State v. Hawaiian Dredging Co.

• Decision Date: 27 November 1964
• Docket Number: Nos. 4277,4347,s. 4277
• Citation: 48 Haw. 152,397 P.2d 593
• Parties: STATE of Hawaii v. HAWAIIAN DREDGING COMPANY et al., and Jue Anami, David Kakalia, Komaye Oishi et al.
• Court: Hawaii Supreme Court

Page 593

397 P.2d 593

48 Haw. 152

STATE of Hawaii v. HAWAIIAN DREDGING COMPANY et al., and Jue Anami, David Kakalia, Komaye Oishi et al.

Nos. 4277, 4347.

Supreme Court of Hawai'i.

Nov. 27, 1964.

Syllabus by the Court

1. It is elementary that an appellant must furnish to the appellant court a sufficient record to positively show the alleged error.

2. The most that can be said of the provision of R.L.H.1955, § 231-4, dismissing with prejudice for want of prosecution 'a cause remaining untried for a period of six years after it has been placed on the calendar' is that it affects merely the court's jurisdiction over the parties, which, being a personal matter, may be waived.

3. The doctrine of res judicata applies only as between the parties to an earlier action or their privies and only insofar as the court rendering the judgment had jurisdiction of the parties and the subject matter.

4. The doctrine of stare decisis relates to questions of law, that is, to the effect of legal propositions announced in prior adjudications upon subsequent actions which involve similar questions between strangers to the proceedings in which the adjudications were made. Following 'precedent' set by a court of coordinate jurisdiction is merely a matter of comity and is applicable only when a court entertains doubt as to its own views.

5. The findings of fact of the trial court will not be set aside unless the appellate court is left with a definite and firm conviction that a mistake has been committed. H.R.C.P., Rule 52(a).

6. Incorporation by reference makes the subject matter referred to as much a part of that which incorporates it as though set forth therein at full length.

7. The construction given an ambiguous deed by the parties to it will be given effect unless it contravenes some rule of law.

8. The situation of the parties should be considered in determining the intention of the parties to an ambiguous deed and the intent so determined should be given effect if practicable.

9. Construction of a judgment acquiesced in by the parties will not be changed without strong reason.

10. It being the policy of the law to give quiet and repose to titles, courts of equity will not interfere after a great lapse of time and peaceable possession.

11. The intent of the Congress in enacting Sections 95 and 96 of the Organic Act was to destroy, so far as it was in its power to do so, all private rights of fisheries and to throw open the fisheries to the people. It would be contrary to that intent to hold that an owner of vested fishing rights was not required to register his own rights but could rely upon and be protected by the registration effected by another person claiming adversely to him.

12. Persons entitled to establish their vested interests in fishing rights by registration in court proceedings, but failed to do so within the time prescribed by law, abandoned their interests to the government.

Arthur K. Trask, Honolulu (Kinji Kanazawa and John R. Desha, II, Honolulu, on the briefs), for intervenors-appellants.

Clinton R. Ashford, Special Deputy Atty. Gen. (Shiro Kashiwa, Atty. Gen., on the brief), for petitioner-appellee.

Before TSUKIYAMA, C. J., CASSIDY, and WIRTZ, JJ., Circuit Judge OKINO in place of LEWIS, J., disqualified, and Circuit Judge JAMIESON in place of MIZUHA, J., disqualified.

WIRTZ, Justice.

On August 29, 1941, the Territory of Hawaii instituted a condemnation action in aid of the Keehi Lagoon transpacific seaplane harbor.

The area under condemnation was the sea fishery of Mokauea in Keehi Lagoon. When the action was filed the Territory alleged that the only outstanding private rights in the area were fishing rights and ownership of Kahakaaulana Island (L.C.A. 10611 to Puhene) in the fishery. However, defendant Hawaiian Dredging Company, Limited, claimed not only the fishing rights as the konohiki of the fishery but also the fee simple title to the submerged land in the fishery. ¹ The petition was accordingly amended to seek comdemnation of the island and of all private rights in the fishery, whatever such rights might be.

None of the Intervenors-Appellants appeared in the case or asserted any rights in the area under condemnation until 1947. ² Others did not appear until 1951, ten years after the action was commenced. ³ All Intervenors claimed to own undivided interests in the fee simple title to the submerged land and the konohiki fishing rights, claimed by Hawaiian Dredging Company, Limited. Their claims were based upon inheritance from W. L. Moehonua, the awardee of L.C.A. 6450, Apana 1, to which the sea fishery of Mokauea was appurtenant, and upon mesne conveyances from Moehonua's heirs.

