a granddaughter received a gift of land from her grandparents and doesn't get a recorded instrument. She improves the property, it's clearly open and visible, but through the ... machinations that happen with record title, she ends up dealing with somebody that has a record title and who tries to evict her. I can tell you for certain that if this bill goes through, that case result is reversed. The other area [that] is not addressed by this ... bill is the private driveway cases .... What came back into the bill was public and utility prescriptive rights, but there's a whole bunch of cases out there that deal with the driveway disputes, which are private prescriptive rights. Number 1314 CHAIR McGUIRE invited Mr. Baird to fax the committee some possible amendments that would address his concern. MR. BAIRD said he appreciates that offer, and elaborated on his concern: We're trying to ... fit about 342 sections of common law ... back into this bill. ... If ... there is a squatter problem and there is an excessive burden on some landowners, the way you get to that is, ... you can lengthen the period of time that adverse possession has to occur before it vests title, ... or you can ... can define the class of lands to which adverse possession does not apply. And incidentally, the reason why [state] and local government lands are not subject to this doctrine is the same reason why they're not subject to punitive damages. The principle is, you don't punish the public - state or local public - for failures or omissions of government officers. In other words, if the government officers don't take action, you don't punish the public with loss of public lands [for] their failure. That principle simply does not apply in the context of the private property owner where, for centuries, one of the burdens of property ownership has been, you must look out for your rights. REPRESENTATIVE GARA asked whether common law contains the exemption of state lands from adverse possession. MR. BAIRD said that in some states it's in the common law and in other states - one of which is Alaska - it's located in statute. Continuing on with his testimony, he said: I suggested two fairly common and legislatively precedent ways of dealing with the problem: either define the land that you don't want the law to apply to, or lengthen the prescriptive period. There's a third approach, which is to define the squatter. And instead of saying, as Section 2 of the bill does, we're going to throw out adverse possession, you would instead say the law of adverse possession, or the principle of this citation, does not apply to this litigant, or this class of persons. And then you would go to find this person that we came to feel is a problem and shouldn't have the benefit of this law. Number 1123 ... Either of those three approaches would leave real estate titles much more certain; it would leave the law of real estate, which is a pretty stable body of law, the least affected. And I'm prepared to volunteer my time and there's other lawyers who could work with the chair to develop a technically feasible bill along those lines if we're given the time. But ... most of my colleagues in the real estate bar are unaware that this bill is even out there. So, if we were allowed to do that, what we could bring back to you would be a surgeon's scalpel dealing with this particular problem; what you have before you is a sledgehammer, it does a great deal of disturbance to the existing law and it raises constitutional questions, both under the [Alaska] State Constitution and the federal Constitution. Thank you very much. CHAIR McGUIRE said she did not disagree with Mr. Baird's comments. She asked Mr. Baird to write out some suggested language changes encompassing the approaches he's mentioned and fax them to the committee within the next hour. She said that she has deep concerns about SB 93, for example, that it's overly broad and that it changes hundreds of years and pages of common law. She mentioned that she would not be able to hold the bill over; thus any suggested language changes should be faxed to the committee as soon as possible. REPRESENTATIVE GRUENBERG asked whether the Alaska statute pertaining to this issue requires a clear and convincing standard of proof. MR. BAIRD said it does not. REPRESENTATIVE GRUENBERG said he thought that such a standard should be included in the statute. REPRESENTATIVE GARA said he is wondering whether "public use" should be included in the statute as well. Number 0896 MR. BAIRD responded: The concern I have about this approach with respect to the state provision is this: Under federal constitutional law, there's a case called Loretto v. Manhattan Teleprompter, which says that if legislatively, you create interference with the landowner's right of possession of property, that is a per se taking of property within the federal constitutional provision under the Fifth Amendment. ... And if, legislatively, you do create a per se taking, the remedy of the landowner is not simply to have the law invalidated. Under a case called First English Lutheran Church v. [County] of Los Angeles, the United States Supreme Court cleared up a longstanding dispute about what the landowner's remedy is by saying the landowner's remedy is compensation for the period that the invalid or improper law is in place. My concern: the defense that you would have here, if you could precisely tailor the legislation to whatever the common law- right is, you might have a defense, because there's another body of takings law that says if the right that's being asserted, to go on the property, is part of the background principles of real property law - like this 800-year-old doctrine - then there's never a taking. But