Ibbetson v. Kaiawe.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
27-JUN-2018
07:57 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
DANIEL IBBETSON,
Respondent/Plaintiff/Counter-Defendant/Appellee,
vs.
DEAN KAIAWE,
Petitioner/Defendant/Counterclaimant/Third-Party
Plaintiff/Appellant,
vs.
HAWAII CONFERENCE FOUNDATION, a Hawaii nonprofit corporation,
and DEPARTMENT OF PUBLIC WORKS, COUNTY OF HAWAII, a municipal
corporation, Respondents/Third-Party Defendants/Appellees.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIV. NO. 06-1-015K)
JUNE 27, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
In 2003, Respondent/Plaintiff/Counter-Defendant/
Appellee Daniel Ibbetson (Ibbetson) purchased a 0.722-acre parcel
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of land from Respondent/Third-Party Defendant/Appellee Hawaii
Conference Foundation (HCF). Two grave sites were located on the
property. Over the next few years, Ibbetson built a single-
family residence on the property and began operating a bed and
breakfast out of the residence.
In 2006, Ibbetson filed a complaint against
Petitioner/Defendant/Counterclaimant/Third-Party Plaintiff/
Appellant Dean Kaiawe (Kaiawe) alleging that Kaiawe trespassed
upon his property and destroyed his plants and landscaping. He
sought, inter alia, a preliminary injunction to preclude Kaiawe
from entering his property in the future.
Kaiawe filed a counterclaim against Ibbetson, arguing
that Ibbetson’s property had been dedicated for exclusive use as
a cemetery, and that he had the right to enter upon the property
to visit his great-grandmother’s burial site. Kaiawe requested a
declaratory judgment clarifying whether Ibbetson validly owned
the property, to what use the property could be put, and the
nature and extent of Kaiawe’s and Ibbetson’s rights and
responsibilities with respect to the property. He also sought to
quiet title under Hawai#i Revised Statutes (HRS) Chapter 669.
Ibbetson filed a motion for summary judgment as to all
counts in Kaiawe’s counterclaim. The Circuit Court of the Third
Circuit (circuit court) granted Ibbetson’s motion for summary
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judgment. The Intermediate Court of Appeals (ICA) affirmed.
On certiorari, we are presented with two questions for
review: (1) whether the ICA erred in holding that the circuit
court correctly granted summary judgment in favor of Ibbetson on
Kaiawe’s claims that the Property had been dedicated for
exclusive use as a cemetery pursuant to common law and/or
statute; and (2) whether the ICA erred in holding that Kaiawe was
not entitled to relief under HRS Chapter 669.
For the reasons stated below, we hold that the ICA did
not err in affirming the circuit court’s ruling granting summary
judgment in favor of Ibbetson with respect to Kaiawe’s statutory
dedication claim, and that the ICA correctly held that Kaiawe was
not entitled to relief under HRS Chapter 669. However, we
conclude that the ICA erred in determining that the circuit court
properly granted summary judgment in favor of Ibbetson on
Kaiawe’s common law dedication claim.
Accordingly, we affirm in part and vacate in part the
ICA’s November 30, 2017 judgment on appeal, which affirmed the
circuit court’s November 13, 2014 amended final judgment, and
remand the case to the circuit court for further proceedings
consistent with this opinion.
I. BACKGROUND
This case concerns a 0.722-acre parcel of land in the
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South Kona district on the island of Hawai#i (the Property).
Surveys conducted of the Property refer to it as the “Hoikeana
Cemetery.” From the early 1900s to the 1950s, a church known as
the Hoikeana Church was located next to the Property.
Currently, there are two grave sites located on the
Property, Grave Site A and Grave Site B. Both grave sites are
separately enclosed by stone walls. Grave Site A, located on the
northeastern side of the Property, encompasses an area of 4,788
square feet and contains identified burial plots. Grave Site B,
located across from Grave Site A on the northwestern side of the
Property, encompasses an area of 2,316 square feet and contains
unidentified graves.
The Property’s recorded chain of title began on
February 2, 1915, when Mikala Kaiawe (Mikala), in consideration
of $1, conveyed the Property to the Board of the Hawaiian
Evangelical Association (Association). Mikala is Kaiawe’s great-
grandmother. The deed effecting this conveyance (1915 Deed)
contains the following metes and bounds description of the
Property:
Commencing at the Northeast corner of this piece
on the old government trail, a little makai[ 1] of the
present government road, adjoining Kaohe 4, and
running thence along the line between Kaohe 4 and
1
In Hawaiian, “makai” means “ocean.” See Mary Kawena Pukui &
Samuel H. Elbert, Hawaiian Dictionary at 225 (2d ed. 1986). Thus, when used
directionally, “makai” means “towards the ocean.” See id.
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Kaohe 5, 200 feet in a westwardly direction to a stake
and stone pile; thence southwardly to a stake and
stone pile 120 feet; thence eastwardly to a stake and
stone pile 275 feet; and thence northwardly . . . to
point of commencement, and containing about three-
fourths of an acre, more or less, and being described
in R.P. Number 2358 to Huakonou.
The 1915 Deed also contains the following habendum clause:2 “To
have and to hold the said premises, with the appurtenances, so
that it may be used as a cemetery, to the said Board of the
Hawaiian Evangelical Association, its successors and assigns,
forever.”
In 1952, the Association changed its name to Hawaiian
Evangelical Association of Congregational-Christian Churches.
Then, in 1963, Hawaiian Evangelical Association of
Congregational-Christian Churches later changed its name to
Hawaii Conference of the United Church of Christ.
On September 2, 1983, Hawaii Conference of the United
Church of Christ, in consideration of $10, conveyed the Property
to HCF by quitclaim deed (1983 Deed). The 1983 Deed contained
the following habendum clause: “TO HAVE AND TO HOLD the same,
together, with the improvements thereon and all rights,
easements, privileges and appurtenances thereunto belonging or
appertaining, unto the Grantee, its successors and assigns, for
2
A habendum clause is defined as: “The part of an instrument, such
as a deed or will, that defines the extent of the interest being granted and
any conditions affecting the grant.” Black’s Law Dictionary 825 (10th Ed.
2014).
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cemetery purposes only, forever.” The 1983 Deed was recorded
with the State of Hawai#i Bureau of Conveyances on October 11,
1983.
In February 2003, Ibbetson and HCF executed a Deposit
Receipt Offer and Acceptance (DROA). According to the DROA, HCF
agreed to convey Ibbetson the Property in exchange for a payment
of $50,000.
An addendum attached to the DROA reserved rights of
access to Grave Site A and Grave Site B in favor of HCF and those
with relatives buried on those grave sites. Under the addendum,
HCF and relatives of individuals buried in Grave Site A and Grave
Site B had a right to access the Property to visit, maintain, and
care for grave sites. However, the addendum limited visits to
Grave Site A to daylight hours, and required individuals seeking
to visit Grave Site B to notify Ibbetson in advance of their
intent to visit, coordinate with Ibbetson on visitation
logistics, and provide verification of their relationship to the
person buried on Grave Site B. Further, the addendum limited the
extent to which subsequent internments could take place on the
grave sites, and limited Ibbetson’s responsibilities and
liabilities regarding the maintenance and care of the grave
sites, as well as the access ways leading to and from the grave
sites.
