Santos v. Perreira

• Decision Date: 04 September 1981
• Docket Number: No. 7092,7092
• Citation: 2 Haw.App. 387,633 P.2d 1118
• Parties: Joseph SANTOS and Harriet Santos, Plaintiffs-Appellees, v. Charles B. PERREIRA, Edward B. Perreira, Clarence B. Perreira and Benjamin B. Perreira, Defendants-Appellants.
• Court: Hawaii Court of Appeals

Page 1118

633 P.2d 1118

2 Haw.App. 387

Joseph SANTOS and Harriet Santos, Plaintiffs-Appellees, v. Charles B. PERREIRA, Edward B. Perreira, Clarence B Perreira and Benjamin B. Perreira, Defendants-Appellants.

No. 7092.

Intermediate Court of Appeals of Hawai'i.

Sept. 4, 1981.

Syllabus by the Court

1. The entitlement to a right-of-way because of reasonable necessity referred to in Palama v. Sheehan, 50 Haw. 298, 440 P.2d 95 (1968), and Henry v. Ahlo, 9 Haw. 490 (1894), and Hawaii Revised Statutes (HRS) § 7-1 (1976) is a special right-of-way unique to ancient tenancies and kuleanas.

2. A conveyance of a portion of a larger parcel of land owned by the grantor may result in the creation by implication of an easement corresponding to a preexisting quasi-easement and burdening one of the resultant parcels in favor of the other.

3. A public highway is not a state highway unless it is included in the State Highway System under HRS § 264-41 (1976). Under HRS chapter 264 (1976), all public highways which are not state highways are county highways or they are not public highways.

4. If a roadway became a public highway before the enactment of L.1892, c. 47, § 2 (now HRS § 264-1 (1976)), then acceptance by the government is not required.

5. A motion for a directed verdict in a non-jury case will be treated as if it were a motion to dismiss under HRCP, Rule 41(b).

6. It is error for the trial court to use survey maps which have been admitted into evidence merely as references used by a surveyor-witness in preparing his survey map as proof that the plaintiff is entitled to a right-of-way over defendant's land.

7. Standing alone, a survey map is a representation of the surveyor's opinion and may not be used as proof that plaintiff is entitled to a right-of-way over defendant's land.

8. Evidence which is unrelated to the issues in the case is irrelevant and inadmissible.

9. When the defendant offers evidence after his HRCP, Rule 41(b), motion to dismiss has been denied, he waives his motion and the right to appeal any error in the disposition of the motion.

10. In a non-jury trial, it is presumed that all incompetent evidence was disregarded and that the issues were determined upon an appropriate consideration of the competent evidence only.

11. In a non-jury trial, a trial court's error is reversible error only if (1) all of the competent evidence is insufficient to support the judgment; or (2) it affirmatively appears that but for the incompetent evidence (or the improper use of the competent evidence), the trial court's decision would have been otherwise.

Andrew S. Iwashita, Kahului (Robert E. Rowland, Honolulu, with him on the briefs; Case, Kay & Lynch, Honolulu, of counsel), for defendants-appellants.

Mark T. Honda, Wailuku (Frank D. Padgett, Honolulu, and Richard L. Rost, Wailuku, with him on the brief), for plaintiffs-appellees.

Before HAYASHI, C. J., BURNS, J., and CHUN, Circuit Judge, in place of PADGETT, J., disqualified.

BURNS, Judge.

Plaintiffs-Appellees Joseph and Harriet Santos (Santoses) obtained an injunction prohibiting Defendants-Appellees Charles, Edward, Clarence, and Benjamin Perreira (Perreiras) from obstructing the Santoses' usage of a roadway easement across the Perreiras' property.

We must decide (1) whether the trial court erred in denying the Perreiras' Rule 41(b), Hawaii Rules of Civil Procedure (HRCP), motion for dismissal made at the close of Santoses' evidence; (2) whether it erred in admitting five maps into evidence; (3) whether it erred in using the content of the survey maps in evidence as proof of Santoses' legal entitlement to a roadway easement across the Perreiras' property in favor of the Santoses; and (4) whether the error, if any, is harmless error. We answer (1) no, (2) no, (3) yes, (4) no, and reverse and remand for a new trial.

The Perreiras, the Santoses, and John M. Souza ¹ each own land in Makawao, Maui, between Kaupakalua Road and Awalau Road. The Perreiras' parcel abuts Kaupakalua Road. Mr. Souza's parcel abuts Awalau Road. The Santoses own a parcel between and abutting the parcels owned by the Perreiras and Souza.

To travel to and from their property to and from Kaupakalua Road (through Perreiras' property) or to and from Awalau Road (through Souza's property), the Santoses used a disputed unimproved dirt road which runs between Kaupakalua Road and Awalau Road through Perreiras' property, through Santoses' property, and through Souza's property. However, when passing from their property into the Perreiras' property, the Santoses were required to open a gate in the Perreiras' boundary fence. The record does not tell us whether there were any other obstacles on the disputed road between Kaupakalua Road and Awalau Road.

