Legislature(2003 - 2004)

05/18/2003 10:45 AM House JUD

Audio Topic
* first hearing in first committee of referral
+ 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    He described  adverse  possession  as an  outdated                                                               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                                                                    
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                                    
     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                                                                    
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                                                                    
     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                                                                 
     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                                                                    
     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                                                               
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                                                                       
     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                                                                    
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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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