Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.gov.

THE SUPREME COURT OF THE STATE OF ALASKA

DANIEL S. ANDERSON, ALISON 

ANDERSON, STEPHEN T. LEWIS, 

GERALD ROBERT LEE, TERENCE 

S. VALENTINE, SALLY J. 

VALENTINE, EDWARD G. WILSO

SUZANNE HAMMOND WILSON, 

JAMES P. HOEFFLER and KARYN 

K. WARNER, as Trustees for and on 

Behalf of the Hoeffler Family Trust, 

DON WARD, GALEN GAUNT, 

CLAUDIA E. HOVERSTEN, as

Trustee for and on Behalf of the 

Hoversten Revocable Trust, 

MATTHEW F. WARNICK, MELANI

WARNICK, HERMAN J. 

SCHLIESING and MYRA K. 

SCHLIESING, as Trustees for and on 

Behalf of the Schliesing Alaska 

Community Property Trust, MARTIN 

BONIEK for Copper Valley Air 

Service, LLC, as its Managing Member

and CLARE JAEGER, 

 Appellants, 

v. 

KIRK WILSON and JULIE WILSON, 

 Appellees. 

N, 

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J. 

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Supreme Court Nos. S-18145/S-18425

perior Court No. 3PA-18-01020 CI

 I N I O N

. 7714 – August 30, 2024

Su

O P

No

Appeal from the Superior Court of the State of Alaska, Third

Judicial District, Palmer, Kari Kristiansen, Judge.
-2- 7714

Appearances: G. R. Eschbacher and David Donley,

Eschbacher & Eschbacher, PC, Anchorage, for Appellants. 

Phillip Paul Weidner and Lisa Rosano, Phillip Paul Weidner 

& Associates, APC, Anchorage, for Appellees. 

Before: Maassen, Chief Justice, and Carney, Borghesan, 

Henderson, and Pate, Justices. 

CARNEY, Justice. 

INTRODUCTION

 These appeals, one regarding the trial’s outcome and the other the 

attorney’s fee award, arise out of a property dispute between neighbors on remote 

parcels near a lake. A group of landowners sued their neighbors to the south, arguing 

that the southern neighbors wrongly blocked access to the northern properties from a 

highway. The northern landowners argued that a public easement had been established 

over the southern property. The court concluded that the northern property owners had 

been granted only a private easement over the land. It determined that the southern 

property owners were the prevailing party and awarded them attorney’s fees. The 

northern landowners appeal both the court’s easement determination and attorney’s fee 

award. We affirm the court’s easement decision, but we vacate and remand the fee 

award for further consideration.

FACTS AND PROCEEDINGS

A. Facts

 All parties in this case own property adjacent to Tolsona Lake, north of 

the Glenn Highway. Tract B-1, the property at the core of this dispute, is owned by the 

Wilsons. The appellants in this case live north of the Wilsons, along the lake. We 

collectively refer to the northern landowners as the Andersons. The graphic below 

illustrates the approximate location of the parties’ properties, the lake, and the road

relative to one another. 
-3- 7714

 Oscar Sylvester homesteaded near what is now the Wilson property in 

1946. In 1947 Sylvester filed a notice of location describing the property, and in 1952 

he applied for a land patent. He amended his patent application in 1954, and he was 

granted a patent for the property in 1955. A road of some kind was constructed across 

Sylvester’s property, and it is this road the northern neighbors argue is a public 

easement giving access to their properties from the highway. 

 Chester and Bessie Bunsek purchased the Sylvester property in 1962. 

They subdivided and platted the property several times. In 1978 the Bunseks created 
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the R & R Subdivision on an adjoining parcel by plat, which “dedicate[d] all streets to 

private use.” Then in 1989 the Bunseks platted the Tolsona Lake Subdivision, which 

includes Tract B-1. 

 In 2000 the Wilsons came into possession of the land upon the death of 

Bessie Bunsek. The Wilsons converted a building on the property into their private 

home and operated a public lodge on the property. In 2005 the Wilsons further 

subdivided and platted the property, creating the Bunsek Estates Subdivision. 

 The Wilsons and their neighbors to the north previously litigated access 

over the Wilsons’ property. In 2005 the neighbors sued to establish a public easement

similar to the one they seek in this litigation over the Wilson property. That dispute

was settled in 2007 with the establishment of a private easement. The settlement 

granted the northern landowners access over a route that is near the route at issue in this 

case. That easement runs with the land, so later purchasers of the northern properties

benefit from it alongside owners at the time of the settlement. 

 In 2017 the Wilsons briefly blocked access over their property after 

perceived excessive use of the road by unauthorized individuals, prompting this 

litigation. 

B. Proceedings

 In January 2018 the Andersons filed a complaint seeking a permanent 

injunction, damages, and recognition of a public easement across the Wilson property

to provide access to their own properties to the north. They alleged they possessed 

public easements by patent and subdivision agreement, by prescription, and under 

Revised Statute 2477 (RS 2477).1

 They also alleged they had an easement by estoppel 

over a road they helped the Wilsons construct with the understanding it would be public. 

1 RS 2477 was part of the Lode Mining Act of 1866 and provided for selfexecuting public rights of way. See Dickson v. State, Dep’t of Nat. Res., 433 P.3d 1075, 

1082-83 (Alaska 2018).
-5- 7714

A later filing indicated the Andersons sought a private easement as an alternative to a 

public easement. The Wilsons largely denied the allegations and maintained the road 

“is and always has been for permissive use only.” 

