PASH LAWS-PUBLIC ACCESS SHORELINE HAWAII 4. The development of private property rights in Hawaii Some of the generally understood western concepts of property rights were discussed in Reppun v. Board of Water Supply, 65 Haw. 531, 656 P.2d 57 (1982). The western doctrine of property has traditionally implied certain rights. Among these are the right to the use of the property, the right to exclude others(,) and the right to transfer the property with the consent of the owner. In conformance with creation of private interests in land, each of these rights were embodied in the delineation of post-(Mahele) judicial water rights. Ostensibly, this judge-made system of rights was an outgrowth of Hawaiian custom in dealing with water. However, the creation of private and exclusive interests in water, within a context of western concepts of property, compelled the drawing of fixed lines of authority and interests which were not consonant with Hawaiian custom. Id. at 547, 656 P.2d at 68. Although the court in Reppun focused on interests in water, its discussion of the development of Hawaiian property rights is enlightening. In 1840 the first constitution of the Kingdom of (Hawaii) proclaimed that although all property belonged to the crown it was not his private property. It belonged to the Chiefs and the people in common, of whom (the King) was the head, and had the management of the landed property. (Hawaii) Const. of 1840 in Fundamental Laws of Hawaii 3 (1904). Thus, prior to the (Mahele), all land remained in the public domain. However, other laws passed during the same period lay the foundation for the eventual imposition of private property rights in land by limiting the Kings and landlords heretofore unregulated authority to disseize one to whom land had been granted and insuring certain rights of the common people and lesser lords. Id. at 542, 656 P.2d at 65. The 1839 Declaration of Rights, which was incorporated into the 1840 Constitution, provided that nothing whatever shall be taken from any individual except by express provision of the laws. Thurston, Fundamental Law of Hawaii 1 (emphasis added) (hereafter Fundamental Law ). See also Kiekie v. Dennis, 1 Haw. 69, 70 (1851) (recognizing that the rights of each hoaaeina, or ahupuaa tenant, were secured by the 1840 constitution). Several laws enacted in 1839 and 1840, and later compiled in the Laws of 1842, permitted the extinguishment of tenant rights in limited circumstances. See, e.g., Act of Nov. 9, 1840, ch. III, s 7, reprinted in Fundamental Law at 20 (excepting from restoration to previous holders those residuum lands that were separated from their affiliated lands for reasons of public interest); Fundamental Law at 43 (providing compensation for incursions related to road-building); id. at 133- 35 (permitting dispossession of tenants because of idleness, where such idleness is proven at trial). The 1840 constitution reflected an attempt to deal with chiefs and foreigners who sought to vest land rights without the required consent of the King. See Kuykendall, The Hawaiian Kingdom 1778-1854 (1938) (hereafter Kuykendall). (FN30) Gun-boats frequently came to Hawaii to enforce the claims of foreigners. Levy, Native Hawaiian Land Rights, 63 Cal. L.Rev. 848, 852 (1975) (hereafter Levy); Kuykendall at 153. For example, British Consul Richard Charlton claimed a valuable piece of land based upon a 299-year lease supposedly obtained from a Hawaiian named Kalanimoku in 1826. Kuykendall at 208. Kalanimoku was a husband of the dowager Queen Kaahumanu and also served as a guardian of the young King Kamehameha III. The lease purportedly covered land occupied by Charlton as well as an adjoining piece, which had been occupied since 1826 by the retainers of Queen Kaahumanu. Id. at 208-09. Kamehameha III rejected this claim in 1840 for various reasons, including absence of legitimate authority to make the grant. Id. at 209. Conflicts exacerbated by further adverse decisions of the King and the Hawaiian courts, see id. at 208-12, eventually led to the provisional cession of Hawaii on February 25, 1843, under threat of violence, to Lord George Paulet, commander of the British warship Carysfort. (FN31) Id. at 216; Levy at 852. Although Hawaiian independence was reaffirmed on July 31, 1843, these events would have a profound impact on future socio-political developments in the islands. The minutes of a Privy Council meeting on October 9, 1845 reveal the continuing belief that nothing but difficulties, even though we should be without fault, would result from the system of Reports of Foreign Consuls, being supported, and their complaints redressed without inquiry, by the Naval Forces of their nations. 