Akau v. Olohana Corp.

• Decision Date: 28 October 1982
• Docket Number: No. 7275,7275
• Citation: 652 P.2d 1130,65 Haw. 383
• Parties: William AKAU, Jr., Solomon Akau, Alika Cooper and Thomas Kealiihelemauna Kealanahele, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. OLOHANA CORPORATION, Richard Smart, Mauna Kea Beach Hotel Corporation, Lurline B. Roth, Laurance S. Rockefeller, the Queen's Medical Center, Defendants-Appellants, the County of Hawaii and the State of Hawaii, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 1130

652 P.2d 1130

65 Haw. 383

William AKAU, Jr., Solomon Akau, Alika Cooper and Thomas Kealiihelemauna Kealanahele, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. OLOHANA CORPORATION, Richard Smart, Mauna Kea Beach Hotel Corporation, Lurline B. Roth, Laurance S. Rockefeller, the Queen's Medical Center, Defendants-Appellants, the County of Hawaii and the State of Hawaii, Defendants-Appellees.

No. 7275.

Supreme Court of Hawai'i.

Oct. 28, 1982.

Syllabus by the Court

The common law rule was that a private individual has no standing to sue for the abatement of a public nuisance if his injury is only that which is shared by the public generally, but this court has been in step with the trend away from the special injury rule towards the view that a plaintiff, if injured, has standing.

2. There is a trend in the law away from focusing on whether an injury is shared by the public, to whether the plaintiff was in fact injured.

3. A reason for allowing liberal standing is that the danger of a multiplicity of suits is greatly alleviated by a proper class action.

4. A member of the public has standing to sue to enforce the rights of the public even though his injury is not different in kind from the public's generally, if he can show that he has suffered an injury in fact, and that the concerns of a multiplicity of suits are satisfied by any means, including a class action.

5. A plaintiff has standing to sue if he can demonstrate some injury to a recognized interest such as economic or aesthetic, and is himself among the injured, and not merely airing a political or intellectual grievance.

6. The Coastal Zone Management Act, HRS ch. 205A and the Public Access to Beaches Act, HRS ch. 115 do not preclude a private right of action to enforce public access to beaches where the alleged rights are based on custom, necessity, public trust, other non-statutory rights, and HRS § 7-1.

7. The trial court has broad discretion to certify a class and we will overrule only if the court below has misconstrued or misapplied the tests of HRCP 23.

8. The standards of specificity in describing the members of a class are lower for HRCP 23(b)(2) than HRCP 23(b)(3) because only the latter requires individual notice to members and the ability of members to be excluded from the class as described in HRCP 23(c)(2).

9. A class description is definite enough to suit the purposes and concerns of HRCP 23 where the definition is based on specific acts of being prevented from using a trail and one can determine whether an individual is in the class or not.

Warren Price, III, Honolulu (Barry M. Kurren, Honolulu, with him on the briefs; Goodsill Anderson & Quinn, Honolulu, of counsel), for defendant-appellant Lurline B. Roth.

Ben H. Gaddis, Legal Aid Society of Hawaii, Hilo, for plaintiff-appellee Thomas K. Kealanahele.

Andrew Levin, Hilo (with Ben H. Gaddis, Hilo, on the answering brief), for plaintiffs-appellees William Akau, Jr., Solomon Akau and Alika Cooper.

William M. Tam, Deputy Atty. Gen., Honolulu, for defendant-appellee State of Hawaii.

Before RICHARDSON, C.J., LUM and NAKAMURA, JJ., CHANG, Circuit Judge, and OGATA, Retired Justice, assigned by reason of vacancies.

RICHARDSON, Chief Justice.

Plaintiffs Akau and others brought this class action to enforce alleged rights-of-way along once public trails to the beach that crossed original defendants' ¹ property in Kawaihae on the Big Island of Hawaii. The court below ruled that plaintiffs have standing to assert the rights of the public, and certified the suit as a class action. We affirm.

I.

The named plaintiffs have lived or fished in Kawaihae for many years. They represent two subclasses; one contains Hawaii residents who used or were deterred from using the trails, the other contains all persons who own land or reside in the area and used or were deterred from using the trails. The original defendants were landowners or tenants who possess the beachfront land between Spencer Beach Park and Hapuna Beach Park, a span of about two and a half miles along the beach. They had barred all public access across their land to the public beach since acquiring the land in 1954.

Two of the trails in issue run roughly parallel to the beach between the two parks. They have existed since before the turn of this century. The Kamehameha Trail is at most points very close to the water and at others about 100 yards away. The Kawaihae-Puako Road is about 150 yards further upland. There are also eleven intersecting trails that run from the main trails to the shore. Plaintiffs allege that these trails had been used by the public until 1954.