here, you're repealing all of that law and you're substituting for it a legislative enactment. I think there's exposure to inverse condemnation claims for temporary takings even if you can satisfy yourself that it's tailored to the common law, which it's not. I'm not prepared to say that it is. CHAIR McGUIRE relayed that SB 93 would be set aside, which would allow Mr. Baird an opportunity to work with Mr. Tillinghast on the issues raised and the possible amendments suggested. Number 0741 JIM COLVER suggested defining "developed" such that "we exempted from adverse possession, under 43 U.S.C.A. 636(d)(1), extending the exemption to lands which have been logged or including ancillary logging infrastructure." If those types of lands are taken off the table, he added, it might clear up some other concerns without having to amend the whole statute. CHAIR McGUIRE announced that the hearing on SB 93 would be recessed for the purpose of hearing two other bills. [The hearing on SB 93 was recessed until later in the meeting.] SB 93 - ADVERSE POSSESSION Number 1058 CHAIR McGUIRE announced that the committee would resume the hearing on CS FOR SENATE BILL NO. 93(JUD) am, "An Act relating to limitations on actions to quiet title to, eject a person from, or recover real property or the possession of it; relating to adverse possession; and providing for an effective date." Number 1078 JONATHAN TILLINGHAST, Lobbyist for Sealaska Corporation ("Sealaska"), said that Sealaska worked on this bill with Chugach Electric Association, Inc., and an agreement was reached to insert the language found on page 2, lines 17-19. This language ensures a public utility's right to continue to acquire easements by adverse possession. In return, Chugach Electric Association, Inc., agreed that it would support or at least not oppose SB 85. MR. TILLINGHAST remarked that the number of Alaska Supreme Court cases involving squatters is not indicative of how many squatters there actually are in the state, adding that Sealaska has had to deal with squatters. He said that a case in Cordova was typical: It was a fellow who had squatted on this property undetected for nine years. We caught him within a year. He didn't take us to court; we had to take him to court and spend quite a bit of money on [attorney] fees to get him off the property. MR. TILLINGHAST mentioned that the issue of whether repealing the doctrine of adverse possession is unconstitutional has not been addressed. He acknowledged that SB 85 makes no provision for new conveyances by oral gifts, but pointed out that it does have a "grandfather clause." Therefore, although oral gifts of property will no longer be honored, if somebody had made an oral gift more than 10 years ago, it wouldn't be affected by the bill. He remarked that SB 85 was drafted to preclude oral gifts of property because it is not reasonable, in this day and age, for people to think that they can have real property conveyed to them by a mere oral statement; in fact, doing so would now be a violation of the "statute of frauds." Number 1317 MR. TILLINGHAST relayed that in the case involving an oral gift of property from a grandmother to a granddaughter, the court had to invent the boundaries of the property, and had to do so via a two-page description. He observed that one of the virtues of limiting the doctrine of adverse possession is that it will cut down on litigation because one can rely on the paper record. He offered the following quote from what he called a 1996 "Land and Water Review" article: This (indisc.) has endorsed the burial of adverse possession and prescription through legislation; these two ideas are dusty, obscure relics of the past, and finish one bullet short in a showdown with modern public policy. MR. TILLINGHAST offered the following quote from what he called a 1994 "Cornell Law Review": Adverse possession of wild lands should be consigned to the dustbin of legal history as an idea whose time has passed. MR. TILLINGHAST said that several states have abolished squatters rights by simply saying that one cannot bring an adverse possession claim unless one pays the real property taxes on the property. He called this a brilliant suggestion because it announces to the whole world that someone thinks he/she owns the property, and this puts the actual owner on notice. Such a solution wouldn't work in Alaska, however, because much of the remote land in Alaska is located in unorganized boroughs and is therefore not taxed. He relayed that the Florida supreme court has said that if "it" is not conditioned upon the person paying taxes, the actual owner is not given enough notice, and therefore adverse possession is unconstitutional. MR. TILLINGHAST, on the issue of "driveway situations," opined that language on page 2, lines 9-12, would "cover the neighbor dispute where neighbor A is using some of neighbor B's property." Number 1457 RONALD L. BAIRD, Attorney at Law, noted that the quote that speaks to wild lands encompasses the alternative approach that he suggested earlier, adding that that commentator does not propose repeal of adverse possession but instead proposes creating an exception to it to deal with wild lands. He opined that doing so is a sensible approach. REPRESENTATIVE HOLM asked Mr. Baird whether he was familiar with "Duncan's camp against Haines Borough," which he called a "traditional possession case." MR. BAIRD said he was not. Number 1520 JIM COLVER called SB 93 a very important special interest bill, which seeks to trash 800 years of common law just because Sealaska is worried about trespassers on its land. He relayed that in his profession as a surveyor, he runs across "these claims" all the time: driveways that aren't in the right place, and people