This is an appeal, after nonjury trial, from judgment against plaintiff Fred Pankratz 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.
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.
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.
Pankratz appears to argues 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.
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."
II. MOTION FOR PARTIAL SUMMARY JUDGMENT
Pankratz moved for partial summary judgment on any issues raised by the state's counterclaim that were explicitly or implicitly decided, or that could have been decided, in Pankratz I. He specifically sought to bar the state from raising issues as to blocking the channel or river, damaging the state's bridge, impounding state water, or impeding the flow of state water. Pankratz' one page motion was unaccompanied by the required memorandum showing that there were no genuine issues as to material facts and that Pankratz was entitled to judgment as a matter of law. Civil Rule 56(c). The motion did request that the court "take judicial notice of the pleadings and findings and decisions" from the Pankratz I trial. At oral argument on the motion, Pankratz requested that the trial transcript from Pankratz I also be considered. This request was correctly denied as untimely.
The superior court granted the motion "as to legal issues," but denied the motion "with respect to specific facts." Apparently, by granting the motion "as to the legal issues," the court was merely saying that it intended to apply the law of res judicata. The court went on to deny the motion as to specific facts "because the Court has not been furnished with sufficient facts to grant what was decided in the other case, other than what's in the record before the Court." Thus, the judge seems to have found that the motion for summary judgment was procedurally deficient, in that it failed to provide him with enough information to enable him to decide which issues, if any, would be barred by res judicata. Where the scope of an earlier decision is unclear, a court should not grant summary judgment on res judicata grounds. See C. Wright and A. Miller, Federal Practice and Procedure § 2735, at 663-66 (1973). Thus, the superior court was correct in denying Pankratz' motion.
III. PLAINTIFF'S COMPLAINT
Pankratz alleged in his complaint that the piers supporting the state highway bridge were aligned so that the natural flow of the river was diverted and ran into his dike. He claims that the diversion of the water caused his dike to erode and that the state failed to protect his dike with riprap. Pankratz sought an injunction against the state to prevent such erosion and requested damages for the erosion that had already occurred. The superior court found that the dike was not constructed to be a permanent structure, in that it was not properly riprapped and was not high enough. The court further found that the bridge piers were properly aligned; that the bridge did not improperly divert the flow of the river; and that the bridge was not the cause of any unusual or improper erosion to Pankratz' dike. Pankratz argues that the superior court's findings are clearly erroneous.
The law on this issue is clear and is not disputed by the parties. If the bridge's alignment caused damage to Pankratz' property, then the state is liable for the damage. G & A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379 (Alaska 1974); Wernberg v. State, 516 P.2d 1191 (Alaska 1973). Thus, the major issue is whether the alignment of the bridge piers did in fact cause erosion of the dike.
There was a great deal of evidence presented at trial to support both sides of the issue. Pankratz introduced the following evidence in support of his complaint: (1) Lawrence Irving, a registered surveyor, testified that there was turbulence around the area of the bridge piers and that there may have been some erosion of the dike; (2) James Lundgren, a contractor for bridge construction, testified that the bridge piers were improperly aligned and were the cause
As we noted in Pankratz I, "[b]efore we will reverse the trial court's findings in judge-tried cases, we must have a definite and firm conviction that error was committed." 538 P.2d at 987 (footnote omitted). This deference is particularly appropriate where, as here, the bulk of the evidence is oral testimony. Alaska Far East Corp. v. Newby, 630 P.2d 533, 534 (Alaska 1981). In addition, the trial judge in this case took several trips to view the property. Based on our review of the evidence, we cannot say that the superior court's findings were clearly erroneous.
IV. STATE'S COUNTERCLAIMS
The state counterclaimed for removal of portions of the dike on the alternative theories that the dike encroached on state property, obstructed a navigable channel and obstructed a watercourse. The state also sought restitution for converted gravel on the theory that it had been removed from state owned property.
A. Res Judicata
Pankratz first argues that the superior court should have found against the state on its counterclaims on the grounds of res judicata. Specifically, Pankratz argues that Pankratz I established (1) that the channel was not navigable and (2) that Pankratz had not blocked the channel with roads or dikes. In addition, he argues that the issue of whether the channel was a watercourse should have been raised in the first case.
