Paterson v. Rush , 1939 Haw. LEXIS 32 ( 1939 )

  Mandamus was brought by the petitioners to compel the city and
county engineer of the City and County of Honolulu to issue to
them a permit to lower ten linear feet of concrete curbing on
Kuhio Avenue, Honolulu, in front of and directly opposite an
alley, known as "alley U" and being the same premises described
in land court certificate of title number 13060, issued to the
City and County of Honolulu. After a hearing on the merits, the
circuit judge quashed the alternative writ. From the order to
that effect, the petitioners appealed.
  The only questions necessary of consideration are, (a) whether
there is appurtenant to lot 135 situated on the north side of
Kuhio Avenue of which the petitioners are seized in fee simple as
tenants by the entirety the right of ingress and egress by
vehicles and otherwise to and from Kuhio Avenue over a ten-foot
alley known as "lot U," running from Kuhio Avenue to Ala Wai
Boulevard and immediately adjoining the westerly boundary of lot
135 and (b) if so, are the petitioners, as owners of the dominant
estate, "owners" of the property "abutting" Kuhio Avenue at the
intersection of the avenue and alley "U," within the meaning of
those terms as used and employed in section 3 of ordinance 201 of
the City and County of Honolulu?
  The evidence upon the main issues is undisputed. It appears
that on September 4, 1926, the Realty Associates, Limited, and
the Bishop Trust Company, Limited, were owners in severalty of
portions of the lands described in land court applications
numbers 537 and 550, and that there had been issued to the Bishop
Trust Company,

Limited, as the owner in fee simple of the portion owned by it,
transfer certificate of title number 10776. The extent of its
holdings does not appear except by inference from conveyances
subsequently made. Previously and on August 5, 1926, there had
been filed in the land court a map of a proposed subdivision of
lots A, B and C of land court application number 537 and lots A
and B of land court application number 550 into lots 1 to 157
(inclusive) and lots D to Z (inclusive). This map is identified
in the land court in the matters of land court applications 537
and 550 as "Map No. 3, Kalakaua Acres." It delineates a
subdivision of approximately 23 acres of land situated on the
northeast side of Kalakaua Avenue at Kalia, Kuamoo, Keoniana and
Pau, Waikiki, Honolulu, Hawaii, into blocks and lots with
intersecting streets and alleys. The lots are numbered and the
streets and alleys identified by letters. The tract is popularly
referred to as "Kalakaua Acres." The subdivision was approved by
the judge of the land court on September 4, 1926. The map was
produced from the office of the registrar of the land court. The
greater portion of the tract lies westerly of Kalaimoku Street
and that portion of map number 3 that refers thereto is
reproduced in the margin.1 As far as we know, at the time the
map was filed in the land court, of all the streets referred to
therein, Kalakaua Avenue and Ala Wai Boulevard were the only
streets that were public streets and part of the public street
system of the city of Honolulu. Lot 135 of Kalakaua Acres was
acquired by the petitioners from Dessa Arioli and there was
issued to them out of the land court on, to wit, May 8, 1937,
transfer certificate of title number 16753. The premises subject
to the transfer certificate are described as follows: "Lot 135,
area 4,500.0 square feet, as shown on Map 3, filed in the Office
of the Assistant Registrar of the Land Court of the Territory of
Hawaii which Land Court Application No. 537 of John Francis
Bowler and August Ahrens, Limited, and being all of the land

described in Transfer Certificate of Title No. 16,490 issued to
Dessa Arioli." Lot 135 is situated on the northeast corner of the
intersection of Kuhio Avenue and a ten-foot alley running at
right angles to Kuhio Avenue from Ala Wai Boulevard to Kalakaua
Avenue, that portion thereof between the boulevard and Kuhio
Avenue being lot "U" and that portion thereof between Kuhio
Avenue and Kalakaua Avenue being lot "N." Lot "U" bisects the
block bounded by Namahana Street, Ala Wai Boulevard, Olohana
Street and Kuhio Avenue and is parallel to and equidistant from
Namahana and Olohana Streets. Lot 135 has a frontage on Kuhio
Avenue of 45 feet and on alley "U" of 100 feet. In the block in
which lot 135 is included there are 24 lots all of which but the
four situated upon the corners of intersecting streets abut alley
"U."
  On December 14, 1933, the Bishop Trust Company, Limited,
addressed a communication to the mayor and