The superior court held a 12-day bench trial in February and March of 

2021. The Andersons called several residents and business owners to describe how 

they travelled through the area in the past. The Andersons also called an expert witness, 

and Daniel Anderson testified on his own behalf. Daniel Anderson testified that when 

he purchased his property, Kirk Wilson “assured me that there [were] no restrictions on 

coming, going . . . I understood [the road] to be public.” He also testified that, to his 

knowledge, fuel deliveries had always been made to residents over this road. A fuel 

delivery driver who has served the area since the 1990s testified that he used the road 

to make monthly deliveries to the residents and air taxi businesses in the area. He noted 

that he never sought permission to use the road, even after Wilson posted signs 

requesting that drivers “check in with the lodge.” 

Clare Jaeger, whose parents settled in the area in 1946, also testified. She 

explained that she had always been aware of a trail that went through the Bunseks’ 

property, and testified as to her own use and use by others of roads to travel to and from 

the Wilson property. Jaeger also described an incident in which Kirk Wilson yelled at 

her as she drove down a road in the area, and explained that she later found a copy of 

the 2007 settlement in her mailbox with a note to use the road described in the settlement 

agreement — not the one she had been driving on. Jaeger testified that she continued 

to use that road. 

The Wilsons called three witnesses, including their own expert. Kirk 

Wilson testified on his own behalf. He testified that he has historically allowed access 

over his property for his neighbors to the north, customers of the air taxi businesses that 

several of his neighbors operate, and fuel truck deliveries. He noted that the road 

crossing his property has been marked with signs since 1981. Two signs “in front of” 

and “behind” a lodge adjacent to the road indicate the road is for “residents only” and
-6- 7714

set a 10 mile per hour speed limit. A sign was also posted near the road requesting that

visitors check in at the lodge. But Wilson explained he grew concerned at the extent to 

which “strangers” were crossing his property, leading him to place a cable across the 

road. 

 Wilson also described antagonism by several neighbors in the time before

and after placing the cable. He testified that Clare Jaeger would drive on the road at an 

excessive speed when his young grandchildren were present and that she would not stop 

doing so. Jaeger was not a party to the 2007 settlement granting a private easement 

over this road. 

 Wilson also described an incident in which Gerald Lee and two other 

neighbors yelled obscenities and made obscene gestures towards Wilson and his 

daughter after the start of litigation. Wilson also testified that he has always been

willing to permit “private ingress and egress” for landowners in the area’s subdivisions. 

The Wilsons maintained the position at trial that they continued to respect the private 

easement from 2007 to allow neighbors to cross his land to reach their properties along 

the lake. 

 The court issued its verdict, findings, and conclusions of law in June 2021. 

Aside from several issues not on appeal, the court found for the Wilsons. It concluded

there were no public easements and that the Wilsons had granted the Anderson property

owners and their “clients, guests, [and] invitees” a private easement — “consensual 

permissive private use easement rights.”2 

 The court found there was no public easement by necessity. It also 

determined that there was no RS 2477 right of way or any public roads dedicated or 

2 With a few handwritten exceptions, the court adopted the Wilsons’ 

proposed verdict form. It used the term “consensual permissive private use easement 

rights” to describe the easement the Wilsons had established on their land. For clarity 

we refer to it simply as a “private easement.”
-7- 7714

reserved in the original or subsequent plats. The superior court also concluded that, 

because the Andersons had crossed the Wilson property with permission, their actions 

did not establish prescriptive easements. Finally, the court awarded the Wilsons 75% 

of their attorney’s fees. 

 The Andersons appeal the superior court’s decisions about easements and 

its award of attorney’s fees. 

STANDARD OF REVIEW

 “A superior court’s determination of whether an easement . . . exists is 

based on findings of fact and legal conclusions. We do not disturb a trial court’s 

findings of fact unless they are clearly erroneous. We review the application of law to 

facts de novo.”3 

 We review the superior court’s evidentiary rulings, including the 

exclusion of evidence, for an abuse of discretion.4

 “Errors in the admission or exclusion 

of evidence warrant reversal only if necessary to ensure ‘substantial justice.’ ”5

 The superior court has “broad discretion in awarding attorney’s fees,” and 

“this court will not find an abuse of discretion absent a showing that the award was

arbitrary, capricious, manifestly unreasonable, or stemmed from improper motive.”6

DISCUSSION

 The Andersons raise several arguments on appeal. They challenge the 

superior court’s holding that no public easement exists through the Wilsons’ property 

3 HP Ltd. P’ship v. Kenai River Airpark, LLC, 270 P.3d 719, 726 (Alaska 

2012) (internal citations omitted). 

4

 Guilford v. Weidner Inv. Servs., Inc., 522 P.3d 1085, 1093 (Alaska 2023). 

5 Id. (quoting Luther v. Lander, 373 P.3d 495, 499 (Alaska 2016)). 

6 Oakly Enters. v. NPI, LLC, 354 P.3d 1073, 1079 (Alaska 2015) (quoting 

United Servs. Auto. Ass’n v. Pruitt ex rel. Pruitt, 38 P.3d 528, 531 (Alaska 2001)).
-8- 7714

and assert that the superior court made evidentiary errors at trial. The Andersons also 

challenge the court’s award of attorney’s fees to the Wilsons. 

 The Andersons make three broad arguments attempting to establish public 

access over the Wilsons’ property. The first is that an RS 2477 right of way was 

established by public use of a “bulldozed” or “gravel” road. The second is that patents 

and plats for the area officially established a public road.7 The third is that a public 

easement exists under a common law theory of necessity, prescription, or estoppel. We 

do not find these arguments persuasive. 

A. The Superior Court Did Not Err By Concluding That There Is No

RS 2477 Right Of Way Through The Wilsons’ Property. 

