The Nature Conservancy v. Nakila

• Decision Date: 31 October 1983
• Docket Number: No. 8245,8245
• Citation: 4 Haw.App. 584,671 P.2d 1025
• Parties: THE NATURE CONSERVANCY, Substituted Plaintiff and Defendant-Appellee, v. Makanui NAKILA, aka Benj. M. Nakila, or his heirs; Emily Kiaaina, or her heirs; Keaho, or his heirs; Namokuelua, or her heirs; Poonika, aka F.C. Poonika, or his heirs; Hee, or her heirs; Keko Alapai, or his heirs; Kalawaia 1, or his heirs; Kapule, or his heirs; Kekua, or his heirs; Kuaana, or his heirs; Poealii, or his heirs; Pulehua, or his heirs; Kaaipuaa, or his heirs; Nainoaelua, or his heirs; State of Hawaii; United States of America; Robert E. Willison; Eleanor B. Willison; County of Maui; and to all whom it may concern, Defendants, Mary B. Drummond and Mildred C. Drummond, Defendants-Appellants, Hana Ranch, Inc., Defendant-Appellee, and Kipahulu Investment Company, Intervenor.
• Court: Hawaii Court of Appeals

Page 1025

671 P.2d 1025

4 Haw.App. 584

THE NATURE CONSERVANCY, Substituted Plaintiff and Defendant-Appellee, v. Makanui NAKILA, aka Benj. M. Nakila, or his heirs; Emily Kiaaina, or her heirs; Keaho, or his heirs; Namokuelua, or her heirs; Poonika, aka F.C. Poonika, or his heirs; Hee or her heirs; Keko Alapai, or his heirs; Kalawaia 1, or his heirs; Kapule, or his heirs; Kekua, or his heirs Kuaana, or his heirs; Poealii, or his heirs; Pulehua, or his heirs; Kaaipuaa, or his heirs; Nainoaelua, or his heirs; State of Hawaii; United States of America; Robert E. Willison; Eleanor B. Willison; County of Maui; and to all whom it may concern, Defendants Mary B. Drummond and Mildred C. Drummond, Defendants-Appellants Hana Ranch, Inc., Defendant-Appellee, and Kipahulu Investment Company, Intervenor.

No. 8245.

Intermediate Court of Appeals of Hawai'i.

Oct. 31, 1983.

Syllabus by the Court

1. A motion to set aside an entry of default is addressed to the sound discretion of the trial court. Where the movant failed to show excusable neglect on his part and the granting of the motion would have prejudiced the nondefaulting parties, there was no abuse of discretion in the trial court's denial of the motion.

2. A verdict may be properly directed for the party with the burden of proof if the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn.

3. Rule 18(a)(1), Rules of the Circuit Court, which requires each party at a pre-trial to disclose the names and addresses of all witnesses he intends to call must be scrupulously followed in order to have a fair trial.

4. To qualify as a hearsay exception under Rule 803(b)(20), Hawaii Rules of Evidence, the proffered evidence must be reputation testimony reporting a general consensus of opinion in a community and not just an assertion of an individual's observation.

5. Matters regarding the examination of witnesses are within the discretion of the trial court and its rulings will not be subject to reversal absent prejudicial abuse of such discretion.

6. Neither a Rule 50(b), Hawaii Rules of Civil Procedure (HRCP), motion for judgment notwithstanding the verdict nor a Rule 59, HRCP, motion for new trial is a condition precedent to appeal from a final judgment. If a motion for a directed verdict is made at the close of the evidence, the sufficiency of evidence question is properly before the appellate court for review.

7. The same elements necessary to prove acquisition of title by adverse possession are required to establish an easement by prescription. The requirement is that the use must be adverse, continuous and uninterrupted, and for the prescriptive period.

8. The party claiming the easement has the burden of proving the essential elements giving rise to the prescriptive right.

9. A prescriptive easement cannot be established by the owner of a substantial interest in the land in question since he has a right to use the land and, consequently, cannot use the land adversely against himself.

10. Since a fiduciary relationship exists between cotenants, a tenant has an obligation to actually notify his cotenant that a prescriptive easement is being claimed against the cotenant's interest.

11. In an action to quiet title and to partition land, the award of attorney's fees made after the completion of the quiet title phase of the case, but before the substantial completion of the partition phase, under HRS § 668-17 which gives a judge the discretion of allowing and apportioning fees for legal services in a partition proceeding, is premature.

Yuklin Aluli, Honolulu, for claimant-appellant Andrew Nakila.

Edward C. Kemper, Honolulu (Kemper & Watts, Honolulu, of counsel), for defendants-appellants Mary B. Drummond and Mildred C. Drummond.

David Waters, Honolulu (William C. McCorriston, Honolulu, with him on briefs; Goodsill, Anderson, & Quinn, Honolulu, of counsel), for substituted plaintiff and defendant-appellee The Nature Conservancy.

William F. Crockett, Wailuku (Crockett & Nakamura, Wailuku, of counsel), for defendant-appellee Hana Ranch, Inc.

Before BURNS, C.J., TANAKA, J., and RONALD T.Y. MOON, Circuit Judge, in place of HEEN, J., recused.

TANAKA, Judge.

