On September 30, 1993, the Supreme Court of the state of Hawai’i gave notice that it would not reconsider its decision in Case Number 15277, better known as the Diamond Head Beach Road dispute. And with that notice – unremarked in the daily press – the court brought to a close litigation that spanned more than 34 years and involved some of the priciest real estate on O’ahu.
In almost all respects, the court’s ruling in the case, issued on August 19, 1993, was a blow to the state, which had argued that it was the legitimate owner of a strip of land roughly 2,100 feet long and 50 feet wide along Ka’alawai Beach, to the south and east of Diamond Head crater. The case is complex, as befits its long history. Here’s our capsule version.
In the Beginning
On January 28, 1959, trustees of the Lunalilo Estate applied to the Land Court to register title to the strip of coastal property that was sandwiched between the private lots and the beach. The estate had subdivided the property and sold off most of it. However, the deeds conveyed to the private landowners indicated that the lots they had purchased stopped short of the shoreline. Now, in 1959, the Lunalilo trustees sought to register title to that intervening strip of land. (This is Land Court Application No. 1767.)
Charles M. Hite examined the trustees application. His report to the Land Court, dated January 30, 1959, stated: “One question arises which the Examiner feels should be called to the Court’s attention. This is the matter of a vague roadway, vague because the record is silent as to its establishment, creation or location, but which is indicated to have once existed by the descriptions found in four deeds given by the Trustees in 1885 to purchasers of portions of the [Land Commission] award, wherein one of the courses in each deed is given as ‘along the road.’ … Whether there was once a road or how it ran or who had dominion over it cannot be determined from the record before the Examiner.”
Two days after the Lunalilo Estate trustees filed their application – and the same day Hite made his report to the Land Court on it – Roy and Estelle Kelley applied to register title to that strip of land fronting their property. Their application was in response to the Lunalilo trustees’ efforts to claim the entire strip, which included the property in front of the Kelleys’ house. (The Kelleys’ application is No. 1768.)
On March 11, 1959, Hite again made a report to the Land Court. Since his earlier report, he wrote, he had had occasion to review the Kelleys’ application and supporting documents, which referenced Government Registered Map No. 2129.
“A trip to the Office of the Territorial Surveyor… revealed two maps,” Hite wrote, “one being a Map of O’ahu Fisheries at Waikiki prepared by Monsarrat in 1909, Reg. Map No. 2828, the other the map referred to … Reg. Map. No. 2129 of Ka’alawai Lots filed in 1902. Both of these maps show a beach road which runs over part at least of the land lying between the high water mark and the makai boundaries of the mauka lots, which would make same run down, along and across the land sought to be registered here.”
Other landowners with property fronting the coastal strip claimed by the Lunalilo trustees began to object to the estate’s claim. George V. and Alice L. Clark informed the Land Court that they claimed an interest in this land “by right of usage.” Sara E.L. Larsen and Genevieve Magoon claimed the beach road existed, but that it was a private access-way for the exclusive use of the owners of adjoining land.
On May 2, 1961, the Land Court ordered that hearings be consolidated on the two applications (1767 and 1768). However, the order provided that “the consolidated hearings shall not include the detailed presentation of evidence” on behalf of the Kelleys. Instead, completion of the trial concerning Application No. 1768 “shall await the determination by this court of the issues raised in LCA No. 1767,” the court held.
The First Round
The Land Court heard arguments on the combined applications on May 22, 1961, but it was not until July 3, 1962, that judge H.R Hewitt issued his decision.
Hewitt’s findings of facts were as follows:
First, the original Land Commission Award to Lunalilo in 1885 included the strip of coastal land whose ownership was at issue.
Second, the area was never dedicated, by statute or otherwise, for public use as a road.
Third, it had never been dedicated for public use “at any time, so as to carry the fee to the government.”
Fourth, even if the area had been a public road at one time, “it has long since been abandoned.”
Fifth, the area “was but an easement in favor of (a) the public; (b) and long since abandoned, or (c) the abutting property owners, (d) and long since abandoned.”
Six, Kulumanu Road, which leads onto the area in dispute, did not exist until 1902. Before then, it was “at best a trail.” Hence, “the easement over the disputed area ended with the lots conveyed by the trustees abutting the disputed area.”