During the course of the litigation the Territory made a settlement with the owners of Kahakaaulana Island and obtained a deed. Judgment was entered which in effect quieted title to the island. This judgment was not appealed and disposed of one of the multiple claims in the case.

While the Territory disputed all claims to ownership of submerged land in the fishery, it recognized Hawaiian Dredging Company, Limited, as the owner of the konohiki fishing rights. A settlement with Hawaiian Dredging was effected, by which the Territory, under an exchange deed, acquired all of the rights of that company in the remaining area under condemnation, whatever those rights might be. See, Territory v. Hawaiian Dredging Co., 42 Haw. 627.

The case, then in the nature of an action to quiet title, remained at issue between the Territory (which shortly thereafter attained statehood) and the Intervenors on the issues of whether the Intervenors owned any interests in the area under condemnation. At pre-trial proceedings it was determined, because of its greater importance, that the Intervenors' claims to ownership of submerged land within the fishery be first ascertained before considering their claims to ownership of fishing rights. It is from the judgment entered in favor of the State and denying Intervenors' claims to the submerged land on this issue on July 11, 1961, that the Intervenors have appealed in No. 4277. ⁴

Thereafter, Intervenors' claims of ownership of konohiki fishing rights within the fishery came on for trial pursuant to the pre-trial order. Again, judgment ⁴ was entered in favor of the State denying Intervenors' claims, from which Intervenors have appealed in No. 4347.

Preliminarily, we should consider and dispose of Intervenors' Motions to Dismiss for Lack of Jurisdiction in Lower Court filed in this court in both Nos. 4277 and 4347 on November 30, 1963. After the hearing on these motions on December 20, 1963, their disposition was taken under advisement. The attack on jurisdiction is based on the affidavit of counsel for Intervenors attached to the motions, wherein he deposes: 'That Respondents-Appellees, Hawaiian Dredging Company, Limited, filed on December 7, 1951, a motion for dismissal for want of prosecution of eight years * * *.' He further deposed that no ruling, order or dispositing of the motion to dismiss was made by the trial court.

In support of their motion, Intervenors invoke the provisions of R.L.H.1955, § 231-4, ⁵ and contend that its provisions are mandatory and self-executing with the trial court automatically losing jurisdiction of the subject matter. They 'urge that the cause of action be dismissed for lack of jurisdiction to proceed after November 19, 1947 [six years from November 19, 1941, the date of Hawaiian Dredging Company, Limited's answer to original complaint of August 29, 1941] and that the parties be left to other remedies at law.'

Before this court can even begin to consider Intervenors' motions requesting that all proceedings herein since 1947 (or at least since 1951 or 1952) be declared nullities for lack of jurisdiction, it must first find as an evidentiary fact that Hawaiian Dredging Company, Limited did file the claimed Motion for Dismissal for Want of Prosecution and that circumstances warranting a dismissal under the provisions of R.L.H.1955, § 231-4, did exist with respect to this action.

There is no basis in the records on these appeals warranting this court to make any of the required findings, nor does any such basis appear in the records of the two previous interlocutory appeals, Nos. 2927 and 4003. ⁶ While this court may, if it desires, take judicial notice of the cases formerly or now before it, ⁷ it may not inform itself concerning the record of the trial court by judicial notice. Both statute and rule permit consideration of a record of the trial court on appeal only to the extent that it is duly offered under proper certificate and seal. R.L.H.1955, § 224-14; H.R.C.P., Rule 75(g).

Rule 75(a) of the Hawaii Rules of Civil Procedure requires that upon taking an appeal the appellant promptly file in the trial court 'a designation of the portions of the record, proceedings, and evidence to be contained in the record on appeal.' Rule 75(g) provides that only the matters so designated by the parties shall constitute the record on appeal, with the exception of certain automatic pro forma inclusions, such as material pleadings, verdict and the like. ⁸

None of the Designations of Contents of Record on Appeal, the Additional or Supplementary Designations, filed by Intervenors, and the Indices to Record on Appeal filed and certified by the circuit court clerk, designates, lists or mentions the Motion for Dismissal for Want of Prosecution now relied upon by Intervenors. Neither do any of those Designations, Supplements to Record and Indices identify or include any documents, papers or proceedings whereby it can be established that circumstances warranting dismissal of the action under the provisions of R.L.H.1955, § 231-4, were ever present in the case.

Petitioner-Appellee did not file any Designations.

Clearly, neither the Motions for Dismissal for Want of Prosecution, allegedly filed by Hawaiian Dredging Company, nor the facts warranting...