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On March 17, 2003, HCF executed a limited warranty deed
conveying the Property to Ibbetson (2003 Deed). The 2003 Deed
included the limitations and conditions set forth in the addendum
attached to the DROA. Moreover, an exhibit attached to the 2003
Deed stated that the Property was subject to, inter alia:
“Restrictions imposed by law regarding the sale and disposition
of said land or a place within any mausoleum or columbarium
erected thereon resulting from the use or dedication of said land
for cemetery purposes.” The 2003 Deed was recorded with the
State of Hawai#i Board of Conveyances on March 21, 2003.
After obtaining the requisite permits from the County
of Hawai#i Department of Public Works-Building Division, Ibbetson
constructed a three-bedroom, three-bathroom single-family
residence with an accompanying in-ground swimming pool on the
Property sometime between 2003 and 2005.
On July 15, 2005, Ibbetson applied for a Special Permit
from the County of Hawai#i Planning Commission (Planning
Commission) to operate a two-unit bed and breakfast establishment
out of the aforementioned single-family residence. Kaiawe was
granted standing to intervene in a contested case hearing
regarding Ibbetson’s Special Permit application. In his written
testimony, Kaiawe averred that his great-grandmother, Mikala, was
buried in Grave Site B, and that as a relative of a person buried
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on the Property, he objected to Ibbetson’s construction of a
residence and operation of a bed and breakfast facility on the
Property because he believed that the Property could only be used
as a cemetery. Following a two-day contested case hearing, the
Planning Commission approved Ibbetson’s application for a Special
Permit, subject to certain conditions.3
A. Circuit Court Proceedings
On January 26, 2006, Ibbetson filed a complaint against
Kaiawe in circuit court.4 Ibbetson’s complaint alleged that,
without his permission, Kaiawe entered the Property with three
other persons and damaged and removed bushes, hedges, and other
landscape materials he had planted on Grave Site B. Ibbetson
claimed that when he asked Kaiawe to stop damaging the
landscaping and to leave the premises, Kaiawe “responded by
yelling that it didn’t make any difference because [Ibbetson’s]
house was going to be gone soon and that the land was his land
and his family’s land[.]” Ibbetson stated that Kaiawe and the
others left about an hour later and threatened to return.
Based on the allegations in his complaint, Ibbetson
3
For example, the Planning Commission’s decision required that
Ibbetson preserve the existing cemeteries located on the Property, and
mandated that Ibbetson “maintain the perpetual non-exclusive easement and
right of entry over and for the visitation, maintenance, and care of the
existing graves located within Grave Site ‘A’ and Grave Site ‘B’ identified as
Easement ‘1’ within [his] deed to the Property.”
4
The Honorable Elizabeth E. Strance presided.
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requested a preliminary injunction enjoining Kaiawe and anyone
associated with him “from coming to the subject property, except
in accordance with the terms of the Limited Warranty Deed.” He
also requested a temporary restraining order prohibiting Kaiawe
and his associates from entering the Property and/or destroying
his personal property thereon until a decision was rendered on
his request for a preliminary injunction, and sought money
damages for the damages that he sustained as a result of Kaiawe’s
trespass on the Property.
In his answer to Ibbetson’s complaint, Kaiawe admitted
that he entered the Property, that he visited Grave Site A and
Grave Site B, and that “he and others cut Christmas Berry trees
growing within Grave Site B.” He denied all of the other
allegations.
Kaiawe’s answer also raised several affirmative
defenses. He argued that Ibbetson lacked standing to bring suit
against him, alleging that Ibbetson did not own the Property, as
HCF did not have the authority to sell the Property to Ibbetson.
Further, he alleged that the Property was “subject to limitation
and restriction that it be used for cemetery purposes and for no
other uses,” and that he, as a descendant of a person buried on
the Property, had an unrestricted right to access the Property in
order to visit and maintain his relative’s grave sites.
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Kaiawe also filed a counterclaim against Ibbetson.
His allegations in his counterclaim were the same as the
allegations in his answer to Ibbetson’s complaint. Based upon
these allegations, Kaiawe argued that “[a] real and actual
controversy exists between [Ibbetson] and [Kaiawe] as to the
ownership and use of [the Property].” Thus, Kaiawe requested “a
declaration of the parties’ respective rights and obligations
under [HRS] Chapter 632 . . . as to the ownership and use of [the
Property].” And, “to the extent that title to [the Property]
must be determined,” Kaiawe sought a “determination of the
parties’ rights and interest in [the Property]” under HRS Chapter
669.
On October 27, 2006, Kaiawe filed a third-party
complaint against HCF. Kaiawe alleged that as a result of
Ibbetson’s lawsuit against Kaiawe, bona fide controversies
existed as to: (1) HCF’s authority to convey the Property to
Ibbetson via the 2003 Deed; (2) the present ownership of the
Property; (3) the uses to which the Property could be put; and
(4) Kaiawe’s, Ibbetson’s, and HCF’s rights and obligations with
respect to the Property. Therefore, Kaiawe sought a declaratory
judgment resolving these issues.
On November 25, 2009, Ibbetson filed a motion for
summary judgment as to all counts in Kaiawe’s counterclaim.
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Ibbetson raised two arguments in support of his motion for
summary judgment. First, Ibbetson asserted that Kaiawe lacked
standing to enforce the 1983 Deed, which contained the language
that, according to Kaiawe, established that the Property could
only be used for cemetery purposes. Second, he stated that “the
only basis for [Kaiawe’s] claim of title . . . under [HRS]
Chapter 669 would be that [the Property] is no longer being used
as a cemetery and therefore, it should revert to the heirs of
Mikala Kaiawe, of whom Defendant Kaiawe is one.” Relying upon
Midkiff v. Castle & Cooke, Inc., 45 Haw. 409, 368 P.2d 887
(1962), Ibbetson argued that the habendum clause in the 1915 Deed
“can be construed at most as a covenant or a mere statement on
the part of Mikala Kaiawe” because “[t]he language used does not
indicate an intent to qualify or limit the estate granted by the
deed.” Thus, Ibbetson asserted that inasmuch as Kaiawe lacked
standing to enforce the 1983 Deed, and the habendum clause in the
1915 Deed did not restrict the Property’s use to cemetery
purposes, he was entitled to summary judgment on all counts of
Kaiawe’s counterclaim.
On January 7, 2010, Kaiawe filed written objections to
Ibbetson’s motion for summary judgment. Kaiawe countered that
the habendum clause in the 1915 Deed was not a general purpose
clause. Rather, to Kaiawe, “Mikala’s language is more specific
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to the parcel’s actual use and is a limitation on title.”
Kaiawe contended that the 1983 Deed “confirms and ratifies the
original limitation in Mikala’s 1915 Deed and the Board of
Hawaiian Evangelical Association’s (as renamed) commitment to
that limitation.” Thus, Kaiawe argued, by operation of the
habendum clause in the 1915 Deed, HCF could not sell the Property
to Ibbetson, and therefore, Ibbetson “took nothing under the 1983
Deed.”
