Legislature(2003 - 2004)
04/16/2003 01:00 PM Senate 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
MS. AMY SEITZ, staff to Senator Tom Wagoner, sponsor of SB 93,
told members that adverse possession is an archaic doctrine. It
was established during the Middle Ages when the government
wanted a vast amount of wild land put to use. A trespasser could
squat on property and after a period of years, the trespasser
would gain title to the property at the expense of the true
owner. SB 93 will align some of the rights of private property
owners with the rights of the state and federal governments that
have already exempted themselves from adverse possession laws.
CHAIR SEEKINS interrupted Ms. Seitz to ask that the proposed
committee substitute be addressed.
SENATOR OGAN moved to adopt the proposed committee substitute
for SB 93, version V, and then objected for the purpose of
hearing an explanation of the changes.
CHAIR SEEKINS asked Ms. Seitz to continue her overview on the
bill.
MS. SEITZ told members the changes made in Version V are on page
2, beginning on line 7. The phrase "or other interest in land
necessary for the construction, management, operation, or
maintenance of a public transportation or public access right-
of-way" was added. The reason is that the Department of
Transportation and Public Facilities (DOTPF) is concerned that
the original language would not include land outside of the
right-of-way area, such as rest stops and culverts.
SENATOR OGAN said he was looking at the previous bill and the
sentence Ms. Seitz described is also in that version.
MS. SEITZ replied, "The uniform version was not the version that
was passed out of [Senate] Labor and Commerce. That was a draft
CS that Senator Wagoner and everyone agreed would not be adopted
so I believe the Q version... was passed out of Labor and
Commerce."
The committee took a brief at-ease.
CHAIR SEEKINS said that members now had a copy of version Q,
which passed from the Senate Labor and Commerce Committee and
they could compare that to Version V.
MS. SEITZ repeated the change to Version V is on page 2,
beginning on line 7.
SENATOR OGAN asked why that language was added.
MS. SEITZ said it was added to include the land outside of the
right-of-way areas that is necessary for maintenance of rights-
of-way, such as rest stops, ditches and culverts.
CHAIR SEEKINS explained that a fill area overlapping a right-of-
way would also be covered under this legislation.
MS. SEITZ agreed.
SENATOR OGAN asked for an explanation of the phrase,
"uninterrupted adverse notorious possession."
MS. SEITZ said that phrase is in AS 09.45.052.
SENATOR OGAN asked what would be accomplished by adding the new
subsection (c) that deals with uninterrupted adverse notorious
possession.
CHAIR SEEKINS explained DOTPF is concerned that without this
provision it could not use federal funds to build a road because
it would not be able to tell the federal government it had clear
title to a right-of-way.
SENATOR FRENCH said instead of the state having to prove that it
owns every square inch of a right-of-way it could rely on the
fact that a road has existed for 20 years. Even if it didn't
have proof through an uninterrupted title, it could say it owned
it through adverse possession.
CHAIR SEEKINS said without that provision, DOTPF would have to
prove that it owned every square inch.
SENATOR OGAN reminded the committee to be mindful of private
property rights as well. He maintains that DOTPF has gotten by
for years without this language and questioned why it is
necessary now and how it will affect private property rights.
CHAIR SEEKINS said it was included because the committee is
trying to change the first section of the bill. In order to do
that, the state must make it clear that it is continuing with a
policy that has already been in effect.
SENATOR FRENCH agreed and said it basically extinguishes adverse
possession as to all players in the state except for the state.
SENATOR OGAN removed his objection and version V was the
document before the committee.
CHAIR SEEKINS called for public testimony.
MR. TOM SCARBOROUGH, a registered land surveyor from Fairbanks,
said if Alaska extinguishes this right, it might be the first
state to do so. Most likely, most Alaskan surveyors are
adamantly opposed to preventing adverse possession. Many
driveways in the Fairbanks Northstar Borough trespass on someone
else's property. Many of the rights-of-way in some areas have
been developed from adverse possession because they have been
used for many years. He said it is not right to extinguish this
doctrine because the Native corporations do not want to spend
money to police their own property.
SENATOR OGAN asked Mr. Scarborough how this bill would affect
those people who have driveways on property that does not belong
to them.
MR. SCARBOROUGH said it is common for a driveway to cross the
corner of a neighbor's lot. If your neighbor decides he doesn't
want the driveway there anymore, you would have no rights and
access to your property could be blocked even though you used
the driveway for many years without any objection. He said he
believes the current statute reads that to maintain right to
one's property, the individual has to block access at least once
per year.
MR. HENRY CROW, a commercial fisherman and homesteader stated
opposition to SB 93. He said the current statutes are adequate
to handle any kind of land infringement. SB 93 will open up a
can of worms. Whenever a law is enacted that infringes upon the
Constitution or the Bill of Rights, we go back to anarchy and a
time when there were no laws to protect the individual. The
right to have or possess a dwelling or shelter goes back to when
God gave the Torah and other laws to mankind. He told members
that Senator Wagoner informed him that this bill failed three
times and he asked members to reject it again as it is
unnecessary.
