Honolulu Memorial Park, Inc. v. City and County of Honolulu

• Decision Date: 29 December 1967
• Docket Number: No. 4576,4576
• Citation: 436 P.2d 207,50 Haw. 189
• Parties: HONOLULU MEMORIAL PARK, INC., a Hawaii corporation, Plaintiff-Appellee, v. CITY AND COUNTY OF HONOLULU, a municipal corporation, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 207

436 P.2d 207

50 Haw. 189

HONOLULU MEMORIAL PARK, INC., a Hawaii corporation, Plaintiff-Appellee, v. CITY AND COUNTY OF HONOLULU, a municipal corporation Defendant-Appellant.

No. 4576.

Supreme Court of Hawai'i.

Dec. 29, 1967.

Syllabus by the Court

1. A power of attorney for dealing with registered property must itself be filed with the Assistant Registrar of the Land Court. Sec. 342-92, R.L.H.1955.

2. The Statute of Frauds requires that documents transferring any interest in land be in writing and signed by the person to be charged, and if they are signed by another on his behalf, that the authorization of such other also be in writing. Sec. 190-1, R.L.H.1955.

3. A document signed by a stranger to the title of a parcel of land cannot affect the rights of a holder of a certificate of title to such parcel in the absence of written evidence of authorization. Secs. 190-1, 342-92, R.L.H.1955.

4. One who takes a certificate of title to registered land for value and in good faith holds the land free from all encumbrances except those noted on the certificate. Sec. 342-42, R.L.H.1955.

5. A certificate of title to registered land would be deprived of its intended unimpeachable and conclusive character if mere knowledge of an existing encumbrance could disqualify the holder of a certificate of title from being entitled to the protection of the title registration statutes.

6. The policy of the title registration statutes to preserve the integrity of titles can only be served by a strict requirement that all encumbrances be registered in the statutorily prescribed manner if they are going to have any legal effect.

7. The integrity of titles can only be preserved if anyone dealing with registered property is assured that the only legal or equitable rights or claims of which he need take notice are those which are registered. Sec. 324-41, R.L.H.1955, does not allow the assertion of unregistered equitable rights as against the holder of a certificate of title to registered land.

8. Where the city and county maintains a sewer line on private property, has never instituted condemnation proceedings, and is unable to establish a legal basis for the presence of such sewer line, ejectment is the proper remedy for restoration to the owner of that part of its premises from which it has been ousted, notwithstanding the power of eminent domain vested in the city and county.

Richard Y. C. Au, Deputy Corp. Counsel, City & County of Honolulu (Stanley Ling, Corp. Counsel, City & County of Honolulu, with him on the brief), for defendant-appellant.

Frank D. Padgett, Honolulu, (Padgett & Greeley, Honolulu, of counsel), for plaintiff-appellee.

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

ABE, Justice.

This is an appeal from a judgment of the Circuit Court of the First Judicial Circuit granting a directed verdict in favor of the plaintiff-appellee in an ejectment action. The appellant, City & County of Honolulu, a municipal corporation of the State of Hawaii, constructed a sewer line under what is now appellee's land in 1947 or 1948. The land was at that time and has at all times been registered under the Land Court Registration Statute.

Although it is vested with the power of eminent domain, the appellant has not instituted condemnation proceedings to acquire an easement in the property in question. Furthermore, because the City and County has not acquired an easement for a sewer line, the certificate of title contains no notation of the existence of the sewer line.

The appellee herein acquired the property through mesne conveyances in 1961 and filed an ejectment action in 1962, alleging that the appellant was maintaining an underground sewer line across its land without the appellee's permission and without an easement therefor, and that the certificate of title did not note such an encumbrance.

At the conclusion of the presentation of evidence by the parties, both moved for a directed verdict. Appellant's motion was denied and appellee's was granted. The court thereupon rendered a judgment ordering the removal of the sewer lines.

During the course of the trial, the appellant sought to establish the legality of its entry upon the land by means of a document entitled 'Consent to Enter' signed by one Geoffrey Clive Davies, nephew of the then owner of the land, Theophilus Clive Davies. An objection to the admission of such document into evidence was sustained on the ground that a proper foundation for its admission had not been laid. The document was not only unregistered, but the appellant had made no showing that Geoffrey Clive Davies had signed the document in question under a Power of Attorney or as an agent for his uncle. Appellant alleges error on the part of the trial judge in refusing to admit the Consent to Enter.

The record discloses that Theophilus Clive Davies conveyed the property in question to Geoffrey Clive Davies in 1951, and both Theophilus and Geoffrey were predecessors in title of the appellee. It is appellant's contention that the Consent to Enter should have been admitted to show the consent of either Theophilus or Geoffrey in such a manner as to bind the appellee.

Section 342-92, R.L.H.1955, requires a power of attorney for dealing with registered property to be filed with the Assistant Registrar of the Land Court. Section 190-1, R.L.H.1955, a Statute of Frauds provision, requires that documents transferring any interest in land be in writing and signed by the person to be charged therewith and that if they are signed by another on his behalf, the authorization of such other also be in writing. The appellant was given ample opportunity during the trial to produce a power of attorney or any written evidence of authorization but failed to do so.

It should also be noted that Geoffrey could convey no rights in the property in question at the time he signed the document as he was a stranger to the title. The record indicates that the property was not conveyed to him until two or three years thereafter. We are of the opinion that the proffered document was incapable of furnishing a legal basis for the presence of the sewer line on appellee's land and was properly excluded by the trial judge.

Perhaps most significant in the disposition of this appeal is Section 342-42, R.L.H.1955, which provides that one who takes a certificate of title to registered land for value and in good faith shall hold the land free from all encumbrances except those noted on the certificate and specific statutory...