 Section 8 of the Lode Mining Act of 18668 provided for the self-executing 

preservation of rights of way over unreserved federal public lands if “a public highway 

was established across public land in accordance with the law of Alaska.”9 As we have 

explained: 

To effect the grant of a right-of-way, either the public or the 

appropriate state authorities must take positive action. 

Specifically, the public must use the land “for such a period 

of time and under such conditions as to prove that the grant 

has been accepted,” or appropriate public authorities of the 

7 The Andersons also argue that a right of way was dedicated by the 

Secretary of the Interior’s Secretarial Order No. 2665 and Public Land Order 601. This 

argument was not raised in the superior court, and we decline to address it. See Jones 

v. Jones, 505 P.3d 224, 233 (Alaska 2022). 

8

 Lode Mining Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253 (codified 

as 43 U.S.C. § 932 (1925), Revised Statute 2477), repealed by Federal Land Policy and 

Management Act of 1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743, 2787 (1976).

9 Dickson v. State, Dep’t of Nat. Res., 433 P.3d 1075, 1082-83 (Alaska 

2018). Section 8 was repealed in 1976, but the authority to designate new RS 2477 

rights of way in Alaska ended in January 1969 when the Secretary of the Interior 

withdrew all public lands in the state not already reserved. Ahtna, Inc. v. State, Dep’t

of Nat. Res., 520 P.3d 131, 134 (Alaska 2022). Existing rights of way were left intact. 

Id.
-9- 7714

state must act in a way that clearly manifests their intention 

to accept the grant.[10]

Routes established in this way are RS 2477 rights of way.11 The public can only accept 

an RS 2477 right of way by affirmative acts, such as by using the route before the

underlying land is “withdrawn from the public domain.”12

 The parties disagreed at trial as to the date of Oscar Sylvester’s withdrawal 

of his property from the public domain. The Wilsons contended this withdrawal 

occurred in 1947, when Sylvester filed a notice of location, or 1952, when Sylvester 

first applied for a land patent.13 The Andersons counter that withdrawal did not occur 

until 1954, when they argue Sylvester amended his patent application. But whether the 

land was withdrawn in 1947, 1952, or 1954, the superior court did not clearly err when 

it found no clear and convincing evidence of public use of the road prior to any potential

date of withdrawal proffered by the parties.

 The Andersons make several factual assertions they argue should have 

compelled the superior court to find that the public accepted the alleged RS 2477 right 

of way before its withdrawal. The Andersons point to the testimony of two of their

witnesses at trial which they claim shows “Native Alaskan trails and activity prior to 

1950.” Their expert witness, Allen Minish, testified that an aerial photograph from the 

1940s shows “trails leading up towards [a lake north of the property] over this area,” 

and there was a “Native allotment that’s up there.” Minish concluded that, given the 

existence of trails and the “Native allotment,” there must have been public use of those 

trails, which the Andersons argue shows public acceptance of this route as an RS 2477 

10 Price v. Eastham, 75 P.3d 1051, 1055 (Alaska 2003) (internal citations 

omitted) (quoting Dillingham Com. Co. v. City of Dillingham, 705 P.2d 410, 413-14 

(Alaska 1985)).

11 Id.

12 Dillingham, 705 P.3d at 414.

13 On appeal, the Wilsons now argue the timing of withdrawal is irrelevant. 
-10- 7714

right of way. The Andersons also note that another of their witnesses, Clare Jaeger,

testified about the presence of a family to the north of the Sylvester homestead and to 

the establishment of lodges in that area at least since the “late 1950s.” 

The Andersons presented evidence of a “bulldozed” or “gravel” road

which they argue shows a pre-withdrawal path. A 1954 survey shows a “gravel” and 

“bulldozed” road that appeared to start beyond the property’s southern border and may

or may not have run past its northern border. A 1958 surveyor referred to a “trail,” and 

a 1967 survey document denotes a “dirt road” starting south of the property and 

seemingly ending at the property’s northern border. A 1978 survey of the plats north 

of the property indicates a “Centerline 30' Access Road” connected those plats to the 

adjoining property.

We see no error in the superior court’s conclusion that this evidence did 

not establish an RS 2477 right of way over the Wilson property. Though the court heard 

testimony regarding the existence of a “Native allotment,” lodges, and a family living 

north of the Sylvester property, the mere presence of others in the area or operating a 

business there does not, on its own, show that a particular trail was used by the public 

before withdrawal. And as the superior court noted, the “bulldozed road” the Andersons 

assert shows use by the public is wholly consistent with Oscar Sylvester clearing the 

road on his own property to cross the site for private purposes. Only in 1978 is the first 

reference to an “access road” made in a survey of area plats, but that is far too late in 

time to reflect the existence of a public route by 1954. The Andersons also claim that 

an annotated 1950 aerial image shows a trail indicating public use, but the “faint but 

clearly present line” is drawn in the same style as property boundaries on the annotated 
-11- 7714

image, and appears to also simply mark a property boundary. And the superior court 

sustained an objection to the use of the annotations as hearsay.14 

 “[I]t is the function of the trial court, not of this court, to judge witnesses’ 

credibility and weigh conflicting evidence.”15 And we will not disturb the superior

court’s findings of fact unless they are clearly erroneous.

16 We see no clear error in the 

superior court’s conclusion that the plaintiffs had not proved by clear and convincing 

evidence that the public accepted this route before the land’s withdrawal, and we affirm 

its finding that no RS 2477 right of way runs over the Wilsons’ property. 

