State v. Zimring

• Decision Date: 31 December 1970
• Docket Number: No. 4859,4859
• Citation: 52 Haw. 472,479 P.2d 202
• Parties: , 52 Haw. 526 STATE of Hawaii, by its Attorney General, Bert T. Kobayashi, Plaintiff-Appellant, v. Maurice ZIMRING et al., Defendants, and Maurice Zimring and Molly D. Zimring, Appellees. Maurice ZIMRING and Molly D. Zimring, Third-Party Plaintiffs, v. ISLAND TITLE AND ESCROW CO., Inc., an Hawaiian Corporation, Third-Party Defendant.
• Court: Hawaii Supreme Court

Page 202

479 P.2d 202

52 Haw. 472, 52 Haw. 526

STATE of Hawaii, by its Attorney General, Bert T. Kobayashi, Plaintiff-Appellant, v. Maurice ZIMRING et al., Defendants, and Maurice Zimring and Molly D. Zimring, Appellees.

Maurice ZIMRING and Molly D. Zimring, Third-Party Plaintiffs, v. ISLAND TITLE AND ESCROW CO., Inc., an Hawaiian Corporation,

Third-Party Defendant.

No. 4859.

Supreme Court of Hawai'i.

Dec. 31, 1970.

Rehearing Denied Jan. 20, 1971.

Syllabus by the Court

1. HRS § 1-1 is derived from L.1892, c. 57, § 5, approved on November 25, 1892; thus, the Hawaiian usage mentioned therein is usage which predated November 25, 1892.

2. Where question of vast public importance is involved, caution should be exercised in the use of summary judgment procedure.

Andrew S. O. Lee, Deputy Atty. Gen. of Hawaii (Bertram T. Kanbara, Atty. Gen., with him on the briefs), for plaintiff-appellant.

Helen B. Ryan, Honolulu (Ryan & Ryan, Honolulu, of counsel), for defendants-appellees.

Before RICHARDSON, C. J., and MARUMOTO, ABE and LEVINSON, JJ., and WONG, Circuit Judge in place of KOBAYASHI, J., disqualified.

MARUMOTO, Justice.

The Puna volcanic eruption of 1955 created approximately 7.9 acres of land 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. Before the eruption, the southerly boundaries of the grants were along the sea. The eruption destroyed the preexisting seashore boundaries, and formed a new seashore boundary at the southerly end of the new land.

Five years after the eruption, Maurice Zimring and Molly Zimring, husband and wife, obtained a deed from the then owners of Grants 4139 and 4140, which described the conveyances by metes and bounds precisely as in the original grants, except for two obviously typographical errors. Upon obtaining the deed, the Zimrings entered upon the newly formed land, occupied the same, and made improvements thereon, upon a claim that their title extended to such land.

The State of Hawaii, claiming title to the new land, filed a complaint in the third circuit court to quiet title thereto as against the Zimrings and their predecessors in title. To the complaint, the Zimrings interposed a motion for summary judgment supported by an affidavit of one William K. Kamau, Sr.

In the affidavit, Kamau deposed that he was born in Puna in July 1892, and lived all of his life on the island of Hawaii; that his mother and hanai father, ¹ both deceased, also were residents of the island during their lifetime; that he has been a surveyor of lands on the island for more than 40 years; and that he was familiar with land usage on the island and its relation to volcanic eruptions, both of his own knowledge and knowledge transmitted to him by his mother and hanai father. He further deposed, in the light of such knowledge:

'(1) that because of recurrent volcanic eruptions, the intent of a deed or grant to the sea-shore, and along such sea-shore, has always meant a perpetual grant along the sea-shore, wherever it may be, in order to give the abutting owner access to the products of the sea;

'(2) that if new land is created which destroys the shore-line and creates a new shore-line, the abutting owner's right to his sea-shore boundary gives him the ownership of the new land;

'(3) that if a volcanic eruption submerges land to create a new shore-line farther inland than before, the abutting owner loses such submerged land and owns to the new shore-line.'

The State moved to strike the affidavit. The court at first granted the motion, but later reconsidered and denied it, and entered summary judgment in favor of the Zimrings. Aside from the affidavit, the court had nothing before it upon which the summary judgment could have been based, no deposition, no admission, no answers to interrogatories, no evidence obtained at any hearing, and no relevant fact as would be subject to judicial notice.

The court erred in denying the motion to strike. The affidavit does not comply with H.R.C.P. Rule 56(e), which provides that an affidavit in support of a motion for summary judgment shall be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Beyond stating that the court erred, we will not elaborate on this point, for there are two more basic grounds for reversing the judgment appealed from.

One of such grounds relates to the meaning of the phrase 'established by Hawaiian usage', as used in HRS § 1-1, which reads:

' § 1-1. Common law of the State; exceptions. The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided, that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or...