Clear and Convincing Evidence and Reasonable Visibility: Alaska Refines Easement by Estoppel and Prescriptive Easement Doctrine in Koponen v. Romanov

I. Introduction

The Alaska Supreme Court’s decision in Alex Koponen v. Vsevolod D. Romanov and Maria C. Sanders, No. 7799 (Dec. 19, 2025), addresses a familiar but legally intricate problem in property law: when long-term, informal use of a neighbor’s driveway ripens into a legally enforceable easement.

The case arises from a rural Fairbanks setting. In the 1970s the Franks, owners of Lot 17 in the Chena Hills subdivision, constructed a driveway along their boundary with the neighboring Koponen homestead. In 1979, appellant Alex Koponen extended that driveway across Lot 17 to reach the home he built on his parents’ homestead. Decades later, after intervening ownership by Carol Gold, appellees Vsevolod Romanov and Maria Sanders purchased Lot 17 and blocked the access. Koponen sued, claiming a driveway easement across Lot 17 based on:

Easement by estoppel – allegedly created by an oral grant from original Lot 17 owner Lewis Frank in 1979, and
Prescriptive easement – based on more than forty years of claimed use, including fuel deliveries.

The superior court rejected both theories after trial. On appeal, Koponen argued that the court erred in finding he had not met his burden to prove either easement type. The Alaska Supreme Court affirmed, but in doing so clarified important points about:

the characterization of oral grants of easements as non-hearsay “verbal acts”,
the clear and convincing evidence standard for proving an oral easement by estoppel, and
the rigor of the “open and notorious” / reasonable visibility requirement for prescriptive easements where physical evidence of a driveway is minimal or camouflaged.

The opinion therefore has significance well beyond this particular driveway dispute. It reinforces Alaska’s insistence on strong, objective proof before courts will recognize unwritten rights that burden a neighbor’s land, and it provides concrete guidance on what kinds of evidence will, and will not, satisfy those demanding standards.

II. Summary of the Opinion

A. Factual Background

Early history

1970s: Lewis and Gail Frank purchased Lot 17 (Chena Hills Subdivision, Fairbanks) and built a driveway along the property line next to the Koponen family homestead.
1979: Koponen’s parents allowed him to build a house on their homestead. He extended the Franks’ driveway from Lot 17 onto the homestead parcel to access his house and fuel tank.
Use pattern: Koponen usually accessed his home on foot from another part of the homestead, but occasionally drove on the Lot 17 driveway and used it for fuel deliveries.

Change in ownership and reduced use

1982: Carol Gold bought Lot 17 from the Franks.
1984 (approx.): After unknown persons drove onto Lot 17 seeking Koponen, Gold told Koponen he had no right to use her driveway for any purpose, including fuel delivery.
In response, Koponen:
- secured an easement “further up the hill” across Lot 16, and
- reduced his use of the Lot 17 driveway, allegedly to “maintain friendly relations.”
He continued, by his own account, to use the Lot 17 driveway for fuel deliveries about once every two or three years.

Later ownership and dispute

August 2020: Appellees Romanov and Sanders purchased Lot 17.
2021–2022: They undertook driveway work and placed objects near the property boundary:
- Romanov placed a tire near the property line (he testified its placement was random).
- Upon seeing Koponen attempting to move the tire, Romanov and Koponen discussed a potential lease for driveway access, but never reached an agreement.
- In 2022, Romanov placed a railroad tie topped with a boulder to block access between the properties.

The lawsuit

March 2023: Koponen (an attorney representing himself) filed suit, alleging a driveway easement across Lot 17 that provided “long standing access” to his house and fuel tank. He claimed this was the only route suitable for fuel delivery and transport of heavy items.
Romanov and Sanders denied any easement, asserted that Gold had told Koponen as early as 1984 he had no rights over Lot 17, and pointed to alternate access via the Lot 16 easement and other routes.

