799 P.2d 304 (Alaska 1990)
In 1944 or 1945, Charles Fagerstrom and his family began using an abandoned boy scout cabin on a seven and one-half acre tract of land overlooking the Nome River as a summer subsistence base camp.1 Around 1947 or 1948, the family relocated their main summer campsite south of the parcel but continued seasonal subsistence and recreational use of the land.2 Record title to the larger mineral survey 1161, which includes the disputed parcel, is held by Nome 2000.3
In 1963, Charles and Peggy Fagerstrom married.4 In 1966, they brought building materials to the north end of the parcel intending to build a cabin.5 Around 1970, they staked a twelve-acre rectangular parcel with four cornerposts for a Native Allotment application, with two stakes on or near the disputed parcel.6 Also around 1970, they built a picnic area on the north end including a gravel pit, beachwood blocks, firewood, and a barrel stove.7
In mid-July 1974, the Fagerstroms placed a camper trailer on the north end of the disputed parcel, leveling it on blocks, and kept it there through late September.8 From 1974 through 1978, they parked the trailer from early June through September, equipping it with food, bedding, a stove, and household items.9 They also built an outhouse and fish rack that remained in place, planted non-indigenous spruce trees in 1975-76, and in 1977 constructed an 8x8 foot reindeer shelter with a 75-foot diameter pen that housed a reindeer for six weeks.10
During 1974 through 1978, the Fagerstroms visited the parcel every other weekend or so and a couple times during the week if weather was good, using the north end as a base camp for fishing, berry gathering, picnicking, and cleaning the property while their children played there.11 They walked pre-existing paths across the entire parcel and on one occasion excluded campers who were burning their firewood.12 Community members observed their use as consistent with ownership.13
On July 24, 1987, Nome 2000 filed suit to eject the Fagerstroms from the disputed parcel.14 The Fagerstroms counterclaimed for title by adverse possession.15 After a jury trial, the jury found the Fagerstroms had adversely possessed the entire parcel, and the trial court entered judgment accordingly.16 Nome 2000 appealed the denial of its directed verdict motion, the sufficiency of the evidence, two evidentiary rulings, and the attorney's fees award.17
Whether the Fagerstroms' use of the disputed parcel from 1977 to 1987 satisfied the continuity, notoriety, and exclusivity requirements of adverse possession?18
Under AS 09.10.030 a claimant acquires title by adverse possession by proving with clear and convincing evidence that use of the land was continuous, open and notorious, exclusive and hostile for the statutory period.19 The physical requirements are satisfied when the land is used as an average owner of similar property would use it, giving visible evidence that a hostile flag is being flown over the property.20
Yes. The Fagerstroms maintained an outhouse, fish rack, reindeer pen, picnic area, camper trailer on blocks, and non-indigenous trees on the north end throughout the critical year beginning in summer 1977, visited every other weekend plus additional weekdays when weather permitted, fished, gathered berries, cleaned the premises, and excluded others from their firewood, all of which matches the seasonal recreational and subsistence use an average owner would make of rural Osborn land and supplied visible evidence of dominion.21
The Fagerstroms satisfied the continuity, notoriety, and exclusivity requirements for the northerly portion of the disputed parcel.22
Whether the Fagerstroms' activities on the southerly portion of the disputed parcel constituted actual possession sufficient to acquire title by adverse possession?23
Absent color of title only property actually possessed may be acquired by adverse possession; actual possession requires acts that afford a reasonably diligent owner visible evidence of another's exercise of dominion and control over the land.24
No. The Fagerstroms' only activities on the southerly portion during the 1977-1978 year were walking pre-existing trails for subsistence and recreation and picking up litter.25 The two cornerposts located on or near the parcel did not mark boundaries because one disappeared at an unknown time and the other two lay well west of the disputed parcel.26 These acts supplied no visible evidence of dominion and control.27
The Fagerstroms' activities on the southerly portion did not constitute actual possession sufficient to acquire title by adverse possession.28
Whether the Fagerstroms established the hostility requirement for adverse possession?29
Hostility is determined by an objective test. The test asks whether the possessor acted toward the land as if he owned it without permission from one with legal authority to grant possession. The possessor's subjective beliefs or intentions are irrelevant.30
Yes. The Fagerstroms' placement and maintenance of structures, seasonal occupancy, and exclusion of others from their personal property demonstrated that they acted toward the land as owners, and Nome 2000 offered no evidence that this conduct occurred with permission; any traditional Native Alaskan stewardship mindset is irrelevant under the objective standard.31
The Fagerstroms established the hostility requirement for adverse possession of the northerly portion.32
Whether the trial court abused its discretion by admitting Bureau of Land Management records over Nome 2000's hearsay objection?33
Erroneous admission of evidence is not prejudicial and does not require reversal when the evidence is merely cumulative of other properly admitted evidence.34
No. Any error in admitting the BLM records was harmless because the records were cumulative on the existence of stakes on the northerly portion and the remaining evidence of the camper trailer, outhouse, fish rack, reindeer pen, and community reputation amply supported the jury's finding of adverse possession of that portion.35
The trial court did not abuse its discretion by admitting the Bureau of Land Management records.36
Whether the trial court abused its discretion by excluding a photograph offered by Nome 2000?37
Erroneous exclusion of evidence is not prejudicial and does not require reversal when the evidence is merely cumulative of other properly admitted evidence.38
No. Any error in excluding the photograph was harmless because Nome 2000 itself described the photograph as consistent with aerial photographs and confirmatory of testimony already given about the trails, rendering it cumulative.39 Nome 2000's attorney argued before the trial court that the photograph confirmed Mr. Fagerstrom's testimony that the trails near the rock were nearly invisible. It gave a photographic representation of what he had already said, while also showing the privy.40
The trial court did not abuse its discretion by excluding the photograph offered by Nome 2000.41
Whether the trial court abused its discretion by awarding attorney's fees to the Fagerstroms?42
A trial court possesses discretion under Civil Rule 82 to award partial attorney's fees to the prevailing party after considering factors including the importance of the right asserted, duration, complexity, and costs of the proceedings; the importance of the right is only one factor and is not dispositive.43
No. The trial court considered Nome 2000's argument based on the importance of defending record title, the duration and complexity of the case, and the costs incurred, and determined that an award was appropriate; the Fagerstroms' recovery was no more a windfall than an award to a prevailing record owner would have been.44
The trial court did not abuse its discretion by awarding attorney's fees to the Fagerstroms, although the award was later vacated because of the partial reversal on the merits.45