building over the property line. He surmised that in the Fairbanks area there are a lot of old gold claims and homesteads and patents where people go across other people's land to get to their cabins. He said that as currently written, there is no sufficient clause in SB 93 to cover private roads and private driveways; the bill only covers "adjoiners," and would not apply in situations where one must travel over several parcels of land owned by separate people. MR. COLVER said that at a minimum, the committee needs to amend SB 93 such that it would cover private roads, trails, and driveways. He added that such language would look similar to that which pertains to public roads. He said it is really important for people to retain access to their fishing holes, to their cabins, and to their homes. Currently, one can go to court and prove open and notorious use, but under SB 93, "we're doing away with that," he added. He relayed that the Matanuska- Susitna borough attorney was concerned about "the upgrading of the title in the utility provision from prescriptive right to (indisc.) easement, and was concerned that the municipalities would need to be exempted from that." He surmised that perhaps that is the intent, but suggested that some specific language ought to be added to clarify that point. MR. COLVER said he agrees with Mr. Baird's testimony. He elaborated: The way I see this, [Alaska Native Claims Settlement Act (ANCSA)] already exempts Native corporations from adverse possessions in lands that aren't developed, and lands that are developed don't include surveying, roads, utility construction. A simpler fix, without having to monkey with the whole statute, I believe, would be to define "developed" in our statute as it pertains to [43 U.S.C.A.] 636(d)(1) and ANCSA, and deal with what Sealaska's issues are (indisc.) what status that land is in - has it been logged, [are] there roads on it. Number 1647 That way, we still preserve the doctrine that is used a lot. And I'll give you one instance. My brother John is an attorney and I talked with him about this bill, and he said he had a case in Chitna where the Kennicott Corporation granted lands to their employees. And deeds were lost or the court house burned down, the family had [known], they'd seen the deeds, but in order to perfect their title and the claim, protect it from the successor to the Kennicott Corporation, they had to go to court and prove adverse possession. MR. COLVER concluded: So this is used day in, day out and will ... need to be used for defective titles without any color of title, no deed, document, that asserts any form of ownership. And I don't know why we need to rush on this and wipe out 800 years of legal doctrine to solve a trespass problem. ... I would think that we'd be able to craft language to narrowly deal with Sealaska's concern, and retain the access that we've had to take title and private roads. You've given it to utilities - in this bill - we've given the public roads prescriptive rights, but we've left out those people with driveways and private roads. And at a minimum we need to include them. REPRESENTATIVE OGG turned attention to Section 4, subsection (d), and said it appears that if the public makes use of someone's private land to get down to the beach for 10 years, the landowner would lose his/her land to the state. He said "that's" offensive to him. MR. COLVER said that if the landowner blocks off the trail and interrupts its use, the time stops. REPRESENTATIVE OGG noted that what's being portrayed to the committee are situations wherein the land is so remote that the landowner - for example, Sealaska Corporation - does not know that its land is being used and does not want to have the responsibility of monitoring its land. Currently, if 10 years go by, then adverse possession occurs and the property, in the example of the public accessing the beach, is given to the state or municipality as a public trail. MR. COLVER acknowledged that currently, 10 years of open and notorious use applies to all property, private or public. REPRESENTATIVE OGG said he did not think that's right. Number 1804 MR. COLVER mentioned that surveyors are upset about SB 93. REPRESENTATIVE GRUENBERG turned attention to the suggested language change offered in writing by the Matanuska-Susitna borough attorney. The change, he surmised, would be to add "any municipality," after "against" on page 2. line 13. He asked whether such language is already in statute elsewhere. MR. TILLINGHAST suggested that that concern has been addressed via Senator Wagoner's letter to Commissioner Irwin. He added that the bill is not intended to give utilities acquisition authority over municipal, state, or federal land. He opined that the sponsor's letter was sufficient and an actual amendment would not be needed. REPRESENTATIVE GRUENBERG pointed out that Alaska's superior courts aren't necessarily going to see that letter. Therefore, if the committee really wants to be sure that the sponsor's intent is carried out, there should be language in statute, he added. MR. BAIRD said that originally, the state and utilities were addressed in the same section the bill, but a belief arose that it would be more convenient to have them addressed in separate sections. He said that he'd proposed a suggestion to add "private land" to subsection (c), located in Section 4 of the bill. Legislative Legal and Research Services, however, opted to use the term "real property". He said he is not sure why Legislative Legal and Research Services want to use "real property", but suggested that this is what has lead to the concern regarding municipalities. He relayed that his client, Chugach Electric Association, Inc., is satisfied with the language as