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