City and County of Honolulu v. Boulevard Properties, Inc., 5340

• Decision Date: 27 December 1973
• Docket Number: No. 5340,5340
• Citation: 517 P.2d 779,55 Haw. 305
• Parties: CITY AND COUNTY OF HONOLULU, a municipal corporation, Plaintiff-Appellant, v. BOULEVARD PROPERTIES, INC., Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 779

517 P.2d 779

55 Haw. 305

CITY AND COUNTY OF HONOLULU, a municipal corporation Plaintiff-Appellant, v. BOULEVARD PROPERTIES, INC., Defendant-Appellee.

No. 5340.

Supreme Court of Hawai'i.

Dec. 27, 1973.

Rehearing Denied Feb. 15, 1974.

Syllabus by the Court

1. Under the holding in Territory v. Ala Moana Gardens, 39 Haw. 514, rehearing denied, 39 Haw. 655 (1953), when land is subdivided into building lots and streents, a plat showing such subdivision is recorded, and sales of the building lots shown on the plat are made, an implied dedication of the streets shown on the plat to the use of the purchasers of the building lots and the public occurs, although the streets have not been opened and accepted by the city, and such dedication is binding on the owner who laid out the subdivision and on all subsequent owners.

2. The holding in Territory v. Ala Moana Gardens, supra, contemplates an eventual statutory dedication of the street areas shown on the subdivision map when the streets are opened, and the street areas shown on the map should be kept free of air right or any other encumbrance which would prevent statutory dedication.

3. In the absence of evidence to the contrary, the value of land encumbered with roadway easement is nominal.

George I. Hieda, Deputy Corp. Counsel, Honolulu (Paul Devens, Corp. Counsel, Honolulu, with him on the brief), for plaintiff appellant.

William W. Saunders, Honolulu (J. W. Ellsworth, Honolulu, with him on the brief, Saunders & Morse, Honolulu, of counsel) for defendant-appellee.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

MARUMOTO, Justice.

This case involves the amount of just compensation to be paid by the City and County of Honolulu, plaintiff, to defendant Boulevard Properties, Inc., for a parcel of land in Honolulu, designated as Parcel 12 in the complaint, taken by plaintiff in an eminent domain proceeding for the extension of Pensacola Street seaward of Kapiolani Boulevard. The date of summons in the case was September 27, 1968.

Defendant holds fee simple title to the parcel. The parcel contains an area of 7,817 square feet, and is the same parcel shown as Lot 857 on Map 6 of Land Court Application No. 880 of Bishop Trust Company, Limited, trustee of Kewalo Land Trust. The parcel will hereafter be referred to as Lot 857.

The case is here on appeal by plaintiff from a circuit court judgment which adjudged the amount of just compensation for the taking of the parcel to be $150,477.

The circuit court determined the amount of just compensation for the parcel on the basis that the parcel was unencumbered on the date of summons, except for utility easement granted to The Hawaiian Electric Company, Limited.

It is the contention of the plaintiff that, on the date of summons, the parcel was encumbered by a roadway easement under the holding in Territory v. Ala Moana Gardens, 39 Haw. 514, rehearing denied 39 Haw. 655 (1952), and its value was, therefore, nominal on that date.

The holding in Ala Moana Gardens is that the laying out of a subdivision of land and recording of a plat thereof showing the land divided into buildings lots and streets, followed by sales of the building lots, amount to an immediate decication of the streets shown on the plat to the use of the purchasers of the building lots and the public, although the streets have not been opened and accepted by the city, and that such dedication is binding on the owners who laid out the subdivision and all subsequent owners.

The dedication mentioned in Ala Moana Gardens does not mean a statutory dedication of the street areas to the city, which imposes upon the city an obligation to maintain such areas as public streets. That is clear from the per curiam of this court denying the petition for rehearing in the case. (39 Haw. 655).

Within the holding in Ala Moana Gardens, dedication means a dedication by implication, which occurs when land is subdivided into building lots and streets, a plat showing such subdivision is recorded, and sales of the building lots shown on the plat are made. It is stated in Re Land Title of Yamaguchi, 39 Haw. 608, 612 (1952), decided shortly after Ala Moana Gardens, that, where land is subdivided and the subdivision map contains an 'unmarked, undesignated parcel bearing the appearance of a roadway though not so designated', a dedication by implication occurs with respect to such parcel.