 The Andersons also claim that the superior court abused its discretion 

when it excluded as hearsay Claire Jaeger’s testimony that her family had been using 

the trail to cross what is now the Wilson property since they moved to the area in 1946. 

But this argument is inadequately briefed — it is contained in a single conclusory 

sentence, and it fails to explain the superior court’s alleged error in excluding this 

testimony.17 Accordingly, we affirm the superior court’s exclusion of this testimony.

B. The Superior Court Did Not Clearly Err By Concluding That No 

Easement Through The Wilsons’ Property Was “Accepted By Plat.” 

 The Bunseks drafted plat 89-9 for their subdivision in 1989, and included 

a single road running north and south through the property. The Andersons argue that 

the road shown on the plat was dedicated by the plat and is therefore public. Alaska 

Statute 40.15.030 directs that “[w]hen an area is subdivided and a plat of the subdivision 

14 The Andersons also argue that a trail similar to their proposed route can 

be seen on a 1966 Bureau of Land Management document, but 1966 is also well after 

any date when either side asserts Sylvester’s property was “withdrawn from the public 

domain.” Dillingham, 705 P.3d at 414.

15 Fink v. Mun. of Anchorage, 379 P.3d 183, 192 (Alaska 2016).

16 HP Ltd. P’ship v. Kenai River Airpark, LLC, 270 P.3d 719, 726 (Alaska 

2012). 

17 See Wagner v. Wagner, 218 P.3d 669, 678 (Alaska 2009).
-12- 7714

is approved, filed, and recorded, all streets . . . on the plat are considered to be dedicated 

to public use.” 

 At trial the Wilsons pointed out that there was no platting authority for the 

area until 1998. The Andersons’ expert conceded this point. However, the Andersons 

argue on appeal that, even if no such authority existed in 1989 when the subdivision 

was platted, the State Department of Natural Resources would “unquestionably” have 

made all rights of way marked on a plat public. They further contend that a court can 

find “constructive” acceptance of a platted right of way, which would also make that 

route public. 

 The plain language of AS 40.15.030 requires affirmative state approval, 

and so does our case law. In State v. Fairbanks Lodge No. 1392, Loyal Order of Moose, 

we were confronted by a dedication that appeared in a recorded plat map but was never 

submitted to a platting authority or approved by the relevant municipal entities.18 The 

State framed this as merely a “formal defect[],” but we disagreed and concluded the 

unapproved plat map — though filed with the recorder’s office — was “insufficient to 

constitute a dedication.”19

 Furthermore, we have rejected the premise that a “platting authority would 

have required [a trail to] be dedicated as a public road,” calling this “by no means 

clear.”20 And as the Wilsons’ attorney highlighted at trial, a plat of the Bunsek’s 

adjacent subdivision showing this same road expressly “dedicate[d] all streets to private 

use.” Although the Andersons’ expert believed this “conflict[ed] with how [Bunsek 

was] presenting it as a commercial property,” there is only one road on the plat that 

could be dedicated to private use in the first place. 

18 633 P.2d 1378, 1379-80 (Alaska 1981). 

19 Id.

20 Laughlin v. Everhart, 678 P.2d 926, 931 (Alaska 1984).
-13- 7714

The superior court was entitled to credit the Wilsons’ expert’s

uncontroverted testimony that there was no platting authority in the area until the late 

1990s. The superior court was likewise free to give less weight to the Andersons’

expert’s opinion that the plat’s dedication of the road as “private” conflicted with the 

parcels’ presentation as “commercial property.” The superior court’s conclusion that 

this road was not “accepted by plat” and therefore not public was not clearly erroneous.

C. The Superior Court Did Not Err By Concluding No Common Law 

Public Easements Existed.

The Andersons next assert that they have acquired public easements over 

the Wilsons’ property by prescription, implication, necessity, or estoppel. We address 

each type of easement in turn, and conclude the superior court did not err by finding no 

common law public easements existed over the Wilsons’ property.

1. Prescriptive easement

Whether the Andersons acquired a public easement by prescription

depends largely on whether their use of the road is best described as hostile or 

permissive. We have summarized our test for hostility in this way:

The hostility requirement . . . requires that the “user must 

have acted as if . . . claiming a permanent right to the 

easement.” The test is objective and seeks to determine 

“whether the possessor acted toward the land as if [the 

possessor] owned it, without the permission of one with legal 

authority to give possession.” When one uses another’s 

property, there is a presumption that one does so with “the 

rightful owner’s permission and in subordination to [the

owner’s] title.” “This presumption is overcome . . . by a 

showing that such use of another’s land . . . was openly 

adverse to the owner’s interest . . . .” Evidence of a 

landowner’s acquiescence is not enough to extinguish an 

adverse user’s claim; the question is whether the landowner 
-14- 7714

intended to permit the use or merely acquiesced in that 

use.[21]

 In its findings and conclusions, the superior court found that the public’s 

use of the Wilsons’ property was permissive and therefore “not hostile.” It credited 

Kirk Wilson’s testimony over that of the Andersons’ witnesses. It found “there is no 

specific testimony of any crossings by any [persons other than Anderson, Lee, and 

Jaeger] in a hostile or quarrelsome fashion, to allow a prescriptive private or public 

easement.” It noted that the Andersons “have only shown that they have recently

engaged in hostile activities against the Wilsons” and emphasized that, while “the 

Wilson[s] have permitted commercial use, they have strictly limited its nature and 

scope.” The superior court therefore concluded that, though the Andersons are “trying 

to convert [the] Wilsons’ access road into a veritable superhighway, . . . [t]he Wilsons 

have not tolerated that conduct[,] . . . have consistently taken measures against the 

intruders[,] . . . [and] have actively asserted their property rights.” 

