State by Kobayashi v. Midkiff

• Citation: 421 P.2d 550,49 Haw. 456
• Decision Date: 05 December 1966
• Docket Number: No. 4415,4415
• Parties: STATE of Hawaii, By Bert T. KOBAYASHI, its Attorney General, v. Frank E. MIDKIFF et al., Trustees under the Will and of the Estate of Bernice P. Bishop, Deceased.
• Court: Supreme Court of Hawai'i

Page 550

421 P.2d 550

49 Haw. 456

STATE of Hawaii, By Bert T. KOBAYASHI, its Attorney General, v. Frank E. MIDKIFF et al., Trustees under the Will and of the

Estate of Bernice P. Bishop, Deceased.

No. 4415.

Supreme Court of Hawai'i.

Dec. 5, 1966.

Syllabus by the Court

1. A summary judgment is analogous to a directed verdict.

2. The burden of marshaling a record making the showing required for a summary judgment is on the defendants when they are the movants, though plaintiff would have the burden of proof at trial.

3. In ejectment a plaintiff must recover upon the strength of his own title and not upon any weakness in the defendant's title.

4. Land, shown not to have been the Kinghs private land before the Mahele or listed as the King's in the Mahele, in which a chief had a qualified right, nevertheless had to be awarded by the Land Commission, or by the Minister of Interior under the Acts of August 24, 1860 and December 16, 1892 (S.L.1860, p. 27; S.L.1892, c. 68), otherwise it remained the property of the government.

5. The naming of the adjoining lands in an award of the Land Commission is not in itself determinative of the correctness of these appellations.

6. Insofar as Land Commission proceedings on an application before it are indicative of the Land Commission's views as to the status of the adjoining lands, such Land Commission proceedings are of value as evidence in that regard in the absence of a decision of the Land Commission directly in point.

7. Maps and surveys are of no greater value as evidence than the information on which they were based.

8. If a map or survey is the expression of original kamaaina testimony or contemporary knowledge at or about the time of the Mahele, it has value as such. But a map which represents merely the conclusion of the surveyor reached on substantially the same evidence the court has before it is to be treated accordingly.

9. There were two distinct types of Land Commission Awards, one by survey, earmarked by the phrase 'Eia na palena.' and the other by name, earmarked by a reference to the Act of June 19, 1852 (S.L. 1852, p. 28).

10. Where a Land Commission Award contained the phrase 'Eia na palena' (here follow the boundaries), followed by a survey, but before signature of the award there was appended by a clerk a note raising a question as to the correctness of the survey, and the members of the Land Commission did not cross out either the note or the survey, nor did they append a reference to the Act of June 19, 1852 (S.L.1852, p. 28), which was the earmark of an award by name, there was nothing tantamount to final judgment.

11. Under the Act of August 24, 1860 (S.L.1860, p. 27), the Minister of the Interior was empowered to issue awards by name or by survey to chiefs who had failed to receive from the Land Commission the lands Maheled to them. Where a chief's Land Commission award was of doubtful efficacy but he received a patent endorsed by the Minister of the Interior, Covering the land by name, the chief perfected his title to the land so named in one way or another, whether by award of the Land Commission or of the Minister of the Interior.

12. When the question is whether a parcel of wet land and a tract of upland, held together, constituted an ili kupono, or constituted an ahupuaa with but one ili in it, the wet land in such case being the ili; and it appears that the ili was Maheled to a chief and there was no surrender by the chief to the King of any of the land-the treatment the ili received in the Mahele indicates it was an ili kupono.

13. There is a presumption in favor of the regularity and validity of official acts.

14. While it has been stated that in the case of an award by the Land Commission of a land by name there was intended to be assigned whatever was included in such tract according to its boundaries as known and used from ancient times, the ultimate question is what passed by the award, and any evidence is pertinent which indicates what land was included in the land of that name as known and understood at the time either of the Mahele or of the Land Commission Award.

15. If a deed be consider ambiguous, the construction given it by the parties will be given effect unless such construction contravenes some rule of law.

