State by Kobayashi v. Zimring

Citation566 P.2d 725,58 Haw. 106
Decision Date22 June 1977
Docket NumberNo. 5522,5522
PartiesSTATE of Hawaii, By its Attorney General, Bert T. KOBAYASHI, Plaintiff-Appellant, v. Maurice ZIMRING et al., Defendants-Appellees. Maurice ZIMRING and Molly D. Zimring, Third-Party Plaintiffs, v. ISLAND TITLE AND ESCROW CO., INC., an Hawaiian Corporation, Third-Party Defendant. Francis G. RUDDLE et al., Third-Party Plaintiffs, v. ISLAND TITLE AND ESCROW CO., INC., Third-Party Defendant.
CourtSupreme Court of Hawai'i

Syllabus by the Court

1. According to the Constitution of 1840, all land in Hawaii was held by King Kamehameha I, not as his private property but as belonging ultimately to the chiefs and people in common, of whom the king was the head.

2. Prior to the Great Mahele, all land in Hawaii was public domain land.

3. Land in Hawaii may be transferred to private ownership through grant or award or by operation of law, but all lands not actually transferred remain in the public domain.

4. When only two volcanic eruptions created lava extensions abutting private land prior to 1892, no "Hawaiian usage", within the meaning of HRS § 1-1, could arise with respect to the ownership of lava extensions.

5. Under common law, gradual and imperceptible accretions of land inure to the upland landowner, but where there are violent shifts of land by avulsion, preexisting legal boundaries are retained.

6. In the absence of common law precedent or Hawaiian usage with respect to the ownership of lava extensions, this court will apply principles of equity and public policy.

7. Title to lava extensions is held by the State government in public trust for the people of the State.

8. The instant lava extension, created in 1955 when legal title to all "public lands" was in the federal government, was conveyed to the State with other "public lands" in the Hawaii Admission Act.

9. The instant lava extension falls under the definition of "public lands" in the Hawaii Admission Act, because the inchoate right to this extension was among the "lands and properties . . . ceded to the United States by the Republic of Hawaii under the joint resolution of annexation", which, by its terms, had ceded "all . . . public property of every kind and description . . . ."

10. Prior to statehood the greater portion of public lands, including the instant lava extension, was owned by the federal government and managed by the territorial government in public trust for the people of the territory. After the Admission Act, title and management coalesced in the State government with respect to most public lands, subject to a continuing public trust for the benefit of the people of the State.

11. While the doctrine of equitable estoppel is applicable against the State government if necessary to prevent manifest injustice, a case of manifest injustice is not presented by the facts of the instant case.

Andrew S. O. Lee and Edwin P. Watson, Deputy Attys. Gen., Honolulu, for plaintiff-appellant.

Franklin E. Zimring, Molly D. Zimring, Hilo, for appellees.

Ivan Lui Kwan, Carlsmith, Carlsmith, Wichman & Case, Hilo, for third-party plaintiffs.

Before RICHARDSON, C. J., OGATA, J., VITOUSEK, Circuit Judge, for KOBAYASHI, J., disqualified, HAYASHI, Circuit Judge, for MENOR, J., disqualified, and KATO, Circuit Judge, for the vacancy.

RICHARDSON, Chief Justice.

The State of Hawaii, plaintiff-appellant, seeks to quiet title 1 in itself as against Maurice and Molly Zimring, defendants-appellees, and their predecessors-in-interest to approximately 7.9 acres of new land added to the acreage of the island of Hawaii when the Puna volcanic eruption of 1955 overflowed the shoreline and extended it. Hereinafter, this new land and similarly created new lands which extend the shoreline are referred to as lava extensions. The disputed lava extension in the instant case In December of 1960, the Zimrings obtained a deed from the then owners of Grants 4139 and 4140, which described the lands conveyed, in pertinent part, as follows:

lies adjacent to the southerly boundaries of Land Patent Grant No. 4139 (to C.L. Wight) and Land Patent Grant No. 4140 (to H.E. Wilder) in Kehena, Puna, Hawaii, and was created when the 1955 eruption, emanating from an inland source, flowed over the southerly boundaries into the ocean, onto formerly submerged land.

1. All of that certain parcel of land (being all of the land described in and covered by Land Patent Grant Number 4139 to C.L. Wight) situate, lying and being at Kehena in the District of Puna, Island, County and State of Hawaii, and thus bounded and described:

(metes and bounds description of Grant 4139 follows in language identical to that used in the original Land Patent Grant, describing one course as 'along high water mark to end of the 5th course,' and the total area as '64.3 Acres or thereabouts.')

