Ashford, Application of
| Decision Date | 30 April 1968 |
| Docket Number | No. 4516,4516 |
| Citation | 440 P.2d 76,50 Haw. 314 |
| Parties | , 50 Haw. 452 Application of Clinton Rutledge ASHFORD and Joan Beverly Schumm Ashford to Register Title to Real Property Situate at Kainalu, Molokai, State of Hawaii. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. The location of a boundary described as 'ma ke kai' is along the upper reaches of the wash of waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of waves.
2. Kamaaina witnesses may testify to the location of seashore boundaries dividing private land and public beaches according to reputation and ancient Hawaiian tradition, custom and usage.
Andrew S. O. Lee, Deputy Atty. Gen., Honolulu (Bert T. Kobayashi, Atty. Gen., on the briefs), for appellant.
Charles B. Dwight III, Honolulu (Stephenson, Ashford & Wriston, Honolulu, of counsel), for appellees.
Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ.
On August 22, 1963, Clinton R. Ashford and Joan B. S. Ashford, the appellees, petitioned the land court to register title to certain land situate on the Island of Molokai. The lands are the makai (seaward) portions of Royal Patent 3004 to Kamakaheki and Royal Patent 3005 to Kahiko, both issued on February 22, 1866.
The question before this court is the location of the makai boundaries of both parcels of land, which are described in the royal patents as running 'ma ke kai' (along the sea). The appellees contend that the phrase describes the boundaries at mean high water which is represented by the contour traced by the intersection of the shore and the horizontal plane of mean high water based on publications of the U. S. Coast and Geodetic Survey. To support their position, appellees called a surveyor in private practice who surveyed the parcels on September 19, 1962. Basing his survey on publications of the U. S. Coast and Geodetic Survey, appellees' surveyor described the process which he used in delineating the boundaries at mean high water.
The State of Hawaii, appellant, denies that the makai boundaries of the two lots are correctly designated by the appellee, and claims that 'ma ke kai' is approximately 20 to 30 feet above the line claimed by the appellee. The State contends in this case that 'ma ke kai' is the high water mark that is along the edge of vegetation or the line of debris left by the wash of waves during ordinary high tide. 1 In the trial court, the State presented kamaaina witnesses 2 for the purpose of establishing, by reputation evidence, the location of 'ma ke kai' and also the location of public and private boundaries along the seashore in accordance with tradition, custom and usage in old Hawaii. The questions posed to the witnesses along this line were objected to and sustained by the court. However, the court allowed the witnesses to answer the questions, subject to the objections, to preserve the record for the purpose of appeal to this court.
We are of the opinion that 'ma ke kai' is along the upper reaches of the wash of waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of waves, and that the trial court erred in finding that it is the intersection of the shore with the horizontal plane of mean high water.
The trial court erred in sustaining the objections by the appellees to certain questions put to kamaaina witnesses involving the location of 'ma ke kai'.
When the royal patents were issued in 1866 by King Kamehameha V, the sovereign, not having any knowledge of the data contained in the publications of the U. S. Coast and Geodetic Survey, did not intend to and did not grant title to the land along the ocean boundary as claimed by the appellees. Hawaii's land laws are unique in that they are based on ancient tradition, custom, practice and usage. Keelikolani v. Robinson, 2 Haw. 514. The method of locating the seaward boundaries was by reputation evidence from kamaainas and by the custom and practice of the government's survey office. It is not solely a question for a modern-day surveyor to determine boundaries in a manner completely oblivious to the knowledge and intention of the king and old-time kamaainas who knew the history and names of various lands and the monuments thereof.