Kaiawe also argued that the Property was dedicated for
use as a cemetery under common law and by operation of HRS § 441-
17.5 Thus, Kaiawe asserted that because the Property had been
dedicated for exclusive use as a cemetery, Ibbetson was not
allowed to build a residence on the Property or operate a
commercial bed and breakfast facility out of said residence. He
maintained that as a descendant of an individual buried on the
Property, he had the right to enforce such restrictions on the
Property’s use.
5
HRS § 441-17 (1993) provides:
All existing cemeteries or parts thereof which shall
have been lawfully established, and for which a map or
plat substantially similar to that required by section
441-3 has been filed or recorded in the bureau of
conveyances or in the office of the assistant
registrar of the land court, shall be deemed to have
been dedicated as of [July 1, 1967], to the same
extent and with like effect as provided in this
chapter.
(Brackets in original.)
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One of the exhibits attached to Kaiawe’s objections was
an excerpt from the transcript of the hearing on Ibbetson’s
application for a Special Permit to operate a bed and breakfast
facility, at which Pastor Nancietta Ha#alilio (Pastor Ha#alilio)
testified. Pastor Ha#alilio was affiliated with the Puka#ana
Congregational Church, a sister church to the Hoikeana Church
located across the highway from the Property. In brief, she
testified that: (1) she and her family maintained the cemeteries
on the Property from the 1950s through the 1980s, long after the
Hoikeana Church congregation had dissipated; (2) she and Kaiawe
had family members buried on the Property; (3) there were “quite
a few” other individuals besides her own family members and those
known to her buried in Grave Site A; (4) there was no “master
list” of who was buried on the Property; and (5) there was no
formal system according to which people were buried on the
Property.
On January 11, 2010, Ibbetson filed a reply memorandum
in support of his motion for summary judgment. Briefly stated,
Ibbetson argued: (1) the Property was not statutorily dedicated
for exclusive use as a cemetery pursuant to HRS § 441-17; (2) the
Property was not dedicated for use by the public as a cemetery
under common law because “[t]he Hoikeana Cemetery was for members
of the Hoikeana Church and their families, not the general
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public”; and (3) the habendum clause in the 1915 Deed did not
clearly reflect Mikala’s intent that the Property should revert
back to her and her heirs if the Property was used for non-
cemetery purposes.6
A hearing on Ibbetson’s motion for summary judgment was
held on January 15, 2010. There, the circuit court orally
granted Ibbetson’s motion for summary judgment:
The Court having considered [Ibbetson’s] motion for
summary judgment as to all counts of the counterclaim
filed February 10, 2006, the Court finds there is no
genuine material issue of fact, and that [Ibbetson] is
entitled to judgment as a matter of law.
The Court’s specifically finding that the [1915
Deed] did not create a fee simple determinable[,] that
[Kaiawe] does not have standing to enforce the [1983
Deed], and that the cemetery was not a dedicated
cemetery and, therefore, is not subject to the
restrictions set forth in [HRS] Chapter 441.
On April 14, 2010, the circuit court entered a written
order granting Ibbetson’s motion for summary judgment. Therein,
the circuit court ruled that:
The Court being satisfied that it has jurisdiction
over all parties and of the subject matter of this
case, and all of the files and records in this action,
and good cause appearing therefore, hereby finds and
concludes as a matter of law that: (1) Defendant
Kaiawe has no standing to enforce the September 2,
1983, Deed from the Hawaii Conference of the United
Church of Christ to the Hawaii Conference Foundation;
(2) that neither the February 2, 1915, deed from
Mikala Kaiawe to the Hawaiian Evangelical Association
or the September 2, 1983, Deed from the Hawaii
Conference of the United Church of Christ to the
6
HCF also filed a statement of position on Ibbetson’s motion for
summary judgment on January 14, 2010. HCF echoed Ibbetson’s position that
Kaiawe lacked standing to enforce the 1983 Deed, and that the language in the
habendum clause of the 1915 Deed was “merely precatory and evidences only a
suggested permissible, not mandatory, use of [the Property].”
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Hawaii Conference Foundation contain language limiting
the conveyance in such a manner that the deeds could
be construed as conveying anything other than a fee
simple interest in the subject property to the
Grantee(s); and (3) the property conveyed to Plaintiff
Ibbetson by that Limited Warranty Deed dated March 17,
2003, was never dedicated as a public cemetery.
On September 19, 2012, Ibbetson, Kaiawe, and HCF filed
a stipulation for entry of final judgment. In their stipulation,
the parties stated that the circuit court’s order granting
Ibbetson’s motion for summary judgment operated as the “law of
the case” and determined the other issues raised in the case.
Specifically, the parties stated that the circuit court’s order
resolved: (1) the 2003 Deed’s legal effect; (2) the legal
ownership of the Property; (3) HCF’s legal authority to deliver
the 2003 Deed; and (4) the permitted uses to which the Property
may be put.
Accordingly, the parties stipulated that with respect
to the complaint and counterclaim, judgment should be entered in
favor of Ibbetson. The parties stipulated that Ibbetson should
be declared the owner of the Property, subject to the
restrictions, easements, limitations, and conditions described in
the 2003 Deed and subject to his bed and breakfast permit;
consequently, Ibbetson would allow Kaiawe to visit Grave Site B
in the manner provided in the 2003 Deed. The parties also
stipulated that the third-party complaint against HCF would be
dismissed.
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The circuit court entered its final judgment on
November 5, 2012. The final judgment entered judgment in favor
of Ibbetson and against Kaiawe on the complaint and counterclaim.
Furthermore, the final judgment declared that Ibbetson was the
owner of the Property, subject to the restrictions, easements,
limitations, and conditions described in the 2003 Deed and
subject to the permit allowing him to operate a bed and breakfast
out of his residence, and that Kaiawe had the right to visit
Grave Site B in accordance with the terms set forth in the
parties’ stipulation. Additionally, the final judgment entered
judgment in favor of HCF on the third-party complaint; the third-
party complaint was then dismissed.
Kaiawe filed a notice of appeal on December 5, 2012.
However, on May 8, 2013, the ICA dismissed Kaiawe’s appeal for
lack of appellate jurisdiction based upon its determination that
the circuit court’s final judgment was not final and appealable.
The circuit court entered an amended final judgment on
November 13, 2014. The amended final judgment entered judgment
in favor of Ibbetson and against Kaiawe on all counts of the
complaint and counterclaim, and resolved the trespass claim in
the complaint by providing as follows: “Kaiawe will not enter
the area described as Grave Site B except in compliance with the
restrictions, easements, limitations and conditions described in
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the [2003 Deed], nor will he deface or destroy any real or
personal property on the site at the time of the entry or
visitation.” The amended final judgment also entered judgment in
favor of HCF on the third-party complaint; the third-party
complaint was then dismissed with prejudice.
B. ICA Proceedings
On appeal, Kaiawe asserted, inter alia,7 that the
circuit court erred in ruling that there was no genuine issue of
material fact as to whether the Property had been dedicated for
public use as a cemetery. He raised two arguments in support of
his position that the record reflected that the Property had been
dedicated for use by the public as a cemetery.