A boundary dispute between the Perreiras and the Santoses was decided on August 9, 1976, by the Second Circuit Court's decree in Civil No. 2759. ² Immediately thereafter, the Perreiras locked their gate and bulldozed their land, thus preventing the Santoses from using the disputed road.

On August 24, 1976, the Santoses filed a complaint for injunctive relief, alleging that they are the "owners of an easement for right of way for access purposes," and asking for general and punitive damages ³ and for an injunction preventing the Perreiras from obstructing their use of their easement.

After a trial, the court decreed that the Perreiras are "permanently enjoined and restrained to allow free passage along the road that passes through the (Santoses') land, said road being shown upon the map of (Santoses') land, received in evidence as Exhibit 5; and ... to remove from their land all obstructions to said road heretofore placed thereon and to refrain henceforth from placing any obstructions thereon." ⁴ The Perreiras appeal.

The Santoses advanced three theories to justify the injunction. ⁵

First, they claimed entitlement to a right-of-way because of reasonable necessity such as was involved in Palama v. Sheehan, 50 Haw. 298, 440 P.2d 95 (1968), and Henry v. Ahlo, 9 Haw. 490 (1894). See HRS § 7-1 (1976). This theory refers to a special right-of-way unique to ancient tenancies and kuleanas, ⁶ and it does not appear to have any applicability in this case. ⁷

Second, they claimed that the unimproved dirt road was a surrendered public road pursuant to HRS § 264-1 (1976, as amended). See Levy v. Kimball, 50 Haw. 497, 443 P.2d 142 (1968); In Re Application of Kelley, 50 Haw. 567, 445 P.2d 538 (1968); Haw. Trust Co. v. Land Court, 17 Haw. 523 (1906). The facts in the record do not support this theory.

The Santoses contended that under HRS § 264-1 (1976) a public highway may be surrendered to the state without the state's acceptance. We disagree. A public highway is not a state highway unless it is designated for inclusion in the State Highway System under HRS § 264-41 (1976). All public highways which are not state highways are county highways or they are not public highways. See HRS § 264-1 (1976). A highway is not a county highway unless it is accepted or adopted as such by the county council. There is no evidence in the record of the designation, acceptance, or adoption of this road by the state or the county.

If, as suggested in In Re Application of Kelley, supra, at 579-580, 445 P.2d 538, the roadway became a public highway before the enactment of L.1892, c. 47, § 2 (now HRS § 264-1 (1976)), then acceptance by the government is not required. However, there is no such evidence in the record.

Third, they claimed entitlement to an easement by implied grant or reservation. See Neary v. Martin, 57 Haw. 577, 561 P.2d 1281 (1977); Tanaka v. Mitsunaga, 43 Haw. 119 (1959); Stibbard v. Rego, 38 Haw. 84 (1948). This is the more usual doctrine of entitlement to a right-of-way because of necessity. See 25 Am.Jur.2d Easements and Licenses § 34 (1966); Kalaukoa v. Keawe, 9 Haw. 191 (1893).

According to this theory, "a conveyance of a portion of a larger parcel of land owned by the grantor may result in the creation by implication of an easement corresponding to a pre-existing quasi-easement and burdening one of the resultant parcels in favor of the other...." Neary v. Martin, supra, at 579, 580, 561 P.2d 1281. There is evidence in the record which suggests that the Santoses are entitled to an easement under this theory.

On appeal, the Perreiras first content that the trial court denied their "motion for a directed verdict" made at the close of the Santoses' evidence. We hold that the Perreiras waived their right to appeal this alleged error.

A motion for a directed verdict in a non-jury case will be treated as if it were a motion to dismiss under HRCP, Rule 41(b). 9 Wright and Miller § 2371 at 220 (1971).

When the Perreiras offered evidence after their HRCP, Rule 41(b), motion to dismiss was denied, they waived their motion and the right to appeal any error in the disposition of the motion. Miller v. Kahuena, 1 Haw.App. 568, 623 P.2d 89 (1981); 9 Wright and Miller § 2371 (1971).

The Perreiras next contend that the court erred in admitting into evidence, over their objection, Santoses' Exhibits 1 through 5. We disagree.

Exhibit 1 is an uncertified copy of State of Hawaii Tax Map Key (TMK) 2-7-14, dated 1934, which shows the unimproved dirt road as a road; Exhibit 2 is an uncertified copy of TMK 2-7-14, dated 1973, which shows the dirt road as a road or right-of-way; Exhibit 3 is an uncertified copy of the Manuel P. Piko Tract Subdivision Map, dated October 21, 1911, which shows a portion of the dirt road and refers to it as an "Old Government Road"; Exhibit 4 is an uncertified copy of the Ulumalu Hui Lands Partition Map, dated January 1929, which shows the dirt road as a road through the Perreiras' and Santoses' properties but not the Souza's property; and Exhibit 5 is a copy of a map, dated November 1972, done at Perreiras' request by Warren S. Unemori, registered professional engineer and land surveyor, which shows a portion of the dirt...