In this jurisdiction, it has long been the rule, based on necessity, to allow reputation evidence by kamaaina witnesses in land disputes. In re Boundaries of Pulehunui, 4 Haw. 239; Kanaina v. Long, 3 Haw. 332. The rule also has a historical basis unique to Hawaiian land law. It was the custom of the ancient Hawaiians to name each division of land and the boundaries of each division were known to the people living thereon or in the neighborhood. 'Some persons were specially taught and made repositories of this knowledge, and it was carefully delivered Two kamaaina witnesses, living in the area of appellees' land, testified, over appellees' objections, that according to ancient tradition, custom and usage, the location of a public and private boundary dividing private land and public beaches was along the upper reaches of the waves as represented by the edge of vegetation or the line of debris. 3 In ancient Hawaii, the line of growth of a certain kind of tree, herb or grass sometimes made up a boundary. 4 In re Boundaries of Pulehunui, supra 4 Haw. at 241.
from father to son.' In re Boundaries of Pulehunui, supra. With the Great Mahele in 1848, these kamaainas, who knew and lived in the area, went on the land with the government surveyors and pointed out the boundaries to the various divisions of land. In land disputes following the Great Mahele, the early opinions of this court show that the testimony of kamaaina witnesses were permitted into evidence. In some cases, the outcome of decisions turned on such testimony. See In re Boundaries of Pulehunui, supra; Kanaina v. Long, supra; In re Boundaries of Kapahulu, 5 Haw. 94.
Cases cited from other jurisdictions cannot be used in determining the intention of the King in 1866. We do not find that data or information published and contained in the publications of the U. S. Coast and Geodetic Survey were relied upon by the kamaainas for the purpose of locating seaward boundaries in Hawaii. All of the matters contained in such publications were unknown to the ancient Hawaiians and foreign to the determination of boundaries in Hawaii. Property rights are determined by the law in existence at the time such rights are vested. In re Title of Pa Pelekane, 21 Haw. 175; Keelikolani v. Robinson, supra; In re Kakaako, 30 Haw. 666, 674; Harris v. Carter, 6 Haw. 195, 196.
We find no reference concerning the location of boundaries in Hawaii, prior to 1866, to data contained in the U. S. Coast and Geodetic Survey or to high water mark as the intersection of the seashore with the horizontal plane of mean high water, or .7 or .9 of a foot above sea level. The trial court erred in holding that this was an area solely for the expert testimony of a surveyor to determine from data contained in publications of the U. S. Coast and Geodetic Survey.
Reversed and remanded for further proceedings consistent with this opinion.
This decision is one that will 'count for the future.' 1 Its effect will not be limited to the case at hand. So long as it remains unaltered as the last word of this court on the subject, it will control the determination of the seaward boundary of every parcel of unregistered private land in this State in which the title document describes the seaward boundary as being 'along the sea'; and, also, the determination of the seaward boundary of every parcel of private land built up by accretion to registered land and the seaward boundary of every parcel of registered land left over after erosion.
The decision will not have any effect on the determination of seaward boundaries of government lands, for the complete dominion of the State over its lands extends beyond low water mark and into the sea and when the government decides to dispose of any of its oceanside lands to private purchasers, it may select any line it pleases as the seaward boundary of the parcel to be sold.
Because the decision has the potential future impact described above, I will state my position in greater detail than is normal in dissents to decisions which do not have such impact.
The pertinent facts of this case may be stated by reference to the accompanying sketch.
The parcel of land sought to be registered is located in Kainalu, Molokai, and is shown on the sketch as bounded by lines AB, BC, CD, and DA, line DA being the seaward boundary. As stated in the opinion of the court, this parcel is made up of makai portions of the lands covered by Royal Patents 3004 and 3005, dated February 2, 1866.
Royal Patents 3004 and 3005 were issued in conveyance of government lands. The lands covered thereby were portions of the ahupuaa of Kainalu. This ahupuaa was accepted by the House of Nobles and Representatives of the Hawaiian Islands, assembled in Legislative Council, as government land on June 7, 1848. Indices of Land Commission Awards 1929, pp. 25-46.
The Government Survey of Hawaii, which is the earliest predecessor of the present State Survey Division, adopted the practice of referring to royal patents on government lands as 'Grants' in order to distinguish them from 'royal Patents' issued in confirmation of Land Commission awards. So, Royal Patents 3004 and 3005 will hereafter be referred to as Grants 3004 and 3005.
In 1866, when Grants 3004 and 3005 were issued, the ocean frontage was along lines EF, FG and GH. In the course of a century, the frontage receded by erosion to where it is at the present time. In the grants, the seaward boundary was described by the Hawaiian words ma ke kai. At the trial, the...
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