Maunalua Bay Beach Ohana 28 v. State

• Decision Date: 30 December 2009
• Docket Number: No. 28175.,28175.
• Citation: 122 Haw. 34,222 P.3d 441
• Parties: MAUNALUA BAY BEACH OHANA 28, a Hawai`i non-profit corporation; Maunalua Bay Beach Ohana 29, a Hawai`i non-profit corporation; Maunalua Bay Beach Ohana 38, a Hawai`i non-profit corporation, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. STATE of Hawai`i, Defendant-Appellant.
• Court: Hawaii Court of Appeals

222 P.3d 441

122 Haw. 34

MAUNALUA BAY BEACH OHANA 28, a Hawai`i non-profit corporation; Maunalua Bay Beach Ohana 29, a Hawai`i non-profit corporation; Maunalua Bay Beach Ohana 38, a Hawai`i non-profit corporation, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. STATE of Hawai`i, Defendant-Appellant.

No. 28175.

Intermediate Court of Appeals of Hawai`i.

December 30, 2009.

Girard D. Lau, Deputy Attorney General (William J. Wynhoff, Deputy Attorney General, with him on the briefs), State of Hawai`i, for Defendant-Appellant.

Paul Alston (Laura P. Couch, with him on the briefs), (Alston Hunt Floyd & Ing), Honolulu, for Plaintiffs-Appellees.

Carl C. Christensen, on the amicus curiae brief, for Hawaii's Thousand Friends.

Robert H. Thomas (Damon Key Leong Kupchak Hastert), Honolulu, on the amicus curiae brief, for Pacific Legal Foundation Hawaii Center.

WATANABE and FOLEY, JJ.; with NAKAMURA, C.J., concurring separately and dissenting.

Opinion of the Court by WATANABE, J.

This appeal arises from an inverse-condemnation lawsuit filed by Maunalua Bay Beach Ohana 28, Maunalua Bay Beach Ohana 29, and Maunalua Bay Beach Ohana 38¹ (collectively, Plaintiffs), on behalf of themselves and all non-governmental owners of oceanfront real property in Hawai`i on and/or after May 19, 2003 (oceanfront, littoral, or riparian owners), challenging the constitutionality of Act 73, 2003 Haw. Sess. Laws at 128 (Act 73). Plaintiffs alleged that Act 73:

a. Took oceanfront owners' rights to claim accreted land (other than that which restored previously eroded land and that which was the subject of registration or quiet title proceedings on May 20, 2003) and declared all such land to be "state land";

b. Took from oceanfront owners' [sic] their property rights in (1) all accreted oceanfront land which existed on May 20, 2003 and which had not previously been registered or been made the subject of then-pending registration proceedings; and (2) all future accretion which was not proven to be the restored portion of previously accreted land;

c. Damaged oceanfront owners' remaining property by depriving them of ownership of the land abutting the ocean; and

d. Damaged all accreted lands by placing them in the conservation district.

Plaintiffs sought just compensation, blight damages, a declaratory judgment that Act 73 was unenforceable under the Hawai`i State Constitution unless and until Defendant-Appellant State of Hawai`i (State) pays just compensation to Plaintiffs and the class they represented, and an injunction forbidding the State from asserting ownership or control over the affected property and from enforcing Act 73.

On September 1, 2006, the Circuit Court of the First Circuit² (circuit court) entered an order granting Plaintiffs' February 13, 2006 amended motion for partial summary judgment (PSJ) on Plaintiffs' claim for declaratory relief. In relevant part, the circuit court declared that

Act 73 ... represented a sudden change in the common law and effected an uncompensated taking of, and injury to, (a) littoral owners' accreted land, and (b) littoral owners' right to ownership of future accreted land, insofar as Act 73 declared accreted land to be "public land" and prohibited littoral owners from registering existing and future accretion under [Hawaii Revised Statutes (HRS)] Chapter 501 and/or quieting title under [HRS] Chapter 669.

This interlocutory appeal by the State followed.

We vacate that part of the PSJ order which concluded that Act 73 effected an uncompensated taking of and injury to littoral owners' right to ownership of future accreted land and remand this case to the circuit court for further proceedings consistent with this opinion.

THE LEGAL LANDSCAPE

A. Definitions and General Doctrines

In his treatise on real property, Professor Powell notes:

Where title to real property describes a boundary line as a body of water, the common law has developed several different doctrines that respond to the issues raised by the moveable nature of those bodies of water. Accretion, dereliction (or reliction), erosion and avulsion are ancient common-law doctrines rooted in the Roman law of alluvion and the civil law doctrine of accession. As applied, these doctrines are as complex and muddy as the movements of the water.