board of supervisors of the City and County of Honolulu, offering
to convey to the city and county the "Waikiki" (easterly) half of
Olohana Street between the Ala Wai Boulevard and Kalakaua Avenue,
indicated on the map by the letters "P" and "T," all of Kalaimoku
Street, similarly indicated as "R" and "V," and that portion of
Kuhio Avenue lying easterly of the middle line of Olohana Street.
It declared that the streets had been paved and requested that it
be advised whether the city and county would accept title to
them. On December 26, 1933, the committee on public works of the
city and county, to which had been referred the communication of
the Bishop Trust Company, Limited, reported favorably thereon,
recommending that the trust company be informed that the city was
prepared to accept title to the streets offered "as they have all
been permanently improved." The recommendation was adopted by the
board of supervisors forthwith. On March 31, 1934, the Bishop
Trust Company, Limited, conveyed to the City and County of
Honolulu "for road purposes only" the streets referred to in
their communication of December 14 previous and also lot "U," the
latter being the ten-foot alley immediately adjacent to lot 135.
It is to be noted that the deed recites that the premises
conveyed are portions of the premises described in transfer
certificate of title number 10776, dated December 17, 1931,
issued to the grantor, also that lot 135 and alley "U" physically
abut upon that portion of Kuhio Avenue which was accepted by the
city and county as a public street. On June 12 following, the
city and county clerk transmitted the deed to the commissioner of
public lands for recordation accompanied by blue prints of the
land involved and transfer certificate of title number 10776.
Thereafter and on, to wit, June 14, 1934, there was issued to the
city and county transfer certificate of title number 13060 of the
premises conveyed by the deed of the Bishop Trust Company,
Limited. It is also to be noted that

both the deed and the transfer certificate of title in respect to
lots "P," "Q," "T," "U" and "V" refer to "Map No. 3," the
subdivision map approved September 4, 1926, heretofore referred
to. The transfer certificate of title recites that the premises
conveyed are portions of the land described in transfer
certificate of title number 10776 issued to the Bishop Trust
Company, Limited. It is reasonably inferable from this evidence
that the city and county had also accepted title to the remaining
portions of Olohana Street and Kuhio Avenue included in the
tract.
  On September 20, 1928, upon the application of the owner of
lots 121 and 122 abutting upon alley "U," the city and county
engineer granted a permit to lower fifteen linear feet of curbing
for one drop-curb driveway on the southerly side of Ala Wai
Boulevard opposite the intersection of alley "U" and the
boulevard. On May 20, 1937, the department of buildings of the
City and County of Honolulu issued to the petitioners a building
permit for the construction of apartments for six families, with
separate garage in the rear at 2088 Kuhio Avenue, which is lot
135. The blueprints of the proposed improvements disclose that
the garage to be constructed was 14' x 32' and the entrance
thereto faced upon and immediately adjoined alley "U." In August,
1937, when the improvements were about eighty to eighty-five per
cent complete, the petitioners, informally, and on September 3
following, formally, in writing, applied to the city and county
engineer for a permit to lower ten feet of curb on Kuhio Avenue
immediately opposite lot "U," reciting that the purpose of the
request was to permit convenient access by automobile from Kuhio
Avenue over the alley to the contemplated garage situated in the
rear of the premises at 2088 Kuhio Avenue. The application for a
permit was refused. No reason was assigned for such refusal
further than that the issuance of a permit was contrary to the
policy of the city and county in respect to alleys