First, Kaiawe contended that the record supported that
the Property had been dedicated for public use as a cemetery
7
Kaiawe also contended that the circuit court “erred when it
concluded that the Defendant-Appellant Kaiawe lacked standing” to enforce the
1983 Deed. Kaiawe argued that the circuit court “misinterpreted the
significance of the 1983 Deed” to the extent that, in his view, the 1983 Deed
“reflected the Association’s confirmation (admission) of its past dedication
of [the Property] to a cemetery use, its desire to continue that use into the
future and its successor’s ([HCF]) covenant to do so.”
The ICA observed that “Kaiawe does not assert, argue, or otherwise
support a claim that he has standing to enforce the alleged restrictions of
the 1983 Deed per se.” Rather, the ICA noted that Kaiawe “submitt[ed] that
the Circuit Court misinterpreted the significance of the 1983 Deed,” as he
“introduced the 1983 Deed as evidence of the prior dedication of the
[Property],” not as a means of divesting Ibbetson of title to the Property.
Thus, because it “ha[d] no basis to do otherwise,” the ICA held “that the
Circuit Court did not err in concluding that Kaiawe has no standing to enforce
the 1983 Deed.”
On certiorari, Kaiawe does not challenge the ICA’s holding on this
point. Ibbetson’s response does not raise the issue. Thus, we do not
address it. See Hawai#i Rules of Appellate Procedure (HRAP) Rule 40.1(d).
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under common law. Relying upon Smith v. Wilder, 6 Haw. 228 (Haw.
Kingdom 1879), and Barker v. Hazel-Fain Oil Co., 219 S.W. 874
(Tex. Civ. App. 1920), Kaiawe argued that the habendum clause in
the 1915 Deed evinced Mikala’s intent to dedicate the Property
for public use as a cemetery, and that the public’s subsequent
use of the Property in that manner effected the common law
dedication. Kaiawe asserted that the habendum clause in the
1983 Deed further illustrated Mikala’s intent to dedicate the
Property for use by the public as a cemetery, as the clause
reflected the Association’s understanding that the Property had
been dedicated to a cemetery use, and that it wanted its
successor to honor the dedication in the future.
Second, Kaiawe argued that the record supported that
the Property had been dedicated to cemetery use by statute. He
asserted that the requirements for statutory dedication under HRS
§ 441-17 were met in this case because the metes and bounds
description of the Property attached to the 1915 Deed was
“‘substantially similar’ to the survey map referred to in” HRS §§
441-17 and 441-3. (Quoting HRS § 441-17.) As a consequence of
being statutorily dedicated as a cemetery under HRS § 441-17,
Kaiawe reasoned that the Property must be used “‘exclusively’ for
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cemetery purposes” pursuant to HRS § 441-6.8
Ibbetson countered that the record did not establish
“that there has been any common-law dedication for the public to
be buried on the Property.” Citing Hill v. Towson Realty, 157
A.2d 796 (Md. 1960), Ibbetson contended that the habendum clause
in the 1915 Deed did not evince Mikala’s intent to dedicate the
Property for public use as a cemetery. In particular, he
reasoned that while the clause stated that Mikala conveyed the
Property “so that it may be used as a cemetery,” the clause did
not clearly suggest that the Property was to be used by the
public as a cemetery.
Moreover, Ibbetson appeared to argue that the metes and
bounds description attached to the 1915 Deed did not satisfy the
requirements set forth in HRS § 441-17 because the description
was not a “map or plat showing the sections, blocks, plots,
avenues, walks, or other subdivisions, with descriptive names,
initials, or numbers that uniquely identify each plot.” (Citing
HRS §§ 441-17 and 441-3.)
8
HRS § 441-6 (1993) states:
Upon the recording or filing of a map or plat and
certificate of dedication pursuant to sections 441-2
and 441-3, the dedication is complete with respect to
all property or parts thereof which are described or
depicted in or on both the certificate of dedication
and map or plat for all purposes and thereafter the
property shall be occupied and used exclusively for
cemetery purposes.
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On October 31, 2017, the ICA issued a memorandum
opinion, in which a majority of the court affirmed the circuit
court’s amended final judgment. Briefly stated, the ICA majority
held that: (1) Kaiawe was not entitled to relief by way of a
quiet title action under HRS Chapter 669; (2) the circuit court
correctly granted summary judgment in favor of Ibbetson on
Kaiawe’s common law dedication claim; and (3) the circuit court
correctly granted summary judgment in favor of Ibbetson on
Kaiawe’s statutory dedication claim.
The ICA majority first addressed whether the circuit
court erred in ruling against Kaiawe on his quiet title claim
under HRS Chapter 669. The ICA majority observed that HRS § 669-
1(a), read alongside Hawai#i case law, established that a quiet
title plaintiff must prove that he or she has title to the
disputed land. The ICA majority then noted that “Kaiawe has not
raised an adverse possession claim, and has not pled or provided
any evidence of superior title,” that the 1915 Deed did not
“contain any reservation of interest or right of reversion” in
favor of Kaiawe, and that “Ibbetson submitted evidence of
unbroken title from Mikala Kaiawe to the Association to HCF to
him.” Based on the foregoing, the ICA majority held that the
circuit court did not err when it granted summary judgment in
favor of Ibbetson on Kaiawe’s quiet title claim.
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Next, the ICA majority analyzed whether the circuit
court erred in granting summary judgment in favor of Ibbetson on
Kaiawe’s claim for declaratory relief, inasmuch as the circuit
court ruled that there was no genuine issue of material fact as
to whether the Property had been dedicated to use by the public
as a cemetery.
The ICA majority rejected Kaiawe’s argument that the
record supported that the Property had been dedicated for public
use as a cemetery pursuant to common law for several reasons.
The ICA majority ruled that Smith “simply does not support the
proposition that the dedicated use of part of a parcel as a
cemetery or burial grounds evidences an implied dedication of the
entirety of the property for use only as a cemetery.” The ICA
majority also reasoned that Barker did not support Kaiawe’s claim
because the habendum clause in the 1915 Deed did not “purport to
dedicate the land as a public cemetery,” and because “there is no
evidence that [the Property] was open for burials of the public
at large[.]”
Applying this court’s decision in Midkiff to the facts
in this case, the ICA majority held that the habendum clauses in
the 1915 Deed and the 1983 Deed did not support that the Property
had been dedicated for public use as a cemetery. The ICA
majority ruled that the habendum clauses in the 1915 Deed and
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1983 Deed were mere expressions of the anticipated use of the
Property, which did not indicate an intent “that less than a fee
simple estate was being transferred.” Therefore, because Kaiawe
did not “provide authority for the proposition that a deed’s
expression of anticipated use should be otherwise viewed as
creating a common law servitude on the deeded property that is
inconsistent with the estate that was conveyed by the deed,” the
ICA majority held that the habendum clauses in the 1915 Deed and
1983 Deed did not evince that the Property had been dedicated for
exclusive use as a cemetery by the public.
Furthermore, the ICA majority held that Pastor
Ha#alilio’s testimony did not create a genuine issue of material
fact as to whether the Property had been dedicated for public use
as a cemetery. The ICA majority determined that although her
testimony confirmed that individuals were buried in both grave
sites, her statements did not “otherwise support Kaiawe’s claim
of public dedication.”
Therefore, the ICA majority held that the circuit court
did not err in granting summary judgment against Kaiawe on his
common law dedication claim.
