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Hartley v. Marsh

Intermediate Court of Appeals of Hawaii

July 31, 2013

JOSEPH W. HARTLEY, Plaintiff/Appellee/Cross-Appellee,
JOHN MARSH, Defendant/Appellant/Cross-Appellee, and C. MIKAHALA KERMABON, Defendant/Appellee/Cross-Appellant, and HEIRS OR ASSIGNS OF AKI, ET AL, Defendants/Appellees/Cross-Appellees



C. Mikahala Kermabon Defendant/Appellee/Cross-Appellant pro se.

Michael W. Gibson Connie C. Chow {Ashford & Wriston) for Plaintiff/Appellee/Cross Appellee Joseph W. Hartley.

Foley, Presiding J., Fujise and Reifurth, JJ.


Pro Se Defendant/Appellee/Cross-Appellant[1] C. Mikahala Kermabon (Kermabon) appeals from the "Findings of Fact, Conclusions of Law, And Decision And Order" entered October 11, 2010 in the Circuit Court of the Second Circuit[2] (circuit court). The circuit court found in favor of Plaintiff/Appellee/Cross-Appellee Joseph w. Hartley III (Hartley) as the sole, exclusive owner of the property at issue (Property) in a quiet title action. On appeal, Kermabon contends the circuit court erred in finding Hartley established title through adverse possession and superior paper title.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we conclude Kermabon's appeal is without merit.

Kermabon contends the circuit court erroneously concluded Hartley proved title by adverse possession. The circuit court concluded in its Findings of Facts (FOFs) and Conclusions of Law (COLs) that "[Hartley] has proven by clear, convincing, and positive proof that he and his predecessors in interest, and his family and invitees had hostile, actual, visible, notorious, exclusive, and continuous possession of [Property] for at least fifty (50) years under claim of ownership." "A COL, that is supported by the trial court's FOFs and that reflects an application of the correct rule of law will not be overturned." Allstate Ins. Co. v. Ponce, 105 Hawai'i 445, 453, 99 P.3d 96, 104 (2004) (brackets omitted). In this case, the factual findings support the circuit court conclusion and the conclusion shows no error in application of the law in adverse possession.

"It is well established that one claiming title to real property by adverse possession must bear the burden of proving by clear and positive proof, each element of actual, open, notorious, hostile, continuous, and exclusive possession for the statutory period." Mauna Kea Agribusiness Co., Inc. v. Nauka, 105 Hawai'i 252, 255, 96 P.3d 581, 584 (2004) {quoting Morinoue v. Rov, 86 Hawai'i 76, 81, 947 P.2d 944, 949 (1997) (brackets omitted). "The burden of clear and positive proof derives from the long-observed proposition that adverse possession is to be taken strictly, and every presumption is in favor of a possession in subordination to the rightful owner." Id.

A claimant establishes actual, open, and notorious possession by use of the land in a manner that puts the world on notice and attracts the attention of adverse claimants. Wailuku Agribusiness Co., Inc. v. Ah Sam, 114 Hawai'i 24, 33, 155 P.3d 1125, 1134 (2007). A claimant proves hostility "by showing possession for oneself under a claim of right, and.such possession must import a denial of the owner's title." Id. (brackets and internal quotation marks omitted). A presumption of hostility arises when all other elements of adverse possession are satisfied. Id. at 34, 155 P.3d at 1135. To show continuous, exclusive use, the claimant must show use of the land similar to that of an average land owner with similar property. Id. at 34, ' 155 P.3d at 1135.

The statutory period has changed over the years. From 1898 to 1973, adverse possession could be established after satisfying all requisite elements for ten years. Wailuku Agribusiness Co., Inc., 114 Hawai'i at 34 n. 19, 155 P.3d at 1135 n. 19. After 1973, the statutory period increased whereby claimants may successfully prove adverse possession upon proof of fulfilling all requisite elements for twenty years. Id.

In this case, the earliest possible commencement of Hartley's possession of the Property began with the conveyance from Keokea Five, LLC to Hartley in March 2007. Hartley's possession came no more than seven months before the "Complaint To Quiet Title And Partition" filed October 25, 2007, well short of the requisite twenty years.

Generally, the statutory period for adverse possession cannot be satisfied by tacking together successive possessions so as to create a continuous period of possession. Kainea v. Kreuger, 31 Haw. 108, *4 (Haw. Terr. 1929). However, successive interests may be tacked to create a continuous possession where there is privity of estate or title between each of the successive possessors so as to link each to the original entry. Kainea, 31 Haw. at *4 . Privity may be established by any conveyance or agreement whether in writing or oral. Id. The claimant need only establish that each successive possession was connected and continuous. Id.

Hartley presented the circuit court with ample evidence establishing Kaonoulu Ranch as the original entry. Constructing fences and using the land for pasture constitutes evidence of actual, open, notorious, and continuous use. Deponte v. Ulupalakua Ranch, Limited, 48 Haw. 17, 18-19, 395 P.2d 273, 274-75 (1964) . A managing partner/ranch hand employed by Kaonoulu Ranch testified that part of his duties at Kaonoulu Ranch included repairing stonewall and wire fences, and driving bulls in and out of the property. The ranch hand further testified to the ...

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