in Kalakaua Acres. By its answer to the alternative writ, the
city and county asserted that alley "U," together with the other
alleys in the tract, was made and intended to be used solely for
utility purposes and that alley "U" had been continuously used
for such purposes and that at the time of the purchase of this
property the purchaser knew or should have known from the
physical conditions existing on the alley that the same was not
for automobile traffic. It further averred that alley "U" had
never been and was not then opened by the city and county for
public road purposes.
  From such of the facts as bear upon the relations between the
original owners of Kalakaua Acres and the original purchaser of
lot 135 and the assigns of the latter, it clearly appears that
there was created by the original owners, by implication, an
easement appurtenant to lot 135 of ingress and egress by
automobiles and otherwise to and from Kuhio Avenue over and along
alley "U."
  The subdivision of Kalakaua Acres was obviously effected by the
owners for the purpose of the sale of lots for residential
purposes into which the tract had been divided. It is equally
obvious that when a large area of land is divided into lots for
purposes of sale provision must be made, when none exists, for
access to and from the lots of the tract and the existing public
street system. It was undoubtedly for that purpose, at least,
that in laying out the subdivision the owners reserved from sale
strips of land for streets and alleys. We say "at least" deeming
it unnecessary to decide under the issues here presented whether
the owners of the tract intended that the streets and alleys
reserved from sale should be used for purposes other or in
addition to access to the existing public street system.
  The presence of the words "streets" and "alleys" upon a map or
plan of a subdivision of land made for the purpose

of selling lots therein implies that the areas indicated by those
terms are reserved from sale and dedicated by the owners of the
tract to the reasonable use of abutting lot owners to the extent
that the use of the streets and alleys thus reserved is usual and
customary under like conditions and circumstances. Hence it is
that where a tract of land is subdivided by the owners into
blocks and lots, and streets and alleys which connect with an
existing public street system are reserved by them from sale, it
is reasonable to assume that the streets and alleys thus reserved
were intended by the owners of the tract for the use of abutting
lot owners to the extent that the use of streets and alleys is
usual and customary under like conditions and circumstances. An
alley located as is alley "U" makes possible access to the rear
of lots abutting thereon. It also admits of the erection of
garages in the rear and in addition to the aesthetic advantages
obtained eliminates both the cost and the area necessary for the
construction of separate driveways by each lot owner. The number
of automobiles privately owned and their use are such that
provision for alleys bisecting blocks so that the rear of lots in
the block abuts upon the alleys is an important consideration
influencing prospective purchasers. Further, the presence of an
alley so situated and its utilization by abutting lot owners as
suggested not alone redound to the benefit of lot owners abutting
upon the alley but avoid both the presence and necessity of drop
curbs for each individual driveway. The owners of Kalakaua Acres
in subdividing the tract as they did undoubtedly had these
considerations in mind and intended that the alleys provided,
including alley "U," be used by abutting lot owners as rights of
way for automobiles to and from garages built in the rear of
their premises and the streets with which they connect.
  Not alone, however, were the intentions of the owners of the
future use of alley "U" manifested by the subdivision

map prepared and filed by them in the land court, but also by
their subsequent acts and conduct in respect thereto. Under the
provisions of section 2346, R.L. 1935, provision is made that any
road, alley, etc., laid out, constructed, opened or maintained by
individuals or corporations as a highway may become a public
highway by dedication, abandonment or surrender thereof to
general use by such individuals or corporations. The conveyance
of alley "U" by the Bishop Trust Company, Limited, to the City
and County of Honolulu was apparently made to secure the ultimate
incorporation of the alley in the public street system. One of
the steps necessary, under the provisions of section 2350, to
secure the incorporation of an alley in the existing public
street system of the city, is a deed of conveyance thereof
executed and delivered in favor of the government and accepted by
it. It is true that no application had been made by the grantor,
pursuant to the provisions of section 2348, to have alley "U"
incorporated in the street system of the city and county nor had
alley "U" been laid out, constructed and finished in accordance
with plans approved by the board of supervisors as required by
section 2350. But the statutes do not prescribe any order of
procedure and it is immaterial that the execution of the deed
preceded construction and finishing of alley "U" in accordance
with plans approved by the board of supervisors. The deed from
the Bishop Trust Company, Limited, to the City and County of
Honolulu expressly provided that the property conveyed, including
alley "U," was for "road purposes only."
  It is well-settled that where the owner of a tract lays out
streets upon a map not for purposes of description or location
but for the purposes of establishing private streets and sells
the subdivided lots with reference to such map, he thereby
creates by implication a private easement in favor of lot owners
upon the streets thus declared to be for

