In Re Application of Ashford , 50 Haw. 314 ( 1968 )

OPINION OF THE COURT BY

RICHARDSON, C.J.

On August 22, 1963, Clinton R. Ashford and Joan B. S. Ashford, the appellees, petitioned the land court to register title to certain land situate on the Island of Molokai. The lands are the makai (seaward) portions of Royal Patent 3004 to Kamakaheki and Royal Patent 3005 to Kahiko, both issued on February 22, 1866.

The question before this court is the location of the makai boundaries of both parcels of land, which are described in the royal patents as running “ma ke kai’’ (along the sea). The appellees contend that the phrase describes the boundaries at mean high water which is represented by the contour traced by the intersection of the shore and the horizontal plane of mean high water based on publications of the U. S. Coast and Geodetic Survey. To support their position, appellees called a surveyor in private practice who surveyed the parcels on September 19, 1962. Basing his survey on publications of the U. S. Coast and Geodetic Survey, appellees’ surveyor described the process which he used in delineating the boundaries at mean high water.

The State of Hawaii, appellant, denies that the makai boundaries of the two lots are correctly designated by the appellee, and claims that “ma ke kai” is approximately 20 to SO feet above the line claimed by the appellee. The State contends in this case that “ma ke kai” is the high water mark that is along the edge of vegetation or the line of debris left by the wash of waves during ordinary high tide.¹ In the trial court, the State presented kamaaina witnesses² for the purpose of establishing, by reputation evidence, the location of "ma ke kai” and also the location of* public and private boundaries along the seashore in accordance with tradition, custom and usage in old Hawaii. The questions posed to the witnesses along this line were objected to and sustained by the court. However, the court allowed the witnesses to answer the questions, subject to the objections, to preserve the record for the purpose of appeal to this court.

We are of the opinion that “ma ke kai” is along the upper reaches of the wash of waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of waves, and that the trial court erred in finding that it is the intersection of the shore with the horizontal plane of mean high water.

The trial court erred in sustaining the objections by the appellees to certain questions put to kamaaina witnesses involving the location of “ma ke kai.”

When the royal patents were issued in 1866 by King Kamehameha V, the sovereign, not having any knowledge of the data contained in the publications of the U. S. Coast and Geodetic Survey, did not intend to and did not grant title to the land along the ocean boundary as claimed by the appellees. Hawaii’s land laws are unique in that they are based on ancient tradition, custom, practice and usage. Keelikolani v. Robinson, 2 Haw. 514. The method of locating the seaward boundaries was by reputation evidence from kamaainas and by the custom and practice of the government’s survey office. It is not solely a question for a modern-day surveyor to determine boundaries in a manner completely oblivious to the knowledge and intention of the king and old-time kamaainas who knew the history and names of various lands and the monuments thereof.

In this jurisdiction, it has long been the rule, based on necessity, to allow reputation evidence by kamaaina witnesses in land disputes. In re Boundaries of Pulehunui, 4 Haw. 239; Kanaina v. Long, 3 Haw. 332. The rule also has a historical basis unique to Hawaiian land law. It was the custom of the ancient Hawaiians to name each division of land and the boundaries of each division were known to the people living thereon or in the neighborhood. “Some persons were specially taught and made repositories of this knowledge, and it was carefully delivered from father to son.’’ In re Boundaries of Pulehunui, supra. With the Great Mahele in 1848, these kamaainas, who knew and lived in the area, went on the land with the government surveyors and pointed out the boundaries to the various divisions of land. In land disputes following the Great Mahele, the early opinions of this court show that the testimony of kamaaina witnesses were permitted into evidence. In some cases, the outcome of decisions turned on such testimony. See In re Boundaries of Pulehunui, supra; Kanaina v. Long, supra; In re Boundaries of Kapahulu, 5 Haw. 94.

Two kamaaina witnesses, living in the area of appellees’ land, testified, over appellees’ objections, that according to ancient tradition, custom and usage, the location of a public and private boundary dividing private land and public beaches was along the upper reaches of the waves as represented by the edge of vegetation or the line of debris.³ In ancient Hawaii, the line of growth of a certain kind of tree, herb or grass sometimes made up a boundary.⁴ In re Boundaries of Pulehunui, supra at 241.

Andrew S. O. Lee, Deputy Attorney General (Bert T. Kobayashi, Attorney General, with him on the briefs), for respondent-appellant. Charles B. Dwight III (Stephenson, Ashford & Wriston of counsel) for applicants-appellees.

Cases cited from other jurisdictions cannot be used in determining the intention of the King in 1866. We do not find that data or information published and contained in the publications of the U. S. Coast and Geodetic Survey were relied upon by the kamaainas for the purpose of locating seaward boundaries in Hawaii. All of the matters contained in such publications were unknown to the ancient Hawaiians and foreign to the determination of boundaries in Hawaii. Property rights are determined by the law in existence at the time such rights are vested. In re Title of Pa Pelekane, 21 Haw. 175; Keelikolani v. Robinson, supra; In re Kakaako, 30 Haw. 666, 674; Harris v. Carter, 6 Haw. 196.

We find no reference concerning the location of boundaries in Hawaii, prior to 1866, to data contained in the U.S. Coast and Geodetic Survey or to high water mark as the intersection of the seashore with the horizontal plane of mean high water, or .7 or .9 of a foot above sea level. The trial court erred in holding that this was an area solely for the expert testimony of a surveyor to determine from data contained in publications of the U. S. Coast and Geodetic Survey.

Reversed and remanded for further proceedings consistent with this opinion.

1 The description excludes any line caused by extraordinary phenomena such as storms and tidal waves.

2 “We use the word ‘kamaaina’ above without translation in our investigation of ancient boundaries, water rights, etc. A good definition of it would be to say that it indicates such a person as the above witness described himself to be, a person familiar from childhood with any locality.” In re Boundaries of Pulehunui, 4 Haw. 239, 245.

3 Section 1-1, R.L.H. 1955, provides as follows:

“Common law of Territory; exceptions. The common law of England as ascertained by English and American decisions, is declared to be the common law of the Territory 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 Territory, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the Territory." (Emphasis added.)

4 The State’s expert witness, the government surveyor, noted that it was the practice among the surveyors on the Island of Hawaii to use the limu or moss on the rocky coasts to delineate a boundary.

The surveyor stated that the mean high tide line used by private surveyors is usually further makai than the edge of vegetation or line of debris. He noted that in some areas in the islands, high water mark as defined by appellees placed the boundary under water even during low tide. The State’s exhibit “D” in evidence indicates that the appellees’ line at mean high tide is very nearly coincidental with the line formed at low tide.