Real property ownership is considered "a bundle of rights which inherently contain interests, benefits, and rights; these may include the right to use real estate, to sell it, to lease it, enter it, give it away, or choose to exercise more or none of these rights." ¹ Subject to certain limitations, private enjoyment of these rights is guaranteed by law under the U. S. Constitution. Fee simple title means that a person owns all of the rights of the parcel without limitations or restrictions. When one right is separated out from the others and conveyed by the fee owner to other parties, then a partial property interest, sometimes referred to as a "split fee" or "split estate" is created. In Alaska, the subsurface estate is often owned by an entity other than the surface estate owner.

Ownership of land and water bodies is held for the public by federal, state and local governmental entities. Federal land includes national parks, forest service lands, BLM lands, national wildlife refuges, etc. The federal government also owns water rights in certain designated lands such as national parks, wildlife refuges, national forests, has some jurisdiction over water bodies which meet federal "navigability" criteria, and over some uses of small streams, wetlands, and other small waterbodies through the U.S. Army Corps of Engineers permitting processes.

State owned land includes state forests, state parks, game refuges, critical habitat areas, mental health lands, university lands, land used for specific facilities such as public transportation services, special management areas, the Alaska Railroad, as well as land not designated for a specific use. Many public lands are managed for specific purposes, and are not open to all public uses, i.e., state parks, game refuges, critical habitat areas, mental health lands, university lands, special management areas, the Alaska Railroad, etc.

All waters in the state are held and managed by the state in trust for the use of the people, regardless of navigability or ownership of the submerged lands, under the Alaska Constitution and the public trust doctrine.² Article VIII, Section 3 of the Alaska Constitution reserves all waters occurring in their natural state to the people for their common use and also allows access to navigable or public waters of the state as defined by the legislature.³ The state also owns tide and submerged lands in Alaska up to and including the mean high water mark and to three miles off the coast. Only tide or submerged lands which were claimed by entities prior to Statehood on January 3, 1959 may be owned by individuals other than the state.

Local government ownership includes lands classified for various uses as well as lands without a specified use.

Continuity among trails and access to water bodies is sometimes not possible if access routes are restricted to publicly owned land. Throughout the nation, people are exploring ways to compensate property owners for use of private property for the benefit of the community as a whole. Some of these emerging tools are adjusting tax assessment upon certain lands, conservation easements, public purchase of easements or rights-of-way, incentive zoning, authorizing the transfer of development rights (TDRs) in highly populated areas, taxation of capital gains from land sale, and other avenues.

Following are some selected definitions that may be helpful in discussing trails and public access issues.

"ADL" refers to the Alaska Division of Lands. Public easements and Rights-of-way granted or reserved by the state are often referred to by an "ADL number", which is found on State Status Plats.

"Classification" of a parcel of public land refers to the designation or recommendation for use of that land by the managing government. State lands are classified by the DNR, Division of Lands. Borough land is classified by the Borough Assembly in accordance with Title 17 of the borough code of ordinances.

A "deed" is an instrument in writing that conveys rights in real property or related interest.

An "easement" is a nonpossessing interest held by one person (or entity) on land of another whereby first person is accorded partial use of such land for a specific purpose. An easement restricts the rights of the fee owner's use of his or her land, but ownership remains with the fee owner. Easements may be private or publicly held and apply to surface, subsurface or overhead areas.

Easements often provide solutions to access problems. Common use of the word easement is non-specific, as there are many common law concepts that accompany it. Easements may be privately held, publicly held, exclusive, non-exclusive, or transferable, and some can be extinguished if the situation changes. Easements can be granted or reserved for a number of specific uses including public or private roads or trails, pedestrian access, access to a property or waterway, visual or scenic rights, airspace, conservation easements intended to protect natural conditions of a property, pipelines, and public utility easements to name just a few. Certain easements granted or reserved for one specific use can be explored for acquisition of concurrent public use easements for trails.