The tract of land, of which Lot 857 is a part, was first divided into building lots and streets in March 1903 by William Achi, the then owner, and the plat showing the subdivision was recorded in the Bureau of Conveyances of the Territory of Hawaii in Book 242, Page 493. The plat did not show the area in question as a street. Before any lot in that tract was sold, Bishop Trust Company, Limited, as trustee of Kewalo Land Trust, became the owner of the entire tract.

Hereafter, in this opinion, Bishop Trust Company, Limited, acting in its capacity as trustee of Kewalo Land Trust, will be referred to as Bishop Trust.

Bishop Trust registered the title to the tract in the land court in 1929 in Land Court Application No. 880, and filed with that application Map 1, which subdivided the tract into building lots and streets. Subsequently, it filed a number of other maps which resubdivided portions of the tract. However, we need not be concerned here with the maps filed before Map 6, except to note that Map 1 showed Alder, Birch, Cedar, Piikoi, 'F', 'G', 'H', and 'K' Streets, all or portions of which were later conveyed by Bishop Trust to Charles M. Cooke, Limited, for $1.00, and to note further that on none of the maps filed before Map 6 was Pensacola Street shown as extending below Kapiolani Boulevard.

Map 6, for the first time, showed Pensacola Street as extending below Kapiolani Boulevard. On that map, Lot 857 had precisely the same width as the width of Pensacola Street above Kapiolani Boulevard, extended from Kapiolani Boulevard seaward to a street lot designated as Lot 686 on Map 4, and its upper and lower boundaries were shown in dotted lines, instead of the solid lines used in delineating the building lots.

Furthermore, on Map 6, Lot 857 not only bore the appearance of a street, but was designated as 'PENSACOLA STREET', although those words were written in dotted letters.

In Map 6, portions of the tract, which had previously been subdivided, were resubdivided into 85 lots, of which 75 lots were building lots. Of the remaining 10 lots, 3 lots, including Lot 857, were extensions of lots which were shown on prior maps as streets; 2 lots constituted a narrow strip, 16 feet wide, which ran from Pensacola Street to Piikoi Street; 1 lot was a cull-de-sac, 16 feet wide; 3 lots were cul-de-sacs, 20 feet wide; and 1 lot was a narrow strip, 3.7 feet wide, which bore the appearance of a lot for utility easement.

The record does not show that the delineation and designation of Lot 857 as a street on Map 6 was otherwise than voluntary on the part of Bishop Trust.

The land court approved Map 6 on March 24, 1932. Thereafter, from time to time, the building lots shown on Map 6 were sold by Bishop Trust and resold by the purchasers from Bishop Trust, although in some cases, the lots were consolidated and resubdivided prior to sale without disturbing the delineation of the street lots.

Thus Lot 857 fell squarely within the holding in Ala Moana Gardens, and a dedication by implication of a roadway easement over the same occurred the moment a building lot shown on Map 6 was sold.

Defendant contends that the designation of Lot 857 as a street on Map 6 was not a voluntary act on the part of Bishop Trust, on the basis of a letter written by Bishop Trust to the City Planning Commission on February 7, 1929, in which it is stated that, while the recording of the plat of the original subdivision made by Achi 'means that the owners of this property may now fill it and place it on the market without complying with the ordinances now governing subdivisions, the beneficial owners have employed the engineering firm of Wright, Harvey & Wright to cooperate with your engineer, Captain C. R. Welsh, in an effort to work out a modification of the street layout in a manner that will be satisfactory to them and to you, with the understanding of course that if any such modified plan is adopted, they will lose none of the legal rights which they now have.'

Map 1 of Land Court Application No. 880, which is in evidence, shows that it was prepared by Wright, Harvey & Wright, and was examined and verified by the surveyor of the Territory of Hawaii on March 7, 1929, one month after the letter mentioned by defendant. That map does not show Pensacola Street as extending below Kapiolani Boulevard.

Also in evidence is Map 4, prepared by the same surveyors, filed in the land court on November 9, 1929, and approved by the land court on December 3, 1929. That map also does not shown an extension of Pensacola Street below Kapiolani Boulevard.

We think that any modification in the subdivision required by the City Planning Commission pursuant to the discussion mentioned in the quoted letter would have been embodied in Map 1, or at least in Map 4, and not in Map 6, which, according to the notations thereon, was prepared by the same surveyors, filed in the land court on March 9, 1932, and approved by the and court on March 24, 1932, more than...