The appeals in this case are (1) by claimant Andrew Nakila (Nakila) from an order denying his motion to set aside an entry of default and (2) by defendants Mary B. and Mildred C. Drummond (collectively the Drummonds) from the judgment. The judgment (a) declared that plaintiff Jean Waggoner Stehlin (Stehlin) ¹ and defendant The Nature Conservancy (TNC) are the owners of an undivided 85% interest in the land covered by Royal Patent Grant 3057 (Grant 3057) and that the Drummonds are the owners of an undivided 15% interest, (b) held that defendant Hana Ranch, Inc. (Hana Ranch) has an easement in gross by prescription for a water pipeline across Grant 3057, and (c) awarded TNC $1,916.40 as reimbursement for costs and attorneys' fees. We affirm in part and reverse in part.

The issues dispositive of the appeals and our answers are:

1. Whether the trial court abused its discretion in denying Nakila's motion to set aside the entry of default as to him. No.

2. Whether the trial court erred in directing a verdict in favor of Stehlin and TNC on the question of paper title concerning shares 10, 11, 14, 15, 16, and 20 of Grant 3057. No.

3. Whether the trial court committed reversible errors by excluding a certain witness and certain testimony and by "permitting parties with common interests to duplicate testimony and to lead their own witnesses." No.

4. Whether the jury erred in finding that Hana Ranch had a water pipeline easement by prescription. ² Yes.

5. Whether the trial court erred in awarding TNC reimbursement for attorneys' fees. Yes.

On November 26, 1976, Stehlin filed a complaint seeking to establish and confirm her title as the fee simple owner of an undivided 85% interest in that certain portion of Grant 3057 containing an area of 123.143 acres and identified by tax map key 1-6-2-8 and to partition the land.

The Drummonds answered claiming 100% ownership of the 123.143 acres and counterclaimed for damages based upon alleged breaches of fiduciary duty, unfair and deceptive trade practices, slander of title, monies had and received, conversion, and trespass. Additionally, the Drummonds cross-claimed and alleged 100% ownership of the entire Grant 3057, thereby enlarging the action to include the remaining portion of Grant 3057, containing 113.029 acres and identified by tax map key 1-6-2-12.

TNC, a Washington, D.C. charitable corporation, filed its pleadings claiming ownership of an undivided 85% interest in tax map key 1-6-2-12 by virtue of conveyances from Stehlin and adverse possession by TNC and its predecessors in title.

Hana Ranch answered, counterclaimed, and cross-claimed, alleging ownership of a prescriptive easement for a water pipeline, together with an access easement across Grant 3057. ³

On the morning of September 15, 1980, ⁴ Nakila, an unnamed defendant claiming an interest in Grant 3057, filed a motion to set aside the entry of default as to him. On the same morning, the trial court heard and denied the motion. ⁵

Immediately thereafter, a jury trial commenced with Stehlin, the Drummonds, TNC, and Hana Ranch as participants. ⁶ By agreement, the trial was segmented into three parts: (1) paper title to Grant 3057, (2) title to Grant 3057 by adverse possession, and (3) acquisition of a water pipeline easement in gross by prescription.

After all evidence on the paper title issue had been presented, the trial court directed a verdict that Stehlin and TNC had paper title to 16 shares or 80% of Grant 3057 and the Drummonds had paper title to three shares or 15%. The court ruled that title to the remaining share 13 had to be determined by the jury.

Likewise, after the presentation of evidence on the adverse possession issue, the trial court directed a verdict that Stehlin and TNC had title to the same 16 shares and the Drummonds had title to the same three shares and again the ownership of share 13 was left for jury determination.

Concerning the water pipeline easement issue, the trial court denied both Hana Ranch's and the Drummonds' motions for directed verdict.

On September 19, 1980, the jury returned its special verdict finding that (1) Stehlin and TNC own Share No. 13 by paper title, ⁷ (2) Hana Ranch and/or its predecessors acquired a prescriptive pipeline easement together with a road access easement, and (3) Hana Ranch had overburdened the prescriptive easement with a second pipeline. On December 18, 1980, however, the trial court granted Hana Ranch's motion for a judgment notwithstanding the verdict concerning the third finding.

On January 5, 1981, the trial court filed its judgment which included an award of $1,916.40 to TNC as reimbursement for costs and attorneys' fees. The appeals of Nakila and the Drummonds followed. ⁸

Subsequent to the entry of judgment, Stehlin transferred her interest in Grant 3057 to TNC. Therefore, by stipulation and order filed in the supreme court on May 6, 1982, TNC was substituted as plaintiff-appellee in place of Stehlin.

I. SETTING ASIDE ENTRY OF DEFAULT

Nakila was neither named in Stehlin's complaint nor served personally or by mail. Pursuant to Hawaii Revised Statutes (HRS) § 634-23 (1976), service on unknown persons was made by publication in the Maui News. By an order filed on January 20, 1977, except for those specified, all defendants, including unknown persons claiming adversely to Stehlin, were defaulted.

The record includes a January 18, 1980 letter from Mr. Vernon T. Tashima, Nakila's counsel, to Mr. Donald E. Scearce, Stehlin's counsel, stating that Nakila claimed an interest in Grant 3057 and requesting documentary proof if Stehlin and/or the Drummonds were claiming the entire interest. In his January 21, 1980 letter to Mr. Tashima, Mr. Scearce responded that Jonah...