Ryan v. Tanabe Corp., 21068.

• Decision Date: 07 September 1999
• Docket Number: No. 21068.,21068.
• Citation: 97 Haw. 305,37 P.3d 554
• Court: Hawaii Court of Appeals
• Parties: Joseph A. RYAN and Helen B. Ryan, Plaintiffs-Appellants, v. TANABE CORPORATION, a Japan corporation, and Tanac Corporation, a Hawai`i corporation, Defendants-Appellees, and Ichiro Sakakura, individually and as an officer and/or agent of Tanabe Corporation and/or Tanac Corporation; Robert M. Kaya Builders, Inc.; and Doe Defendants 1-100, Defendants, and Robert M. Kaya Builders, Inc., Third-Party Plaintiff, v. L.T. Kuwasaki, Inc.; Tajiri Lumber, Ltd.; Akamai Landscaping & Maintenance; And Jayar Construction, Inc., Third-Party Defendants.

37 P.3d 554

97 Haw. 305

Joseph A. RYAN and Helen B. Ryan, Plaintiffs-Appellants, v. TANABE CORPORATION, a Japan corporation, and Tanac Corporation, a Hawai`i corporation, Defendants-Appellees, and Ichiro Sakakura, individually and as an officer and/or agent of Tanabe Corporation and/or Tanac Corporation; Robert M. Kaya Builders, Inc.; and Doe Defendants 1-100, Defendants, and Robert M. Kaya Builders, Inc., Third-Party Plaintiff, v. L.T. Kuwasaki, Inc.; Tajiri Lumber, Ltd.; Akamai Landscaping & Maintenance; And Jayar Construction, Inc., Third-Party Defendants.

No. 21068.

Intermediate Court of Appeals of Hawai`i.

September 7, 1999.

Reconsideration Denied September 27, 1999.

Certiorari Granted November 2, 1999.

Certiorari Dismissed January 11, 2002.

Joseph A. Ryan and Helen B. Ryan, on the briefs, plaintiffs-appellants pro se.

Jeffrey H.K. Sia, Stephen G. Dyer, and Gary S. Miyamoto (Ayabe, Chong, Nishimoto, Sia & Nakamura), Honolulu, and Don S. Kitaoka, on the brief, for defendants-appellees.

BURNS, C.J., WATANABE, and ACOBA, JJ.

Opinion of the Court by WATANABE, J.

In this appeal, Plaintiffs-Appellants Joseph A. Ryan (Joseph) and Helen B. Ryan (Helen) (collectively, the Ryans) contend that the Circuit Court of the First Circuit (the circuit court): (1) reversibly erred in granting summary judgment in favor of Defendants-Appellees Tanabe Corporation (Tanabe), a Japan corporation, and Tanac Corporation (Tanac), a Hawai`i corporation, (collectively, Defendants) and in ruling, as a matter of law, that the Ryans did not have an express or prescriptive easement over a portion of real property owned by Tanabe that had been used as a "common driveway" by the Ryans for over thirty years; (2) improperly "disregarded and refused to recognize the photographs that explicitly and/or implicitly demonstrate the existence, design, construction, use and maintenance of the hillside joint driveway easement as a surface water drainage on the natural slope of the hillside development"; (3) effectuated a judicial taking by granting summary judgment against the Ryans' prescriptive easement claim; (4) abused its discretion by granting, on less than twenty-four hours' notice, a motion for rehearing on its order denying Defendants' motion for summary judgment; and (5) violated the Ryans' right under the Fourteenth Amendment of the United States Constitution to be "protect[ed] by [the] duly ordained Governments, Municipal and State" by stamping its imprimatur on "the grand theft of [the Ryans'] property." We find no merit to any of the Ryans' arguments. Accordingly, we affirm the Judgment filed by the circuit court on September 22, 1997.

BACKGROUND

The Ryans own a parcel of real property located at 4005 Black Point Road (the 4005 property) in Honolulu, Hawai`i. Tanabe owns the adjoining parcel of real property situated at 4009 Black Point Road (the 4009 property). The common boundary line between the two properties runs approximately 180 feet from the front of the properties on Black Point Road to the back of the properties.

Helen first purchased the leasehold interest in the 4005 property from Mr. and Mrs. Burnham Kenison on March 6, 1965 (the Kenison Leasehold Conveyance). At that time, Bishop Estate owned the underlying fee simple title to the 4005 property and conditioned its approval of the sale to Helen on the execution of a "new Bishop Estate [fifty-five-year] lease" on the 4005 property. On June 14, 1965, Helen fulfilled said condition by executing an agreement with Bishop Estate to lease the 4005 property for fifty-five years, "together with the rights, easements, privileges and appurtenances thereunto belonging or appertaining" (the Bishop Estate Leasehold Conveyance).