is, but does not assert that it can, under existing law, acquire a right against the government or private entities, and acknowledges that it has no greater right than a private party. REPRESENTATIVE GRUENBERG read portions of the borough attorney's written testimony, and posited that perhaps the suggested language ought to go in Section 4, rather than Section 3. Referring to the written testimony, he surmised that it meant that "you couldn't get title, but you could get an easement by adverse possession." Number 2057 MR. BAIRD said he is wondering why the United States is referred to at all in SB 93, since there is no way that the state can say anything about how the federal government is going to be divested of its lands. He suggested that the language in subsection (d) of Section 4 would make it an exception to Section 2 of the bill, adding that under existing law, private utilities cannot acquire interests by prescription, which is a sub-doctrine of adverse possession, from public entities. He said that the problem with what has been proposed by the borough attorney is that "this" section deals with public utilities, which includes both his client, Chugach Electric Association, Inc., and municipalities to the extent they are providing public utility services. REPRESENTATIVE GRUENBERG surmised, then, that "it would be meaningless because obviously a municipality can't get adverse possession against itself." MR. BAIRD added, "Or the state." REPRESENTATIVE GRUENBERG offered that perhaps the language suggested by the borough attorney ought to go on line 19 at the end of subsection (c). MR. TILLINGHAST relayed that Legislative Legal and Research Services has indicated that the existing "immunity law" for municipalities only protects them from being divested of title; it does not protect municipalities from being subject to an easement acquired by adverse possession from another governmental entity or a public utility. If such is actually true, he remarked, then the borough attorney's suggestion would expand the municipality's rights and shield it against a utility acquiring a power line easement over municipal property, and would therefore be a change in existing law. REPRESENTATIVE GRUENBERG said he thought that under Title 9, "you can't get adverse possession." MR. TILLINGHAST offered that the operative language is in Title 29. REPRESENTATIVE GRUENBERG surmised, then, that as a matter of policy, no one should be able to get a prescriptive easement against a municipality. He mentioned that he'd like to insert language to protect municipalities, adding that it would be good public policy. Number 2248 MR. TILLINGHAST opined that the theory behind protecting a public utility's right to acquire prescriptive rights for power lines is that power lines "sort of go where they go," and they may very well need to go over municipal land. REPRESENTATIVE GRUENBERG said he is not saying they shouldn't; rather, the question is, do they get a prescriptive easement, which is an easement in perpetuity. MR. TILLINGHAST surmised that that argument raises the philosophical question of, should yet another exception be carved out wherein government gets preferential treatment over the private sector. He added that adverse possession already prefers the government over private enterprise. CHAIR McGUIRE asked Mr. Tillinghast whether he would be willing to allow "a carve out for prescriptive easements," for example, in situations where a family has a cabin and has been using a particular path over another person's property for more than 10 years because there is no other way to get out to the roadway or to the lake. REPRESENTATIVE GRUENBERG remarked, "easement of necessity (indisc.) or by implication." MR. TILLINGHAST pointed out that in that example, if the family has used the path for over 10 years, then SB 93 would not affect that family because it would be "grandfathered." CHAIR McGUIRE clarified that she is talking about future such situations. MR. TILLINGHAST said that under SB 93, for situations in the future, his client would prefer that the family pay for "it," either by negotiating the purchase of an easement or, if his client refuses to do that, by bringing an action claiming the right to an easement by necessity. He added that in the latter case, the court would fix fair market value to the property. The bottom line, he remarked, is whether the family has to take his client to court, which the family would have to do anyway for adverse possession. He stated, "They'll have to pay us the fair market value of that easement and we'd prefer, in the future, that that's the way the world worked." Number 2346 MR. BAIRD opined that the principal of easement by necessity would not be affected by SB 93 because it is a separate body of law that arises from applied rights under a pattern of "conveyancing," so that if one conveys a series of separate parcels in such a way as to leave somebody landlocked, the law applies, in the conveyance itself, the preservation of an easement. He offered his belief that in such a situation, existing law would protect the family in Chair McGuire's example. CHAIR McGUIRE indicated agreement. TAPE 03-72, SIDE B Number 2362 REPRESENTATIVE ANDERSON moved to report CSSB 93(JUD) am out of committee with individual recommendations and the accompanying zero fiscal note. Number 2354 REPRESENTATIVE OGG objected. Number 2349 A roll call vote was taken. Representatives Holm, Samuels, Gara, Anderson, and McGuire voted in favor of reporting the bill from committee. Representatives Ogg and Gruenberg voted against it. Therefore, CSSB 93(JUD) am was reported out of the House Judiciary Standing Committee by a vote of 5-2.
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