The Territory of Hawaii owned the land between the two parks until it was sold to Richard Smart in 1954. The parcel consisting of the Kawaihae-Puako Road was also sold to Smart at that time. Smart conveyed all his land by deed or lease, and all the original defendants were owners or lessees of that land.

Plaintiffs claim that the trails have been and are public rights-of-way and ask for declaratory and injunctive relief to that effect. The eight theories plaintiffs rely on are 1) HRS § 7-1 ²; 2) ancient Hawaiian custom, tradition, practice and usage; 3) common law custom; 4) easement by implied dedication; 5) easement by prescription; 6) easement by necessity; 7) easement by implied reservation; and 8) easement through public trust. The State was made a nominal defendant to protect the interests of the public. Its position, however, is in support of plaintiffs in this appeal.

Defendants' motion to dismiss for failure to state a claim was denied. Instead of proceeding with further discovery and a trial, the lower court granted leave to file this interlocutory appeal.

II.

We address the standing issue first. All of plaintiffs' theories are based on rights that accrue to them as members of the public, except perhaps easement by necessity and prescription. These easements might be public depending on the facts brought out at trial.

A.

Defendant argues that only the State may bring an action against landowners to enforce the public's right of beach access. This proposition can be traced to the general rule in the law of public nuisance that a private individual has no standing to sue for the abatement of a public nuisance if his injury is only that which is shared by the public generally. Holloway v. Bristol-Myers Corp., 327 F.Supp. 17 (D.D.C., 1971); W. Prosser, Law of Torts § 88, at 583 (4th ed. 1971). Obstruction of the public right of way is a public nuisance. City of Nampa v. Swayne, 97 Idaho 530, 547 P.2d 1135 (1976).

This rule developed in the early common law because harm to the public order, decency or morals was considered a crime against the king. See Prosser, Private Action for Public Nuisance, 52 Va.L.R. 997 (1966). Only the king, therefore, could bring an action against the perpetrator. The sole exception to this rule was that a member of the public had standing to sue if he suffered a special injury that was different in kind, and not merely in degree, from the general public. See e.g., Hardy Salt v. Southern Pac. Transp. Co., 501 F.2d 1156 (10th Cir.1974). The purpose of the rule is to prevent a multiplicity of actions and frivolous suits.

There is a trend in the law, however, away from focusing on whether the injury is shared by the public, to whether the plaintiff was in fact injured. ³ This trend began, not in nuisance, but in taxpayer suits. The general rule had been that a plaintiff had no standing to challenge an improper government act based solely on his status as a taxpayer. Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed.2d 1078 (1923). In these actions, like nuisance, the harm was considered to be to the public generally and no one suffered any direct harm to himself. In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), the Court rejected the special injury requirement where the harm was that Congress had violated a specific constitutional limitation on its spending power. Many states have since greatly liberalized taxpayer standing beyond the federal rule and allow taxpayer suits against any improper expenditure of public funds without need to show special injury to the plaintiff. Cunningham v. Exon, 202 Neb. 563, 276 N.W.2d 213 (1979); Farley v. Cory, 78 Cal.App.3d 583, 144 Cal.Rptr. 923 (1978); City of Tacoma v. O'Brien, 85 Wash.2d 266, 534 P.2d 114 (1975); Lord v. City of Wilmington, 332 A.2d 414 (Del. ch. 1975); Hanson v. Mosser, 247 Or. 1, 427 P.2d 97 (1967). This court has allowed standing for taxpayers who allege an unconstitutional expenditure of public funds. Bulgo v. County of Maui, 50 Haw. 51, 430 P.2d 321 (1967); Castle v. Secretary of the Territory, 16 Haw. 769 (1905).

The courts have also broadened standing in actions challenging administrative decisions. The U.S. Supreme Court has granted standing where plaintiffs allege environmental harm even though plaintiffs' harm is equally shared by a large segment of the public. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). In In re Hawaiian Electric Co., 56 Haw. 260, 535 P.2d 1102 (1975) we granted standing to utility users who challenged a Public Utility Commission's approval of rate increases, although plaintiffs shared the additional rate with all other users. We have also broadly construed standing in other administrative law cases. ⁴ See Life of the Land v. Land Use Commission, 63 Haw. 166, 623 P.2d 431 (1981); Waianae Model Neighborhood Area Association, Inc. v. City and County of Honolulu, 55 Haw. 40, 514 P.2d 861 (1973).

Claims of harm to public trust property is another area where courts are expanding standing. Besig v. Friend, 463 F.Supp. 1053 (N.D.Cal.1979); Paepcke v. Public Building Commission, 46 Ill.2d 330, 263 N.E.2d 11 (1970). In Marks v. Whitney, 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374 (1971), the California Supreme Court granted standing...