It is undisputed that at the time Helen purchased the leasehold interest in the 4005 property, there was a driveway that provided access to both the 4005 and 4009 properties from Black Point Road. The first eighty feet of the driveway from Black Point Road (the common driveway) was about thirty feet wide and situated partly on the 4005 property and partly on the 4009 property. Thereafter, the driveway diverged into two driveways that were separated by a low rock wall and a hedge of shrubbery located on the 4005 property side of the boundary line between the properties. Defendants do not dispute the Ryans' contention that for many years, the common driveway was used to access both the 4005 and 4009 properties and that the Ryans and their neighbors on the 4009 property, as well as their respective guests, freely parked on both portions of the common driveway. According to the Ryans, if vehicles of their neighbors' guests were parked on the common driveway, blocking access to their property, they would ask their neighbors to move the vehicles. A similar arrangement existed when the Ryans' neighbors needed to gain access to their property and the vehicles of the Ryans' guests were parked on the 4009 portion of the common driveway. Furthermore, according to the Ryans, Joseph blacktopped and maintained the common driveway.

On November 6, 1986, Helen purchased the fee simple title to the 4005 property from Bishop Estate. Helen subsequently conveyed the 4005 property to Joseph and herself as tenants by the entirety via a quitclaim deed dated June 15, 1990.

When Helen purchased the leasehold interest in the 4005 property in 1965, the leasehold interest in the 4009 property was owned by Mr. and Mrs. Jasper Holmes, who subsequently sold their interest to Mr. and Mrs. Lesley Murakami (the Murakamis) on December 22, 1975. On August 13, 1987, the Murakamis purchased the fee simple title to the 4009 property from Bishop Estate. Except for the descriptions of the properties conveyed, the deeds conveying the fee simple titles to Helen and to the Murakamis were identical. On the same day that the Murakamis purchased the fee simple title from Bishop Estate, they conveyed their fee simple interest to Eri's Co. Ltd. (Eri's), a Japan corporation, via a warranty deed. On October 5, 1989, Eri's conveyed its fee interest to Tanabe, which, in turn, conveyed its interest to Tanac on August 9, 1990. On September 30, 1994, Tanac transferred its interest in the 4009 property back to Tanabe, which allegedly owns eighty percent of Tanac.

In June 1990, the structures on the 4009 property were demolished by Third-Party Defendant L.T. Kuwasaki, Inc. On November 28, 1990, Roy Y. Takeyama (Takeyama), attorney for Tanac, informed the Ryans that effective December 3, 1990, his client would be constructing a new residence on the 4009 property. Takeyama informed the Ryans that although every effort would be made not to cause undue noise and disturbance to the adjoining properties, the contractor would be doing some excavation that might affect the 4005 property. Takeyama assured the Ryans that in such event, the contractor would make repairs to restore their property to its original condition. Thereafter, Third-Party Defendant Tajiri Lumber, Ltd. cleared and grubbed the 4009 property, removing all vegetation that had been determined by a licensed surveyor to be located on the 4009 property. Beginning in December 1990, Defendant and Third-Party Plaintiff Robert M. Kaya Builders, Inc. (Kaya), as general contractor, and various other third-party defendants, as subcontractors of Kaya, began constructing a new residence on the 4009 property. As part of this construction, a hollow tile retaining wall was erected along the 4009 property side of the boundary line between the 4005 and 4009 properties (the Tanabe wall). The Tanabe wall essentially bisected the common driveway and then continued along the 4009 property side of the boundary line to the back of the two properties.

On January 15, 1991, the Ryans wrote to Takeyama, claiming that they owned a prescriptive easement over the entire common driveway, including the portion of the common driveway located on the 4009 property. Construction of the Tanabe wall and residence was completed sometime in 1992.

PROCEDURAL HISTORY

On February 24, 1992, the Ryans brought the instant lawsuit against Tanabe, Tanac, and several other parties,¹ seeking damages for trespass, nuisance, negligence, intentional infliction of emotional harm, and violations of prescriptive rights. The Ryans filed a First Amended Complaint on December 18, 1995. With respect to the claim that their prescriptive rights had been violated, the Ryans alleged, in relevant part:

21. That [the Ryans] owned, enjoyed, used and maintained a prescriptive right and/or easement and right-of-way over a joint driveway [thirty] feet wide and for an an [sic] approximate length of [eighty] feet, and [the Ryans'] use of the prescriptive rights have been actual, open, notorious, hostile, and adverse to the ownership rights of [Defendants] and their predecessors in title and have continued for more than [twenty-five] years prior to June 1991, and [the Ryans] still own said prescriptive right but they are now wrongfully deprived of said prescriptive right, and further [the Ryans] also owned, used, and enjoyed prescriptive rights to air, light and morning sunshine along the southeasterly boundary of their lot.

22. Defendants wrongfully deprived [the Ryans] of their aforesaid property right by digging up the area comprising the right-of-way and constructing a high cement block wall down the middle of the joint driveway, thereby permanently depriving [the Ryans] of their prescriptive uses and/or easement, changing the natural flow of surface water, and making ingress and egress to [the Ryans'] property extremely hazardous to the public as well as to the [Ryans]. . . .

23. . . . [I]n violation of and destruction of [the Ryans'] prescriptive right to light and air, Defendants constructed a solid cement and stucco wall that is more than ten (10) feet high, and which said wall encroaches upon and is constructed partially on and/or under [the Ryans'] land on the southeasterly boundary, and further

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