Pankratz I made no explicit finding as to the navigability of the channel. The first case did hold that Pankratz was the owner of any land above the 418.5 mark and that the state was the owner of land below the 418.5 mark as it existed in 1973. The court did not articulate the basis for this holding. However, it is clear that a state has title to land underlying navigable waters up to the mean high water mark. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977); Alaska Pub. Easement Defense Fund v. Andrus, 435 F.Supp. 664 (D. Alaska 1977). Thus, it is implicit in Pankratz I that the boundary determination was based on the channel being navigable. The superior court's finding in the present case that the upper portion of the channel was navigable is therefore consistent with Pankratz I and res judicata principles have not been violated.
Pankratz also argues that the Pankratz I holding that he had not blocked the channel should have prevented relitigation of the issue in the present case. This argument is of course correct to the extent that pre-Pankratz I activities are involved. However, Pankratz has presented no argument or citation to the record indicating
Next, Pankratz argues that the issue of whether the channel was a watercourse should have been raised in the prior case and thus was barred by res judicata in the present case. The watercourse theory was not raised in Pankratz I, and hence was not decided. However, a mere change in the theory is not sufficient to prevent the application of the doctrine of res judicata:
Moran v. Poland, 494 P.2d 814, 815 (Alaska 1972). The superior court in the present case misstated the doctrine, concluding that only issues that were actually decided in Pankratz I could have res judicata effect. The court's misunderstanding is harmless because here, again, the state's theory is that post-Pankratz I activities caused obstruction of the watercourse. Thus, the issue is not precluded by res judicata.
B. Other Grounds
Pankratz argues that even if res judicata is not applicable, "[t]he evidence presented by the state did not under any theory propounded by the state support the findings for the state on its counterclaims." The basis of the court's holding in favor of the state is not entirely clear. At the conclusion of the trial, the judge referred to both the encroachment and the watercourse theories. In the written decision, prepared by the state, the court made a number of factual findings relating to encroachment and obstruction of a watercourse, but its conclusions of law seem to rest solely on the encroachment theory. Nevertheless, we hold that the superior court could have found in favor of the state on either of the theories.
The state's primary theory for removal of the dike was that it encroached on state property. The 1980 survey shows that portions of the dike were outside the boundary of Pankratz' property as established in Pankratz I. See Appendix. Thus, the dike would be on state property unless Pankratz could show that the land underlying the dike had accreted above the 418.5 mark since Pankratz I.
As an alternative, the state argued that the dike should be removed because it obstructed a watercourse. The parties agree
Although there is no uniform definition of "watercourse," the courts generally agree on three essential elements: (1) a definite stream of water, (2) flowing in a definite natural channel, and (3) originating from a definite source of supply. 1 W. Hutchins, Water Rights Laws in the Nineteen Western States, at 30 (1971). The great weight of authority is to the effect that the flow need not be continuous, but must be at least periodic. Id. at 32-33.
In Weinberg v. Northern Alaska Development Corp., 384 P.2d 450 (Alaska 1963), we found that a slough which flowed only during the spring thaw and on infrequent occasions during heavy rains should be classified as a "drainway for surface waters" rather than a "watercourse". Id. at 451-52. G & A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379 (Alaska 1974), involved Chester Creek, which naturally and continuously flowed across plaintiff's property. We stated that it was "clear beyond doubt" that the creek was a watercourse. Id. at 1384. The channel involved in the present case lies somewhere between these extremes — it is clearly not merely a drainway for surface waters, but it is also not a continuously flowing stream. There was evidence in both trials, including testimony by Pankratz, that water flowed in the channel at least once a year during high water times. In the trial of the present case, the state presented evidence that, prior to dike construction, the channel had a well-established path; that water had been observed in the channel subsequent to Pankratz I; and that the river strived to use the channel even with the dike in place. Thus, we think that all three of the essential elements were met.
Pankratz also argues that the state did not show damage to a riparian owner.
We conclude that the state was entitled to have those portions of the dike that obstructed the flow of water in the channel removed under the watercourse theory.
The superior court found that 10,000 cubic yards of gravel had been removed and sold from the state-owned portion of the upper end of the channel. See Appendix. Pankratz was ordered to pay the state $3,500 for the conversion. Pankratz appears to argue that the state did not own the property. This is clearly wrong under Pankratz I. Pankratz does not seem to dispute that he removed and sold gravel from the upper channel. Thus, the court made no error as to the conversion issue.
The judgment of the superior court is AFFIRMED in all respects, subject to the limitation set forth in note 12 supra.