 Whether the Andersons’ use was sufficiently hostile is generally a factual 

finding reviewed for clear error.22 The record includes evidence that could have led the 

court to conclude that the use was hostile and to determine there was an easement. 

Gerald Lee testified that he had been inviting members of the public to use the road 

since the 1990s — acting as if he owned it. And Kirk Wilson conceded that he did not 

generally restrict travel by people visiting businesses in the area — an action that 

resembles acquiescence. For example, the fuel delivery driver testified that, despite 

21 Kenai River Airpark, LLC, 270 P.3d at 732-33 (fifth and sixth alterations 

in original) (citing Swift v. Kniffen, 706 P.2d 296, 303 (Alaska 1985); then quoting 

McDonald v. Harris, 978 P.2d 81, 84 (Alaska 1999); and then quoting Swift, 706 P.2d 

at 304).

22 Cowan v. Yeisley, 255 P.3d 966, 971, 974 (Alaska 2011); Swift, 706 P.2d

at 301 (treating issue of whether landowner “engaged in ‘sufficient activities to negate 

any presumed intent to dedicate to the public’ ” as “factual issue” reviewed for clear 

error). 
-15- 7714

signage requesting visitors check in at the lodge, he never did so and was never asked

to. The record also indicates that Wilson tried to reroute travelers away from his home 

as early as 2002, suggesting that adverse use dates back over 20 years. 

But Wilson’s testimony, which the trial court credited, conflicted with 

much of this evidence. Wilson testified that he and his predecessors had long permitted 

residents and customers to use the road. We have previously noted that “when 

possession has begun permissively, it cannot become hostile until the presumption of 

permissive use is rebutted ‘by proof of a distinct and positive assertion of a right hostile 

to the owner of the property.’ ”23 Lee’s testimony that he had invited the public onto 

his property by way of the Wilson property for nearly 30 years could support the 

Andersons’ argument that a prescriptive easement had been created. But Wilson 

described a change in the number and manner of people trespassing on his property 

concentrated around the start of litigation. He testified that Jaeger was the only person

he had “seen go through [his property] in recent years” even though he also testified 

that the Andersons continued to trespass after the court issued an injunction to stop it.

24

Wilson further testified that he had posted signs stating the road was for residents only

since 1981. 

The superior court, faced with conflicting evidence, weighed the 

credibility of the witnesses. “[I]t is the function of the trial court, not of this court, to 

judge witnesses’ credibility and to weigh conflicting evidence.”25 The superior court 

23 Cowan, 255 P.3d at 974 (quoting City of Anchorage v. Nesbett, 530 P.2d 

1324, 1329 (Alaska 1975)). We have also noted that “the fact that one owner has 

acquiesced in a use is not at all inconsistent with the possibility that an earlier owner 

permitted it.” Dault v. Shaw, 322 P.3d 84, 95 (Alaska 2013). 

24 Wilson also described in detail Jaeger’s particularly hostile and dangerous 

behavior when she drove through his property. 

25 Fink v. Mun. of Anchorage, 379 P.3d 183, 192 (Alaska 2016). 
-16- 7714

did not clearly err by crediting Wilson’s testimony over the Andersons’. We affirm its 

conclusion that there is no prescriptive easement over the Wilson property.

2. Easement by implication

 An easement by implication forms if “there is ‘(1) a quasi-easement at the 

time of contract of sale or conveyance, (2) which is apparent, (3) reasonably necessary 

for the enjoyment of the land retained or the land conveyed, and (4) continuous in 

nature.’ ”26 The parties focus their attention on the third criterion: whether a public 

road is “reasonably necessary” for the Andersons to enjoy their property. The Wilsons 

argue that the Andersons do not need an easement because their property is not 

landlocked and because they have access from the surface of Tolsona Lake as well as 

the “Crosswind Trail” or “Old Military Trail.”27 The superior court agreed, but the 

Andersons respond that the properties are landlocked and that the mostly unusable 

military trail was built after an easement had been established. 

 Necessity is determined by “whether [an] easement is reasonably 

necessary for the beneficial enjoyment of the property as it existed when the severance 

was made.”28 This standard is less demanding than “strict or absolute necessity,” but it 

26 Norken Corp. v. McGahan, 823 P.2d 622, 631 (Alaska 1991) (quoting 

Demoski v. New, 737 P.2d 780, 783-84 (Alaska 1987)). The parties do not seem to 

distinguish between easements by necessity and easements by implication on appeal. 

We have previously stated that easements by implication are “a true easement having 

permanence of duration and should be distinguished from a ‘way of necessity’ which 

lasts only as long as the necessity continues.” Norken Corp., 823 P.2d at 631 (noting 

that ways of necessity are also called easements by necessity). But the Andersons claim 

that land access is still necessary today and they sought an easement by implication, not

one by necessity, in the superior court. 

27 The “Crosswind” or “Old Military” trail is another trail running 

approximately north and south near the parties’ properties along Tolsona Lake. 

28 Freightways Terminal Co. v. Indus. & Comm. Constr., 381 P.2d 977, 984 

(Alaska 1963). 
-17- 7714

requires “something more than mere convenience.”29 We have concluded that an 

easement was “reasonably necessary” where it constituted the only “practical means of 

access” to a homestead.30

 The superior court did not err when it determined that there is no easement 

by implication across the Wilson property. Even if we assume that access by road was 

“reasonably necessary” for these particular properties at some point in the past, there is 

no support for the argument that any resulting easement must be public. We rejected a 

similar argument in Demoski v. New, affirming the superior court’s finding that an 

easement existed, but rejecting that the resulting easement must be public.

