Daily Development for
Tuesday, August 18, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EASEMENTS; TERMINATION; CHANGE FROM PUBLIC TO PRIVATE BENEFIT: Public access easement benefitting State land transfers to private owner who acquires the State's interest.

Lake Colleen Est. v. Estate of Mark, 951 P.2d 427 (Alaska 1997).

The State of Alaska owned two parcels of land adjacent to a lake in a scenic area. It sold one parcel to Lake Colleen Estates under an installment contract arrangement by which the State retained title. It leased the other to Mark, subject to a platted "public access easement."

Subsequently, the State sold the parcel to Mark "subject to platted easements and reservations." Later completed the sale to Lake Colleen Estates, which used the easement for access to its property, not to the lake.

Marks challenged the Estates owner's right to use the easement. It pointed out that the Estates had alternate highway access to its property, and that the State, in creating the public easement, had intended to provide public access to the lake, not private access to the highway for a private owner of adjacent land. The trial court, applying a regulatory definition of "public access easement," found for Marks. Estates appealed, arguing that the regulatory definition was inconsistent with statutory policy.

On appeal, held: Reversed. Estates can use the easement. The Supreme Court of Alaska pointed out that a public access easement to gain access to a parcel formerly in the State's possession is not destroyed when the state conveys full title of that parcel to a private owner. The same principle applied here, even though the Estates property was only nominally the State's property at the time the easement was created, since the Estates was to acquire full title later. The court pointed out that the Estates might have defaulted, so that the State would have regained ownership. There were statutes involved that, in the view of the court, made it possible for the State to interpret the concept of "public access easement" broadly to enough to encompass a purpose to benefit private lands.

Comment 1: It is not immediately apparent to the Editor why the court would view the State as going out of its way to provide a special benefit to a private party across the land of another private party. Why couldn't the court have concluded that the easement reserved by the State was for public benefit only, as that benefit might appear in the future?

Comment 2: In this case, the servient tenement had no choice in the matter he got his land under a state program and probably was lucky to get it at all. Consequently, one might say that his protest of the use of the easement by the adjacent property owner is a bit of an overreach. But it does appear that the real dispute was over the use of the easement to take out gravel and other resources, so there may have been a more understandable motive for the servient owner to engage in the dispute.

Comment 3: It is common for owners of private tracts in scenic areas to provide public easements, often at reduced prices, and sometimes free. Isn't it possible that in many cases the grantor of an easement to the public, especially in such scenic areas, might be less inclined to provide such an easement to a private interest? Looks like if that's the case, the grantor's attorney better ask the questions and provide the necessary restrictions in the easement document.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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