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Alexa Nita Russell v. Milton D. Pavao

November 18, 2011





(By: Foley, Presiding Judge, Reifurth and Ginoza, JJ.)

Plaintiff-Appellant Alexa Nita Russell (Russell), appearing pro se, appeals from the Final Judgment, filed on October 5, 2010, in the Circuit Court of the Third Circuit (Circuit Court).*fn1

On appeal, Russell asserts that the Circuit Court erred by granting summary judgment in favor of Defendant-Appellant Milton D. Pavao, P.E., Manager, Hawaii County Department of Water Supply (DWS). Russell contends, among other things, that there are genuine issues of material fact that preclude granting summary judgment in favor of DWS.

I. Case Background

Russell's Amended Complaint alleges that on or about August 1, 2008, without notice, Hawaii County Department of Water Supply shut off water to her personal property and residence. Russell contends, inter alia, that: safe, potable water has come to her property for well over the twenty-three years she has resided there; the water has come to her property under the auspices of various water companies, most recently DWS; DWS took over the "reigns" of the County Water Commission; prior to August 2008, Russell was unaware of a 1982 Agreement between Grantor Kohala Corporation and Grantee Water Commission; water came to her property from DWS licensed facilities for over twenty-three years, and for at least a year from the Makapala Well site. Russell demands that water be restored to her property and that she be awarded damages from DWS. On July 8, 2010, DWS filed a Motion For Summary

Judgment, asserting that Russell was required to establish that

DWS had a duty to provide water service and there was no evidence that Russell was ever a DWS customer or that DWS provided water service to Russell's residence. DWS contended that "[t]he facts show that the DWS was not providing service to Plaintiff, never provided water service to Plaintiff and was not obligated to maintain a water line it used along with Plaintiff at the time service to Plaintiff's home ceased." DWS asserted that Russell's property received water from the Murphy Tunnel, and that in 1982, DWS's predecessor (the Water Commission) signed an Agreement with the landowner of the Murphy Tunnel to use water from Murphy Tunnel in exchange for DWS maintaining the water line. The declarations submitted by DWS to support its motion indicate that, pursuant to the 1982 Agreement, DWS took water from the Murphy Tunnel source and maintained the water transmission line. Under the Agreement, those like Russell who were already taking water from the Murphy Tunnel transmission line "could continue to take water at the same rates and amounts as before the agreement." Initially, the transmission line ran downhill past Russell's property, from which water was tapped, and then to the DWS tank below. In 2000, DWS rerouted the transmission line so that it first "passed the Makapala tank before proceeding to supply water to those homes above the tank." The declaration of Lawrence Beck (Beck), a civil engineer and section head for a branch of DWS, was submitted in support of DWS's summary judgment motion and states in relevant part:

3. Plaintiff's property is located at a higher elevation than the Department of Water Supply ("DWS")

pressure service zone serving DWS customers from the DWS Makapala water system.

4. Plaintiff is not a customer of DWS nor has

Plaintiff ever received water service from the DWS to the subject property.

5. DWS records show there is no service contract between the DWS and Plaintiff nor has there ever been a service contract between Plaintiff and the DWS with regard to the subject property.

6. Plaintiff took water from a waterline which extended makai from the Murphy Tunnel water source and passed by her home. The DWS did not construct this waterline.

7. If an agreement to supply water to Plaintiff existed, it was not made with the DWS.

8. In 1982, the DWS obtained the right to take and did take water from a water source originating at the Murphy Tunnel. The source water was already coming down the mountainside through an existing water line. This water source at the Murphy Tunnel also provided water to Plaintiff and others who were connected to the same water line from the Murphy Tunnel.

9. Water taken by the DWS from the water line described in the preceding paragraph entered the DWS tank through a connection to the water line. The tank is located at the very top of the DWS' Makapala water system.

10. Water from the DWS tank was then fed by gravity into the DWS Makapala distribution pipeline system, which is below the DWS tank.

11. Water which entered the DWS Makapala Water

System served the DWS' Makapala customers. This water was first sent water through [sic] the DWS tank, then left the tank through a tank effluent pipeline into the distribution pipeline system below the DWS tank.

12. DWS customers get their water service from within the system's pressure service zone, which begins 100 feet in elevation below the elevation of the DWS tank.

13. DWS obtained the use of the line and began taking water from the Murphy Tunnel source as the result of an agreement between the owner of the property, upon which this source of the supply was located, and the Water Board. (See Exhibit "1").

14. A condition of the Agreement, which permitted the DWS to take water from the Murphy Tunnel via the subject waterline, required the DWS to maintain the line from the source of the water, high above the location of the DWS tank.

15. DWS agreed that those persons, who were already tapping off of and/or taking water from the water line bringing Murphy Tunnel water to homes served by the water line, including Plaintiff, could continue to take water at the same rates and amounts as before the agreement. (See Exhibit "1").

16. By the terms of the Agreement shown in Exhibit

"1", the DWS made repairs and partially reconstructed sections of the water line coming down from the Murphy

Tunnel as necessary but, again, in no instance did the DWS provide any water to Plaintiff's residence from a DWS tank, well, or distribution line.

17. The DWS did not have a service arrangement to deliver water to Plaintiff or any of the other persons who were tapped into and taking water from the subject waterline, which waterline was in place prior to the Agreement shown in Exhibit "1".

18. On or about August 13, 2007, the Department of

Health ("DOH") of the State of Hawaii notified the DWS

that, due to a potential risk for surface contamination of the water, DOH would no longer permit the use of the untreated Murphy Tunnel source to supply water to the ...

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