2. All of those certain parcels of land (being all of the lands described in and covered by Land Patent Grant Number 4140 to H. E. Wilder) situate, lying and being at Kehena, in the District of Puna, Island, County and State of Hawaii, and thus bounded and described:

(metes and bounds description of Grant 4140 follows in language identical to that used in the original Land Patent Grant, describing one course as 'along high water mark to end of Second course,' and the total area as '9/10 Acres, a little more or less.')

The conveyances of Grants 4139 and 4140 from W. H. Hill to Herbert C. Shipman in 1944, from Shipman to Francis G. Ruddle in 1959, and from Ruddle to himself, Koshi Miyasaki, Pete Tatsuo Okamoto, Woon Yong Pack and Raymond Y. C. Ho in 1959, were by deeds containing land descriptions identical to that found in the deed the Zimrings received. After receiving the deed, the Zimrings entered upon the disputed lava extension and made improvements thereon which included bulldozing and planting trees and shrubs. In 1968, the State served the Zimrings with a notice and demand to vacate the disputed land and to cease and desist from conducting any further activities thereon. Thereafter, the State filed the instant complaint, joining the Zimrings, their predecessors-in-interest and the predecessors' spouses.

In their answer, the Zimrings denied the State's title. They filed a cross-claim against their predecessors-in- interest and also filed two counterclaims, both of which were dismissed by the third circuit upon motion by the State. Upon interlocutory appeal by the Zimrings, this court affirmed the dismissal of the first counterclaim, being a claim of title against the State by adverse possession, but reversed the dismissal of the second counterclaim for damages against the State for trespass, disparagement of title, and interference with contract. State v. Zimring, 52 Haw. 477, 479 P.2d 205 (1970).

The Zimrings had in the meantime interposed a motion for summary judgment based on the affidavit of William K. Kamau, Sr., a kama'aina witness, who deposed as to his knowledge of Hawaiian usage and custom respecting lava extensions. The trial court granted the Zimring motion, whereupon the State prosecuted its first appeal. In State v. Zimring, 52 Haw. 472, 479 P.2d 202 (companion case of Zimring, supra ), this court reversed the entry of summary judgment, relying on the following grounds: (1) the failure of the Kamau affidavit to comply with H.R.C.P. Rule 56(e); (2) the failure of the affidavit to clearly establish the material fact of the existence or absence of Hawaiian usage; and (3) the inadvisability of relying solely on the kind of affidavit submitted, in a case of first impression on a question of vast public importance.

Upon remand, a motion for separate trials of the complaint, counterclaims and cross-claims made by the Zimrings was granted by the trial court, thereby confining the issue in the first trial to the question The State moved for summary judgment, attaching copies of Grants 4139 and 4140 and the deeds in the Zimring chain of title which were offered to show that the disputed area was not included in the deeds and that therefore the Zimrings lacked title. The motion was denied by the trial court and trial commenced.

whether ownership of the subject lava extension was in the State, the Zimrings, or others.

After trial, in accordance with its Findings of Fact contained in paragraphs numbered one to fourteen, the trial court entered the following conclusions of law:

1. This Court has jurisdiction of the parties and the subject matter of this action.

2. The State has failed to carry its burden of proof to establish its title in the land.

3. Because of the unreasonable delay in pressing its claim, resulting in detriment to Zimrings, and because its actions in its several transactions with Zimrings caused Zimrings to believe that they owned the subject land, as a matter of fundamental fairness, the State is precluded from asserting title to the subject land and denying Zimrings such title.

4. Because Hawaiian usage prior to 1892 gave to the owner of land along the seashore, title to land created by volcanic eruption when the eruption destroyed the pre-existing seashore boundary and formed a new boundary along the sea, Herbert Shipman owned the land formed in 1955 abutting Grants 4139 and 4140.

5. Herbert Shipman's Deed passed title to all of Grants 4139 and 4140, and, by operation of law, to the land formed in 1955, abutting Grants 4139 and 4140. Mr. Ruddle's deed to himself and his associates passed title to the same land. The Deed of Ruddle and associates of December 19, 1960 passed title to the same land. Zimrings thus acquired and now hold title to the land in dispute.

From the judgment entered, the plaintiff State of Hawaii appeals. We turn now to the major issues raised in this appeal.

I

We first examine the question of whether the State, as plaintiff, has, as the circuit court found, failed to carry its burden of proof to establish quiet title in itself to the disputed lava extension. 2 It is well settled in Hawaii that in an...

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