31 In Demoski

there was no evidence of dedication to the public by the original landowners, which led 

us to conclude that the resulting easement was private.

32 At trial in this case, no direct 

testimony was offered to support that earlier landowners dedicated a route to the public 

due to necessity. We affirm the superior court’s finding that there is no public easement 

by implication across the Wilsons’ property. 

3. Easement by estoppel 

 The Andersons next claim they possess an oral easement by estoppel. 

They argue that because two neighbors testified “that unrestricted access was given in 

direct conversation with Kirk Wilson,” they proved the existence of an easement. They 

also assert that they helped to build a road under the impression that it would be public. 

One of these witnesses, Daniel Anderson, testified that he asked Wilson about 

restrictions on the road, and said that Wilson “assured me that there was no restrictions 

on coming, going . . . . I understood it to be public” and that one could “go and use the 

road without permission.” The other witness, Gerald Lee, testified that “nobody ever 

29 Talbot’s, Inc. v. Cessnun Enters., 566 P.2d 1320, 1324 (Alaska 1977).

30 Williams v. Fagnani, 175 P.3d 38, 41-42 (Alaska 2007).

31 737 P.2d 780, 789 (Alaska 1987).

32 See id. at 784-86. 
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told me I had to get permission to travel to my lots,” but indicated that he “never asked 

if I had to have permission but I was never told to get it either.” Kirk Wilson maintained 

that travel through his property had always been private and permissive and denied that 

he received construction assistance. 

 The superior court weighed the witnesses’ credibility and reached the 

conclusion that the Andersons had not proven there was an easement by estoppel. It 

was free to give more weight to Kirk Wilson’s testimony that travel on the road had 

always been permissive and less weight to the Andersons’ witnesses’ testimony that it 

was not. And again, even if the court determined an oral easement by estoppel did exist, 

it would not automatically be public. To prove that a public oral easement by estoppel 

has formed, “claimants must show detrimental reliance by the public at large.”33 The 

superior court did not err by concluding that no easement by estoppel existed based on 

the evidence heard at trial. 

D. The Attorney’s Fee Award Requires Remand. 

 The Andersons also appeal the superior court’s attorney’s fee award. The 

court ordered the Andersons to pay 75% of the Wilsons’ attorney’s fees. They argue 

that the superior court abused its discretion by determining that the Wilsons were the 

prevailing party. They also assert that the court abused its discretion by allowing the 

Wilsons to include fees paid in a separate lawsuit, by determining that the fees were 

reasonable, and by enhancing the fee award above the usual percentage allowed by 

Alaska Civil Rule 82. Because the court included fees incurred in different litigation 

and did not provide enough detail for us to determine the basis for its conclusion that 

the fees charged were reasonable, we vacate and remand the attorney’s fee award for 

further proceedings.

33 Swift v. Kniffen, 706 P.2d 296, 301 (Alaska 1985).
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1. Prevailing party 

 The Andersons concede that they were not granted the public easements 

they sought. But they argue that as a result of their lawsuit they received a private 

easement “of critical importance” and therefore that the superior court’s determination 

that the Wilsons prevailed on every issue was manifestly unreasonable. The Wilsons 

respond that although the court determined the Andersons had a private easement, it 

rejected each of the theories the Andersons advanced. 

 Both sides seem to misread the court’s order. The order does not discuss

who prevailed on the issue of the private easement. It states instead that the Andersons 

“did not prevail on the main issue in the case — the public easement,” and notes that 

the Wilsons “successfully defended against all claims for a public right of way or 

easement.” “[T]he prevailing party is the one who has successfully prosecuted or 

defended against the action, the one who is successful on the main issue of the action 

and in whose favor the decision or verdict is rendered and the judgment entered.”34 

 Litigation in the superior court was focused almost exclusively on public 

easements, not private ones. The superior court clearly considered the Andersons’ 

public easement claims to be the “main issue.”35 Additionally the entirety of the 

Andersons’ first complaint was dedicated to the alleged existence of a public easement. 

Only in a footnote to the first exhibit of their Second Amended Complaint did the 

Andersons raise, in the alternative, the issue of a private easement. The superior court 

did not abuse its discretion by concluding that the public easement was the main issue 

and the Wilsons prevailed on it.

34 BP Pipelines (Alaska) Inc. v. State, Dep’t of Revenue, 327 P.3d 185, 191 

(Alaska 2014) (quoting Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1242 (Alaska

2013)).

35 See id. 
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2. Calculation of attorney’s fees 

 The Andersons argue that the Wilsons did not submit sufficiently detailed 

records for the court to calculate attorney’s fees. They also argue that they are entitled 

to an evidentiary hearing to determine the proper amount of fees. In addition to arguing 

the records are inadequate, the Andersons assert that there is no basis to accept the 

Wilsons’ attorney’s fees as reasonable because their lawyer charged them significantly 

more than other similarly experienced attorneys in the community receive for similar 

representation. We agree; we therefore vacate the award and remand to the superior 

court. On remand the court may not include fees for hours not related to this litigation

and should consider whether the fees are reasonable.

36 To determine whether the rate 

charged by the Wilsons’ attorney was reasonable, the court must consider the “fee 

customarily charged in the locality for similar legal services.”37

a. Recordkeeping

 The Andersons argue that the records submitted by Phillip Paul Weidner 

& Associates were not sufficiently detailed to determine “the reasonableness of the time 

spent and relation to the case.”38 Attorney’s fees must be supported by “accurate 

records of the hours expended and a brief description of the services reflected by those 

hours.”39 And it is an abuse of discretion to deny discovery for attorney’s fee awards

where entries “were so vague that [a party] could not discern which legal matter 

36 See Hodari v. State, Dep’t of Corr., 407 P.3d 468, 473 (Alaska 2017) 

(“Any requested attorney’s fees are . . . subject to a showing of reasonableness and 

connection to the litigation.”). 