their use. (19 C.J., T. Easements, § 102, p. 913, § 127, p. 928;
4 McQuillan, Municipal Corp. [2d ed.], § 1702, p. 548; Matter of
City of N.Y., 258 N.Y. 136, 147, 148; Dalton v. Levy,
258 N.Y. 161, 165.) The analogy is complete where the owner also lays
out alleys bisecting blocks and sells the subdivided lots with
reference to such map. He thereby creates by implication a
private easement in favor of lot owners to the alleys upon which
the lots abut. The extent of the use is a matter of intention.
Where, as here, according to the undisputed evidence, the owners
of a tract of land, in whom the title in fee simple is registered
in the land court, for the purposes of sale, apply to the land
court for a subdivision of said tract and, in support of such
application, file in the office of the registrar of the land
court a map or plan delineating a subdivision of the tract into
blocks and lots with reservations of streets and alleys
intersecting the tract and such application is duly granted and
the map or plan of the subdivision approved; and thereafter the
owners convey to the City and County of Honolulu, for road
purposes only, certain streets in the tract theretofore paved by
the owners, including an unpaved alley bisecting one of the
blocks in the tract and connecting with one of the streets
conveyed and with the existing street system of the city; and the
streets thus conveyed are accepted by the board of supervisors of
the city and county as public streets; and lots abutting upon
said alley are sold by the owners of the tract to third parties,
including the petitioners' mesne assignor, with reference to the
map or plan of the subdivision as on file in the land court; the
evidence is sufficient to sustain the conclusion that the owners
of the tract in so doing intended that the lot owners abutting
upon the alley should possess and enjoy the right and privilege,
in the nature of an easement by automobiles and otherwise, of
ingress and egress over and along such alley to and from the
streets with

which the same was connected. (Gerstley v. Globe Wernicke
Co., 340 Ill. 270, 172 N.E. 829, 833; Trustees of Schools v.
Dassow, 321 Ill. 346, 151 N.E. 896, 899.)
  In the case of an easement thus created the rule of implied
grant is predicated upon estoppel. As against a grantee or
grantees the owner, under such circumstances, is estopped to
assert title to the alley and the grantee or grantees have a
right to require the grantor to keep such alley open for the use
for which it was intended. (4 McQuillan, Municipal Corp.,
supra; Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349.)
  The easement in alley "U" thus created inured to the benefit of
the original purchaser of lot 135 and, in the absence of evidence
to the contrary, passed to each subsequent purchaser thereof,
including petitioners. Moreover, "Map No. 3," on file in the
office of the land court, was part and parcel of the transfer
certificate of title issued to the petitioners. Petitioners were
entitled to rely upon the map and the situation as it existed in
reference to alley "U" at the time of the issuance to them of the
transfer certificate of title. The muniments of petitioners'
title to lot 135, under the law pertaining to land registry, were
the transfer certificate of title, "Map No. 3" and all the
records to which it referred, including the conveyance by the
original owners to the City and County of Honolulu of lot "U" for
road purposes only. In the absence of evidence in derogation of
an existing easement, the failure of the transfer certificate of
title issued to petitioners to refer to such easement is
immaterial.
  Thus far we have confined ourselves to the legal effect of the
sale of lands by reference to a map or plan delineating alleys
upon which the land sold abuts as between the owners and a
purchaser or the direct or mesne assignee of the latter and not
as to the legal effect thereof as between the owner and the
municipality. As originally conceived,