B. Procedural History

Pre-trial motions:
- Romanov and Sanders moved to dismiss; Koponen moved for summary judgment, arguing easement by estoppel and prescriptive easement.
- Koponen supported his summary judgment motion with no affidavit or sworn evidence, contrary to Alaska Civil Rule 56(c) and (e).
- The superior court:
  - Denied defendants’ motion to dismiss.
  - Denied Koponen’s motion for summary judgment for two reasons:
    1. Failure to support the motion with an affidavit, “standing alone,” warranted denial.
    2. Genuine issues of material fact existed regarding all three elements of a prescriptive easement (continuity, hostility, and notoriety).
Trial:
- Witnesses: Koponen; Romanov; Sanders; prior owner Gold; Gold’s long-term tenant, Gwendolyn Bryson.
- Koponen testified that:
  - In 1979, original owner Lewis Frank orally gave him permission to use the Lot 17 driveway.
  - He built his house and driveway placement in reliance on that permission.
  - He used the driveway for commuting, fuel deliveries, and moving heavy items, and continued using it after Gold’s purchase (though he reduced usage after her objection).
  - He could “theoretically” reach his property without crossing Lot 17 and in fact obtained an easement across Lot 16, but still needed Lot 17 for fuel deliveries and heavy loads.
- Romanov and Sanders testified that:
  - When they inspected Lot 17 before purchase, there was no visible driveway or access route leading to another dwelling.
  - They never saw anyone, including Koponen, driving across their property in the place he claimed an easement.
  - They only learned of his asserted claim when Romanov saw him trying to move a tire on Lot 17.
- Gold testified that:
  - When she bought Lot 17 in 1982, nothing on the ground suggested a driveway easement leading to Koponen’s property, and she had no notice of any such easement.
  - She never saw Koponen drive across her property.
  - After strangers driving on her land in 1984 said they were looking for Koponen, she telephoned him and told him he had no right to use her property for any purpose, including fuel delivery.
  - After that, she observed no unknown vehicles using her driveway and no sign of a driveway across her land.
  - She later rented the property to Bryson from 2009–2019, and, before selling in 2019, again told Koponen he had no right to use the driveway, following his admission he had been using it for fuel deliveries without her knowledge.
- Bryson testified that:
  - She rented Gold’s house from November 2009 to February 2019.
  - In 2014 she installed a motion-sensitive security camera that continuously monitored the driveway and sent alerts for activity, including vehicle photos.
  - The camera never showed any unknown vehicles using the driveway, though she acknowledged technical interruptions (such as power outages) were possible.
Superior court’s decision:
- Easement by estoppel:
  - The court characterized Koponen’s testimony about Frank’s oral permission as inadmissible hearsay and admitted it only for a limited, non-substantive purpose.
- Prescriptive easement:
  - Applied a clear and convincing evidence standard.
  - Found Koponen had shown continuity and hostility, but not open and notorious use:
    - Driveway extension was “very camouflaged by tree coverage.”
    - Fuel deliveries were infrequent and largely during daytime business hours when Gold might be away.
    - Gold and Bryson credibly testified that neither saw unknown vehicle use; Bryson’s camera did not record any unrecognized vehicle traffic.
  - Concluded that “a reasonably diligent owner would not have known about this extended driveway,” so notoriety was not established.

C. Holdings on Appeal

The Alaska Supreme Court affirmed, but with important doctrinal clarifications:

No easement by estoppel:
- The Court held that to prove an easement by estoppel under Alaska law, a party must show:
  1. an oral grant or permission to use the land, and
  2. detrimental reliance on that permission.
- It agreed that Koponen failed to prove the existence of an oral grant by clear and convincing evidence, even though:
  - It corrected the superior court’s evidentiary ruling, holding that Koponen’s testimony about Frank’s oral grant was not hearsay but a verbal act and therefore admissible.
  - Nonetheless, his uncorroborated, self-serving testimony and the physical placement of his house and driveway did not satisfy the high evidentiary standard.
No prescriptive easement:
- The Court reaffirmed the three elements of a prescriptive easement in Alaska, all to be proved by clear and convincing evidence:
  1. Use that is continuous and uninterrupted for at least ten years.
  2. Hostile use, meaning use as if one is the owner and not merely by permission.
  3. Use that is reasonably visible to the record owner – the “open and notorious” requirement.
- It accepted the superior court’s findings that:
  - Continuity and hostility were proved, but
  - Koponen’s use was not open and notorious because a reasonably diligent owner would not have detected an extended driveway concealed by tree cover and used only sporadically.
- Because the notoriety element failed, the prescriptive easement claim failed.
Other issues:
- Koponen also challenged the award of attorney’s fees to Romanov and Sanders, but only on the premise that they would no longer be the prevailing parties if he won on appeal. Because the Court affirmed on the merits, it did not reach that issue.
- The Court noted that Koponen had argued “apparent easement” and easement by necessity in the superior court, but because he did not re-assert those arguments on appeal, they were forfeited and not addressed.