37 Nautilus Marine Enters. v. Exxon Mobil Corp., 332 P.3d 554, 559 (Alaska 

2014) (quoting Alaska R. Prof. Conduct 1.5(a)(3)).

38 The Andersons do not dispute records from the Wilsons’ previous

counsel. 

39 Hayes v. Xerox Corp., 718 P.2d 929, 939 (Alaska 1986).
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corresponded to each entry.”40 The superior court concluded that the records submitted 

by the Wilsons’ counsel were “sufficiently detailed, meeting the requirements set out 

by the Alaska Supreme Court.” 

 The Wilsons’ motion for attorney’s fees was supported by billing and 

timekeeping records submitted by Weidner. The attachments included the Wilsons’ fee 

agreement with Weidner, a 21-page “timekeeper manager report” listing hourly billing 

entries with varying levels of specificity, a 28-page report of phone calls, a 1-page

document apparently reflecting over 1,000 hours of “meetings,” a sworn affidavit in 

support of the fees charged to the Wilsons, and biographical information about Weidner 

and his associate. The Andersons point out entries in Weidner’s records for research, 

drafting, and editing with no reference to what the issue, document, or filing was. They 

also note that the 28 pages apparently representing charges for phone calls have no 

description at all — the entries list only the date and the length of calls in quarter-hour 

increments. Finally, they point out charges billed for an EPA matter that was not part 

of this litigation.

41 

 In previous cases examining whether records were detailed enough to 

support an attorney’s fee award, we have said that “[a]ny requested attorney’s fees are

. . . subject to a showing of reasonableness and connection to the litigation.”42 We have 

affirmed the exclusion of fees supported only by entries under a “Supervise Paralegal 

Activities” heading that indicated, for example, “PJ on post brief issues” or “PJ on oral 

argument.”43 We characterized those entries as vague and noted that they did not 

40 In re Est. of Johnson, 119 P.3d 425, 431 (Alaska 2005).

41 The superior court expressly excluded fees related to another matter on 

which the Wilsons did not prevail. It also limited the award to hours actually billed. 

42 Hodari v. State, Dep’t of Corr., 407 P.3d 468, 473 (Alaska 2017)

(emphasis added). 

43 Warnke-Green v. Pro-West Contractors, LLC, 440 P.3d 283, 293 & n.46 

(Alaska 2019).
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clearly show the attorney’s contribution to a particular matter or issue.44 Indeed for 

some of the time entries and phone calls in this case it is impossible to “discern which 

legal matter corresponded to each entry.”45 It is difficult to know, for example, the 

corresponding legal issue or matter for an entry marked only “phone call.” The 

vagueness in the billing records, taken together with the inclusion of charges relating to 

an EPA matter to which the Andersons were not a party, require a closer examination

of their connection to this case. We therefore vacate and remand to the superior court 

for further consideration of the billing records, phone records, and discrepancies, such 

as the inclusion of the EPA matter.

b. Hourly rate

 The Andersons further contend that the court abused its discretion by 

approving hourly rates that were significantly higher than the “prevailing rates charged 

in the community.” The superior court concluded that the rates were reasonable in light 

of the attorneys’ qualifications, experience, and skills, but offered few details about how 

it reached that conclusion. 

 In Nautilus Marine Enterprises v. Exxon Mobil Corporation we held that, 

for the partial reimbursement of attorney’s fees under Rule 82, “ ‘the fee customarily 

charged in the locality for similar legal services’ is the basis on which awards should 

ordinarily be calculated.”46 We also concluded that the consideration of rates outside 

of a locality is warranted only in extraordinary circumstances.47

44 See id. 

45 See In re Johnson, 119 P.3d at 431. 

46 332 P.3d 554, 559 (Alaska 2014) (quoting Alaska R. Prof. Conduct 

1.5(a)(3)). 

47 Id. The Wilsons argue on appeal that such extraordinary circumstances 

are present here and therefore a departure was warranted. But they appear to raise this 

argument for the first time on appeal and accordingly it is waived. See Adkins v. 

Collens, 444 P.3d 187, 195 (Alaska 2019).
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 There is little support in the record that the hourly rate charged by the 

Wilsons’ attorney is reasonable. The superior court mentioned his experience and 

qualifications. But the evidence consists primarily of an index used in federal court to 

determine reasonable attorney’s fees in “public interest litigation,” not private property 

disputes. The only other evidence is an affidavit from an Anchorage-area attorney of 

similar experience stating his typical hourly rate. But his highest hourly rate is just over 

half of that charged by the Wilsons’ counsel at various points in this litigation. 

 The evidence provided to the court demonstrated that the Wilsons’ 

attorney charged rates far higher than “the fee customarily charged in the locality for 

similar legal services.”48 The decision to accept such an hourly rate as reasonable based 

on that evidence was arbitrary and therefore an abuse of discretion. We remand to the 

superior court for further findings and consideration of the fees charged by the Wilsons’ 

counsel.

49 On remand, the superior court should consider whether the rates charged by

the Wilsons’ counsel are commensurate with those charged by attorneys with similar

experience in the Anchorage region and the sufficiency of detail in the billing records 

submitted by the Wilsons’ counsel. 

