Yesterday, we filed an amicus brief in an appeal we wrote about earlier, In re Trustees Under the Will of the Estate of James Campbell, No. 30006. The appeal involves the nature of “Torrens” title and, in a broader sense, the nature of property rights themselves.
Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it “Land Court,” a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register.
In Campbell, the State of Hawaii claims that title to property on Oahu’s north shore which was registered and confirmed to the Campbell Estate by the Land Court in 1938, is subject to the State’s ownership of “all mineral and metallic mines of every kind or description on the property, including geothermal rights,” and is subject to a flowage easement in favor of the State by virtue of the State’s duties as trustee of the public trust in water resources.
The case arose when the Campbell Estate submitted a petition to the Land Court in 2009 to consolidate and subdivide its land, and the State appeared and asserted its claims. The State argued that despite the 1938 Land Court registration of the land, Campbell’s title never included mineral and mining rights the State reserved to itself, even though the State’s predecessor (the Territory of Hawaii) appeared in the 1938 proceedings and asserted other claims, and Campbell’s title was confirmed to be free of all unregistered interests, including the Territory’s. The Land Court disagreed, and held that the State’s claim of mineral rights was extinguished by the court’s 1938 judgment (decree), and that Campbell’s title was free of a flowage easement. The State appealed to the Intermediate Court of Appeals.
Here’s our brief‘s summary of the issues:
This appeal presents an issue left unaddressed by the Hawaii Supreme Court in In re Robinson, 49 Haw. 429, 421 P.2d 570 (1966). Namely, whether the government waives a reservation of mineral and mining rights when it fails to raise and protect it in a Land Court title registration case, or whether government’s mineral and mining rights are inherent servitudes that need not be reflected in a Land Court decree.
Under Hawaii’s Torrens Land Act – codified at Haw. Rev. Stat. § 501-1, et seq., – the State of Hawaii (State) guarantees indefeasible title to the rights and interests reflected in the register. Land Court registration insures that interests which are not reflected on title do not exist, and persons who are wrongfully deprived of land or their interest through registration or the act or omission of the registrar are entitled to be paid by an indemnity fund, and the State’s guarantee operates against all claims, including claims by the State itself.
. . . .
This brief addresses two issues.
First, even if in the original land grants the State of Hawaii’s predecessor did not convey – or reserved to itself – mineral and mining rights, they are not “burdens and incidents which attach by law” inherent in all Hawaii land titles. A reservation of mineral and mining rights could have been raised when the Territory appeared asserted other interests in the 1938 Land Court proceeding. Because the 1938 Land Court decree confirming title in Campbell’s predecessor did not reflect a reservation of mineral and mining rights to the Territory, any claims to such rights by the State of Hawaii (State) were extinguished. The fact the State asserted mineral and mining rights claim in the present case seriously undermines its argument that the reservation of this claim is inherent and that it need not have been raised in Land Court at all.
Second, the State’s public trust powers do not include the imposition of flowage easements. The State’s duty to “protect, control and regulate the use of Hawaii’s water resources for the benefit of its people,” Haw. Const. art. XI, § 7, does not include a right to physically invade all property with water. If it does, the public trust is a per se physical taking.
Here are the merits briefs: