Kamakana, Application of, 5860
| Decision Date | 16 February 1978 |
| Docket Number | No. 5860,5860 |
| Citation | 574 P.2d 1346,58 Haw. 632 |
| Parties | Application of Cecilia Keohokalani KAMAKANA, to register and confirm her title to land situated on the southerly side of Kamehameha V Highway, at Kawela, Molokai, Hawaii. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Land in Hawaii, in its original state, is public land and if not awarded or granted to private ownership remains in the public domain.
2. The Land Court's finding that a fishpond existed in 1854 will not be set aside unless, applying the clearly erroneous standard, this court is left with the definite and firm conviction that a mistake has been made by the Land Court. HRCP Rule 52(a), Rule 81(b)(1).
3. The presumption is that when the Land Commission awarded an ahupua'a by name only, the grant was meant to include all that was within the ahupua'a according to its ancient boundaries.
4. An ahupua'a in ancient Hawaii was a self-sufficient land unit which ran from the mountains to the sea; consistent with concept of ahupua'a, both inland and shore fishponds were considered to be part of an ahupua'a and within its boundaries.
5. Where a shore fishpond was in existence at time of Land Commission Award, under Hawaiian concept of ahupua'a it would be included in the boundaries of the ahupua'a; thus Land Commission Award of the ahupua'a by name only would include the shore fishpond.
6. Absent evidence either that fishpond was not within ahupua'a or that there was intent to exclude fishpond from award, a Land Commission Award of an ahupua'a by name only includes shore fishpond.
7. Government must show actual, open, hostile, notorious, continuous and exclusive possession of fishpond for statutory period, to acquire title by adverse possession.
8. Where State claims adverse possession of fishpond under doctrine that possession by lessee is attributable to lessor, requisite hostility of possession is not shown where lessee who leased fishpond from government also held title to fishpond under quit-claim deed.
9. Lessee cannot be deemed to have adversely possessed fishpond on behalf of government against himself as fee simple owner of fishpond and presumption is that lessee's possession of the fishpond was consistent with his ownership of the pond rather than with his status as lessee.
Andrew S. O. Lee, Deputy Atty. Gen., State of Hawaii, Honolulu, for State of Hawaii, appellant.
Louis B. Blissard, Honolulu, for appellee.
Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.
The State of Hawaii appeals from a Land Court Decree holding that applicant-appellee, Cecilia Keohokalani Kamakana, is the owner in fee simple of Kanoa fishpond. 1 Kanoa fishpond is located in the ahupua'a of Kawela, on the Island of Molokai, and extends out into the sea. 2
We affirm.
In 1854, the Board of Commissioners to Quiet Land Titles, by L. C. Aw. 8559-B Apana 28, awarded the ahupua'a of Kawela by name only to William C. Lunalilo. The award did not mention Kanoa fishpond. In 1873, the boundaries of the ahupua'a of Kawela were determined and Boundary Certificate 17 was issued by the Boundary Commissioner for the Second Judicial Circuit. In 1883 Royal Patent 7656 was issued to William C. Lunalilo. The makai boundary of the ahupua'a of Kawela described in Boundary Certificate 17 and Royal Patent 7656 reads: ". . . 300 ch to the sea at S.W. corner of Pond called Kaonini at pile of stones and thence following the shore to point of commencement." Again, there is no mention of Kanoa fishpond.
In 1920, the trustees of the estate of William C. Lunalilo sold by quit-claim deed to Amos F. Cooke the portion of the ahupua'a of Kawela lying makai of the government road. The area sold was stated to be three or four acres more or less plus Kanoa fishpond, the boundaries of which were indicated by "the line of the old seawall which formerly enclosed it."
In 1936, the administrator of the Cooke estate conveyed to William Kamakana Cooke's interest in Kawela land. The deed indicated that 46.5 acres of the land conveyed were fishpond and that the premises and accretions were the same as that conveyed to A. F. Cooke by the Lunalilo estate in 1920.
A month later, William Kamakana conveyed by deed the same property to applicant-appellee, Cecilia Koehokalani Kamakana.
Appellee filed an application in the Land Court of the State of Hawaii to register and confirm her title to the land conveyed to her by William Kamakana situated at Kawela, Molokai. Answers were filed by the State of Hawaii, Interalia Corporation, the estate of William Kamakana, deceased, Esther Kamakana Kahalelehua and Abraham K. McAulton. The Land Court decree held that appellee is the owner in fee simple of all the land described in her application including Kanoa fishpond and that title thereto should be registered in appellee's name.
