Consolidated Amusement Co., Ltd. v. Waikiki Business Plaza, Inc., 10730

• Decision Date: 28 May 1986
• Docket Number: No. 10730,10730
• Citation: 6 Haw.App. 312,719 P.2d 1119
• Parties: CONSOLIDATED AMUSEMENT CO., LTD., a Hawaii corporation, Plaintiff-Appellant, v. WAIKIKI BUSINESS PLAZA, INC., a Hawaii corporation, Defendant-Appellee.
• Court: Hawaii Court of Appeals

Page 1119

719 P.2d 1119

6 Haw.App. 312

CONSOLIDATED AMUSEMENT CO., LTD., a Hawaii corporation Plaintiff-Appellant, v. WAIKIKI BUSINESS PLAZA, INC., a Hawaii corporation Defendant-Appellee.

No. 10730.

Intermediate Court of Appeals of Hawai'i.

May 28, 1986.

Syllabus by the Court

1. A motion for summary judgment should be granted if the record discloses that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.

2. Where the width, length, and location of an easement for ingress and egress have been expressly set forth in the instrument, the express terms of the grant or reservation are controlling and considerations of what may be necessary or reasonable to a present use of the dominant estate are not controlling.

3. Where the grant or reservation specifies the way must be of a certain width, no structures can be erected which encroach on the width stated.

4. A license in real property is an authority to do a particular act or a series of acts upon another's land without possessing any estate therein.

5. Where an easement is created by grant or reservation, the easement cannot be lost by mere nonuser.

6. Where the result is foreordained upon reversal and remand, the appellate court may direct the lower court to enter judgment in favor of the appellant.

Lloyd Y. Asato (Morio Omori, with him on briefs), Honolulu, for plaintiff-appellant.

John T. Komeiji (Jeffrey N. Watanabe and Pamela J. Larson, with him on the brief; Kobayashi, Watanabe, Sugita & Kawashima, of counsel), Honolulu, for defendant-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

TANAKA, Judge.

In this case involving easement rights, plaintiff Consolidated Amusement Co., Ltd. (Consolidated), the owner of the dominant estate, appeals from an adverse summary judgment in favor of defendant Waikiki Business Plaza, Inc. (Plaza), the owner of the servient estate. The dispositive issue is whether the owner of the servient estate can erect and maintain structures on a portion of an easement for ingress and egress which is of a specified width and length and with definite boundaries, where the structures do not "obstruct" the dominant estate owner's use of the easement. ¹ We answer no and reverse.

I.

To facilitate a better understanding of the facts in this case, we include a map as a part of the opinion. ²

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Consolidated is the owner of Lots 2-C-1 and 2-E-1 of Land Court Application 551 located in Waikiki. ³ When Pacific Theatres and Supply Company, Limited, Consolidated's predecessor in title, acquired these lots in 1934, the deed (Land Court Document No. 31617) provided that the conveyance was:

TOGETHER with the perpetual right of ingress and egress over the 10-foot strip of land on the Ewa [western] side of [Lots 2-C-1 and 2-E-1], known and designated as Lot 2-B on said Map No. 20, and subject to any prior easements created and existing upon said Lot 2-B.

Consolidated has been operating a movie theater, now known as Waikiki No. 3, on these lots since 1936. ⁴

Plaza is the owner of Lot 259 on which stands the multi-story Waikiki Business Plaza building (Plaza Building). The transfer certificate of title which evidences Plaza's ownership provides that Lot 259 is encumbered by Easement "B" which is subject to:

Perpetual right of way in favor of the owners of Lots 2-C-1, 2-E-1, ... as granted in Document Nos. 31617, ....

Easement "B" is a portion of Lot 2-B and was established by Land Court Order No. 22297 filed March 18, 1964, upon the consolidation of Lots 2-B, 117, 146, and 147 and their resubdivision into Lots 257, 258, and 259 and the designation of Easement "B," as shown on Land Court Map 56 ⁵ of Application 551. Ten-foot wide Easement "B" abuts a portion of the west boundary of Consolidated's Lot 2-E-1 from Kalakaua Avenue northward for approximately 216 feet and lies within and adjoins the east boundary of Plaza's Lot 259.

In the course of construction of the Plaza Building, William Koon Hee Mau and Jean Rachael Mau (Maus), Plaza's predecessors in title to Lot 259, and Consolidated executed an agreement dated September 3, 1965 (1965 Agreement). The 1965 Agreement provided, inter alia, as follows:

1. The Maus were permitted to build a sidewalk and curb in the 5-foot wide western portion of Easement "B" (Area 1 on the map) for "pedestrian passageway" use by both parties in conjunction with the Plaza Building.

2. The remaining 5-foot wide eastern portion of Easement "B" (Area 2 on the map), together with a portion of Lot 2-E-1 (Area 3 on the map), were to be used as "a roadway" by both parties.