alley "U" was a private alley. (City of Chicago v. Borden,
190 Ill. 430, 442, 60 N.E. 915, 918.) And the easement which
originally inured to the lot owners of lots abutting upon alley
"U" was an easement in a private alley. Whether or not alley "U,"
under the facts, became a public alley is immaterial as far as
petitioners' rights are concerned of ingress and egress by
automobiles or otherwise to and from Kuhio Avenue. (Danielson
v. Sykes, 157 Cal. 686, 109 P. 87.) If the petitioners are
"owners" of property "abutting" the Kuhio Avenue entrance of
alley "U" they are no less entitled to a permit to drop the curb
on Kuhio Avenue opposite the alley than if alley "U" were a
private driveway, title to which and the use of which were vested
exclusively in the petitioners and the other lot owners abutting
upon alley "U."
  Are the petitioners as owners of the premises to which the
easement is appurtenant "owners" of property "abutting" Kuhio
Avenue at the intersection of the avenue and alley "U" within the
meaning of those terms as used and employed in section 3 of
ordinance number 201 of the City and County of Honolulu?
  The word "owner" has no definite legal meaning. It is a general
term "the precise meaning of which depends upon the nature of the
subject-matter and the connection in which it is used." Magoon
v. Lord-Young Engineering Co., 22 Haw. 327, 338. (See also
Lewers  Cooke, Ltd., v. Wong Wong, 22 Haw. 765.)
  "As applied to real property, the term ``owner' is descriptive
of various rights to, and interests in, land; and the meaning of
the term varies as titles and rights to real property vary, from
the absolute and unqualified fee simple to that of the mere
occupant." 50 C.J., T. Property, § 49, p. 772.
  The word "owner" as applied to land usually refers to the
person in whom is vested the fee simple title. But it

has no fixed meaning applicable to all circumstances alike.
(Coombs v. The People, 198 Ill. 586.) "Owner" may refer to
the owner of the fee or one of a lesser estate. (Good v.
Jarrard, 76 S.E. [S.C.] 698, 701.) The word "owner" is not
infrequently used to describe one who has dominion of land, title
to which is in another. (Robinson v. The State, 7 Ala. App. 172,
62 So. 303, 306; Lockhart v. The State, 6 Ala. App. 61,
60 So. 591.) Where the term is used without restriction, it
includes both general and special rights in property. (The
People v. Village of Lombard, 319 Ill. 56, 149 N.E. 584.) In
construing statutes involving the term, courts are usually guided
by the context and the objects sought to be accomplished.
(Merrill R.  L. Co. v. Merrill, 119 Wis. 249, 96 N.W. 686,
687.)
  Ordinance number 201 is entitled "An ordinance relating to the
construction, repair and renewal of sidewalks and/or curbs in the
City and County of Honolulu" etc. Section 1 provides that all
sidewalks and/or curbs to be constructed, repaired or renewed
should conform to grades established by the board of supervisors
and to such regulations as in the ordinance set forth and should
be built according to the specifications therein provided.
Section 2 makes it unlawful for any person, firm or corporation
to repair or renew any sidewalk and/or curb in any public place
in the city and county without first obtaining a permit in
writing so to do from the city and county engineer. Section 3
provides the procedure upon the initiative of an owner or
abutting property owner. It provides: "When the owner of the
abutting property desires to construct, repair or renew sidewalks
and/or curbs, he shall make written application for permission so
to do to the City and County Engineer. The application shall be
in such form and shall contain such information as shall be
prescribed by the said Engineer. The City and County Engineer, if
the official grade has been established or if

not when it has been established, shall issue a permit to do the
work specified in the application and he shall state in said
permit the types, width and position of sidewalk required, and
shall specify such appurtenant work as he may deem necessary. The
permit shall be in a form to be prescribed by the Engineer.
Whenever any person, firm or corporation has completed any
sidewalk or curb work for which a permit has been issued (except
of less than thirty [30] lineal feet of curb, or less than one
hundred [100] square feet of sidewalk), they shall so notify the
City and County Engineer in writing. The City and County Engineer
upon receipt of this notice, shall inspect the same and if it
conforms to the specifications of this ordinance he shall give
the property owner a certificate of approval. The City and County
Engineer shall keep a complete record of applications and
permits, grades furnished and certificates given." Sections 4 and
5 describe the method of procedure where the board of supervisors
takes the initiative in the construction, renewal or repair of
sidewalks and/or curbs. Section 4 provides that the resolution to
be adopted for that purpose shall specifically state the kind of
construction to be required and contain a provision requiring the
"owner or owners of land abutting on the public highway * * * to
construct, renew or repair sidewalks and/or curbs as provided
herewith." Section 5 provides the procedure to be followed where
an "owner," after receiving notice to construct, maintain or
repair a sidewalk, or a corporation neglects or refuses to comply
with such direction.
  In the use, in section 3 of the ordinance, of the term "owners
of abutting property" in connection with the construction, repair
or renewal of sidewalks or curbs, the ordinance apparently refers
to those upon whom the burden of the construction, repair and
renewal of sidewalks or curbs may by reason of ownership be
legally imposed.