On December 13, 1974, the State of Hawaii duly filed a notice of appeal to this court from the Land Court Decree entered on November 14, 1974. 3 The issues presented on appeal and the order of discussion are:
I. Whether Kanoa fishpond was included in the Land Commission Award of the ahupua'a of Kawela?
II. Whether, even if Kanoa fishpond was included in the award, the State of Hawaii had acquired title to the pond by adverse possession?
The State contends that Kanoa fishpond was not in existence at the time the Land Commission awarded the ahupua'a of Kawela to William C. Lunalilo and thus was not included in the award. Alternatively, the State argues that even if Kanoa pond was in existence prior to the Land Commission Award, the Boundary Commissioner's determination of the makai boundary and the description in Royal Patent 7656 of the makai boundary of the ahupua'a of Kawela as "following the shore to point of commencement" excluded the fishpond from the grant. Under either theory, Kanoa fishpond would now be public land since Hawaii's land "in its original state is public land and if not awarded or granted, such land remains in the public domain." 4 State v. Zimring, 566 P.2d 725, 731 (1977).
In Finding of Fact No. 27, the Land Court determined that Kanoa fishpond was in existence at the time of the Land Commission Award in 1854, although it was not then in active use. 5 A trial court's finding of fact should not be set aside unless it is clearly erroneous. Hawaii Rules of Civil Procedure Rule 52(a), Rule 81(b)(1). Thus, we will not set aside the Land Court's finding that Kanoa pond existed in 1854 unless, after reviewing the record, we are left with "a definite and firm conviction that a mistake has been made by the trial court." Frey v. Goebert, 52 Haw. 308, 310, 474 P.2d 537, 538 (1970).
The State bases its contention that Kanoa fishpond was not in existence at the time of the Land Commission Award on the failure of the Boundary Commissioner's certification and the survey accompanying R. P. 7656 to explicitly delineate Kanoa fishpond as part of the makai boundary. Among the evidence introduced by the State were surveys accompanying other awards of ahupua'a on Molokai with makai boundary descriptions expressly including fishponds. Also introduced into evidence were surveys of two kuleana grants mauka of Kanoa fishpond abutting the shore which fail to mention Kanoa fishpond as part of the makai boundary description and an 1880 map by S. E. Bishop of Kuleana grants along the Kawela coast which also fails to designate Kanoa fishpond.
The appellee's evidence as to the existence of Kanoa fishpond included a sketch of the Kawela coast from M. D. Monsarrat's notebook dated 1890 in which Kanoa pond is described as "an old fishpond." In a survey and map of Kawela dated 1895 also done by Monsarrat, Kanoa pond is outlined and designated as "an old fishpond." Katherine Summers, an expert witness, testified that she had read Monsarrat's diary of 1884 and that Kanoa pond was mentioned in that work. 6 She further testified on the construction of Hawaiian fishponds and gave her opinion that a pond the size of Kanoa could not have been built after the mid-nineteenth century because the ali'i lacked the power to command the common people to participate in building large fishponds after that time.
Appellee presented sufficient evidence to sustain the finding of the Land Court. After reviewing the record in this case, we are not left with the conviction that a mistake has been made by the trial court and we, therefore, uphold the finding that Kanoa pond existed in 1854. 7
We now turn to the issue of whether Kanoa fishpond, although not specifically mentioned in the Land Commission Award, the Boundary Certificate or the Royal Patent, was included in the award of the ahupua'a of Kawela to William C. Lunalilo. 8
L. C. Aw. 8559-B, Apana 28, was an award of the ahupua'a of Kawela by name only, without a survey. The reason for making awards without a survey was explained by this court in In re the Boundaries of Pulehunui, 4 Haw. 239, 240 (1879):
After the surrender by Kamehameha III, in 1848, of the greater part of the land of the Kingdom to his chiefs and people, the necessity of a speedy distribution of it in accordance with what may be called the feudal rights of the chiefs, required that awards of lands be made by name only without survey. No body of surveyors could have been found in the country or practically could have been brought here, who might have surveyed these large estates within the lifetime of half the grantees, so that every award should have been issued as of a tract defined by metes and bounds, or with even an approximate statement of the acreage. The "Mahele" or division was, therefore, made without survey. Tracts of land known to Hawaiians as an ahupuaa or ili were awarded to those entitled by name of the ahupuaa or ili.
When an ahupua'a was awarded by name, the grant was meant to cover all that had been included in the ahupua'a according to its ancient boundaries. Pulehunui, supra at 240; In re the...
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