3. If and when Consolidated ceased using Area 2 for "vehicular roadway purposes," (a) the "right and license" of both parties to use Areas 2 and 3 as a roadway would "cease and terminate," (b) the use of Area 1 as a "pedestrian passageway" would continue, and (c) the "rights and privilege to use Area 2 for pedestrian, but not vehicular, traffic by the parties" would remain unaffected.

Subsequently, from a date undisclosed in the record, Consolidated ceased using Areas 2 and 3 for vehicular traffic.

In June 1971, Plaza entered into a license agreement with Michael Ambler (Ambler), doing business as Taiwan Shop. The agreement permitted the use of the sidewalk area of Easement "B" (Area 1) by Ambler to set up vendors' booths. After Consolidated's objection, ⁶ in September 1971, Ambler executed a license agreement with Consolidated promising to pay it a monthly fee of $1,000. This arrangement continued until 1982 when Ambler vacated the area because he was delinquent in the payment of the monthly fees to Consolidated and also because the license had expired.

In January 1983, Plaza commenced commercial activities on the sidewalk area of Easement "B." Plaza caused to be placed in the area ten structures, each approximately four feet wide and six feet long, on which merchandise was displayed and sold. Consolidated objected to these activities to no avail.

On October 26, 1983, Consolidated filed a complaint seeking (1) an injunction restraining Plaza "from closing, obstruction [sic], constructing or allowing commercial carts and counters" on Easement "B," (2) special damages, and (3) costs and attorney's fees.

On May 22, 1985, concluding that Plaza's occupation of "4 feet by 216 feet of the easement by having permanent carts located therein" was "not an obstruction thereof," the lower court granted Plaza's motion for summary judgment. Upon denial of its motion for reconsideration, Consolidated timely appealed.

II.

A motion for summary judgment should be granted if the record discloses that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Hawaii Rules of Civil Procedure (1981). See Hulsman v. Hemmeter Development Corp., 65 Haw. 58, 647 P.2d 713 (1982); Leary v. Poole, 5 Haw.App. 596, 705 P.2d 62 (1985).

Here, the material facts set forth above are not in dispute. Neither party disagrees with the lower court's finding that Plaza occupied four feet in width of the 10-foot wide Easement "B" leaving six feet of the easement area unobstructed for ingress and egress by theater goers to Consolidated's theaters.

However, based on the undisputed facts, we conclude that Plaza was not entitled to a judgment as a matter of law.

A.

Plaza justifies the reduction of the width of Easement "B" 's right of way from ten feet to six feet, by contending that "as owner of the servient tenement, [it] is entitled to make all uses of its land, including commercial uses, which do not unreasonably interfere with Consolidated's easement of ingress and egress." We do not agree.

The general rule is stated in Aladdin Petroleum Corp. v. Gold Crown Properties, Inc., 221 Kan. 579, 561 P.2d 818 (1977), as follows:

[W]here the width, length and location of an easement for ingress and egress have been expressly set forth in the instrument the easement is specific and definite. The expressed terms of the grant or reservation are controlling in such case and considerations of what may be necessary or reasonable to a present use of the dominant estate are not controlling. If, however, the width, length and location of an easement for ingress and egress are not fixed by the terms of the grant or reservation the dominant estate is ordinarily entitled to a way of such width, length and location as is sufficient to afford necessary or reasonable ingress and egress.

Id. 221 Kan. at 584, 561 P.2d at 822 (emphasis added). Accord, Andersen v. Edwards, 625 P.2d 282 (Alaska 1981); Lindhorst v. Wright, 616 P.2d 450 (Okla.Ct.App.1980). See also 3 H. Tiffany, The Laws of Real Property § 805 (3d ed. 1939). It therefore follows that where the grant or reservation specifies "the way must be of a certain width, no structures can be erected which encroach on the width stated." 28 C.J.S. Easements § 97 at 779 (1941). See also Aladdin Petroleum Corp., supra.

Here, the width, length, and location of Easement "B" for ingress and egress were clearly set forth in the Land Court documents and on the pertinent Land Court maps. The description of Easement "B" is definite and "admits of no ambiguity." Lindhorst v. Wright, 616 P.2d at 454. Consequently, the terms of the grant of the right of way to Consolidated's predecessor in title control rather than necessity and reasonableness relative to Consolidated's present use of Easement "B."

The 1965 Agreement did not adversely affect Consolidated's right of ingress and egress in Easement "B." The 1965 Agreement was a license, and a license in real property "is an 'authority to do a particular act or series of acts upon another's land without possessing any estate therein.' " In re Fasi, 63 Haw. 624, 629 n. 8, 634 P.2d 98, 102, n. 8 (1981) (quoting McCandless v. John Ii Estate, 11 Haw. 777, 789 (1899)). See also, 25 Am.Jur.2d ...