The authority of municipalities to impose upon abutting property
owners the duty at their own cost to construct, repair and renew
sidewalks and curbs is well-recognized. By the ordinance in
question such power is conferred upon the board of supervisors of
the City and County of Honolulu. Considering the subject matter
and purpose of the ordinance, in our opinion, the term "owner of
abutting property," as employed in section 3 of the ordinance, is
broad enough to include the petitioners as the owners of lot 135
to which is appurtenant the easement of ingress and egress over
and along alley "U" by vehicles and otherwise to and from Kuhio
Avenue. The petitioners, in common with the other abutting
property owners on alley "U," are legally in the same position as
though the alley were part and parcel of their premises and
constituted a common driveway for all. In the case of Phillips
v. Highway Commissioner of China, 35 Mich. 15, 16, review was
requested of proceedings for the discontinuance of a piece of a
public highway access to which was secured to the realtor by a
private way from property owned by him in the rear. The court
said: "For the purpose of the proceeding to discontinue, the
narrow strip of private way is an addition to the parcel lying
back. His [the realtor's] right does not depend on the width or
use of his holding connected with the public highway, but on the
fact of his having a holding connected with it." In the case of
Beutel v. West Bay City Sugar Co., 132 Mich. 587,
94 N.W. 202, the ruling in the Phillips case was affirmed, the court
saying: "It is also undoubtedly true that, where one has a
private right of way connecting his premises with the public way,
he may be held to be an abutter on the street by means of the
private right of way, and in such case a discontinuance of the
public way would work him a peculiar injury."
  The petitioners, in common with the other lot owners abutting
upon alley "U," were co-owners of alley "U" as the

term "owners" is used in section 3 of the ordinance. Alley "U"
physically abuts upon Kuhio Avenue. Hence in respect to alley "U"
the petitioners, in common with the other lot owners abutting
upon alley "U," were "owners of abutting property" as that term
is used in section 3 of the ordinance. And, as such, petitioners
were entitled to a permit to lower the existing curb on Kuhio
Avenue opposite alley "U" so long as in doing so they did not
interfere with the use by the public of Kuhio Avenue and
conformed with all reasonable conditions imposed upon them by the
city and county engineer consistent with the terms of the
ordinance. (Tire Co. v. Com'r Parks, etc., Detroit, 163 Mich. 249,
128 N.W. 410; Metropolitan District Commission v.
Cataldo, 257 Mass. 38, 42, 153 N.E. 328.)
  It is difficult to understand why a permit to lower the curb on
Ala Wai Boulevard at the instance of the owners of lots 121 and
122 was granted by the city and county engineer and a similar
permit refused as to Kuhio Avenue. It may be the policy of the
city and county to refuse to incorporate alleys such as alley "U"
in the public street system and thus avoid the responsibility of
their maintenance and repair. With that policy we have no
concern. But as between the owners of the tract and the
petitioners or their predecessors in interest, it is not within
the prerogative of the city and county to determine whether or
not a private way exists. Moreover, no basis exists for the claim
that alley "U" was intended to be used solely for utility
purposes. There is no evidence even remotely suggesting such
intention. From what has been said it is clear that alley "U" was
intended primarily to be used as a right of way. Nor is it
material that it has been used for utility purposes. We do not
presume to say that the reservation from sale of alley "U" was
exclusively for traffic. Whether it was reserved also for utility
purposes, however, is beside the question. The scope of review
herein does not include

the question whether or not reservation of alley "U" was for
purposes other and in addition to the right of ingress or egress
by vehicles or otherwise to and from Kuhio Avenue. Further,
appearances on the ground are not controlling. It does not appear
that by nonuser the petitioners have relinquished or forfeited
the rights reserved to them.
  Pursuant to the views herein expressed, the order appealed from
is reversed and the cause remanded with instructions to the trial
judge to make the alternative writ permanent.
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[EDITORS' NOTE:  MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]