3. Attorney’s fee enhancement

 The Andersons finally argue that the superior court erred when it enhanced 

the award of the attorney’s fees and that the resulting award will deter similarly situated 

litigants. We observe that “[a]pplication of Rule 82(b)(3) factors is discretionary, not

mandatory.”50 We are not persuaded by the Andersons’ arguments. 

48 See Nautilus Marine, 332 P.3d at 558, 559. 

49 The Andersons also appeal the denial of their motion for an evidentiary 

hearing as to fees. Because we remand the consideration of attorney’s fees to the 

superior court, we do not address whether the superior court erred in denying the 

Andersons’ motion for a hearing. 

50 Rhodes v. Erion, 189 P.3d 1051, 1055 (Alaska 2008).
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 The Andersons first argue that our case law “disfavors complexity as a 

justification for enhanced fees where total fees are calculated on an hourly basis” and 

that “[m]ere complexity is not generally an acceptable basis for enhanced attorney 

fees.” The Wilsons respond that Rule 82 specifically lists complexity as a factor 

justifying a variance from the default award.

51 

 We have previously rejected both of the Andersons’ arguments. Our case 

law does not “disfavor” enhancing fees based upon the complexity of the matter. 

“While we have occasionally expressed concern about the use of . . . complexity of the 

litigation . . . to enhance fees where the fees are calculated on an hourly basis, we have 

repeatedly upheld its use.”52 And we have expressly affirmed the “use of complexity 

as the sole enhancing factor.”53 The superior court explained the enhancement in this 

case was due to the involvement of “considerable complex issues” including review of 

historic documents, property transfers, maps, and plats. The 12-day trial included ten 

lay witnesses, two expert witnesses,54 and hundreds of exhibits. The court did not abuse 

its discretion by enhancing the fee award due to complexity. 

 The Andersons also argue they did not engage in bad faith conduct. The 

superior court found “there [was] clear and convincing evidence that [the Andersons] 

did engage in bad faith conduct by continuing to violate the Court’s Preliminary 

51 See Alaska R. Civ. P. 82(b)(3)(A) (permitting court to vary fee award upon 

“consideration of . . . factors” including “complexity of the litigation”). 

52 Ware v. Ware, 161 P.3d 1188, 1199 (Alaska 2007) (internal citations 

omitted). 

53 BP Pipelines (Alaska) Inc. v. State, Dep’t of Revenue, 327 P.3d 185, 197 

(Alaska 2014) (collecting cases).

54 Although the superior court’s order on fees indicates three expert 

witnesses testified in this case, the court qualified only two to testify as expert 

witnesses. 
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Injunction, even during the trial.” The Andersons argue this finding was insufficiently 

detailed and unsupported by the record. 

 Kirk Wilson testified that he had “way over 100 pictures of people 

trespassing on our property since the judge . . . put that [preliminary injunction] out.” 

He noted that two of his neighbors expanded or installed new parking lots and that there 

was a “new group” of people and more people trespassing than previously. 

 The superior court based its conclusion in part on the fact that Gerald Lee 

was actively allowing members of the general public to access his property by crossing 

the Wilsons’ property. The preliminary injunction required the Andersons “to refrain 

from inviting members of the general public from traveling on [the Wilsons’] land.” 

Lee testified that he continued to allow two to five vehicles per weekend to visit and 

that he did not think he was violating the injunction. He acknowledged that he did not 

necessarily keep track of who the visitors were, but he maintained they were his guests 

and clients. 

 There was sufficient evidence that some of the Anderson plaintiffs acted 

in bad faith, and the superior court was free to credit the Wilsons’ testimony over the 

Andersons’.55 The court did not abuse its discretion when it enhanced the attorney’s 

fee award based on bad faith.

56 

 Finally, the Andersons argue that the enhanced award will deter similarly

situated litigants. Rule 82(b)(3)(I) permits a court to consider whether “a given fee 

55 See Fink v. Mun. of Anchorage, 379 P.3d 183, 193 (Alaska 2016) (“[W]e 

will not overturn or re-weigh a trial court’s factual findings in the face of conflicting 

evidence when the record supports those findings.”). 

56 The Andersons maintain that “[t]he alleged conduct had no relationship to 

the conduct of the litigation itself.” And they are correct that a fee enhancement may 

be based only on conduct that occurred during the litigation itself and not the transaction 

underlying the litigation. See Sykes v. Lawless, 474 P.3d 636, 647 (Alaska 2020). But 

the superior court found that the Andersons had violated a preliminary injunction, 

creating a direct link between their conduct and the litigation. 
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award may be so onerous to the non-prevailing party that it would deter similarly 

situated litigants from the voluntary use of the courts.” In making this determination, 

courts can consider “the nature of the claim advanced and the economic incentives for 

similarly situated litigants to bring similar claims.”57 But “[a]pplication of Rule 

82(b)(3) factors is discretionary, not mandatory.”58

 The superior court specifically observed that while a particularly large fee 

award might be “onerous,” there are 18 Anderson plaintiffs, and therefore “even if the 

court were to award full fees, this would not be particularly onerous.” “[A] court may 

depart from the Rule 82 schedule by considering the enumerated equitable factors but 

is by no means required to do so.”59 The court did not abuse its discretion; we affirm 

the superior court’s enhancement of the attorney’s fees.

CONCLUSION

 We AFFIRM the superior court’s easement decisions. We VACATE and 

REMAND the award of attorney’s fees for recalculation consistent with this opinion. 

57 State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 406 (Alaska 2007).

58 Rhodes v. Erion, 189 P.3d 1051, 1055 (Alaska 2008).

59 Greene v. Tinker, 332 P.3d 21, 42 (Alaska 2014) (citing Rhodes, 189 P.3d 

at 1055).