The ICA majority also concluded that Kaiawe’s argument
premised upon statutory dedication was without merit. The ICA
majority ruled that “[t]he metes and bounds description in the
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1915 Deed merely outlines the boundaries of the Property” and did
not meet the requirements delineated in HRS § 441-17.
Accordingly, the ICA majority held that the Property “was not
deemed dedicated as a cemetery pursuant to HRS § 441-17.”
Judge Lisa M. Ginoza filed a separate concurring and
dissenting opinion. While she agreed with the majority that
Kaiawe was not entitled to relief under HRS Chapter 669, and that
the circuit court correctly granted summary judgment in favor of
Ibbetson on Kaiawe’s statutory dedication claim, Judge Ginoza
dissented to the extent that she believed that there was a
genuine issue of material fact as to whether the Property had
been dedicated for public use as a cemetery under common law.
Judge Ginoza acknowledged that the 1915 Deed and 1983
Deed did not contain express language suggesting that the
Property was to be used by the public as a cemetery. However,
she also observed neither deed restricted the cemetery to the
exclusive use of church members, and that “Mikala’s intent can be
implied from the public’s use of the cemetery.” And, Judge
Ginoza highlighted that Pastor Ha#alilio’s testimony suggested
that “individuals beyond members of the church situated on or
next to the Property were buried in the cemetery.” Judge Ginoza
posited that nothing in the record supported that “the cemetery
was intended and used only for members of the Hoikeana Church.”
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Based on the foregoing, Judge Ginoza concluded: “Viewing the
evidence in the record in a light most favorable to Kaiawe as the
non-movant, as is required under the summary judgment standard,
there is a genuine issue of material fact whether the cemetery
was intended and utilized as a public cemetery.”
The judgment on appeal was entered on November 30,
2017.
II. STANDARDS OF REVIEW
A. Motion for Summary Judgment
“On appeal, the grant or denial of summary judgment is
reviewed de novo.” Nuuanu Valley Ass’n v. City & Cty. of
Honolulu, 119 Hawai#i 90, 96, 194 P.3d 531, 537 (2008). It is
well-established that:
[S]ummary judgment is appropriate if the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. A fact is material if
proof of that fact would have the effect of
establishing or refuting one of the essential elements
of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light
most favorable to the non-moving party. In other
words, we must view all of the evidence and inferences
drawn therefrom in the light most favorable to the
party opposing the motion.
Id. (brackets in original) (quoting Kahale v. City & Cty. of
Honolulu, 104 Hawai#i 341, 344, 90 P.3d 233, 236 (2004)). And,
where the non-movant bears the burden of proof at
trial, a movant may demonstrate that there is no
genuine issue of material fact by either: (1)
presenting evidence negating an element of the non-
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movant’s claim, or (2) demonstrating that the non-
movant will be unable to carry his or her burden of
proof at trial.
Ralston v. Yim, 129 Hawai#i 46, 57, 292 P.3d 1276, 1287 (2013).
III. DISCUSSION
We construe Kaiawe’s application for writ of certiorari
to present two questions for review: (1) whether the ICA erred
in holding that the circuit court correctly granted summary
judgment in favor of Ibbetson on Kaiawe’s claims that the
Property had been dedicated for exclusive cemetery use pursuant
to common law and/or statute; and (2) whether the ICA erred in
holding that Kaiawe was not entitled to relief pursuant to a
quiet title action under HRS Chapter 669.9
A. Dedication
“Dedication” is defined as “[t]he donation of land or
creation of an easement for public use.” Black’s Law Dictionary
500 (10th ed. 2014). It is well-settled that there are two
primary means by which land may be dedicated for public use:
Dedication of land for public use may be achieved
either by statute or by common law. Statutory
dedication occurs when the statutory provisions are
complied with. Common law dedication is accomplished
either expressly, as by deed, or impliedly, as by acts
9
Kaiawe’s application for writ of certiorari does not comply with
the requirements of HRAP Rule 40.1(d) insofar as it is twenty-three pages
long. HRAP Rule 40.1(d) (providing that “[t]he application shall not exceed
12 pages”). Nonetheless, in light of this court’s long-standing policy of
affording litigants the opportunity to have their cases heard on the merits
where possible, we address the questions presented in Kaiawe’s application on
the merits. Marvin v. Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88, 94 (2012).
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and conduct which manifest an intent to give the
property for public use.
Maui Ranch Estates Owners Ass’n v. Cty. of Maui, 6 Haw. App. 414,
421, 724 P.2d 118, 123 (1986) (citations omitted).
Kaiawe maintains that the circuit court erred in
concluding that there was no genuine issue of material fact as to
whether the Property had been dedicated for public use as a
cemetery under common law and by operation of statute. We
address each argument in turn.
1. Common Law Dedication
“The common law has historically provided for the
dedication of private property for public use.” Gold Coast
Neighborhood Ass’n v. State, 140 Hawai#i 437, 450, 403 P.3d 214,
227 (2017). “Common law dedication of private property is
‘accomplished either expressly, as by deed, or impliedly, as by
acts and conduct which manifest an intent to give the property
for public use.’” Id. (quoting Maui Ranch, 6 Haw. App. at 421,
724 P.2d at 123).
In this case, Kaiawe does not seem to argue that the
Property was dedicated to public use expressly. Rather, Kaiawe
appears to rely upon a theory of implied dedication. With
respect to implied dedication, this court has explained:
A common law dedication may be accomplished
without any statement, written or spoken, for one who
invites or merely permits the public to use his or her
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land for a long period may be held to have made an
offer of implied dedication. The rationale behind
this theory is that the owner is estopped to deny
permanent public access where he has admitted the
public to use the land over a long time. There must
be an offer and acceptance of dedication. When there
is no express offer, the offer may be implied under
the circumstances and acceptance may also be implied
by the nature of the public use. In other words, the
duration and type of public use can raise both the
presumption of the owner’s intent (or offer) to
dedicate land to public use, as well as constitute
acceptance by the public.
In re Banning, 73 Haw. 297, 304-05, 832 P.2d 724, 728-29 (1992)
(internal quotation marks and citations omitted).
Furthermore, it is generally recognized that land can
be impliedly dedicated for public use as a cemetery:
Land may be dedicated to the public for cemetery
purposes. In the absence of a statute, no particular
form or ceremony is required to accomplish such a
dedication. The intention of the owner of the land to
dedicate it for a public cemetery, together with the
acceptance and use of the same by the public, or the
consent and acquiescence of the owner in the long-
continued use of his or her lands for such purpose,
are sufficient. . . . While acceptance by the public
is necessary to complete the dedication, such
acceptance may be implied from acts and from the use
of the land[.]
14 Am. Jur. 2d Cemeteries § 17 (2018) (footnotes omitted).
Kaiawe seems to argue that the ICA gravely erred in
concluding that the circuit court correctly granted summary
judgment in favor of Ibbetson on his common law dedication claim
for two reasons. First, Kaiawe appears to argue that the ICA
misapplied Midkiff to the facts in this case, and therefore
erroneously concluded that the habendum clauses in the 1915 Deed
and 1983 Deed could not, by any means, constitute evidence of
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Mikala’s intent to dedicate the Property for public use as a
cemetery. Second, Kaiawe appears to argue that the evidence in
the record indicates that there is a genuine issue of material
fact as to whether the Property was used by the public as a
cemetery for a prolonged period of time. We conclude that both
of his arguments are meritorious.
a. Midkiff is distinguishable and inapposite.
