Marks v. Ah Nee

• Decision Date: 25 September 1964
• Docket Number: No. 4408,4408
• Parties: Elizabeth Loy MARKS et al. v. Emily AH NEE et al. (State of Hawaii).
• Court: Hawaii Supreme Court

Page 620

395 P.2d 620

48 Haw. 92

Elizabeth Loy MARKS et al. v. Emily AH NEE et al. (State of Hawaii).

No. 4408.

Supreme Court of Hawai'i.

Sept. 25, 1964.

Syllabus by the Court

1. The State cannot be forced to submit for adjudication in a partition action any claim involving a contest as to ownership, or the extent of the State's right, title and interest.

2. In an action in which the State cannot be forced to submit a title dispute for adjudication, if it be made to appear at any stage of the case that the State claims title, the court's jurisdiction over the merits of such claim thereby is ousted under the doctrine of sovereign immunity, even if the point was not raised in the trial court.

3. Where plaintiffs bringing a partition action as holders of a 97% undivided interest, concede that certain highway parcels granted to the State by their predecessor should be charged against their share as an allotment to the State, and no prejudice on the part of any party appears if that is done, the State is not an indispensable party even if it be only the holder of an undivided interest in the highway parcels.

Andrew S. O. Lee, Deputy Atty. Gen., Bert T. Kobayashi, Atty. Gen., Honolulu, with him on the briefs, for appellants.

Alan C. Kay, Pratt, Moore, Bortz & Vitousek, Honolulu, for respondents.

Before TSUKIYAMA, C. J., WIRTZ, LEWIS and MIZUHA, JJ., and Circuit Judge OKINO, in place of CASSIDY, J., disqualified.

PER CURIAM.

This is an interlocutory appeal, duly allowed, from an order denying the State's motion that it be dismissed from the case on the ground of sovereign immunity.

Plaintiffs, alleging themselves to be the owners of 32 out of 33 shares in hui land known as the Ahupuaa of Waikane, Royal Patent Grant No. 464 to Edwin O. Hall and Henry Dimond, brought this action for partition naming the State of Hawaii among the defendants. However, the complaint contains no allegation that the State is a tenant in common with plaintiffs or anyone else. The allegations as to the State are:

(1) That among the exclusions from the hui lands is 'Church lot belonging to the government,' and that 'with regard to the reservation of a church lot of 5.00 acres referred to as an exclusion, Petitioners know of only 2.09 acres having been conveyed to any church, said conveyance being made under Grant 9632.'

(2) That plaintiffs own 32 shares 'less their interest in certain Hui Land conveyed by deed of L. L. McCandless to the Territory of Hawaii, dated August 12, 1938, and recorded in the Bureau of Conveyances in Liber 1455 at page 246.'

(3) That the State 'claims or may claim some right or interest in some Hui Lands by dedication, prescriptive use or otherwise, the exact nature and extent of which claims are unknown to the Petitioners who therefore leave said Respondent to its proof thereof.'

(4) That 'it may be necessary or desirable,' in connection with the recommendations of commissioners as to the parcel or parcels to be awarded and set off to each of the owners, that such recommendations include 'water rights and other easements and privileges appurtenant thereto.'

The first, third and fourth of these items present clear instances in which the sovereign cannot be sued without its consent. Cf., Kawananakoa v. Polyblank, 205 U.S. 349, 27 S.Ct. 526, 51 L.Ed. 834; Bush v. Territory, 13 Haw. 1; Meyer v. Territory, 36 Haw. 75. Even if it be assumed, as a general rule, that the State may be sued in a partition action, the State cannot be forced in such suit to submit for adjudication its claim to or covering the church lot, water rights, boundaries, or any other claim involving a contest as to ownership or the extent of the State's right, title and interest. Rambo v. United States, 145 F.2d 670 (5th Cir.); Jones v. United States, D.C., 127 F.Supp. 31; Tracy Dev. Co. v. People of the State of New York, 212 N.Y. 488 106 N.E. 330.

Turning now to the second item above enumerated, we have before us the 1938 deed there referred to ¹ and take note of its provisions. It is an exchange deed whereby the Territory acquired for highway purposes certain parcels of the aforesaid Royal Patent Grant 464, known as the Ahupuaa of Waikane, these parcels comprising about three acres in total area out of some 1600 acres of the Ahupuaa of Waikane. The grantor, Lincoln Loy McCandless, plaintiffs' predecessor, warranted the title to this land, and if it still was hui land when so conveyed this does not appear in the deed. The land conveyed by the Territory in exchange was granted to Mr. McCandless. Plaintiffs concede that the land conveyed to the Territory has long since been occupied and used for highway purposes.

