Tanaka v. Mitsunaga

• Decision Date: 20 January 1959
• Docket Number: NO. 3066.,3066.
• Citation: 43 Haw. 119
• Parties: EDITH T. TANAKA v. SPENCER SUETOSHI MITSUNAGA, KIMIYO MITSUNAGA AND YACHIYO MITSUNAGA.
• Court: Hawaii Supreme Court

43 Haw. 119

EDITH T. TANAKA

v.SPENCER SUETOSHI MITSUNAGA, KIMIYO MITSUNAGA AND YACHIYO MITSUNAGA.

NO. 3066.

Supreme Court of the Territory of Hawai‘i.

Argued November 6, 1958.

Decided January 20, 1959.

OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT COURT FIRST CIRCUIT, HON. ALBERT M. FELIX, JUDGE.

Syllabus by the Court

It is frequently said that a quasi-easement exists where a person uses one part of his land for the benefit of another and such use is apparent, continuous and important for the enjoyment of the part benefited thereby.

If the owner of land, one part of which is subject to a quasi-easement in favor of another part, severs the land, then upon the severance of the ownerships of the two parts, an easement corresponding to the pre-existing quasi-easement is regarded as arising by implication of law, but the implication may be rebutted.

An easement corresponding to a pre-existing quasi-easement does not pass with the land if the language of the conveyance shows clearly an intention otherwise or if the circumstances are such as to exclude a construction of the language of the conveyance as inclusive of the easement. Under the circumstances of the conveyance and the language of the deed in this case, the pre-existing quasi-easement did not pass with the conveyance.

An easement by prescription is created by a use of the claimed easement area adverse to the owner of the fee for the period of prescription.

A person who claims an easement by prescription need not show continued use by himself for the prescriptive period but may tack the use by his predecessors in title. Evidence in this case failed to establish continuous adverse use of the claimed easement area by successive owners of the adjoining land for the prescriptive period.

An easement may arise by estoppel where a vendor represents to a purchaser that an easement exists in favor of the premises proposed to be sold over the vendor's other real property, but the conveyance subsequently made does not mention such easement, or where there is a mutual understanding between adjoining owners for the reciprocal use of a boundary strip as common passageway and one adjoining owner suffers a detriment, such as by construction of improvements, in reliance on such understanding. There is no evidence in this case sufficient to establish such easement by estoppel.

Where it is necessary for a claimant of easement by prescription to tack prior owner's use to his use to establish adverse use for the prescriptive period, such prior owner is in privity with claimant. Privity between a declarant and a party renders a declaration of the former admissible against the latter.

Appellate court may disregard any error of the trial court which does not affect the substantial rights of parties. (H.R.C.P., Rule 61.) It will not reverse a judgment in a nonjury case because of the admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment or unless it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made.

Clarence Y. Shimamura (also on the briefs) for appellant.

Albert Ogawa (Kanazawa & Doi with him on the brief) for appellee.

RICE, C. J., STAINBACK AND MARUMOTO, JJ.

OPINION OF THE COURT BY MARUMOTO, J.

Appellant and appellees are owners of adjoining parcels of land located at the end of a roadway off Ilima Drive in Honolulu. Appellant claims an easement of right of way over a portion of appellee's land. Appellees deny the existence of any such easement. Upon appellees' obstruction of the claimed easement area, appellant filed an action in the circuit court in which she sought an injunction against such obstruction and damages in the sum of $15,000. The circuit court, after a trial, denied appellant's claim and dismissed the action. This appeal is from the judgment of dismissal.

The nature of the controversy may be explained by reference to the accompanying sketch. Lot 6 is the parcel owned by appellant. Lot 5 is the parcel owned by appellees. The area marked “Roadway” is a concrete private way, 15 feet wide and extending 216 feet in a makai direction from Ilima Drive. Appellant owns an undivided one-sixth interest in the way, and so do appellees. The shaded area is also made of concrete. For convenience in identification, the area will be referred to as the driveway. There is evidence that the roadway and the driveway were not constructed at the same time. The driveway extends about 40 feet from the makai end of the roadway and is 12 to 14 feet in width. About one-half of the width is in appellant's parcel and the remainder is in appellee's parcel. Appellant's claim of easement is in the portion of the driveway in appellees' parcel. The City and County of Honolulu

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has a sewer easement within the area marked by disconnected lines.

Before June 30, 1942, Joel Marion Brooks owned both Lot 5 and Lot 6. Brooks had a dwelling and a garage on each of the lots. The driveway was in existence at the time of Brooks' ownership of the parcels. It afforded access to the garages, which were located makai of the dwellings.

