Legislature(2007 - 2008)BUTROVICH 205
04/02/2007 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB25 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 104 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 25 | TELECONFERENCED | |
HB 25-RECREATIONAL LAND USE LIABILITY/ADV. POSS
3:33:54 PM.
CHAIR HUGGINS announced HB 25 to be up for consideration.
REPRESENTATIVE SEATON, sponsor of HB 25, gave the committee
background on the bill's progress.
CHAIR HUGGINS asked if anyone was resistant to this bill.
REPRESENTATIVE SEATON replied that no groups have spoken against
it, but he had been contacted by three lawyers with concerns
about the definition of gross negligence. He noted a March 21
memo from Mr. Bailey, Legal Services, which explained where the
Alaska pattern jury instruction for gross negligence came from.
A discussion of the differences between ordinary and simple
negligence followed at the bottom of the memo. He stated whether
the state wanted to have a higher burden on property owners is a
policy decision.
3:37:22 PM
SENATOR STEVENS joined the committee.
3:37:49 PM
SENATOR WIELECHOWSKI said this is going on to Judiciary where
those issues can be considered.
SENATOR MCGUIRE asked why they were going back to adverse
possession, which was her bill originally and that a compromise
had been struck on prescriptive easements, page 2, subsection
(d).
REPRESENTATIVE SEATON replied that a March 5 memo to Senate
Resources discussed adverse possession in the 2005 legislation
that was passed. He explained that one part of the bill says,
"the uninterrupted adverse notorious use of private land for
public access purposes including trails by the public for a
period of 10 ten years or more vests an appropriate interest in
the land." This allows adverse possession, but another
classification says that the landowner can go back and ask for a
repeal without a statute of limitations. That's what they did
before. Nothing in this bill would stop previous adverse
possession or prescriptive easements from being valid. He
explained:
What it would mean is from this point going forward,
if you gave free recreational use to somebody of your
private land, that use would not gain prescriptive
easement or adverse possession right. I mean you
wouldn't go back 20 years and say we're voiding what
has taken place. This is simply going forward and says
that if you, as a private land owner, allow somebody
to have a trail across your land, you don't have to
worry about them gaining a prescriptive easement by
you letting them have free use of your land for a
trail going across it. And the whole purpose of that
is to gain more trails and recreational use in Alaska.
3:41:01 PM
SENATOR MCGUIRE responded that he was focusing on just one
specific part of the law and she didn't disagree with the way he
described it, but she said you have to think about the flip
side:
Which is first of all adverse possession requires open
notorious and adverse possession, which means it's
adverse to the person who is holding it. So, it's a
totally different doctrine. That's not 'Hey, you're
the family next door to my cabin. By all means, snow
machine across it; I'd like to share that access with
you.' It's a different doctrine of law and the point
of the doctrine of the law, well many years ago, is to
help settle land disputes that could occur without
people recognizing it - that plat lines and things are
drawn in ways that the public record may not have been
clear about...
She was concerned about cutting off people's access to
recreation that they had used for a long time previously. Under
current law that kind of access could not be barred.
3:42:49 PM
DENNIS BAILEY, Legislative Legal Services, agreed with Senator
McGuire that adverse possession is a big body of law that has
many twists and turns. However, he agreed with Representative
Seaton's analysis, "That this bill would not affect a 20-year
use issue, because it can't be used prospectively to add to the
time it might be required to perfect an easement."
SENATOR MCGUIRE clarified that the logic that this bill somehow
doesn't apply to current situations doesn't appease the
fundamental premise of her argument. "Let's say that Lyda is
five years old and I'm six and there's no cabin in our near
future for quite some time, that's what I'm talking about."
3:44:14 PM
MR. BAILEY replied that the issue might come up in a
circumstance where a person has vested for 9 of the required 10
years or is close to perfecting a prescriptive easement. This
would cut off their right to use it for another year and perfect
the easement.
CHAIR HUGGINS recommended letting those issues be taken up in
the Judiciary Committee, the next committee of referral.
3:47:18 PM
SENATOR STEVENS moved to pass HB 25 from committee with
individual recommendations and attached fiscal notes.
SENATOR STEDMAN objected to announce that he holds remote
property; he then removed his objection and HB 25 passed from
committee.
There being no further business to come before the committee,
Chair Huggins adjourned the meeting at 3:48:24 PM.
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