Although no such claim on the part of any person appears from the record before us, plaintiffs contend that the State holds these highway parcels as a tenant in common with the defendants holding the outstanding one share out of the 33 hui shares. The State contends that it holds the absolute title and not a mere undivided interest. As held in Meyer v. Territory, supra, 36 Haw. 75, 78, if it be made to appear at any stage of the case that the State claims title, the court's jurisdiction over the merits of such claim thereby is ousted under the doctrine of sovereign immunity, even if the point was not raised in the trial court. So we do not deem it material whether the State asserted in the trial court that it is the absolute owner of the property described in and conveyed to the Territory by this deed. The State so claims in this court and that is sufficient to oust jurisdiction over the merits of such claim. Moreover, as has been noted, there is no allegation in the complaint that the State is a tenant in common with plaintiffs or anyone else. The motion to dismiss therefore made no admission that a cotenancy existed. Accordingly, the motion to dismiss should have been granted.

We do not reach the question whether, when the State concedes that it holds only an undivided interest, a partition suit may be maintained against the State. The material point here is that the State claims the entire fee of the highway parcels, and the extent of its interest cannot be adjudicated in this suit. Rambo v. United States, supra, 145 F.2d 670 (5th Cir.); Jones v. United States, supra, 127 F.Supp. 31. If the State may be sued in partition it is because the acquisition by the State of an undivided interest necessarily has that result, upon application of the principles set out in State ex rel. State Park Board v. Tate, 365 Mo. 1213, 295 S.W.2d 167, 59 A.L.R.2d 933, cited by plaintiffs. Such principles, if deemed sound and acceptable, do not extent beyond the scope of partition according to the usual practice of courts of equity in cases of partition. As held in Rambo, under this usual practice a bill for partition cannot be made the means of trying a disputed title.

We have considered Kentucky State Park Comm. v. Wilder, 256 Ky. 313, 76 S.W.2d 4; 260 Ky. 190, 84 S.W.2d 38, also cited by plaintiffs. In so far as the Kentucky court there permitted an action for compensation for the taking of property for public use when the private ownership was contested by the government, the holding is directly contrary to Meyer v. Territory, supra, 36 Haw. 75, citing, quoting and following Tempel v. United States, 248 U.S. 121, 130, 39 S.Ct. 56, 63 L.Ed. 162: 'The law cannot imply a promise by the government to pay for a right over, or interest in, land, which right or interest the government claimed and claims it possessed before it utilized the same.'

We have considered also the provisions of R.L.H.1955, c. 337, relating to partition. There can be no doubt that by chapter 337 power is conferred to proceed not only 'according to the usual practice of courts of equity in cases of partition' but also 'according to the provisions of this chapter in enlargement thereof.' R.L.H.1955, § 337-1. The trying of a disputed title in a partition suit is an enlargement of the usual powers of courts of equity in such suits. Rambo v. United States, supra, 145 F.2d 670 (5th Cir.). As we have said, application against the State of this enlarged power is not justified by the principles set out in State ex rel. State Park Board v. Tate. Accordingly, application against the State of this enlarged power would have to be based on express statutory consent thereto. Plaintiffs seek to find that consent in section 337-2, providing for joinder of every 'person' having any estate or interest. Such general language cannot be construed as a waiver of sovereign immunity. Berton v. All Persons, etc., 176 Cal. 610, 170 P. 151, 154; 3 Sutherland, Statutory Construction, § 6301 (3d ed.). The provisions of chapter 337 therefore confer no power on the court to try a title dispute where the adversary is the State. The State has consented to be sued in the Land Court under R.L.H.1955, c. 342, and to some extent under other statutes. In the absence of a statute which will serve the litigant's purpose application must be made to the legislature for permission to sue.

Plaintiffs take the position that the State is a necessary, perhaps an indispensable party, and cannot be dismissed without impairing plaintiffs' right to partition, citing Ferris v. Montgomery Land & Improvement Co., 94 Ala. 557, 10 So. 607. The cited case held that if it should be shown, as alleged, that the United States held an undivided one-fourth interest...