On June 30, 1942, Brooks, through Richard Imada, a real estate broker, sold Lot 5 to Bert Sueki Mitsunaga and Spencer Suetoshi Mitsunaga and Lot 6 to Wah Chong Soon and Wai Kim Soon. Lot 5, after mesne conveyances within the Mitsunaga family, was conveyed to appellees on January 6, 1954. The Soons sold Lot 6 to Ruby Shigeko Shitabata on December 16, 1944, and the latter sold it to appellant on March 22, 1947.

In his deed to Bert Sueki Mitsunaga and Spencer Suetoshi Mitsunaga, Brooks described Lot 5 by metes and bounds and conveyed the parcel, together with an undivided one-sixth interest in the roadway. In the deed to the Soons, Brooks described Lot 6 by metes and bounds also, and conveyed the parcel, together with an undivided one-sixth interest in the roadway, but subject to the sewer easement in favor of the City and County of Honolulu. In each of the deeds, it was stated that the one-sixth undivided interest in the roadway was “to be used in common with the other owners and occupants of adjoining lands as a roadway.” In neither of the deeds was there any reference to any easement in the driveway. The description in the deed from Ruby Shitabata to appellant is identical with the description in the deed from Brooks to the Soons.

Appellant bases her claim on three alternate theories, namely, implied easement, prescription and estoppel.

A clear exposition of implied easement of the nature claimed by appellant is found in 3 Powell on Real Property, § 411, where it is stated:

“All implications of easements necessarily involve an original unity of ownership of the parcels which later become the dominant and servient parcels. When A owns Blackacre, it is not possible for A as the owner of the west half of Blackacre to have a true easement with respect to the east half of Blackacre; but it is both possible and frequent to find A using the east half of Blackacre for the service of the west half of Blackacre, as for example, when the east half of Blackacre contains drains, or sewers, or irrigation ditches, or roadways or stairways which increase the usability of the west half of Blackacre. It is then possible to describe A's utilization of one part of Blackacre for the service of another part thereof as a quasi-easement, and to speak of the served part as the quasi-dominant tenement, and of the burdened part as the quasi-servient tenement.

“Where such a quasi-easement has existed and the common owner thereafter conveys to another the quasi-dominant tenement, the conveyee is in a position to claim an easement by implication with respect to the unconveyed quasi-servient tenement. Whether this claim will be effective depends upon the satisfaction of certain tests established by the cases. It is usually said that the quasi-easement must have been ‘apparent,’ ‘permanent’ and ‘important for the enjoyment of the conveyed quasi-dominant parcel.’ ”

Similar expositions are found in 3 Tiffany, Real Property, 3rd Ed., § 781, and 1 Thompson on Real Property, Permanent Edition, § 390.

In the instant case, the driveway is apparent; it is permanent in the sense that its indicated use is not occasional and temporary but continuous; and its use to its entire width is important for the enjoyment of both parcels. Thus, in the absence of other considerations, upon the simultaneous conveyance of Lots 5 and 6, an easement of right of way in favor of Lot 5 might have been implied in the portion of the driveway in Lot 6 and a similar easement in favor of Lot 6 might have been implied in the portion of the driveway in Lot 5.

However, the basis of an implied easement is the presumption of grant arising from the circumstances of the case. Such presumption is one of fact, which may be rebutted. (3 Powell on Real Property, § 411; 3 Tiffany, Real Property, 3rd Ed., § 781; 1 Thompson on Real Property, Permanent Edition, § 390; 17A Am. Jur., Easements, § 42; Rischall v. Bauchmann, 132 Conn. 637, 46 A. [2d] 898; City and County of Honolulu v. Tam See, 40 Haw. 429). In 3 Tiffany, Real Property, 3rd Ed., § 781, it is stated that an easement corresponding to a pre-existing quasi-easement “does not pass with the land if the language of the conveyance shows clearly an intention otherwise, or if the circumstances are such as to exclude a construction of the language of the conveyance as inclusive of the easement.” Similarly, in 3 Powell on Real Property, § 411, it is stated: “Since the implication of an easement from a pre-existing quasi-easement is made in supposed execution of the parties' intent, the implication is never made where the evidence shows the absence of such intent.”

Here, upon the evidence adduced at the trial, the circuit court found that when Brooks sold Lots 5 and 6, his broker, Richard Imada, pointed out to the purchasers the boundaries of the parcels, that Imada also...