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Childs v. Harada

Intermediate Court of Appeals of Hawaii

September 30, 2013

KEOLA CHILDS, Trustee under that certain unrecorded Revocable Trust of Keola Childs, PHILIP L. WILSON, III and CLARE H. WILSON, and DOUGLAS D. TROXEL, Trustee of the Douglas D. Troxel Living Trust, Plaintiffs-Appellants/Cross-Appellees,
ALAN J. HARADA, WALTER HARADA, and KAREN FUKE, Co-Trustees under that certain Trust made by Junichiro Harada, dated April 21, 1981, MIKIE HARADA, ALAN J. HARADA, SHARON S. HARADA, Defendants-Appellees/Cross-Appellants, and JACK HIDETO OKAYAMA, WALLACE SADAO OKAYAMA, HATSUNE 0. HIRANO, Defendants-Appellees, and ETHEL NOBUKI TOKI, Trustee of the Ethel N. Toki Revocable Living Trust, JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, DOE ENTITIES 1-10, DOE GOVERNMENTAL AGENCIES 1-10 AND DOE ELEEMOSYNARY CORPORATIONS 1-10, Defendants


R. Laree McGuire and S.V. (Bud) Quitiquit (Porter Tom Quitiquit Chee & Watts, LLP) for Plaintiffs-Appellants/ Cross-Appellees.

Paul K. Hamano for Defendants-Appellees/ Cross-Appellants Alan J. Harada, Co-Trustee under that certain Trust made by Junichiro Harada dated April 21, 1981, Mikie Harada, Alan J. Harada, and Sharon S. Harada.

Michael W. Moore (Law Offices of Yeh & Moore) for Defendants-Appellees Jack Hideto Okayama, Wallace Sadao Okayama, and Hatsune O. Hirano.




The parties to this case own neighboring parcels of real property makai of the old Government Road, now known as Mamalahoa Highway (the "Highway") in Holualoa, District of North Kona, on the Island of Hawai'i. The case arose out of an action in which the Plaintiffs-Appellants sought, in part, to enjoin and restrain the Defendants-Appellees from interfering with or obstructing their use of two adjacent easements located on adjacent parcels for ingress, egress, and utility access across Defendants-Appellees' properties. The Circuit Court of the Third Circuit ("Circuit Court")[1] issued an injunction related to one of the easements while denying an injunction related to the other.

This appeal involves three sets of parties, a primary appeal, and a cross-appeal. Plaintiffs-Appellants/Cross-Appellees consist of Keola Childs, as Trustee under that certain unrecorded Revocable Trust of Keola Childs ("Childs"), Philip L. Wilson III and Clare H. Wilson (the "Wilsons"), and Douglas D. Troxel, as Trustee of the Douglas D. Troxel Living Trust ("Troxel") (collectively, the "Plaintiffs-Appellants").[2] Plaintiffs-Appellants filed a claim below for declaratory and injunctive relief, naming as defendants, among others, Defendants-Appellees Jack Hideto Okayama and Wallace Sadao Okayama (the "Okayamas") ;[3] and Defendants-Appellees/Cross-Appellants Alan J. Harada, as Co-Trustee under that certain trust made by Junichiro Harada Dated April 21, 1981; Mikie Harada, Trustee under that certain trust made by Mikie Harada, dated April 21, 1981; Alan J. Harada; and Sharon Harada (the "Haradas").

Plaintiffs-Appellants appeal and the Haradas cross-appeal from the June 25, 2009 Final Judgment as to All Claims and All Parties ("Final Judgment") entered by the Circuit Court. The Final Judgment was issued pursuant to prior orders including (1) the June 16, 2008 "Findings of Fact, Conclusions of Law, and Order Granting Defendants Okayama[s'] Motion for Summary Judgment Filed on 2/25/08"; (2) the March 16, 2009 "Finding[s] of Fact, Conclusions of Law and Order Granting Plaintiffs' Motion for Partial Summary Judgment Against [the Haradas], Filed on February 21, 2008 and Granting Plaintiffs' Motion for Entry of Default Judgment on Ethel Nobuki Toki on All Counts of the Complaint Filed, February 21, 2008"; and (3) the July 3, 2008 "Clerk's Taxation of Costs in Favor of Defendants [the Okayamas]."

Additionally, the Haradas cross-appeal from the July 22, 2005 "Order Granting Plaintiff's Ex Parte Motion for Issuance of Temporary Restraining Order, " and the December 23, 2005 "Findings of Fact, Conclusions of Law, and Order Granting Plaintiff's Motion for Preliminary Injunction Filed July 18, 2005."