III. Precedents and Authorities Cited

A. General Standard of Review – Anderson v. Wilson and HP Ltd. Partnership v. Kenai River Airpark

The Court began by framing its standard of review, relying on Anderson v. Wilson, 555 P.3d 13 (Alaska 2024), which in turn drew from HP Ltd. Partnership v. Kenai River Airpark, LLC, 270 P.3d 719 (Alaska 2012):

“A superior court’s determination of whether an easement exists is based on findings of fact and legal conclusions. We do not disturb a trial court’s findings of fact unless they are clearly erroneous. We review the application of law to facts de novo.”

This framework shaped the Court’s deference to the superior court’s factual findings (for example, that the driveway extension was camouflaged and not reasonably visible) while independently reviewing the legal elements of easements by estoppel and prescription.

B. Easement by Estoppel – Swift v. Kniffen, Freightways Terminal, and Mitchell v. Land

The Court’s easement by estoppel analysis rests primarily on Swift v. Kniffen, 706 P.2d 296 (Alaska 1985), which stated:

“Under Alaska law, a private easement is created by estoppel only upon a showing of an oral grant and detrimental reliance.”

Earlier cases, Freightways Terminal Co. v. Industrial & Commercial Construction, Inc., 381 P.2d 977 (Alaska 1963), and Mitchell v. Land, 355 P.2d 682 (Alaska 1960), similarly recognized that easements can arise by estoppel when a landowner orally authorizes a particular use and the user changes position in reliance on that authorization.

These cases underpin two key propositions reaffirmed in Koponen:

Alaska recognizes easements by estoppel based on oral grants despite the statute of frauds, because equity prevents a landowner from revoking permission after substantial reliance.
However, such easements require both proof of an oral grant or permission and proof of detrimental reliance.

In Koponen, the Court accepted, at least for purposes of analysis, that building a home and configuring a driveway could qualify as detrimental reliance if an oral grant had actually been proven. The fatal weakness was not the nature of reliance, but the failure to convincingly establish that the oral grant had been made.

C. Standard of Proof – Curran v. Mount

The Court relied on Curran v. Mount, 657 P.2d 389 (Alaska 1982), which held that claims of adverse possession must be proven by clear and convincing evidence, not just a preponderance. Curran reasoned that because adverse possession divests the record owner of title, strong proof is needed.

Koponen imports that same high standard into related doctrines:

Prescriptive easement – already clearly governed by clear and convincing evidence under HP Ltd. Partnership.
Easement by estoppel – now treated, in this opinion, as also requiring clear and convincing evidence of the oral grant, given its similar effect of burdening the title of the record owner.

The Court expressly stated that Koponen had not met his burden of proving the oral grant “by clear and convincing evidence,” even though the superior court had applied only a preponderance standard. This signals that easement-by-estoppel claims in Alaska now stand on the same evidentiary footing as adverse possession and prescriptive easement claims.

D. Prescriptive Easements – HP Ltd. Partnership and McDonald v. Harris

HP Ltd. Partnership v. Kenai River Airpark, LLC, 270 P.3d 719 (Alaska 2012), which the Court cites repeatedly, provides the modern Alaska formulation of the elements of a prescriptive easement:

Use that is “continuous and uninterrupted for at least ten years.”
Use where the claimant “acted as if he were the owner and not merely one acting with permission of the owner” (the “hostile” element).
Use that is “reasonably visible to the record owner,” also referred to as “open and notorious.”

All three must be established by clear and convincing evidence. McDonald v. Harris, 978 P.2d 81 (Alaska 1999), further clarified that:

“The adverse user must show only that a duly alert owner would have known of the adverse presence.”

McDonald is also a contrast case: a prescriptive easement was found where the user:

erected a barbed-wire fence along the driveway,
posted “no trespassing” and “private drive” signs, and
placed physical obstacles to block others from using the drive.

