High court sides with DOT on Trunk Road

The Alaska Supreme Court says the state can use an old easement along Trunk Road homeowners’ property to reroute Trunk Road within a few feet of their home.

In a decision released Sept. 17, the state’s highest court upheld a superior court summary judgment that David and MerriBelle Dias cannot prevent the state from accessing a 150-foot-wide, 2,000-feet-long strip of property on the northwesterly side of Trunk Road across from Amberwood subdivision.

The Diases asserted in their lawsuit the state only had the right to remove gravel from the strip of land, and that right had expired. MerriBelle Dias said Monday that when the state found the obscure slip of paper it claims is a perpetual easement, it changed plans to reroute Trunk Road to take advantage of those additional 150 feet. She and her husband had built their home in 1993, based on announced plans to reroute Trunk Road.

“Now it’s like 10 feet from the edge of the house,” Dias said of the new route. The Diases bought the property in 1992 from Frank Cornelius, a Colonist and homesteader. The Diases have sold some of their property to the state for the road rerouting, including a field where there is gravel.

A spokesman from Department of Transportation and Public Facilities (DOT) central region office said the decision to move Trunk Road onto the Cornelius easement would have been part of an overall design strategy.

“The decision made on alignment is not made on a 2,000-foot section,” Rick Feller said. Feller said factors like the existing right of way, existing alignment, lay of the land, soil type and environment impacts would have all gone into the decision-making process.

“There’s a ton of factors that go into it,” Feller said. “All of those factors likely weighed in on the final alignment decision.”

Construction is to begin on that section of Trunk Road after the completion of phase 1, likely early next summer.

When the state contacted the Diases in 2007 to negotiate for use of the easement and the acquisition of additional right of way for the Trunk Road reconstruction project, the Diases filed a complaint for quieting title.

In that complaint, the Diases argued their property should be free of any interest of the state because the access granted by Cornelius was a temporary easement for removal of gravel and other materials.

The state filed a counterclaim asking the court to declare it had a “valid easement for highway right-of-way purposes,” which the Superior Court did in a summary judgment.

That court concluded the 1969 easement granted by the late Cornelius to the state gave it “a valid and enforceable easement and right-of-way over the [Diases’] property for the purpose of constructing and maintaining a roadway, and for other related purposes.”

It was that judgment the Diases appealed to the state Supreme Court.

MerriBelle Dias said neither Cornelius nor a title search indicated there were encumbrances on the property prior to the purchase.

“All the records showed nothing,” she said.

The piece of property they bought straddled Trunk Road. The Diases operated Creekside Assisted Living at the location on the northwest side. They have since moved the business.

When the Diases decided to subdivide the portion of property on the southeast side surrounded by Amberwood subdivision, Cornelius verified the Diases had properly indicated the property description.

“He assured us when we broke off the five acres … there was nothing else that should interfere,” Dias said. Cornelius signed a paper saying the road easement was recorded where it should be. There was no indication of any further encumbrances on the land. She said Cornelius was a “tightwad” who would never have granted the state gravel for 10 cents per cubic yard or a free easement for perpetuity.

Cornelius died in February 2003.

The high court said the fact Cornelius conveyed the easement for no monetary consideration and charged the state only for the gravel it would extract for the land did not make the easement ambiguous, as the Diases claimed.

“Whatever his (Cornelius’) motivation, the limited cash compensation does not affect the scope or purpose of the right of way,” according to the decision written by Justice Craig Stowers and affirmed by Justices Daniel Winfree, Dana Fabe and Morgan Christen.

Also affected by the decision are the Diases’ neighbors on either side. Harold and June DeArmoun bought the property to the south of the Diases in 1978 from Cornelius, along with another piece of property on which they built their home. While the road project will affect them, it will not bring the byway to their doorstep.

June DeArmoun said they settled with the state two years ago.

“We were satisfied,” she said. She said DOT bought 2.7 acres of property from them, as well as using the easement. DOT was going to put the road through the DeArmouns’ fenced potato patch. “We got them to move it over,” she said.

The DeArmouns had to move a fence that contains their herd of Highland cows, but that was the extent of their personal inconvenience, though DeArmoun said she does not like the project.

“I am not happy with the road at all,” DeArmoun said, adding it will be too wide and too fast. She called the roundabout “terrible, terrible.”

Feller said DOT’s goal is to improve the road in such a way it provides more benefits to the public as a whole than detriment to those affected.

He called it a “delicate balance,” and said one of the gauges of success is the public input gathered during the design process.

“We would not be doing our job if we did not evaluate all those factors,” he said.