"Section line easements" were originally a part of the 1866 Mining Law which offered free rights of way, 66 feet wide, over "unreserved" public land along all section lines. These section line easements on territorial land were patented after 1923 through the territorial legislature (Chapter 19) and were retained for the development of public roadways. In 1949, this law was repealed, but in 1951, was reinstated in a similar law for section line easements 100 feet wide, which was amended in 1953 to reduce the width again to 66 feet. They have had to be "unreserved" public lands during the period April 6, 1923 and January 7, 1949, or between March 21, 1953 (March 26, 1951 for lands transferred to the State or Territory) and March 24, 1974.⁴ If the section lines qualify under these requirements and if they have not been vacated, publicly owned section line easements exist every mile going north/south and east/west. It is the policy of the State not to vacate easements that lead to public water bodies. Research with the Federal Bureau of Land Management and the State of Alaska, Department of Natural Resources, Division of Lands, is necessary to establish the status of individual section lines.

An "ANCSA 17(b) easement" is a public access easement established under section 17(b) of the Alaska Native Claims Settlement Act. These easements are for transportation only. Uses allowed on these easements are those specified in the act and in conveyance documents.

"Customary easements", established through the "doctrine of custom" is gaining interest for recreational application and is being explored nationally, generally in the context of access to oceans or publicly-owned water bodies. While the doctrine evolved in England, it has been tested in America and has generally been considered inappropriate to the United States. Applying this doctrine may violate "due process" and may require compensation to the property owner for damage to private property (a "taking"). The same concerns apply to easements derived from "public trust" another doctrine developed in England and tested in American courts.⁵

A "right-of-way" (ROW) is generally defined as the right of a person, class of persons, or entity to use the land of another in some particular line. It usually consists of a strip or area of land for construction and maintenance of roadways, drainage, irrigation canals, ditches, electric power, telegraph, telephone, gas, oil, water, pipe lines, sewers, tunnels, etc. A right-of-way may be dedicated to public use by plat, or may be granted to the public or individuals by deed or an easement, and can be surface, underground, or overhead. If a ROW is public, every person has the right to use it for the purposes it was granted. If it is a private ROW, only certain persons or entities have the right to use the right-of-way. For example, an electric distribution line right-of-way allows the owner of the ROW to use it, but does not allow other unauthorized persons or entities to use it without the owner's permission.

(Note: some people do not believe the term "easement" can properly be used to describe a "right-of-way", or that a right-of-way can be granted by easement. They use the term right-of-way strictly to denote a strip of land in which ownership has been transferred from the fee owner of the adjacent land to the public or another entity.)

A "reservation" means a taking back or withholding by the grantor of some interest in the property conveyed by the deed. Reservations are often used in creating easements, rights of way, etc.⁶

"Vacation" of a right-of-way or easements is the elimination of the public interest in that ROW or easement. Requests for vacation may be made by the state, borough, public utility, or owners of the majority of the land fronting the part of the ROW or easement sought to be vacated (AS 29.40.120-140). These requests are processed through the borough, city government, and/or the State Departments of Natural Resources and Transportation. Utility-owned rights-of-way may also be vacated. When a public ROW or easement is vacated, it is no longer open to public use unless the new property owner allows it or rights are procured from the property owner for public use.

"Prescriptive rights" refer to adverse possession by someone other than the property owner who by law had to take specific actions against the adverse user within the statute of limitations, generally 10 years. A three-concept test is applied: 1. The possession must have been continuous and uninterrupted; 2. The possessor must have acted as if he were the owner and not merely acting with the permission of the owner; and 3. The possession must have been reasonably visible to the record owner. This process can apply to public use of roads or trails. While prescriptive rights are legal in the State of Alaska under this standard, they may not apply to Alaska Native Claims Settlement Act lands,⁷ or lands held by the Federal, State, or local governments. On a national basis, claiming prescriptive right for recreational purposes has been controversial and unsuccessful in most legal suits.⁸

"Public Land Orders" (PLO) are passed by Congress to reserve and designate land for a specific purpose. The Federal government usually retains ownership of lands subject to Public Land Orders.

"Revised Statute 2477" (RS2477) in Section 8 of the 1866 Mining Law, repealed in 1976 by the Federal Lands Policy and Management Act, stated: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted" (to states and territories). While hundreds of these rights-of-way have been asserted, only a few have been approved by agreement of federal, state and various property owners.⁹ Until the status of these routes is established, these routes should not be assumed to be public lands available for trail development.

Determining the legal status of and allowed uses on any given trail or access route can sometimes require extensive, time-consuming research. Solutions to access problems are often not easily determined. Each individual trail access problem presents a unique set of circumstances and requires legal assistance to evaluate the options for acquiring access.

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