Sanborn, Application of

Decision Date23 March 1977
Docket NumberNo. 5553,5553
PartiesApplication of Walter Foss SANBORN to register title to real property situate at Hanalei, Halelea, County of Kauai, State of Hawaii.
CourtHawaii Supreme Court

Syllabus by the Court

1. The line of high water mark for property registered in land court, as for unregistered property, is the upper reaches of the wash of waves, regardless of whether or not a prior decree of registration purports to describe a different high water mark, and regardless of whether or not there has been permanent erosion subsequent to the prior decree.

2. The distances and azimuths describing high water mark in a land court decree of registration are prima facie descriptions of high water mark, presumed accurate until proved otherwise; but if it is proved that the distances and azimuths are not coterminous with a line reflecting the upper reaches of the wash of waves, the latter line prevails.

3. Land below high water mark is held in public trust by the State, whose ownership may not be relinquished, except when consistent with certain public purposes; and thus any purported registration of the land in the instant case below the upper reaches of the wash of waves wes ineffective.

4. In construing land court decrees, as in construing written instruments generally, natural monuments such as 'along high water mark' control over distances and azimuths.

5. There is no taking of private property, nor is there a violation of due process, where this court, in construing a prior unappealed land court decree, reaches a result which arguably conforms to the reasonable expectations of the parties to the prior decree.

Andrew S. O. Lee, Deputy Atty. Gen., Honolulu (George Pai, Atty. Gen., and Russell N. Fukukmoto, Deputy Atty. Gen., Honolulu, with him on the briefs), for appellant.

Alan C. Kay and Bruce C. Bigelow, Case, Stack, Kay, Clause & Lynch, J. Russell Cades and Robert B. Bunn, Cades Schutte Fleming & Wright, Honolulu, for appellee.

Before RICHARDSON, C. J., KOBAYASHI, OGATA and MENOR, JJ., and KATO, Circuit Judge, in place of KIDWELL, J., recused.

RICHARDSON, Chief Justice.

This is an appeal by the State Land Surveyor (hereinafter, State Surveyor or Surveyor) from a decree and order of the land court determining the location of two lines, the beachfront title line and the 'shoreline' of registered land owned by appellees Sanborn et al. (hereinafter, the Sanborns). The decree and order commanded the Surveyor to certify to the Kauai planning commission a map on which these two lines are drawn in accordance with the court's determination.

The case arose out of the Sanborns' attempt to obtain Kauai County approval of a subdivision of a beachfront lot into two smaller lots. It is agreed that under Kauai County rules and regulations implementing the state shoreline setback act, HRS §§ 205-31 through 205-37 (1975 supp.), the Sanborns were required to submit to the Kauai planning department a map of the property, certified in part by the State Surveyor. When the Surveyor refused to certify a map prepared by the Sanborns, they brought this action.

Neither the Sanborns nor the Surveyor has introduced in evidence the applicable Kauai County rules and regulations, so that, on the record before this court and the land court, it is unclear which aspects of the Sanborns' map the Surveyor was required to certify. The state shoreline setback act, supra, does not itself require the preparation of any maps or their certification by the Surveyor. The state act delegates to the county planning commissions the duty to enforce the setback law, and to implement it by promulgating rules and regulations. HRS § 205-32.

HRS § 622-13 (1975 supp.) limits the power of our courts to take judicial notice of county ordinances and regulations. See State v. Shak, 51 Haw. 626, 466 P.2d 420 (1970); State v. Tamanaha, 46 Haw. 345, 379 P.2d 592 (1963); and Territory v. Yoshikawa, 41 Haw. 45 (1955). Although HRS § 622-13(c) has, since 1972, permitted judicial notice of county ordinances under certain specified conditions, such conditions are not present in this case.

Despite the fact that the original dispute between the parties was limited to whether the State Surveyor was required to certify the Sanborns' map-an issue which arguably could have been resolved without determining the Sanborns' beachfront title line-at trial the parties devoted most of their attention to the determination of this line. On appeal, the sole issue is the title line. (The Surveyor's opening brief fails to specify as error the trial court's determination of the Sanborns' 'shoreline' for purposes of the shoreline setback act).

In land court there are no pleadings in the ordinary sense of the word. Accordingly, there was no opportunity to clarify pleadings once the parties proceeded to litigate the issue of the Sanborns' title line.