We hold that the Circuit Court erred in concluding, upon motions for summary judgment, that there were no genuine issues of material fact regarding both Plaintiffs-Appellants' intent to abandon an easement over the Okayamas' land and whether the Okayamas had terminated by prescription Plaintiffs-Appellants' rights in that easement. We affirm the Circuit Court's conclusion that it had jurisdiction to hear that portion of the case concerning the easement over the Haradas' land court property, but conclude that it erred in resolving the dispute over the scope of the easement on summary judgment because there were disputed issues of material fact. Consequently, we affirm in part and vacate/remand for further proceedings.


On June 14, 2005, Plaintiffs-Appellants filed a Complaint for Declaratory and Injunctive Relief ("Complaint") against, among others, the Okayamas and the Haradas, asserting land ownership as follows. Childs claimed ownership of Parcel 6, Tax Map Key ("TMK") (3) 7-5-012:006, located in North Kona, County of Hawai'i, State of Hawai'i. The Wilsons claimed ownership of Parcel 8, TMK (3) 7-5-012:008, and Troxel subsequently claimed ownership of Parcel 38, TMK (3) 7-5-012:038. Plaintiffs-Appellants alleged that Alan J. Harada, Walter Harada, and Karen Fuke owned a one-half undivided interest in Parcel 31, TMK (3) 7-5-012:031, also known as Lot 8-C (which was formerly part of Lot 8 before it was subdivided), Mikie Harada owned the other one-half undivided interest of Parcel 31, and Alan J. Harada and Sharon S. Harada owned a leasehold interest in the entirety of Parcel 31. Plaintiffs-Appellants also contended that the Okayamas owned a one-half undivided interest in Parcel 29, TMK (3) 7-5-012:029, independent of Hirano, and Hirano owned the other one-half undivided interest in Parcel 29. Finally, Plaintiffs-Appellants asserted that Ethel Nobuki Toki ("Toki") owned Parcel 32, TMK (3) 7-5-012:032.

The land at issue consists of a southern portion, which includes the Haradas' and Toki's parcels ("Southern Portion"), and a northern portion which is comprised of the Okayamas' parcel, Troxel's parcel, Childs' parcel, and the Wilsons' parcel ("Northern Portion"). The Southern Portion was derived from Royal Patent Grant 863 ("RPG 863"), and the Northern Portion was derived from Royal Patent Grant 982 ("RPG 982") . The Northern Portion is divided into two portions: the makai portion, which includes the Wilsons' and Childs' parcels ("Makai Portion"), and the mauka portion, which includes Troxel's parcel and the Okayamas' parcel ("Mauka Portion"). The Mauka Portion parcels separate the Makai Portion parcels from the Highway.

Two easements run along a portion of the boundary that divides the Northern Portion from the Southern Portion. The first easement, referred to as the 25' Right of Way, traverses the Mauka Portion's entire southern boundary. The second easement, just south of the 25' Right of Way, is referred to as Easement 3, and traverses the entire northern boundary of the Southern Portion. The two easements run adjacent to each other, in a mauka-makai orientation, along the southern boundary of the Mauka Portion/northern boundary of part of the Southern Portion; thereafter, Easement 3 continues further makai, along and coterminous with the northern boundary of Toki's parcel in the Southern Portion, abutting both Childs' and a portion of the Wilsons' parcel in the Northern Portion.

The map located on the following page depicts the parcels and easements at issue:[4]

A. The Okayamas, the Northern Portion, and the 25' Right of Way

The Complaint asserted that RPG 982 (constituting the Northern Portion) was comprised, in relevant part, of Parcels 5 (TMK (3) 7-6-012:005), 6, 8, 29, and 38. It also contended that, in 1896, a circuit court issued a decree ("1896 Decree") that partitioned RPG 982 from sixty acres into two roughly thirty-acre parcels; the aforementioned Mauka and Makai Portions. The Mauka Portion included what became Parcels 29 and 38. The Makai Portion included what became Parcels 5, 6, 7, and 8. The Mauka and Makai Portions were divided by the property line between Parcels 5 and 38 running parallel to the Highway ("Mauka/Makai Boundary Line"). See Map infra. The 1896 Decree also identified a "25' Right of Way" as running from the Highway to the southern tip of the Mauka/Makai Boundary Line by way of the Mauka Portion's southern boundary, thus traversing what became Parcels 2 9 and 38, and thereby providing Highway access to what became Parcels 5, 6, and 8.[5] Plaintiffs-Appellants requested declaratory relief in the form of a judgment entitling them to an appurtenant right to use the 25' Right of Way over Parcel 29 and injunctive relief such that the Okayamas would not interfere with their use of the 25' Right of Way for access and water line purposes.