In Koponen, the Court effectively juxtaposes that scenario with the facts here: no fence, no signage, a visually ambiguous path, and very limited, low-profile use. That contrast underscores that active physical manifestations of control and visibility matter greatly for the notoriety element.

E. Evidence Law – Verbal Acts and Self-Serving Testimony (Glover, Alaska R. Evid. 801(c), Peterson v. Wirum)

The Court corrected the superior court’s hearsay analysis by invoking Alaska Rule of Evidence 801(c) and its commentary, as applied in Glover v. Glover, 92 P.3d 387 (Alaska 2004):

“If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.”

Statements that themselves create legal rights or relationships are classic “verbal acts” and are not hearsay. An oral grant of a property right (“You may use my driveway”) falls squarely within that category. Thus, Koponen’s testimony recounting Frank’s alleged statement was admissible because it was offered to show that a grant occurred, not to prove the truth of a factual assertion embedded in the words.

However, admissibility did not equate to persuasiveness. Quoting Peterson v. Wirum, 625 P.2d 866 (Alaska 1981), the Court emphasized that self-serving statements about one’s subjective intent, expressed only in litigation, are of “limited probative value.” In Peterson, this principle applied to contracting parties’ alleged intent; in Koponen, the Court analogously downplayed uncorroborated, self-interested testimony about an oral grant made decades earlier.

F. Appellate Waiver – Oels v. Anchorage Police Department Employees Association

The Court cited Oels v. Anchorage Police Department Employees Association, 279 P.3d 589 (Alaska 2012), to reaffirm a standard appellate principle: issues not raised or briefed on appeal are forfeited. Koponen had advanced theories of “apparent easement” and easement by necessity in the superior court, but did not pursue them in his appellate briefing. Accordingly, the Supreme Court did not address those theories.

IV. Legal Reasoning and Application

A. Easement by Estoppel

1. Governing rule

Under Swift and its predecessors, Alaska recognizes easements by estoppel where:

The landowner gives an oral grant or permission for a specific use of land, and
The grantee reasonably and detrimentally relies on that grant (for example, by building structures or making investments predicated on the access).

In Koponen, the Court further clarifies that such a claimant must establish at least the grant element by clear and convincing evidence, consistent with the standard for adverse possession and prescriptive easements, because an easement by estoppel imposes a significant, permanent burden on another’s title.

2. The hearsay / “verbal act” question

The superior court excluded Koponen’s testimony about Lewis Frank’s oral grant as hearsay, admitting it only for limited purposes. The Supreme Court held that was incorrect:

An alleged oral grant of an easement is a verbal act – the words themselves are operative facts that change legal relations.
Such statements are not hearsay when offered to show that the legal act (the grant) occurred, rather than to prove some factual proposition contained within the words.
Therefore, Koponen’s account of Frank’s words was admissible evidence of an alleged oral easement grant.

This clarification is important: litigants in easement-by-estoppel and oral-license disputes can, in principle, testify to what was said without running afoul of the hearsay rule, though credibility and weight remain for the fact-finder to determine.

3. Weight of the evidence: why the oral grant failed

While admitting the testimony as a verbal act, the Court found that:

Koponen’s testimony was self-serving and uncorroborated.
No independent documentary evidence or third-party witnesses supported his claim that Frank granted a permanent driveway right in 1979.
The mere placement of the house and driveway, although consistent with his narrative, was equally consistent with informal, revocable neighborly permission.

As the Court put it, the house’s placement did “not on its own satisfy his burden to prove the existence of an oral grant by clear and convincing evidence.” Combined with the lack of corroborating evidence, that was fatal to the estoppel claim.

In addition, objective facts somewhat undermined the claim of a binding grant:

Once Gold objected in 1984, Koponen arranged an alternative easement across Lot 16 and reduced his use of Lot 17 to maintain “friendly relations.” That behavior is more consistent with recognition that his rights depended on ongoing neighborly goodwill than with a firm belief in a legally irrevocable easement.
He did not mark, improve, or maintain the driveway extension on Lot 17 as though it were an established property right.

Taken together, these points made it unreasonable to impose a permanent driveway easement on Romanov and Sanders based solely on Koponen’s retrospective account of an oral conversation with a former owner more than forty years earlier.