The term "accretion" denotes the process by which an area of land is increased by the gradual deposit of soil due to the action of a boundary river, stream, lake, pond, or tidal waters. The term "dereliction," or its modern counterpart "reliction," denotes the process by which land is exposed by the gradual receding of a body of water. The term "erosion" denotes the process by which land is gradually covered by water. The term "avulsion" denotes the process by which there is a sudden and perceptible change in the location of a body of water.

....

Where the change in location of a body of water is caused by accretion, reliction, or erosion, the boundary line between the abutting landowners moved with the waterway.

Thus the riparian or littoral owner is given title to lands that are gradually added by accretion or reliction. In some circumstances, whether the accretion occurs on the banks of a river or stream rather than on the banks of other bodies of water may be critical in determining the ownership of the accreted lands. Similarly, a riparian owner loses title to lands that are submerged through the process of erosion. In contrast, if the boundary river, stream, lake, or tidal water changes its location because of the process of avulsion, the boundary line remains the same. In some circumstances, the doctrine of re-emergence[³] will be applied to both accretive and avulsive changes to determine the ownership of certain lands.

Richard M. Powell, 9 Powell on Real Property §§ 66.01[1]-66.01[2], at 66-2-66-9 (2006) (footnote added; footnotes omitted).

Some scholars have expressed doubt that the doctrines of accretion, erosion, reliction, and avulsion are actually rules of law, causing a stated result upon the occurrence of stipulated facts, rather than rules of construction used to determine what the grantor of riparian land intended the grantee of the land to receive. See, e.g., 9 Powell on Real Property § 66.03[1], at 66-24 (2006); Herbert Thorndike Tiffany, 4 The Law of Real Property § 1220 (3d ed.1975 & 2009-2010 cum. supp.). As Professor Tiffany explains,

if we recognize a distinct doctrine of accretion, in effect a rule of law that an owner of land shall have whatever adjacent land may be created by the gradual action or change of water, the intention of the parties interested in the delimitation of the boundaries of the land is immaterial. In the presence of such a doctrine, the fact that, in conveying the property to its present owner, the grantor expressly retained all future accretions, would be immaterial, as would be the fact that the conveyance, in describing the land, made no reference to the body or stream of water, or to any incident or characteristic thereof. We do not find any case which explicitly decides that one can, in conveying property bounding on water, retain any subsequent accretions thereto, but there are dicta to that effect. The effectiveness of intention in this regard is also indicated by judicial assertions that when the boundary is fixed by the deed at a specified line without reference to the water, the grantee cannot claim accretions beyond such line.... The question whether there is a distinct doctrine of accretion, or whether the so-called doctrine is merely a rule for the ascertainment of boundaries on water, appears to be clearly presented by cases involving the right of one, whose nonriparian land has become riparian by the gradual encroachment of the water, to claim land subsequently formed by the accretion of the water. In such a case, the intention of the grantor of the present proprietor, or of some person anterior to him in the chain of title, was to convey land extending only to a boundary away from the water, and consequently if, because his land has become riparian, he is given the benefit of accretions thereto, he is in effect given what it was never the intention of his predecessor in title to convey. If there is a rule of law that accretions belong to the riparian proprietor, he is entitled to the accretions, while otherwise he is not so entitled.

4 The Law of Real Property § 1220, at 1075-76 (footnotes omitted).

The doctrine of accretion has been rationalized by courts and commentators on various grounds. Professor Powell summarized and critiqued these rationales as follows:

Under the Roman law of accession, the owner of the cow also owns the calf, the owner of riparian or littoral land owns the accreted land. This rationale has received little support in recent times and is clearly not relevant when either the process of reliction or erosion is occurring.

A second rationale occasionally mentioned by the courts and commentators is the ancient legal maxim of de minimis non curat lex. There is a logical connection between the de minimis concept and the requirement for accretion, reliction, and erosion that the change be gradual and imperceptible, but the justification has received little modern support since in many accretion cases substantial and valuable acreage is involved.

Another rationale is tautological. Where the parties have designated a body of water as a boundary line, that body of water remains the boundary even if it should change its location. This justification may have been derived from the Roman law where there is no distinction made between accretive and avulsive changes. It is inconsistent, however, with the existence of the doctrine of avulsion because the agreed-to water boundary does not move if the change is determined to be sudden and perceptible.

A fourth rationale is alternatively identified as the productivity or efficiency theory. There are two subsets to this justification. The first...