Palama v. Sheehan

• Decision Date: 22 April 1968
• Docket Number: No. 4609,4609
• Citation: 440 P.2d 95,50 Haw. 298
• Parties: Philip K. PALAMA and Hisako Komaki Palama, Plaintiffs-Appellants, v. John J. SHEEHAN, Patricia M. Sheehan, Elaine K. Kauahi, Arthur Kauahi, John Doe 1 to John Doe 100, inclusive, Doe Corporation 1 to Doe Corporation 100, and all other persons having or claiming any right, title, estate, interest or lien in the land described in the complaint adverse to plaintiffs' title, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 95

440 P.2d 95

50 Haw. 298

Philip K. PALAMA and Hisako Komaki Palama, Plaintiffs-Appellants, v. John J. SHEEHAN, Patricia M. Sheehan, Elaine K. Kauahi, Arthur Kauahi, John Doe 1 to John Doe 100, inclusive, Doe

Corporation 1 to Doe Corporation 100, and all other persons

having or claiming any right, title, estate, interest or

lien in the land described in the complaint adverse to

plaintiffs' title, Defendants-Appellees.

No. 4609.

Supreme Court of Hawai'i.

April 22, 1968.

Syllabus by the Court

1. Where there is evidence that kuleana owners and their predecessors used a certain route as a means of ingress and egress through adjoining or surrounding lands and that an alternate route was rendered impassable at certain times, the kuleana owners are entitled to a right of way over the land based on an ancient Hawaiian right or reasonable necessity.

2. When a past owner widens the right of way over his land from a trail to a road for vehicular traffic and the road is in existence for many years before the present owner acquires the land, such circumstances indicate that the right of way could accommodate vehicular traffic without imposing an unreasonable burden on the land.

3. The trial court's findings that kuleana owners are entitled to a reasonable use of a presently existing right of way and that such use would not entail any additional burden on the land are adequate under H.R.C.P. 52(a).

Jon J. Chinen, Honolulu, and Morris S. Shinsato, Lihue, for plaintiffs-appellants.

Clesson Y. Chikasuye, Honolulu, for Komae and others.

Clinton I. Shiraishi, Lihue, for Medeiros and others.

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

RICHARDSON, Chief Justice.

Plaintiffs, Mr. and Mrs. Philip K. Palama, filed an action to quiet title to a tract of land generally known as 'nomilo Pond' situated in the ahupuaa of Kalaheo Island of Kauai, which covers an area of about 60 acres and contains within it a fish pond of 18 acres. The makai (seaward) boundary of said land borders on the State's 100-foot wide beach reserve. The defendants filed an answer claiming fishing rights in the fish pond and a right of way through plaintiffs' land, based on ancient Hawaiian rights or by necessity. The defendants are owners of four separate parcels of land or kuleanas, ¹ ranging in size from 0.13 to 0.032 acres, ² three of which are situated directly makai of plaintiffs' land and within the State's beach reserve. The remaining parcel is situated within the boundaries of plaintiffs' land and near its makai boundary.

After the non-jury trial, the trial court filed a memorandum of decision ruling that the defendants did not have any rights to fish in the pond, but that they were 'entitled to a reasonable use of the now existing right of way through plaintiffs' land to gain ingress to and egress from their respective parcels of land', and that 'this will in no way entail any additional burden on plaintiffs for the right of way is now there and in existence * * *.' The trial court denied plaintiffs' motion to clarify the decision by making specific findings as to the width and manner of use of the right of way. Plaintiffs appeal and specify as errors, the trial court's:

1. Grant of a right of way to the defendants when there was no evidence adduced at the trial to show that a right of way existed, based on ancient Hawaiian usage or necessity;

2. Refusal to clarify its decision in that the width and manner of use of the right of way were material issues;

3. Failure to limit the right of way to pedestrian and equestrian use in that a right of way based on ancient Hawaiian usage or necessity is limited to the use made at the time of the grant or shortly thereafter.

Testimony at the trial indicated that there were two possible routes to defendants' land. The mauka (toward the mountains) route ran directly through plaintiffs' land from the mauka Kalaheo Homesteads area makai to defendants' parcels. The other route, from the Koloa (easterly) direction, ran circuitously along a government road to a private plantation road which paralleled the ocean, then turned down the bottom of a ravine and along the beach to defendants' parcels.

Considering plaintiffs' first specification of error, we find it necessary to examine ancient Hawaiian tradition, custom and usage. Although there were exceptions, in ancient Hawaii, the division of land known as an ahupuaa generally ran from the sea to the mountains. Such a division enabled a chief and his people to obtain fish and seaweed from the ocean, and fuel, canoe timber and mountain birds, and the right of way to obtain these things. In re Boundaries of Pulehunui, 4 Haw. 239. The Great Mahele awarded whole ahupuaas, however, the rights of native tenants who held kuleana lands within the ahupuaas, were expressly reserved, 'Koe no Kuleana o Kanaka.' The rights of native tenants as owners of Kuleana lands were set forth in the Act of August 6, 1850. The pertinent portions are found in Section 1477 of the 1859 Civil Code as follows:

'Where the landlords have obtained, or may hereafter obtain, allodial titles to their lands, the people on each of their lands shall not be deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on which they live, for their own private use, but they shall not have a right to take such articles to sell for profit. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads, shall be free to all, on all lands granted in fee simple; provided, that this shall not be applicable to wells and water-courses, which individuals have made for their own use.' (Emphasis added.)

In some respects the defendants' kuleanas in the instant case are similar to the ilis, the next smaller subdivision of an ahupuaa, which often consisted of several distinct sections of land in different parts of the ahupuaas which were called 'leles' or 'jumps'. On Oahu, many lands in Waikiki had their corresponding patches of taro land and forest in Waikiki and Manoa Valley. The taro lands of Wailupe were found in Palolo Valley. In Kalihi and Ewa there were ilis which consisted of eight or ten scattered leles included under one title. Similarly, a native tenant's kuleana often consisted of several sections or 'apanas' which were irregularly scattered about in the ahupuaa. See Alexander, 'A Brief History of Land Titles in the Hawaiian Kingdom', Hawaiian Almanac and Annual for 1891, (rev. ed. of Surveyor-General's Report of 1882 to the Minister of Interior); Horner v. Kumuliilii, 10 Haw. 174.

Mrs. Elizabeth K. Medeiros and others testified that her parents, grandparents and great-grandparents used the mauka trail to go to and from their taro patches situated mauka in the Kalaheo Homesteads area and their kuleana at the seashore. ³ Such testimony was sufficient evidence on which the trial court could find that an ancient Hawaiian right of way through plaintiffs' land existed and was used as...