The Hawaii Supreme Court issued an opinion in Omerod v. Heirs of Kaheananui,No. 27118 (Nov. 15, 2007), a case which presents a fact pattern that is just so “Hawaii.” The case is a quiet title action, normally a sort ofho-hum affair long on detail, but short of broad interest. The decision, however, is notable for a couple of reasons. The first deals is the court’s summary of Hawaii’s unique history of property law, and the other is the rule regarding the preclusive effect of a 1873 decision by the Boundary Commission of the Kingdom of Hawaii regarding the boundaries of a parcel, on claims of title. The court also provided guidance on two issues of appellate procedure which are discussed separately in this post.
The case concerned two sets of property owners, each who claimed rightsto land on the Big Island of Hawaii. One side claimed the landwas a single parcel (ahupuaa), and that they were entitled to a one-halfinterest because their predecessors were co-grantees during the 1848 land division (Great Mahele). The other side asserted that the Kingdom’s Boundary Commission decided that the land was two ahupuaas in 1873, andthat the Commission’s decision was conclusive. More on the case here from West Hawaii Today.
I. Fee Simple Absolute in Hawaii
Section II.A. (pages 8-13) of the slip opinioncontains a summary of Hawaii property law and its unique history,including traditional boundaries, the GreatMahele, and how the Kingdom evolved from a feudal system of landtenure to one based on fee simple absolute ownership. The most interesting aspect of this part of the opinion is that it seems to go out of its way to suggest that fee simple title is somewhat less than “absolute,” and this is a rule based in historical precedent. Yet, the opinion does not provide a citation for its most critical historical claim.
For example, the section begins with the statement that “[t]his court has recognized that the traditional Hawaiian concept of land ownership was markedly different from Western notions of ownership embodied in the common law.” Slip op. at 8 (citing Public Access Shoreline Hawaii v. Hawaii County Planning Comm’n, 79 Haw. 425, 903 P.2d 1246 (1995) (aka the “PASH” case). Why that case is relevant — much less preeminent — is not explained, for the issues in Omerod did not involve “traditional and customary rights” as did the PASH case, or how Hawaiian concepts of ownership may have differed from Western notions, but rather involved competing claims of fee simple ownership. The opinion also asserted:
In 1845, the Board of Commissioners to Quiet Land Titles (Land Commission) was established to facilitate the transition from the traditional landholding scheme to a more western system, while preserving the traditional concept of joint [public/private] ownership.
Slip op. at 9 (emphasis added). The emphasized text would be much more convincing if the opinion provided a citation supporting it. While fee simple absolute title in Hawaii may be subject to certain public servitudes as background principles, I am not aware of any authority suggesting the traditional concepts of Hawaii property law included joint public “ownership” of land conveyed to private parties by the King (including to himself, as an individual) in fee simple absolute in the Mahele, and subsequently confirmed by Royal Patent. Cf. Summa Corp. v. California,466 U.S. 198 (1984), in which the U.S. Supreme Court held that California’s failure to expressly assert apublic trust interest in tidelands during the federal land patent process that confirmed Spanish and Mexican land grants after statehood worked a forfeiture of the trust, which could not be applied tothe property.
At least this part of Omerod is dicta so is not precedent.
II. Boundary Commission Judgment Preclusive on Title
On the merits of the appeal, the court held that a 1873 determination by the the BoundaryCommission has preclusive effect on thequestion of title and boundaries, and could not be challenged 125 yearslater. The court rejected the appellants’ assertion that the jurisdiction of the Boundary Commission was limited to determining boundaries, not title. Slip op. at 40, 49, 52. The court noted:
We agree with the court that there was a common issue in the two proceedings despite the fact that the issue in the original proceeding was framed as a boundary question. Specifically, the common question was “whether the boundaries of [Land Commission Award] 7715, Apana 14 included only Hilea Iki and not Hilea Nui.”
As we understand their argument, Omerod Appellants contend that the Boundary Commission was not presented with an issue of “ownership” because it was not petitioned to determine the state of title to Hilea. However, the Boundary Commission judgment determined, by metes and bounds, precisely what land the petitioners “owned” pursuant to LCA 7715:14 and the May 5, 1857 deed from Lot. As noted supra at 12-13, Boundary Commission judgments were the only way to conclusively establish the boundaries of land awarded by name only during the Mahele.
Because the issue was the same in the two cases, the court held under straightforward collateral estoppel/issue preclusion principles that the issue of title to the ahupuaa could not be relitigated.