Relying on Midkiff, the ICA majority held that the
habendum clauses in the 1915 Deed and 1983 Deed could not
constitute evidence of Mikala’s intent to dedicate the Property
for public use as a cemetery. However, the facts in Midkiff are
distinguishable from those in the present case. Therefore, we
hold that Midkiff does not apply and the ICA majority’s analysis
is flawed insofar as it is premised thereon.
In Midkiff, the plaintiffs conveyed a parcel of land to
Oahu Railway and Land Company (OR&L) by a deed executed in 1899.
45 Haw. at 410, 368 P.2d at 889. The deed contained a habendum
clause, which stated: “To have and to hold . . . unto the said
party of the second part its heirs successors and assigns forever
for railway purposes.” Id. at 411, 368 P.2d at 889. OR&L used
the parcel for railway purposes until sometime in 1947. Id. The
defendant was the successor in interest to OR&L’s interest with
respect to the parcel of land. Id. at 410, 368 P.2d at 889.
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Upon learning that OR&L ceased using the parcel for
railway purposes, the plaintiffs filed a complaint, arguing that
by operation of the habendum clause in the deed, OR&L either
received “an easement for a railroad” or “an estate in fee simple
determinable . . . both of which terminated” when the parcel
“ceased to be used for railway purposes.” Id. at 412, 368 P.2d
at 890. Therefore, the plaintiffs requested, inter alia, “to be
declared the owners in fee simple” of the land. Id. The
defendants countered that the deed unambiguously reflected that
the grantors intended to convey an estate in fee simple absolute.
Id. at 413, 368 P.3d at 890.
This court acknowledged that generally, habendum
clauses cannot, by themselves, “operate to qualify or limit the
estate granted by the deed, or, in other words, . . . operate to
reduce what would otherwise be an estate in fee simple to an
easement or an estate in fee simple determinable or other limited
estate.” Id. at 415, 368 P.2d at 891. The Midkiff court
further explained:
The principal reason given for this general rule
is that the purpose clause is a mere expression or
declaration or recital of the anticipated use by the
grantee of the land and that such an expression or
declaration or recital does not indicate an intent to
qualify or limit the estate granted by the deed. In
many of the decisions an additional reason for the
rule is given that a grantor desiring to grant an
easement or to convey a determinable fee or other
limited estate can readily use appropriate language
for that purpose.
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Id. at 416, 368 P.2d at 891-92 (citations omitted). Applying
this rule to the facts before it, this court concluded that the
habendum clause “did not operate to qualify or limit the estate
conveyed thereby and the OR&L obtained by the deed a fee simple
title” to the parcel of land. Id. at 416, 368 P.2d at 892.
Here, in contrast with Midkiff, Kaiawe does not argue
that the habendum clauses in the 1915 Deed or the 1983 Deed
operated to limit the nature of the estate conveyed in either
deed. In other words, Kaiawe does not contend that, by operation
of either or both of these habendum clauses, the Association or
HCF owned an estate in fee simple determinable, rather than in
fee simple absolute. Additionally, unlike the plaintiffs in
Midkiff, Kaiawe does not argue that because the Property is not
solely being used as a cemetery, the Property should revert back
to him as Mikala’s heir. Rather, Kaiawe seeks to use the
habendum clauses in these deeds to serve a completely different
purpose: as evidence of Mikala’s intent to dedicate the Property
for public use as a cemetery.
Consequently, to the extent that Kaiawe seeks to use
the habendum clauses in a different context and to accomplish a
different purpose compared to the plaintiffs in Midkiff, Midkiff
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is distinguishable and inapposite.10 Thus, we hold that the ICA
erred in relying upon Midkiff to conclude that the habendum
clauses in the 1915 Deed and 1983 Deed could not, by any means,
evince Mikala’s intent to dedicate the Property for public use.
Having determined that the 1915 Deed and 1983 Deed
could bear upon whether Mikala intended to dedicate the Property
for public use, we now review the record de novo to ascertain
whether the circuit court correctly granted summary judgment in
favor of Ibbetson on Kaiawe’s common law dedication claim.
b. The circuit court erred in granting summary
judgment in favor of Ibbetson on Kaiawe’s common
law dedication claim.
Ibbetson and Kaiawe dispute whether the following
evidence illustrates that there are genuine issues of material
fact as to whether Mikala intended to dedicate the Property to
public use as a cemetery, and whether the public accepted the
Property for such use: (1) the habendum clauses in the 1915 Deed
and the 1983 Deed; and (2) Pastor Ha#alilio’s testimony about the
10
Assuming arguendo that the Property has been dedicated for public
use, the effect of such dedication does not accomplish that which Midkiff
prohibits (i.e., an effective reduction of the estate from a fee simple
absolute to a fee simple determinable by operation of a habendum clause). See
Gold Coast, 140 Hawai#i at 450, 403 P.3d at 227 (“A common law dedication does
not operate as a grant but as an equitable estoppel[.]” (quoting 23 Am. Jur.
2d Dedication § 54 (2013)). In fact, Ibbetson concedes this point in his
response to Kaiawe’s application when he states: “A hypothetical public right
to use a property as a cemetery, because of an implied dedication, could
arguably be considered a restriction in use by the legal owner to the extent
that the owner’s uses conflict with the public’s, but that does not create a
legal title right in favor of [Kaiawe].”
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Property’s use as a cemetery.
In our view, the habendum clauses in the 1915 Deed and
1983 Deed are ambiguous at most, and do not clearly evince
whether Mikala intended to dedicate the Property as a public or
private cemetery. However, we believe that Pastor Ha#alilio’s
testimony, viewed in the light most favorable to Kaiawe, suggests
that the Property may have been used by the public as a cemetery
for several decades. Accordingly, we hold that the ICA erred in
concluding that Ibbetson was entitled to summary judgment on
Kaiawe’s common law dedication claim.
The habendum clause in the 1915 Deed reads as follows:
“To have and to hold the said premises, with the appurtenances,
so that it may be used as a cemetery, to the said Board of the
Hawaiian Evangelical Association, it successors and assigns,
forever.” (Emphasis added.) Similarly, the habendum clause in
the 1983 Deed states: “TO HAVE AND TO HOLD the same, together
with the improvements thereon and all rights, easements,
privileges and appurtenances thereunto belonging or appertaining,
unto the Grantee, its successors and assigns, for cemetery
purposes only, forever.” (Emphasis added.)