16. When a Land Commission Award had been made by name and the question of the extent of the award is raised by an ejectment suit brought by the State more than 100 years later, during which period defendant and its predecessors continuously have had possession of the disputed area and paid taxes thereon claiming title under the Land Commission Award-it appearing that during the First 50 and more years the government several times recognized defendant's claim, following which there was a period of 17 years in which the government asserted a claim and brought an ejectment suit, ending in a voluntary discontinuance of this first ejectment suit; and it further appearing that during the ensuing period of more than 30 years the government on three occasions, by exchange deeds executed by the Governor and Commissioner of Public Lands and by pleadings and a stipulation in a condemnation suit, recognized defendant's claim, and that no further dispute was raised during this period of more than 30 years until the second ejectment suit was brought; the court being satisfied that the defendant has a well founded claim, and that the public officials at the time of discontinuance of the earlier ejectment suit and in the ensuing period deemed further litigation useless and intended to abandon the issue subsequently presented, after a lapse of more than 30 years, by the second ejectment suit, held, after review of the case law and statutes that notwithstanding the State is the plaintiff a case for application of the doctrine of construction by the parties is presented and a summary judgment against the State will be affirmed.

Kenneth K. Saruwatari, Asst. Atty. Gen. (Bert T. Kobayashi, Atty. Gen., Jon J. Chinen and Clinton R. Ashford, Sp. Deputy Attys. Gen., with him on the briefs), for appellant.

J. Garner Anthony, Honolulu (Burnham H. Greeley, Honolulu, with him on the briefs: Robertson, Castle & Anthony, Honolulu, of counsel), for respondent.

Before RICHARDSON, C. J., CASSIDY, WIRTZ, and LEWIS, JJ., and KITAOKA, Circuit Judge in place of MIZUHA, J., disqualified.

LEWIS, Justice.

The State seeks to eject the trustees of the Bishop Estate from 857 acres of land in the District of Ewa, Island of Oahu, contending that this land was not awarded by the Land Commission, or by the Minister of Interior under the Acts of August 24, 1860 and December 16, 1892 (S.L.1860, p. 27; S.L.1892, c. 68), and remains the property of the government under the doctrine of Thurston v. Bishop, 7 Haw. 421 (1888). It appeals from a summary judgment which dismissed the action on the grounds, among others, that the land in question was awarded by survey by Land Commission Award 7713, Apana 35, to Victoria Kamanalu, and that the plaintiff had its predecessors have acquiesced in defendant's possession. It is undisputed that the defendant trustees are the successors in interest of Victoria Kamamalu, but the State contends that the award was of an ili by name, that there is a genuine issue of fact as to whether the ili included the land in dispute, and that plaintiff is not foreclosed by defendants' possession.

A summary judgment is analogous to a directed verdict. 6 Moore, Federal Practice, § 56.04(2), at 2044 (2d ed.). If the court is satisfied that it has the complete facts and that there is no question of credibility, it may grant a summary judgment. Wier v. Texas Co., 180 F.2d 465, 469 (5th Cir.); National Dynamics Corp. v. Petersen Publishing Co., 185 F.Supp. 573, 576 (S.D.N.Y.). The burden of marshaling a record making the required showing is on the defendants as movants, though plaintiff would have the burden of proof at trial. Mossman v. Hawaiian Trust Co., 45 Haw. 1, 9-10, 361 P.2d 374; 6 Moore, Federal Practice, § 56.15(3) (2d ed., rev. 1965). Thus the question in whether defendants have succeeded in proving that if the case went to trial there would be no issue for the jury. Mossman v. Hawaiian Trust Co., supra.

Though the parties have been most industrious, the record is fragmentary due to the efflux of time. Upon argument, counsel for the State was asked whether, if the case went to trial, the State would rest on what already had been presented. Counsel was unwilling to state that no more evidence would be adduced, stating that he did not wish to foreclose himself. He conceded that, if anything more were to be put in, it would be 'not much more-very little more.' Applicable here is the statement in 6 Moore, Federal Practice, § 56.15 at 2343-44 (2d ed.), that an opposing party who cannot show that countervailing evidence will be available at the trial, is not entitled to denial of the motion for summary judgment 'on the basis of a hope that such evidence will develop at the trial.' We conclude that we are in as good a position as we ever will be to determine whether the case is one for a jury or whether on trial a verdict would have to be directed.

The case falls under the well settled rule that 'in ejectment a plaintiff must recover upon the strength of his own title and not upon any weakness in the defendant's title.' Fong Hing v. Yamaoka, 31 Haw. 436, 438 (1930). However, the State being the plaintiff, claiming the land as unawarded land, it would prevail in the absence of a showing that the land was awarded. In re Pa Pelekane, 21 Haw. 175, 185 (1912); State v. Jadwin, 85 S.W. 490, 491-492 (Tex.Civ.App.). In this case it is not disputed that there was an award, the dispute being as to the extent of it.

We first will review the situation of the land and the evidence as to the award, and then will take up the construction of the award by the parties.

I. The situation of the Land and the Evidence as to the Award.

By way...