1 Privy Council Records at 89, 91. Later, during the kingdoms ongoing efforts to resolve Charltons land claim, additional claims surfaced. The minutes of another Privy Council meeting indicate: The King remarked, ... give up this new claim, and then the General will claim the whole harbour. They all agreed that in some way or other, not disrespectful to the British Government, an end must be put to these pretensions coming upon them unexpectedly, contrary to all the law and usage among them. Id. at 147 (emphasis added). Consequently, the development of private property rights was deemed indispensable to the political existence of the kingdom. L. 1845-46, at 5. Furthermore, the increase of foreign commerce and the enhanced value of property ... required something more of the Hawaiian courts than mere investigation of facts. Id. (The events of the late Provisional Cession to Great Britain conclusively prove that some more minute and extensive judicature was long since requisite.). See also 2 Privy Council Records 231 (1846-47) (discussing a compromise for the sake of peace in another dispute with foreigners). At the time, native Hawaiian subjects frequently petitioned Kamehameha III regarding the dramatic changes taking place in the kingdom. See, e.g., petition signed by 301 residents of Lanai, dated April 1845, Hawaii State Archives (HSA), Interior Dept., Miscellaneous File (asking the King not to appoint foreign Ministers, and not to sell any more land to foreigners, because (w)e are afraid that the wise will step on the ignorant); The Friend, vol. III, no. XV, August 1, 1845, at 118-19 (reprinting a similar petition, signed by over 1600 people). (FN32) The next major step in the evolution of private property rights was the formation in 1845 of the Board of Land Commissioners to quiet land titles. See Law Creating the Board to Quiet Land Titles, in Fundamental Laws of Hawaii 137 (1904). It was the Land Commissions responsibility to ascertain or reject claims of interests in land brought before it. Decisions of the Board were to be made in accordance with the civil law and native customs of the Kingdom. ( (FN33)) The Board itself was not empowered to grant fee simple title to land. Rather, its duty was to define each applicants identifiable interests in land and issue an award describing those interests. Actual title to land could be gained only by a payment of commutation to the Kingdom and issuance of a royal patent. See, Chinen, The Great Mahele: Hawaiis Land Division of 1848 (1958). To carry out its duties, the Land Commission adopted principles that were to be followed in quieting title to land. The principles were subsequently also adopted by the legislative council of the Kingdom and were made binding rules by which all claims to land would be tested. Laws of 1847, at 81, RLH 1925, Vol. II at 2124. In its statement of principles the Land Commission related the necessity of its establishment to the unenforceability of the laws passed at the time of the Constitution of 1840 noting that: Neither the laws of 1839 nor of 1840 were found adequate to protect the inferior lords and tenants, for although the violators of law, of every rank, were liable to its penalty, yet it was so contrary to ancient usage, to execute the law on the powerful for the protection of the weak, that the latter often suffered, and it was found necessary to adopt a new system for ascertaining rights, and new measures for protecting those rights when ascertained, and to accomplish this object the Land Commission was formed. The Land Commission therefore viewed its responsibilities as including the actualization of the laws of 1839 and 1840, among them, of course, the law(s) governing ... (residuum lands and dispossession of tenants, see selected provisions from the compiled Laws of 1842, supra this section). Thus, when in the next paragraph the Board reserves from allocation to private persons the sovereign prerogatives of the King, including the power: To encourage and even to enforce the usufruct of lands for the common good[,] it is clear that in accordance with pre-existing civil law and