Redfearn v. Kuhia

• Decision Date: 09 March 1972
• Docket Number: No. 5134,5134
• Citation: 53 Haw. 378,494 P.2d 562
• Parties: Howard O. REDFEARN, Plaintiff-Appellant, v. KUHIA, or his heirs, et al., Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 562

494 P.2d 562

53 Haw. 378

Howard O. REDFEARN, Plaintiff-Appellant, v. KUHIA, or his heirs, et al., Defendants-Appellees.

No. 5134.

Supreme Court of Hawai'i.

March 9, 1972.

Syllabus by the Court

1. Where the parties in an action of adverse possession are cotenants, the presumption is that a cotenant in possession does not occupy the premises adversely to his cotenants but in common with them.

2. The presumption that cotenants occupy the premises in common may be overcome only by conduct of one cotenant which constitutes an ouster or disseisin.

3. A cotenant claiming through adverse possession must show certain essential requirements which amount to an ouster: (1) a clear intent to claim adversely; (2) adverse possession in fact; (3) knowledge or notice of the hostile holding brought home to the other cotenant or cotenants.

4. No ouster is shown where the cotenant claiming by adverse possession failed to exclude the other cotenants from possession.

5. One cotenant's failure to take exclusive possession of the property invalidates his claim to the land by reason of his entry not as cotenant but as owner of the entire property under color of title encompassing all of the land in dispute.

William R. Schoen, Honolulu (Schoen & Lebb, Honolulu, of counsel), for plaintiff-appellant.

Roy K. Nakamoto, Hilo, for defendants-appellees.

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

RICHARDSON, Chief Justice.

This appeal arises out of an action to quiet title brought by plaintiff-appellant, Howard O. Redfearn, on February 16, 1962. The property in question is a 350-acre strip of land in the South Kona District of the Island of Hawaii. The property was originally included within Grant 2572 made to Kuhia on May 27, 1859. This grant, consisting of 772 acres, was acquired by deed by D. L. Keliikuli who did not have good paper title. However, D. L. Keliikuli is the common source of appellant's and appellee's titles. On March 10, 1882, D. L. Keliikuli conveyed the property as follows: 350 acres to Kaanaana, 350 acres to Keliikuli II and 72 acres to Julia Hulu Keliikuli. These grantees partitioned the land by deed dated July 20, 1895. It is the parcel allotted to Kaanaana that is the subject of this appeal.

Kaanaana distributed the 350 acres in the following manner: On March 19, 1898, he mortgaged an undivided 250 acres to S. F. Cartwright. This mortgage was duly foreclosed and title to the 250 acres passed to F. Wundenburg by deed dated July 26, 1907. On February 2, 1910, the remaining 100 acres were conveyed to Rebecca K. Achi and W. C. Achi, Jr. On September 15, 1939, Kaanaana purported to convey an additional 300 acres to Adolph Bode and Mary Kupawai Bode. The 250-acre interest of F. Wundenburg ultimately passed to defendant-appellee Yee Hop, Limited, by an unbroken chain of title. Appellant received conveyances from the Achis on January 9, 1946 and from the Bodes on August 27, 1945.

Appellant claimed title to the entire 350-acre tract through the deeds from the Achis and the Bodes. In addition, appellant alleged that he and his predecessors in interest acquired title to the subject land by reason of adverse possession. As to the Bode deed, the trial court ruled that Kaanaana 'had nothing to convey' when he executed the deed to the Bodes; and since the Bodes received nothing, they could convey nothing to appellant. The Achi deed, on the other hand, was sound and entitled appellant to the 100 acres conveyed. Appellee's predecessor in title had title to 250 acres at a date much earlier than when appellant acquired any interest in the property. Hence, when appellant acquired the Achis' interest on January 9, 1946, appellee and appellant became tenants in common in the property. This finding by the trial court concerning the parties' interest by paper title is not challenged.

As to appellant's claim to the entire 350 acres by reason of adverse possession, the trial court found that appellant was in adverse possession of the 50 acres which are situated on the mauka side of a government road which traverses the property. However, with respect to the 300 acres situated on the makai side of the government road, the court found that appellant had not established by clear, positive and sufficient proof an ouster of appellee. The trial court concluded that title to the 300 acres on the makai side of the government road was held by appellant and appellee as tenants in common. Each party's interest in these 300 acres was determined to be in proportion to the original conveyances made by Kaanaana: two-sevenths to appellant and five-sevenths to appellee. It is this finding which appellant appeals.

Appellant raises several points on appeal. However, determination of one issue is dispositive of this appeal. The determinative question is whether cotenant Redfearn, appellant, successfully effected an ouster or disseisin of cotenant Yee Hop, Limited, appellee. We believe appellant failed to accomplish the requisite ouster or disseisin of appellee, and thereby failed to establish his claim to the disputed property by reason of adverse possession.

This is a case involving cotenants. In such cases, the requisite sufficiency of evidence differs with cases involving third parties. Even in cases involving third parties, the law presumes that possession by the adverse possessor is in subordination to that of the rightful owner. Thus, title by adverse possession must be established by clear and positive proof. Territory v. Pai-a, 34 Haw. 722, 726 (1938).

In disputes between cotenants, the presumption is that a cotenant in possession does not occupy the premises adversely to his cotenants but in common with them. Yin v. Midkiff, 52 Haw. 537, 541, 481 P.2d 109 (1971); Aiona v. Ponahawai Coffee Co., 20 Haw. 724, 727 (1911); Haw. C. & S. Co. v. Waikapu S. Co., 9 Haw. 75 (1893); Nakuaimanu v. Halsted, 4 Haw. 42 (1877). The rationale underlying this rule is persuasive. Each cotenant is entitled to enter and occupy the common property. The cotenant in possession is deemed to hold the property permissively. Hence, the remaining cotenants are justified in assuming that the cotenant in possession is not asserting a claim of exclusive ownership.

This presumption may be overcome only by conduct of one cotenant which constitutes an ouster or disseisin of the other cotenants. Makainai v. Lalakea, 24 Haw. 268 (1918); Haw. C. & S. Co. v. Waikapu S. Co., supra; Nakuaimanu v. Halsted, supra. An ouster is the wrongful dispossession or exclusion from the disputed property of a party who is entitled to possession. Haw. C. & S. Co. v. Waikapu S. Co., supra, 9 Haw. at 80. What conduct amounts to an ouster is the central issue in this case. Earlier, this court held...