4. Detrimental reliance – an issue assumed but not decided

Koponen argued that he would have sited his house and its driveway elsewhere had he not believed he held an easement across Lot 17. The Court did not squarely reject the idea that such siting decisions could constitute detrimental reliance. Instead, it effectively assumed that this type of reliance could satisfy the reliance element but found the claim failed at the threshold: the oral grant was not proven convincingly in the first place.

Thus, while reliance doctrine is not tightened in this decision, the case stands for the proposition that:

Even very substantial reliance (such as building a home) will not produce an easement by estoppel absent convincing proof that a grant was actually made.

B. Prescriptive Easement

1. Elements reaffirmed

Reiterating HP Ltd. Partnership, the Court restated the three elements of a prescriptive easement, all to be proven by clear and convincing evidence:

Continuous and uninterrupted use for at least ten years – use consistent with the nature of the claimed easement, without abandonment or significant gaps.
Hostile use – use as though one has a right to do so, without the true owner’s permission.
Open and notorious use – use that is reasonably visible to a reasonably diligent (“duly alert”) record owner.

If any element fails, the claim collapses; the Court cited HP Ltd. Partnership for this three-element structure.

2. Application to Koponen’s use

a. Continuity

The superior court found, and the Supreme Court did not disturb, that Koponen’s driveway use was “continuous” for prescriptive-easement purposes, even though fuel deliveries occurred only every two or three years. This implicitly recognizes:

“Continuous” does not mean constant daily or weekly travel.
Instead, continuity is judged in light of the type of use claimed. For an easement used primarily for heavy deliveries (fuel trucks) and occasional vehicle access, periodic use can be sufficient if it reflects a stable, ongoing pattern over the ten-year statutory period.

b. Hostility

The superior court also found hostility. “Hostility” in this context does not connote anger or ill will; it means:

Use that is not subordinate to the true owner’s permission; and
Use that is not based on another legal right (such as a license or express easement).

Here, any initial permission from Frank (if it existed) had ended, at the latest, when Gold expressly revoked permission in 1984. From that point forward, Koponen’s continued fuel deliveries across Lot 17 – without Gold’s consent – were properly treated as hostile.

c. Open and notorious (reasonable visibility)

The open-and-notorious requirement was the central battleground. The Court emphasized that:

The claimant does not have to show that the owner actually knew about the adverse use.
Rather, the claimant must show that a reasonably diligent or “duly alert” owner would have noticed it.
This is a fact-intensive inquiry focused on what physical evidence and patterns of use would be visible on the ground.

Several facts persuaded the superior court (and the Supreme Court) that Koponen’s use was not reasonably visible:

Camouflaged driveway extension: Photographs in the record showed that any path leading from Lot 17 onto the Koponen homestead was heavily obscured by tree cover. The superior court found that “any possible extended driveway is very camouflaged by tree coverage.”
Lack of maintenance or markings: Koponen conceded he did not regularly maintain the driveway extension and did not interfere with his neighbors’ use of Lot 17. Unlike in McDonald, there were no fences, signs, or obstacles demarcating a private driveway.
Testimony of owners and tenant:
- Gold, who owned Lot 17 from 1982 until retirement, testified she never saw any unknown vehicles after her 1984 conversation with Koponen and saw nothing resembling an access road to his property.
- Bryson, the tenant from 2009–2019, similarly testified that she never saw unfamiliar vehicles and that her motion-sensitive camera never recorded them, though she acknowledged the possibility of technical gaps.
- Romanov and Sanders testified that they never saw any such use and, when they inspected the property before purchase, saw nothing suggesting a driveway to another residence.
Timing and frequency of use: Fuel deliveries were infrequent and usually during daytime business hours, when Gold might well have been away at work. Thus, even if trucks occasionally used the route, their presence would have been both infrequent and easy to miss.

Against this evidentiary background, the Court held that the superior court did not clearly err in finding that a “reasonably diligent owner would not have known about this extended driveway.” Therefore the notoriety element was not proven by clear and convincing evidence, and the prescriptive easement claim necessarily failed.