Judge Hewitt further wrote: “The Court examined the disputed area… The Court observed no sign or remnant of any road around the point of Diamond Head to Kulamanu Place. The Court observed that part of the area was under water and part of this area was ordinarily a sand beach as is found elsewhere in Hawai’i. There were a number of encroachments along the disputed area. Walls substantially encroach into the disputed area and it was also occupied by lawns, patios, buildings and fences. These were further described in the oral evidence and shown in the photographs introduced by the Magoons et al. This evidence showed that no road had existed on the premises and further that many of the present encroachments have existed at least for the last 30 to 40 years…
“Neither the state nor the applicants have contested the existence of the encroachments on the disputed strip. Neither the state nor the trustees ever took action for the removal of the encroachments. In this respect the state officials and the applicants have conducted themselves as if the Ka’awai lot owners owned the disputed area and as if there was never any road over the disputed area.”
Hewitt determined that “the disputed area was equivalent to a platted road reserve for access to the beach lots” and found that this determination, moreover, was in keeping with the intention of the trustees when they conveyed title to the abutting land owners. His conclusion: “The Applicants in Application No. 1767 have no title in the disputed area to register, and the state has failed to establish any claim to this area.” On March 19, 1963, the Land Court issued its decree to that effect.
Hewitt’s ruling opened the way for the Kelleys’ application (1768) to be tried. The Land Court issued its decision in that case on January 9, 1964, concluding that the Kelleys had established their ownership over the land makai of their property.
The Appeal
The Lunalilo trustees (but not the state) appealed the Land Court decision on Land Court Application 1767 to the Circuit Court. Before that came to trial, however, the trustees settled with all landowners except the Kelleys. The state did appeal the Kelley ruling (Application No.1768) and then sought to have the appeal of that ruling consolidated with the Lunalilo trustees’ appeal. But with the trustees having settled, the court dismissed that appeal “with prejudice” and also denied the state’s request to have the two appeals consolidated.
The state’s appeal of the Kelley award was decided by the Supreme Court in 1968. The Supreme Court’s finding in that case – In Re: Application of Kelly – came down foursquare in favor of the state’s claims to the land. Unlike the Land Court, the Supreme Court determined that the evidence supported the state’s position that the original deeds were not intended to convey title to the 50-foot strip in front of the individual subdivided lots.
“We find that the trial court was clearly in error, the Supreme Court ruling stated. The Land Court had misinterpreted the old government maps, which, to the Supreme Court, showed without question a road fronting the parcels. In addition, the Supreme Court found that the road, far from being a private easement, was a public course. A deed of 1884 provides for a ‘public right of way’ … across the ‘south eastern portion where the present road runs’ and the deeds of 1885 exclude the strip from the property conveyed to the private purchasers… The evidence shows that the present Diamond Head Road from Waikiki to Kahala had not been built at that time, and construction on that project did not begin until the early 1900’s. It strains the imagination not to conclude that the public right of way extended along the government property and along the Ka’awai subdivision and served as a primary means of travel between Waikiki and Kahala from the early 1800s, if not earlier.”
If this were not enough, the justices stated, “In the deeds of 1885, the trustees went a step further. Although they could have conveyed the fee to the roadway to the abutting private purchasers and reserved public rights merely through an independent grant in an exception and reservation clause, they chose rather to exclude the highway altogether from the grants to the private purchasers…. We find that there was a Waikiki to Kahala road, public in nature, … along the seashore of the subdivision… This fin-de-siecle road was no doubt a far cry from the paved asphalt roads that we are familiar with today, but the fact remains that it was a public road.”
Having made this determination, the Supreme Court could do no other than rule against the Kelleys and find in favor of the state. “[W]e conclude that there existed a public road of which the disputed parcel was a part, that the disputed parcel was not conveyed to Smith [a predecessor owner of the Kelley property] because it was abandoned to the public by the Lunalilo trustees, and that the disputed parcel was then made the property of the government by the Highways Act of 1892 and has not been abandoned by the government by due process of law. Therefore, the Kelleys do not have good title and cannot register the land.”
