Long read regarding roads and trails that cross private property:
IF there is no recorded easement (on the plat map or otherwise filed with the state recorder’s office), then an easement DOES NOT EXIST.
I want to clarify this because there is a lot of misinformation out there regarding what people call “grandfathered” easements. There is no such thing as a grandfathered easement. There are two types of easements that come close, but they are very limited in scope. They are:
1) Easements under RST 2477 (which was repealed in 1976). There are a total of 4 of these on the western Kenai Peninsula: The Windy Bay-Port Chatham Portage, the Nuka Bay trail, the Explorers Kenai River Trail, and the King’s County trail (see http://dnr.alaska.gov/mlw/trails/rs2477/rst_quad.cfm?QUAD=104 and http://dnr.alaska.gov/mlw/trails/rs2477/rst_quad.cfm?QUAD=094).
2) Prescriptive easements, in which the user (or users) of a road/trail need to use the road/trail in a continuous and uninterrupted manner, with the property owner’s knowledge, for a period of at least 10 years. Even if said road/trail has been used continuously for such a period, that does not mean the easement exists—it only means that the user/users can then sue the property owner for continued access should the owner try to block their access.
Not sure if there is a platted easement? Use the borough’s online mapping program (https://gis.kpb.us/map/index.html?viewer=basic) to find the property in question. Click on it to get the owner’s name and subdivision name—either of which can be searched in the state recorder’s database (http://dnr.alaska.gov/ssd/recoff/search) to find the plat map. Download the plat map and read it. Also read the comments on the plat map (these will sometimes mention easements).
Also note: there are no “historic trails” that are automatic easements. The state of Alaska does not have a historic trails commission. There are some historic trails of national importance (i.e. Iditarod National Historic Trail, Chilkoot Trail), but these obviously do not apply to local issues. If there is a trail of any historic importance, it will already be shown on a plat map.
If you want access through private property on an existing, unplatted road or trail, you have the following options:
1) Be a good neighbor so that the owner does not mind your quiet and respectful passage through their property.
2) Be a bad neighbor and try to use the trail without permission for 10 years so that you can then sue for an easement (you will probably be trespassed from the property in much less than 10 years).
3) If you have already been using the road/trail continuously for 10 years, ask the owner to grant you an easement. You may want to offer to pay filing fees for the recorder’s office. This might save you both some money in the long run.
4) If you have already been using the road/trail continuously for 10 years and the owner does not want to grant you an easement, you can sue. This is the only way to guarantee access if the owner doesn’t voluntarily grant an easement. Even if the suit is successful, the easement does not exist until it is recorded. In the case of Interior Trails Preservation Coalition v. Swope, the justices noted: “To succeed on a prescriptive easement claim, a claimant must show that (1) the use was continuous and uninterrupted for the same ten-year period that applies to adverse possession; (2) the claimant acted as an owner and not merely as a person having the permission of the owner; and (3) the use was reasonably visible to the record owner. The claimant must prove each element by clear and convincing evidence.” So just claiming you’ve been using it (without showing substantial proof) is not sufficient. Be prepared for a lengthy and expensive legal battle if you want to go this route (note that the Interior Trails Preservation Commission no longer exists); the burden of proof rests on the party seeking an easement.
I was inspired to write this after somebody came on to my property last week to complain about my neighbor’s “No trespassing” signs. Even after I explained that the signs weren’t mine, he was still rude, kicked my dog, and then told me that my plat map was out of date (it is not—it’s the only plat that has ever existed for my subdivision). Maybe he felt like being an old timer and telling a young whippersnapper what was what (does moving here in 2007 make him an old timer? He seems to think so.). Maybe he was showing off for his wife. Either way, he was angry because he had built an expectation of access based on someone else’s false information—and that information is popularly accepted as fact even though it would never stand up in court. I wasn’t trying to limit his access and even told him he could continue passing through, but he must have been soured by somebody having the nerve to disagree with him and then back it up with actual facts.
I don’t currently have “No trespassing” signs at my place because I don’t mind people passing through (as long as they do so respectfully), but signs are going up soon—people need to know that my road is private property (not borough property) so that they are aware that their uninvited presence IS trespassing, just in case they hit any of my children or animals. It is their duty to proceed under invitation only—which comes with a speed limit.
Contact me for more detailed links and case notes.