3. Comparison with McDonald v. Harris

The Court’s brief “cf.” citation to McDonald is instructive. In McDonald, the claimant:

physically fenced the sides of the driveway,
posted “no trespassing” and “private drive” signs, and
placed barriers that limited or prevented others from using the drive.

Those actions made the adverse use unmistakably open and notorious. By contrast, in Koponen:

there were no fences or signs,
the alleged route was visually obscure, and
the frequency of use was low and easily missed.

This comparison emphasizes a practical point: where an alleged easement route is not physically evident on the face of the land, courts are unlikely to find prescriptive rights, especially where the claimant has not manifested control through maintenance, signage, or visible improvements.

V. Simplifying the Key Legal Concepts

A. What is an Easement?

An easement is a legal right to use someone else’s land for a specific purpose (like a driveway, a utility line, or a footpath) without owning the land itself. The person benefiting from the easement holds a limited right; the landowner retains ownership but must tolerate that use.

B. Easement by Estoppel

An easement by estoppel arises when:

The landowner tells someone they may use the land (for example, “You can always use this driveway to reach your house”), and
The other person relies on that promise in a serious way (for example, by building a home or investing money under the assumption that access is secure).

Once such reliance occurs, the law can “estop” (prevent) the landowner or their successors from denying that permission later, even if the original promise was not in writing. In Alaska, however, the person claiming such an easement must provide very strong evidence (clear and convincing) that the promise was actually made.

C. Prescriptive Easement

A prescriptive easement is similar to adverse possession, but instead of gaining ownership, you gain a right to continued use. To obtain a prescriptive easement in Alaska, you must show that your use of someone else’s land was:

Continuous – an ongoing pattern over at least ten years (though the frequency depends on the kind of use).
Hostile – without the owner’s permission and not based on some other right.
Open and notorious – visible enough that a reasonably careful landowner would notice it.

If your use is secret, hidden, or so infrequent that an alert owner would probably never notice, you cannot obtain a prescriptive easement, even if you have been using the route for decades.

D. “Open and Notorious” / Reasonably Visible Use

“Open and notorious” does not mean widely publicized; it means:

Your use is on the surface of the land, in a way that can be seen; and
A reasonably diligent owner who checks their property from time to time would likely notice it.

Examples of open and notorious use include:

A clearly worn driveway or road with tire tracks.
Fences, gates, or signs marking a private drive.
Obvious paths or improvements cutting across the property.

By contrast, a path hidden by vegetation and used rarely, without maintenance or markings, is unlikely to satisfy this requirement.

E. “Hostile” Use

“Hostile” in property law does not mean angry or violent. It means that the use:

is without the owner’s permission, and
is made as if you have a right to use the land, not merely as a favor.

If you start with the owner’s permission, your use is not hostile until that permission is revoked or clearly withdrawn and you continue using the land without consent.

F. “Verbal Acts” and Hearsay

Under evidence law, “hearsay” is an out-of-court statement offered to prove the truth of what it says. But some statements are not hearsay because the law cares only that the words were spoken, not whether they were true:

Examples include:
- “I give you this land.”
- “You are fired.”
- “You may use my driveway whenever you want.”

These are verbal acts – the statement itself is the legal action. In Koponen, the alleged oral grant by Frank was such a verbal act, so testimony recounting it was not hearsay and was admissible. But the court still had to decide whether the testimony was credible and strong enough to satisfy the clear-and-convincing standard.

G. Levels of Proof: Preponderance vs. Clear and Convincing

Civil cases typically use the preponderance of the evidence standard – more likely than not (over 50%). But some claims are so serious in their consequences that courts require stronger proof.

In Alaska:

Adverse possession,
Prescriptive easements, and now
Easements by estoppel (at least as to the grant element)

must be proved by clear and convincing evidence. That means the evidence must show it is highly probable, not just slightly more likely, that the claim is true. Doubtful or thin evidence is not enough to take away or burden a neighbor’s property rights.

VI. Impact and Significance

A. Stricter Evidentiary Expectations for Oral Easements

Koponen sends a clear message: Alaska courts will be skeptical of unwritten easement claims based solely on the claimant’s own recollection of decades-old oral discussions. Even when such statements are admissible as verbal acts, they will often be insufficient without corroborating, objective evidence.