The land court did have jurisdiction to entertain both the 'shoreline' and title line issues, either under Hawaii's declaratory judgment act, 1 or under HRS § 501-85, which requires land court approval of subdivisions of registered land, 2 or under HRS § 501-64, which gives the land court full power to enforce its decrees, including of course the 1951 decree which registered title to the Sanborns' lot.

The Beachfront Title Line

In addressing the issue of the Sanborns' beachfront title line, the primary question is whether the line is to be determined according to Hawaii's general law of ocean boundaries, or whether certain distances and azimuths contained in the Sanborns' 1951 land court decree of registration are to prevail.

The law of general application in Hawaii is that beachfront title lines run along the upper annual reaches of the waves, excluding storm and tidal waves. County of Hawaii v. Sotomura, 55 Haw. 176, 181-82, 517 P.2d 57, 61-62 (1973).

In the instant case, after extensive testimony the land court determined that a certain line, the 'Edge of Vegetation and Debris Line' (hereinafter, 'vegetation and debris line'), as drawn on a map of the Sanborns' property, represents

'the 'upper reaches of the wash of waves' during ordinary high tide during the winter season, when the . . . waves are further mauka (or inland) than the highest wash of waves during the summer season.' Decree and Order dated June 29, 1973, at 3.

This description of the 'vegetation and debris line' reflects the law of general application respecting beachfront title boundaries in Hawaii. Sotomura, supra, 55 Haw. at 182, 517 P.2d 62. However, even though the decree discusses and fixes the location of this line with respect to the Sanborns' property, the decree denies legal significance to it in this particular case, instead finding that the Sanborns' beachfront title line is fixed by certain distances and azimuths set out in the 1951 land court decree registering title to the property.

Through an apparent oversight, the 1951 decree has not been designated part of the record on appeal. Nevertheless, that decree is one of the original papers in Land Court Application No. 1578 (the instant case), and therefore, pursuant to HRCP Rule 75(a), which is made applicable to land court appeals by HRCP Rule 81(f), the 1951 decree is part of the record on appeal.

The 1951 decree provides in pertinent part that the Sanborns' property is

'more particularly bounded and described as follows:

Beginning at an ' ' cut in concrete . . . and running by azimuths measured clockwise from True South:

2. 134 55 162.00 feet . . . to high water mark at seashore . . .

3. Thence following along high water mark at seashore, the true azimuth and distance being 221 39 30 233.36 feet . . ..'

When the distances and azimuths of this description are plotted on a map of the Sanborns' property, they give a line approximately 40 to 45 feet makai (seaward) of the 'vegetation and debris line'.

It is undisputed that during the course of the year actual high water mark varies, with ordinary winter tides reaching substantially further mauka than ordinary summer tides, primarily due to the washing out of beach sands during the winter months. However, it is also undisputed that, because of the annual return of sands during the summer months, there has been no substantial permanent erosion of the Sanborns' beach since 1951. 3

The court below held that, because there has been no permanent erosion since 1951, the State is bound by the measurements in the 1951 decree. We reverse. We hold that, regardless of whether or not there has been permanent erosion, the Sanborns' beachfront title boundary is the upper reaches of the wash of waves. Although we find that the State is bound by the 1951 decree to the extent that the decree fixes the Sanborns' title line as being 'along the high water mark at seashore', we also find that the specific distances and azimuths given for high water mark in 1951 are not conclusive, but are merely prima facie descriptions of high water mark, presumed accurate until proved otherwise. 4 The evidence adduced at trial below established that the 1951 measurements do not reflect (and given the lack of permanent erosion, probably never reflected) the upper reaches of the wash of waves. Rather, the trial court made the finding of fact that the 'vegetation and debris line' represents the upper reaches of the wash of waves. Such finding was not clearly erroneous. Accordingly, the 'vegetation and debris line' represents the Sanborns' beachfront title line.

The Land of Court Statute

HRS § 501-71 provides:

'Every decree of registration of absolute title shall bind the land, and quiet the title thereto, subject only to the exceptions stated in section 501-82. It shall be conclusive upon and against all persons, including the State. . . .'

The Sanborns contend that this section gives binding effect to the specific distances and azimuths set out in the 1951 decree for the line of high water. The Sanborns' unstated assumption is that the...

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