Neither could the state, however. When it sought a Land Court decree giving it title in the wake of the Supreme Court decision, then Land Court Judge Samuel King declined to issue one. It was his determination that while the Supreme Court may have found against the Kelleys’ claim, it stopped short of finding in favor of the state’s claim.
A Limited Victory
Just how sweeping was the scope of In Re: Application of Kelley? In 1993, the state took the position that the Kelley decision applied to the entire area fronting Ka’awai Beach. However, from the time the Kelley decision was issued – September 1968 until the mid 1980s, the state of Hawai’i took no action to oust the Kelleys or any other landowner from the disputed area.
Not that the landowners were not encroaching. As mentioned earlier, Judge Hewitt of the Land Court had taken note in his decision on the Lunalilo application of the many encroachments, including “lawns, patios, buildings and fences.” Following the Kelley decision, however, the state, for the next twenty years, was content to watch the grass grow, literally, on the disputed lands.
All that came to a halt in the mid-1980s, when one of the property owners began rebuilding a fence atop one of the seawalls that jutted into the disputed area. Citizens organized not only to prevent the fence’s reconstruction, but to get the state to remove what they regarded as the rich squatters from state land.
There followed several years of negotiations involving the state Department of Land and Natural Resources, which has responsibility for managing state lands, and the owners of the parcels adjoining the disputed area. At one point, the state was ready to resolve the problem by issuing revocable permits to the owners, granting them legal right to occupy the strip of land along Ka’alawai Beach.
Seven landowners seemed ready to sign off on a tentative agreement with the DLNR, allowing them to keep such improvements as they had made on the disputed lands but ceding title to the state. Owners of the six remaining lots stood firm.
Renewed Litigation
Those six lots are owned by three parties: John Henry Magoon, Jr., the 3787 Diamond Head Road Development Corp. (owned by the Cloward family, long-time landowners in that area), and Richard Kelley, owner of four of the parcels – including the one involved in the Supreme Court decision In Re: Kelley.
In 1989, the state filed in Circuit Court a suit for ejectment against these parties. On February 7, 1991, that court ruled on the several motions for summary judgment that the parties had filed. Generally, it came down in the state’s favor. Among other points, the order held that the Supreme Court, in In Re: Kelley “found that the Land Court erred, that there was a government road, and that the state owned it.” While the court refused to expand the sweep of In Re: Kelly to the entire strip of land, it did find that the state’s claim to ownership of the other parcels had been preserved, notwithstanding the dismissal of the appeal of Land Court Application 1767.
The matter was appealed once more to the Supreme Court, which issued its 32-page decision in August 1993. The strip along the beach was never a road, the court ruled. Even so, the court refused to revisit the previous Supreme Court decision In Re: Kelley, which means that ownership of the contested land in that case remains with the state.
Ownership of the remaining five parcels (including the three others claimed by Kelley) was determined to rest with the adjoining land-owners, in keeping with the Land Court decision in Application 1767. “There is no doubt that the state was aggrieved by the 1767 Decision and Decree,” the Supreme Court found, “yet [the state] failed to appeal it” within the time prescribed by law. Now, 30 years later, the state was told it had to live by the results of its previous action or inaction, as the case may be.
After the August 1993 decision, the state asked the Supreme Court for a reconsideration. That request was denied on September 30, 1993.
What Next?
The on-the-ground situation after 34 years of litigation is confused, to say the best that may be said of it. While ownership of the extremely narrow “beach” rests with the state, that strip of land constituting the “road” mentioned in the original deeds of the house lots along Ka’awai Beach is owned, for the most part, by the owners of the land immediately mauka of the strip. The sole exception is the part of that strip that was the subject of litigation in In Re: Kelly. This means that a total of 7,152 square feet of the lushly landscaped Kelley yard, fortified by seawalls and extending to the water’s edge at high tide, is public land if the public can get to it. All the rest of what once was described as a public road is now in private hands.
According to Mason Young, administrator of the Division of Land Management within the DLNR, with the Supreme Court having decided only recently to deny the state’s motion for reconsideration, the state has not decided what course of action it will next take.
Young was asked if Kelley had approached the state with an offer to buy the one parcel that the Supreme Court ruled was the state’s. Not yet, he said, adding, however, that he would not be at all surprised if such an offer were made.
Volume 4, Number 5 November 1993
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