Practically, this means:

Parties should reduce easement agreements to writing and record them whenever possible.
If parties choose to rely on oral arrangements, they should at least create contemporaneous documentation (letters, emails, maps, or notes) and, where feasible, ensure that other witnesses are present.
Courts will not lightly burden a parcel with a permanent easement based on a single party’s unconfirmed memory, especially where subsequent conduct (like seeking alternative access and acquiescing in objections) cuts against the claim.

B. The “Reasonably Visible” Requirement in Rural and Wooded Settings

The case is particularly significant for rural Alaska properties, where informal paths and shared access routes are common and where vegetation may obscure features on the ground. Koponen confirms that:

Merely using a hidden or lightly used path across another’s wooded property for many years will not necessarily yield a prescriptive easement.
The claimant must demonstrate that the path or driveway would be obvious to a reasonably diligent owner – which typically requires either visible physical traces (worn tracks, clearing, gravel) or some form of marking or improvement.

This encourages land users who rely on informal access across neighboring parcels to:

either formalize their access through recorded easements, or
at least ensure that their usage is physically apparent and consistent, if they hope to claim rights later.

C. Alignment of Standards Across Adverse Use Doctrines

By explicitly applying the clear-and-convincing standard to the oral grant underlying an easement by estoppel, Koponen harmonizes Alaska’s treatment of related doctrines:

Adverse possession – clear and convincing evidence required (Curran).
Prescriptive easement – clear and convincing evidence required (HP Ltd. Partnership).
Easement by estoppel – at least as to the existence of the oral grant, clear and convincing evidence required (Koponen).

This doctrinal alignment underscores the Court’s view that any doctrine divesting or burdening a record owner’s property rights through longstanding use or unwritten promises must be supported by particularly strong proof.

D. Role of Digital Evidence and Modern Monitoring

The testimony of tenant Bryson and her motion-sensitive security camera illustrates how modern surveillance technology can influence property disputes:

Continuous monitoring with alert capabilities allowed Bryson to testify credibly that no unknown vehicles used the driveway during her tenancy.
Although she acknowledged possible gaps from technical interruptions, the absence of alerts strongly supported the superior court’s finding that there was no visible pattern of adverse vehicular use.

For future cases, this suggests:

Digital records (cameras, GPS logs, delivery records) can be powerful evidence for or against prescriptive-use claims.
Property owners concerned about adverse use may, intentionally or not, accumulate evidence that helps defeat future claims simply by installing security systems.

E. Lessons for Pro Se Litigants and Summary Judgment Practice

Though not central to the final outcome, the superior court’s treatment of Koponen’s summary judgment motion (which was unsupported by affidavits) reinforces a procedural lesson:

Even attorney-litigants appearing pro se must comply with Civil Rule 56: unsworn argument is not evidence.
Summary judgment requires sworn statements, deposition excerpts, or other admissible evidence in support.

The court’s refusal to grant summary judgment on an evidentiary record that consisted only of bare allegations and legal argument underscores the importance of proper evidentiary support even at the motion stage.

VII. Conclusion

Koponen v. Romanov is not just a dispute about a Fairbanks driveway; it is a significant clarification of Alaska easement law at the intersection of evidence, property, and equity. The decision:

Reaffirms that easements by estoppel require proof of an actual oral grant and detrimental reliance, and that the grant must be established by clear and convincing evidence.
Corrects a key evidentiary point by holding that oral grants of property rights are non-hearsay verbal acts, though courts may assign limited weight to uncorroborated, self-serving testimony about such grants.
Reinforces the open and notorious / reasonably visible requirement for prescriptive easements, emphasizing that sporadic, low-profile use of a camouflaged or unmarked driveway will not ordinarily suffice.
Underscores the Court’s broader commitment to strong proof standards for all doctrines that erode or burden record title based on long-term use or unwritten understandings.

For landowners and practitioners in Alaska, the case serves as a cautionary reminder: informal neighborly understandings about access, even those honored for decades, are precarious if not formalized. Those who need reliable, long-term access across another’s land should secure written, recorded easements or, at minimum, ensure that their use is consistent, conspicuous, and well documented. Absent such steps, courts will be reluctant to impose permanent burdens on a neighbor’s property based on contested memories and faint traces on the ground.