native usage, the Commission intended to reserve to the sovereign the right to regulate ... (undeveloped land) in accord with the needs of the people of the Kingdom. Reppun, 65 Haw. at 543-44, 656 P.2d at 66 (footnote added) (bracketed material inserted in place of references to interests in water). See also McBryde, 54 Haw. at 184-86, 504 P.2d at 1337-38 (indicating that the Mahele proclaimed Kamehamehas intention to share the lands with his people, and that confirmation of title was subject to inalienable sovereign prerogatives). Thus, the Land Commissions principles included appropriate provisions intended to preclude the konohiki from dispos(ing) of the grass land as to leave ... his hoaainas (sic) destitute and to preclude the government from selling unoccupied or vacant land so as to leave the (hoaaina) destitute. L. 1847, at 70-72 (citing ss 2 and 6 of Act of November 7, 1846). (FN34) After the Mahele, the Privy Council considered the rights of tenants under the new system of private land ownership and proposed a resolution providing that: the rights of the makaainanas (sic) to firewood, timber for house, grass for thatching, ki leaf, water for household purposes in said land, and the privilege of making salt and taking certain fish from the seas adjoining said lands shall be and is hereby sacredly reserved and confirmed to them for their private use (should they need them) but not for sale ... provided, that before going for firewood, timber for houses and grass for thatching, said makaainanas (sic) shall give notice to the Lord or his luna resident therein. 3B Privy Council Records 681, 687 (1850). (FN35) The King responded, however, by expressing his concern that a little bit of land even with allodial title, if they were cut off from all other privileges, would be of very little value (.) Id. at 713. Accordingly, the final resolution was passed with the comment that the proposition of the King, which he inserted as the seventh clause of the law, a rule for the claims of the common people to go to the mountains, and the seas attached to their own particular land exclusively, is agreed to(.) Id. at 763; see L. 1850, s 7, at 203-04. Provisions of the law requiring the landlords consent were repealed the following year because many difficulties and complaints have arisen from the bad feeling existing on account of the Konohikis (sic) forbidding the tenants on the lands enjoying the benefits that have been by law given them. L. 1851, at 98. Given the preservation of Hawaiian usage in conjunction with the transition to a new system of land tenure, see, e.g., supra note 23 (outlining the continued reliance on custom and usage throughout the kingdoms legal history, which was adopted as the law of the territory upon annexation of these islands to the United States); supra note 33 (quoting L. 1845-46, at 109), (FN36) it is doubtful that accept(ance) of traditional and customary rights was required or that recognition of such rights would have fundamentally violat(ed) the new system. Kalipi, 66 Haw. at 11 n. 5, 656 P.2d at 751 n. 5. (FN37) See supra section IV.B.3 (indicating that Kalipi implicitly rejected the argument that customary rights were extinguished by the specification of tenant rights in the 1846, 1850, and 1851 legislative enactments). Our examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawaii. Cf. Stevens v. City of Cannon Beach, 317 Or. 131, 143, 854 P.2d 449, 456 (1993), cert. denied, 114 S.Ct. 1332 (1994) (holding that (w)hen plaintiffs took title to their land, they were on (constructive) notice that exclusive use ... was not part of the bundle of rights that they acquired). In other words, the issuance of a Hawaiian land patent confirmed a limited property interest as compared with typical land patents governed by western concepts of property. Cf. United States v. Winans, 198 U.S. 371, 384 (1905) (observing that the United States Congress was competent to secure to the Indians such a remnant of the great rights they possessed). Although this premise clearly conflicts with common understandings of property and could theoretically lead to disruption, see Kalipi, 66 Haw. at 8-9, 656 P.2d at 750, the non-confrontational aspects of traditional Hawaiian culture should minimize potential disturbances. See, e.g., supra note 22 and infra note 43. In any event, we reiterate that the State retains the ability to reconcile competing