Legislature(2003 - 2004)

04/16/2003 01:00 PM Senate JUD

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

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