In our view, these habendum clauses do not suggest one
way or the other whether Mikala intended for the Property to be
used by the public as a cemetery, or intended to restrict the
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Property’s use to only certain individuals, such as members of
the Hoikeana Church congregation. The habendum clause in the
1915 Deed does not explicitly state that the Property was to be
used by the public as a cemetery. Cf. Barker, 219 S.W. at 875-76
(concluding that a piece of property had been dedicated for
public use where the habendum clause provided that a property was
being conveyed “for the use and benefit of said church, as a
public cemetery,” and the public actually used the property as
such). By the same token, however, the habendum clause in the
1915 Deed also does not contain any restrictive language
indicating that the cemetery was to be available for use only by
certain persons, as opposed to the general public, or that only
individuals who were members of the Hoikeana Church could be
buried on the Property. Similarly, the habendum clause in the
1983 Deed neither specifies that the Property must be available
for public use as a cemetery, nor restricts the Property’s use
for the burials of only certain individuals. Accordingly, these
habendum clauses are ambiguous at most as to whether Mikala
intended to dedicate the Property for public use, and do not
support one way or the other whether Ibbetson was entitled to
summary judgment on Kaiawe’s common law dedication claim.
By contrast, Pastor Ha#alilio’s testimony, when viewed
in the light most favorable to Kaiawe as the non-moving party,
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indicates that there is a genuine issue of material fact as to
whether the Property was used by the public as a cemetery over
the course of several decades. Because “the duration and type of
public use [of a property] can raise both the presumption of the
owner’s intent (or offer) to dedicate land to public use, as well
as constitute acceptance by the public,” In re Banning, 73 Haw.
at 305, 832 P.2d at 729, Pastor Ha#alilio’s testimony illustrates
that a genuine issue of material fact exists as to whether the
Property was dedicated for public use as a cemetery.
Pastor Ha#alilio testified that she and her family
continued to maintain the cemeteries on the Property from the
1950s through the 1980s, long after the congregation at the
Hoikeana Church had dissipated. She also testified that, as far
as she knew, she had family members buried in Grave Site A, and
Kaiawe’s relatives were buried in Grave Site B.
Pastor Ha#alilio further testified that there were
“quite a few” other individuals buried in Grave Site A besides
her own family members and “those known to [her].” Upon being
asked whether she had been in contact with the descendants of the
non-relative individuals who were buried upon the Property,
Pastor Ha#alilio responded:
Okay, I need to have you understand that there was
never such thing as a master list back then. When
people died they were buried in the back yard or the
front yard or wherever. And it just so happened that
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this church that’s across of the highway did have this
piece of property graciously given over to the church
for burial purposes. There was no master list as to
who was really buried there. It’s just by knowledge
passed down from generation to generation that so and
so is over here and so and so is over there. And
that’s how it is with my in-laws, my immediate family.
But there’s also family members that have been taking
care of their portions, their family portions, that’s
not here in Kona. Some are from Kau and Dean Kaiawe’s
ohana were all scattered all over but as often as we
are able we try to maintain those particular plots.
But it’s not necessary that because my family is
buried in [Grave Site] A that I would know who’s
buried in [Grave Site] B. Many of those plots were
not marked or identified by name.
(Emphases added.) She further testified that descendants of
individuals who were unrelated to her visited the Property in
order to maintain their ancestors’ grave sites throughout the
years, though she was not completely aware of who all these
individuals were.
The foregoing excerpts of Pastor Ha#alilio’s testimony
support that: (1) in addition to her relatives and Kaiawe’s
ancestors, numerous other individuals were buried upon the
Property; (2) there was no formal system according to which
individuals were buried upon the Property, and no concrete record
of who was buried where; (3) the descendants of the individuals
who are currently buried upon the Property are now spread across
the island of Hawai#i and other islands; and (4) these
descendants, along with members of the Puka#ana Congregational
Church, continued to return to the Property to maintain their
ancestors’ grave sites throughout the years. Viewed in the light
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most favorable to Kaiawe, these facts support the inference that
members of the public who lived in the community near the
Property, not just those who were affiliated with the Hoikeana
Church, may have been buried on the Property.
Ibbetson maintains that the Property “had been used as
a private cemetery . . . for the benefit of certain families
affiliated with the no-longer existing Hoikeana Church.” In
support of this position, Ibbetson cites to Pastor Ha#alilio’s
statement that “the cemetery is not a public cemetery.” He also
emphasizes that Pastor Ha#alilio stated that the Property was
“given over to the church for burial purposes.” To Ibbetson,
these facts definitively show that the Property was not used by
the public as a cemetery.
We disagree for two reasons. First, Pastor Ha#alilio
did not suggest that the Property was not used by the public when
she stated that the Property was “not a public cemetery,” as
Ibbetson suggests. Her statement, in context, is as follows:
[M]any of [my family members] are not aware that the
cemetery is not a public cemetery, it sits on a
private parcel that has been sold and is resided upon.
So when they did come over [to maintain the grave
sites] they were a little bit awkward, the situations
that resolved as soon as I was able to, as far as the
maintenance and use and access to the cemetery.
(Emphasis added.) In other words, when she said that the
Property was “not a public cemetery,” Pastor Ha#alilio was not
commenting on whether only certain individuals could be buried
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there. Rather, she simply noted that Grave Site A was located on
privately-owned property. Therefore, Ibbetson’s argument fails
to the extent that he misconstrues the record.
Second, although Pastor Ha#alilio testified that the
Property was “graciously given over to the church for burial
purposes,” this statement only bears upon who owned the Property
at the time of its initial conveyance. This statement does not
shed light upon whether members of the public had buried their
relatives on the Property, or whether only those who were
affiliated with the Hoikeana Church were allowed to use the
Property for burial purposes. Thus, Ibbetson’s argument in
reliance on this portion of the record is meritless.
To conclude, Pastor Ha#alilio’s testimony indicates
that there is a genuine issue of material fact as to whether the
Property was used by the public as a cemetery for a prolonged
period of time, and therefore, whether the Property was dedicated
for public use under common law. See In re Banning, 73 Haw. at
304-05, 832 P.2d at 729-30. Ibbetson’s arguments to the contrary
misconstrue the record. Further, the record is devoid of other
evidence showing that the Property was exclusively used by
Hoikeana Church members, rather than the public. Accordingly,
the circuit court erred in granting summary judgment in favor of
Ibbetson on Kaiawe’s common law dedication claim, and the ICA
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erred in affirming the circuit court’s ruling on this point.
2. Statutory Dedication
“Statutory dedication occurs when the statutory
provisions are complied with.” Maui Ranch, 6 Haw. App. at 421,
724 P.2d at 123. HRS § 441-17 defines when pre-existing
cemeteries may be deemed dedicated for exclusive use as a
cemetery. HRS § 441-17 (1993) states:
All existing cemeteries or parts thereof which shall
have been lawfully established, and for which a map or
plat substantially similar to that required by section
441-3 has been filed or recorded in the bureau of
conveyances or in the office of the assistant
registrar of the land court, shall be deemed to have
been dedicated as of [July 1, 1967], to the same
extent and with like effect as provided in this
chapter.
(Brackets in original.) Put differently, HRS § 441-17
establishes two requirements that must be met in order for a pre-
existing cemetery to be deemed statutorily dedicated for cemetery
use. First, the cemetery must have been lawfully established.
HRS § 441-17. Second, “a map or plat substantially similar to
that required by [HRS §] 441-3” must be filed or recorded with
the appropriate authorities. HRS § 441-17.
Based upon the statute’s plain language, HRS § 441-17
refers to HRS § 441-3 as a guidepost, which informs the second
requirement for statutory dedication of a pre-existing cemetery.