interests under article XII, section 7. We stress that unreasonable or non-traditional uses are not permitted under todays ruling. See, e.g., Winans, 198 U.S. at 379 (noting that the trial court found that it would not be justified in issuing process to compel the defendants to permit the Indians to make a camping ground of their property while engaged in fishing ) (emphasis added). (FN38) There should be little difficulty accommodating the customary and traditional Hawaiian rights asserted in the instant case with Nansays avowed purposes. A community development proposing to integrate cultural education and recreation with tourism and community living represents a promising opportunity to demonstrate the continued viability of Hawaiian land tenure ideals in the modern world. 5. Customary Rights under Hawaii law The Kalipi court properly recognized that all the requisite elements of the doctrine of custom were (not) necessarily incorporated in s 1-1. 66 Haw. at 10, 656 P.2d at 751. Accordingly, HRS s 1-1 represents the codification of the doctrine of custom as it applies in our State. One of the most dramatic differences in the application of custom in Hawaii is that passage of HRS s 1-1s predecessor fixed November 25, 1892 as the date Hawaiian usage must have been established in practice. Compare State v. Zimring (Zimring II ), 58 Haw. 106, 115 n. 11, 566 P.2d 725, 732 n. 11 (1977) (citing State v. Zimring (Zimring I ), 52 Haw. 472, 479 P.2d 202 (1970)), with Oni, 2 Haw. at 90 (implying that the time immemorial standard is entitled to great weight but declining to express a conclusive opinion). (FN39) Other differences in the doctrines applicability are readily discernible. For example, under English common law, a custom for every inhabitant of an ancient messuage (meaning (d)welling-house with the adjacent buildings and curtilage(,) see Blacks Legal Dictionary 990 (6th ed.1990) ) within a parish to take a profit a prendre in the land of an individual is bad. Blackstones Commentaries, at 78 n. 18. Strict application of the English common law, therefore, would apparently have precluded the exercise of traditional Hawaiian gathering rights. As such, this element of the doctrine of custom could not apply in Hawaii. See supra note 21 (discussing the prominent status of custom throughout Hawaiian legal history). In light of the confusion surrounding the nature and scope of customary Hawaiian rights under HRS s 1-1, the following subsections of this opinion discuss applicable requirements for establishing such rights in the instant case. a. Nansay argues that the recognition of rights exercised by persons who do not actually reside in the subject ahupuaa represents such a departure from existing law ... (that Pele ) should be overruled or strictly limited to its specific facts. Nansays Third Supp. Brief, at 2-3 n. 1. Nansay contends further that Pele is inconsistent with the fundamental nature of Hawaiian land tenure, which allegedly recognizes only three classes: government, landlord, and tenant. Id. at 3-4; see Principles adopted by Land Commission (1847), reprinted in 2 Revised Laws of Hawaii (RLH), at 2124-37 (1925). We decline Nansays invitation to overrule Pele; on the contrary, we reaffirm it and expressly deem the rules of law posited therein to be applicable here. In Pele, we held that article XII, section 7, which, inter alia, obligates the State to protect customary and traditional rights normally associated with tenancy in an ahupuaa, may also apply to the exercise of rights beyond the physical boundaries of that particular ahupuaa. Pele, 73 Haw. at 620, 837 P.2d at 1272; see also Palama v. Sheehan, 50 Haw. 298, 300-01, 440 P.2d 95, 97 (1968) (noting that Hawaiians did not necessarily reside in the same place that they exercised traditional rights). Although it is not clear that customary rights should be limited by the term tenant, see supra note 27, we are nonetheless aware that the tenant class includes at least one sub-class. See 2 RLH (1925), at 2124, 2126 (mentioning a lowest class of tenants, lower orders and sub-tenants, apparently from the Hawaiian terms loepae ma lalo, hoaaeina ma lalo, and loepae). Therefore, we hold that common law rights ordinarily associated with tenancy do not limit customary rights existing under the laws of this state.
Posted on: Sun, 06 Apr 2014 16:45:08 +0000
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