MS. SEITZ told members that DOTPF staff, a representative from
Sealaska Corporation, and Jon Tillinghast were available to
answer questions.
SENATOR FRENCH noted that version U included an exemption for
prescriptive easements. He asked why version V removed the
exemption.
MS. SEITZ said that a representative of the Homer Electric
Association (HEA) spoke to Senator Wagoner several days ago to
express concern that some of their power lines that go through
easements might be affected so subsection (d) was removed.
SENATOR FRENCH asked if the exemption was inserted at HEA's
request and then removed at HEA's request.
MR. JIM BUTLER, an attorney representing HEA, said this bill was
brought to his attention a few weeks ago while he was in the
process of working with the land manager to evaluate the scope
of utility easements that have been proven through the
prescriptive easement process. He has been trying to find out
what other interests the bill attempts to address to see if all
parties could agree on some language. Subsection (d) in version
U appears to address the issue but he wants to clearly
understand whether simply addressing prescriptive easements is
sufficient. He is also attempting to understand some of the
other issues raised for other types of prescriptive easements.
He asked Senator Wagoner's staff for a little more time to
address the issue.
SENATOR FRENCH asked if this bill would be held in committee and
if the easement issue is up for study.
CHAIR SEEKINS said because there are unanswered questions, he
plans to hold it over for another meeting.
SENATOR OGAN asked what motivated the sponsor to introduce the
bill.
[SENATOR THERRIAULT joined the committee.]
SENATOR WAGONER informed members that Sealaska Corporation asked
him to introduce this bill. It deals with a lot of Sealaska and
other Native corporation property. The corporations have had
many problems and hire people to police their lands to make sure
no one is squatting on their properties.
SENATOR OGAN said one of his concerns is that large private
properties might not have an RS 2477 or other access to their
lands so the only avenue available to them is adverse
possession. He said part of a landowner's responsibility is to
check his or her land and, if someone built a cabin on that
land, the landowner has 10 years to find it.
SENATOR WAGONER said that Sealaska's attorney could address that
issue.
MR. JON TILLINGHAST, legal counsel for the Sealaska Corporation,
told members that a private landowner is obliged to police his
land only because the government has imposed an obligation on
the private landowner to do so. One of the ironies of that
requirement is that the government does not put the same
obligation on itself. If one asks why a person cannot get
adverse possession rights against the state or the United
States, they are told it is because the government's land
holdings are large and remote and it would be an undue burden to
police its own land. Sealaska thinks that logic applies equally
to private lands. The doctrine of adverse possession used to
have legitimate social functions. It came about because
possession used to equate to title. The doctrine went through a
lot of iterations and came to the U.S. when the railroads were
getting large grants of land adjacent to the lines they were
laying. Western legislators wanted individual homesteaders to
take that land from the absentee railroads so the doctrine was
imported to the western states. He said he does not believe it
is the state's public policy to take land from large
corporations and give it to individuals at no cost.
MR. TILLINGHAST said when writing the bill, Sealaska tried to
take care that it would not affect existing rights. Section 3
says if a person has driven across a driveway for 10 years,
nothing in this bill takes that right away. However, from now
on, if one wants to drive across another person's property, the
person will have to pay for it.
SENATOR THERRIAULT asked about situations in which people
thought their driveways were legitimately on their own property.
MR. TILLINGHAST said there are two types of adverse possession:
bad faith and good faith. The bad faith involves a person who
moves onto a piece of property and builds a squatter's cabin.
The good faith involves a person with a deed for a piece of
property and he thinks he knows the boundaries, but ends up
inadvertently using adjacent property. He said the bill
introduced last year would have abolished good faith adverse
possession. This bill does not, it only deals with bad faith
adverse possession where a person has no written instrument
whatsoever on which to base his claim. He said the bill would
not affect the people in Senator Therriault's example.
SENATOR OGAN said that a previous testifier said that if this
bill were enacted, Alaska would be the first state to undo its
adverse possession laws. He asked if that is accurate.
MR. TILLINGHAST said to the best of his knowledge that is
correct. He said that in response to a question about the need
for state governments since a federal government exists, Justice
Brandeis said that states serve as laboratories for improvement
of our laws. He said Alaska is the first state to take a hard
look at where the doctrine of adverse possession came from and
whether it serves any continuing social utility.
SENATOR OGAN said he probably could claim adverse possession on
his neighbor's land because he's been riding his horse across
that land for over 20 years. He asked if he would have to assert
possession before the effective date of this bill.
MR. TILLINGHAST said his possession would have to be
uninterrupted, adverse, contrary to the owner's interest and
notorious, meaning it was not a hidden activity. He said if
Senator Ogan could meet all of those requirements, he would have
a vested right to the easement now and the bill would not take
that away.
SENATOR THERRIAULT asked if that would grant a right to an
easement, not to ownership.
TAPE 03-24, SIDE B
MR. TILLINGHAST said that is correct.
CHAIR SEEKINS said he would hold SB 93 in committee to give
everyone a chance to get their questions answered. He thanked
participants and announced the committee would take up SB 64.
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