Pankratz v. State, Department of Highways

652 P.2d 68, 1982 Alas. LEXIS 365
CourtAlaska Supreme Court
DecidedSeptember 24, 1982
Docket5543
StatusPublished
Cited by12 cases

This text of 652 P.2d 68 (Pankratz v. State, Department of Highways) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pankratz v. State, Department of Highways, 652 P.2d 68, 1982 Alas. LEXIS 365 (Ala. 1982).

Opinion

OPINION

CONNOR, Justice.

FACTS

This is an appeal, after nonjury trial, from judgment against plaintiff Fred Pan-kratz in his action for property damage allegedly caused by improper construction of a state highway bridge, and in favor of the state on its counterclaim for encroachment, obstruction of a watercourse and conversion. Pankratz argues on appeal that the judgments on the complaint and counterclaim are clearly erroneous in light of the evidence presented. Corollary issues raised by Pankratz involve right to jury trial, motion for summary judgment and res judicata. 1

*70 This is the second time these parties have been before us. In the first case, State, Dept. of Natural Resources v. Pankratz (hereafter “Pankratz I”), 538 P.2d 984 (Alaska 1973), modified sub nom., Honsinger v. State, 642 P.2d 1352 (Alaska 1982), the state brought an action to quiet title to a gravel bar that had emerged adjacent to Pike’s Island, an island in the Chena River owned by Pankratz. The superior court awarded title to Pankratz on the theory that the gravel bar had naturally accreted and he, as the riparian owner, was entitled to the benefit of the accretion. In determining the boundaries, the court relied on a 1973 survey showing the mean high water mark at 418.5 feet. The superior court awarded title to property lying above the 418.5 mark to Pankratz and property lying below the 418.5 mark to the state. The state appealed the decision and we affirmed. Thus, at the close of Pankratz I, Pankratz owned the island and the gravel bar situated above the mean high water mark and the state owned the bed of the river and the portions of the channel between the island and the mainland lying below the mean high water mark.

Since the late 1960s, Pankratz has extracted and sold gravel from the island and gravel bar. The gravel pit now covers approximately eight acres and is filled with water. Pankratz eventually hoped'to turn the area into a small boat marina. In 1975, he constructed an earthen dike around the river edge of the island and gravel bar. In 1975 and 1976, the state constructed a highway bridge across the Chena River, just upstream of Pankratz’ property.

The appendix to this opinion is a diagram of a 1980 survey superimposed on the 1973 survey. 2 The broken line represents the 418.5 mark as established in Pankratz I. Also shown on the diagram are the approximate boundary of the gravel pit as of 1980, the highway bridge, and the 1980 418.5 mark. The dike lies between the gravel pit and the river, thus forming the current mean high water line.

The present litigation began in 1977 when Pankratz filed a complaint against the state, seeking injunctive relief and monetary damages. Pankratz alleged that the piers supporting the highway bridge were aligned to divert the natural flow of the river against his dike, thereby causing erosion of the dike. The state answered that the pier alignment was not the cause of the erosion. In addition, the state counterclaimed, alleging inter alia that portions of the dike were built on state property; that the dike obstructed the channel, a natural watercourse; and that Pankratz had converted gravel belonging to the state. After a thirteen-day nonjury trial, the superior court found against Pankratz on the complaint and in favor of the state on its counterclaim. This appeal by Pankratz followed.

I. JURY TRIAL

Pankratz first asserts that the superior court erred in denying his request for a jury trial. Pankratz filed his complaint on October 21, 1977. The state originally answered on November 18, 1977, and filed an amended answer and counterclaim on October 9, 1978. Neither party requested a jury trial. The superior court’s pretrial order of October 25, 1979, set the case for trial by the court. On March 14, 1980, Pankratz’ attorney withdrew and a new attorney was substituted. On April 17, 1980, 18 days before the trial was scheduled to begin, Pankratz made his first request for a jury trial, apparently acknowledging untimeliness since he urged the court to relax its rules pursuant to the court’s authority under Civil Rule 94. 3 On April 23, 1980, Pankratz filed his reply to the state’s counterclaim and de *71 manded a jury trial, this time arguing compliance with Civil Rule 38. 4 At the pretrial conference on May 1, 1980, the court denied Pankratz’ demand as untimely and refused to exercise its discretion to allow a jury trial.

Pankratz appears to argue that he is entitled to a jury trial on the issues raised by his complaint as well as those raised by the state’s counterclaim. However, the right to trial by jury on issues raised in a complaint is waived if not demanded within 10 days of service of the answer. Hollembaek v. Alaska Rural Rehabilitation Corp., 447 P.2d 67, 69 (Alaska 1968). Pankratz did not demand a jury trial by November 28, 1977, 10 days after service of the answer. 5 He therefore waived his right to have the issues raised in his complaint tried by a jury.

Pankratz’ jury demand was also untimely as to the issues raised by the state’s counterclaim. Civil Rule 12(a) specifies that the reply to a counterclaim must be served within 20 days after service of the counterclaim. Pankratz’ reply was filed more than a year and a half after the counterclaim, and only 18 days before trial. On similar facts, the Second Circuit found a jury demand untimely. Larson v. General Motors Corp., 134 F.2d 450 (2d Cir. 1943), cert, denied, 319 U.S. 762, 63 S.Ct. 1318, 87 L.Ed. 1713 (1943) and 326 U.S. 745, 66 S.Ct. 34, 90 L.Ed. 445 (1945).

The superior court was justified in denying Pankratz’ jury demand on another ground. Civil Rule 16(e) provides that the pretrial order “shall control the subsequent course of the action unless modified by the judge to prevent manifest injustice.” 6 The court’s pretrial order specifically states in the first paragraph that “[t]rial will be to the Court.” The order was signed by the superior court judge only and copies were sent to counsel for both parties. In Hollembaek, we held that, as to the issues raised in the complaint, the parties were bound by a pretrial order providing for a nonjury trial. 447 P.2d at 68-69. Pankratz seeks to distinguish Hollembaek since in that case counsel for both parties had signed the pretrial order. 7 However, in Fairbanks Publishing Co. v. Francisco, 390 P.2d 784

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Bluebook (online)
652 P.2d 68, 1982 Alas. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pankratz-v-state-department-of-highways-alaska-1982.