On this point, HRS § 441-3 (1993) provides in pertinent part:
(a) The cemetery authority from time to time as any of
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the property described in the certificate of
dedication, or any part or section thereof, is offered
for sale, transfer, or disposition in the form of
plots, crypts, or niches, shall also:
(1) In the case of land, survey and subdivide
[the cemetery property] into sections, blocks,
plots, avenues, walks, or other subdivisions;
make a good and substantial map or plat showing
the sections, blocks, plots, avenues, walks, or
other subdivisions with descriptive names,
initials, or numbers[.]
(Emphasis added.)
Thus, reading HRS § 441-17 alongside HRS § 441-3, it
appears that in order for a pre-existing cemetery to be deemed
statutorily dedicated for cemetery use under HRS § 441-17: (1)
the cemetery must have been established lawfully; and (2) a map
or plat “substantially similar” to a “map or plat showing the
sections, blocks, plots, avenues, walks, or other subdivisions
with descriptive names, initials, or numbers” must be filed or
recorded with the appropriate authority. HRS §§ 441-17 and 441-
3. Here, the parties do not dispute that the cemeteries on the
Property were established lawfully, such that the first
requirement was met. Their dispute lies in whether the record
supports that HRS § 441-17’s second requirement was met.
Though Kaiawe appears to acknowledge that the metes and
bounds description from the 1915 Deed “only describes [the
Property’s] perimeter,” he maintains that the metes and bounds
description is “substantially similar” to the types of maps or
plats that are required under HRS § 441-3. Thus, he appears to
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argue that because the metes and bounds description satisfies the
second requirement in HRS § 441-17, the circuit court erred in
granting summary judgment in favor of Ibbetson on his statutory
dedication claim.
The 1915 Deed’s metes and bounds description states:
Commencing at the Northeast corner of this piece
on the old government trail, a little makai of the
present government road, adjoining Kaohe 4, and
running thence along the line between Kaohe 4 and
Kaohe 5, 200 feet in a westwardly direction to a stake
and stone pile; thence southwardly to a stake and
stone pile 120 feet; thence eastwardly to a stake and
stone pile 275 feet; and thence northwardly . . . to
point of commencement, and containing about three-
fourths of an acre, more or less, and being described
in R.P. Number 2358 to Huakonou.
The metes and bounds description does not satisfy the
second requirement for statutory dedication under HRS § 441-17
for two reasons. First, the metes and bounds description itself
is neither a map nor a plat. Second, the metes and bound
description merely outlines the Property’s outer perimeter. The
metes and bounds description does not show or otherwise describe
“the sections, plots, avenues, walks, or other subdivisions with
descriptive names, initials, or numbers” within either of the
cemeteries located on the Property. Thus, inasmuch as the metes
and bounds description is not a map or plat and only describes
the Property’s outer boundaries, the description is not, in our
view, a map or plat that is “substantially similar” to that which
is required under HRS § 441-3. Furthermore, the record does not
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contain any other type of map or plat that would appear to
satisfy the second requirement of HRS § 441-17. Therefore, we
conclude that, as a matter of law, Kaiawe has not established
that the second requirement in HRS § 441-17 was met in this case.
Accordingly, we agree with the ICA that the circuit court
correctly granted summary judgment in favor of Ibbetson on
Kaiawe’s statutory dedication claim.
B. Entitlement to Relief Under HRS Chapter 669
On his second question on certiorari, Kaiawe contends
that he is entitled to bring a quiet title action under HRS
Chapter 669. Without citation to legal authority, Kaiawe argues
that the ICA erred in holding that HRS Chapter 669 “is limited to
deciding the legal ownership of land by ‘paper title’ or adverse
possession only[.]” Rather, Kaiawe argues that he need not
demonstrate that he had competing title to the Property, and that
he could utilize HRS Chapter 669 to “establish[] a servitude on
land.”
Kaiawe’s interpretation of HRS Chapter 669 is not
supported by legal authority. HRS § 669-1(a) provides that an
individual can bring an action to quiet title when he or she has
a competing legally cognizable interest in a piece of property.
Specifically, HRS § 669-1(a) (1993) states: “Action may be
brought by any person against another person who claims, or who
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may claim adversely to the plaintiff, an estate or interest in
real property, for the purpose of determining the adverse claim.”
This court has propounded clear principles as to a plaintiff’s
burden in pursuing a quiet title action:
In an action to quiet title, the burden is on
the plaintiff to prove title in and to the land in
dispute, and, absent such proof, it is unnecessary for
the defendant to make any showing. The plaintiff has
the burden to prove either that he has paper title to
the property or that he holds title by adverse
possession. While it is not necessary for the
plaintiff to have perfect title to establish a prima
facie case, he must at least prove that he has a
substantial interest in the property and that his
title is superior to that of the defendants.
Maui Land & Pineapple Co. v. Infiesto, 76 Hawai#i 402, 407-08,
879 P.2d 507, 512-13 (1994) (citations omitted); Ka#upulehu Land
LLC v. Heirs and Assigns of Pahukula, 136 Hawai#i 123, 137-38,
358 P.3d 692, 706-07 (2015) (applying the principles articulated
in Maui Land & Pineapple Co. to a quiet title action brought
pursuant to HRS Chapter 669). Put differently, Hawai#i case law
explicitly provides that a plaintiff seeking relief under HRS
Chapter 669 must demonstrate that he or she has title to the
land, either via paper title or adverse possession, and that he
or she has superior title compared to the defendant. See id.
Kaiawe’s argument is inconsistent with these well-established
principles, and accordingly, is without merit.
Applying the foregoing principles in this case, here,
Kaiawe does not contend that he has competing title to the
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Property by way of paper title, or by virtue of adverse
possession. The record does not contain any evidence indicating
that Kaiawe had an interest in title to the Property superior to
Ibbetson’s title. On the contrary, the evidence in the record
illustrates an unbroken chain of title, whereby Mikala conveyed
the Property to the Association, who conveyed the Property to
HCF, who transferred the Property to Ibbetson. Thus, because
Kaiawe has not shown that he has title in the Property, and that
his title is superior to Ibbetson’s, the ICA correctly held that
Kaiawe was not entitled to relief under HRS Chapter 669.
IV. CONCLUSION
For the reasons stated above, the ICA correctly
affirmed the circuit court’s grant of summary judgment on
Kaiawe’s statutory dedication claim, and correctly determined
that Kaiawe was not entitled to relief under HRS Chapter 669.
However, the ICA erred in holding that the circuit court
correctly granted summary judgment in favor of Ibbetson on
Kaiawe’s common law dedication claim.
Therefore, we affirm in part and vacate in part the
ICA’s November 30, 2017 judgment on appeal, which affirmed the
circuit court’s November 13, 2014 amended final judgment, and
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remand the case to the circuit court for further proceedings
consistent with this opinion.
Michael J. Matsukawa for /s/ Mark E. Recktenwald
petitioner Dean Kaiawe
/s/ Paula A. Nakayama
Derek R. Kobayashi and
Matthew A. Hemme for /s/ Sabrina S. McKenna
respondent Hawaii Conference
Foundation /s/ Richard W. Pollack
Dennis A. Krueger, /s/ Michael D. Wilson
Wayne Nasser and James K.
Mee for respondent Daniel
Ibbetson
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