B. The Haradas, the Southern Portion, and Easement 3

The Complaint also asserted that on June 8, 1953, the Roman Catholic Church ("Church") filed Land Court Application No. 1666 (the "Application") to register and confirm its title to a twelve-lot portion of RPG 863. The Complaint alleged that the Application specified that Lots 7 and 8 (Parcels 32 and 31, respectively, and constituting the Southern Portion) were subject to a 16' easement for roadway purposes and designated this as "Easement 3." The Application further specified that there were public ways running through the twelve lots, disclaimed ownership of any public land, and requested that the public ways be determined. The Complaint also cited a June 18, 1953 land court examiner's report, [6] which stated that:

Certain of the lots, Nos. 3, 4, 7, 8, and 12 are subject to easements for either public road purposes or electric transmission lines, while Lot. [sic] 10 is subject to an easement in favor of Exclusion 2. All easements are described fully in the application and are shown on the map accompanying same.

(Emphasis omitted; brackets in original.) The Complaint referenced a map filed with the Application, which depicted Easement 3 as traversing the northern boundary of Parcels 31 and 32 (i.e., the Southern Portion). Plaintiffs-Appellants cited the land court's decision as stating:

that the applicant has and possesses title in fee simple to the land described in the application and delineated and described upon the map or plan accompanying the application and the survey as approved by the territorial surveyor, proper for registration, subject, however, to the easements as set forth in the application [. ]

(Brackets in original.)

In addition, the Complaint asserted that when the Church conveyed Parcel 31 (Lot 8) to the Haradas' predecessor in interest, the deed stated that:

Lot 8 is SUBJECT, HOWEVER, to an Easement sixteen (16.00) feet wide for a roadway designated as EASEMENT 3 on the map filed together with Land Court Application 1666[.]

(Emphasis omitted; brackets in original.) Similarly, it alleged that the deed from the Church to Toki's predecessors in interest in Parcel 32 conveyed:

Lot 7, area 14.045 acres, as shown on the Map on file [in Land Court], with Land Court Application No. 1666 [ .]
SUBJECT, HOWEVER, to an Easement sixteen (16.00) feet wide for a roadway designated as EASEMENT 3 on the map filed together with Land Court Application 1666 [.]

(Emphasis omitted; brackets in original.)

In the Complaint, Childs claimed that in 1978, he purchased Parcel 6, and his company, Freestyle Corporation, purchased Parcel 5. Childs claimed that his deed to Parcel 6 stated that there was a sixteen-foot easement as described in Land Court Application No. 1666. Childs also stated that, after obtaining the Haradas' permission, he graded and paved, and installed water lines along, Easement 3 between the Haradas' house and Parcels 5 and 6; in doing so, he agreed to, and did, reimburse the Haradas for one-half of the costs they had already incurred in paving the portion of Easement 3 between their home and the Highway. Childs maintained that since that time he had continued to use Easement 3 and that it is currently the only means of accessing Parcel 6.

The Wilsons claimed that after purchasing Parcel 8 in 1998, they have used Easement 3 to access their property and similarly improved a portion of Easement 3 traversing Parcel 32, extending from Childs' driveway on Parcel 6 to their residence on Parcel 8.

The Complaint alleges that, in 2004, Childs and the Wilsons were informed by the Haradas that they would no longer be permitted to use Easement 3, and that the Okayamas had also refused to permit Childs and the Wilsons to use the 25' Right of Way.

C. The Okayamas' Answer and Counterclaim

On July 8, 2005, the Okayamas filed an answer to the Complaint and a counterclaim against Plaintiff-Appellants ("Counterclaim"). The Okayamas admitted Plaintiffs-Appellants' and the Okayamas' land ownership as alleged and admitted further that they had refused to permit Plaintiffs-Appellants' use of the 25' Right of Way, while denying that there existed any such 25' Right of Way. All other allegations were denied. The Okayamas also asserted the defenses of bona fide purchasers without notice, laches, adverse possession/termination by prescription, termination by abandonment, and termination by estoppel. The Okayamas' Counterclaim sought a declaration that Parcel 29 was free and clear of any easements encumbering it for the benefit of Parcels 6 and 8.

D. The Haradas' Answer

On July 25, 2005, the Haradas filed an answer to the Complaint. The Haradas admitted that they were the owners of Parcel 31, as derived from RPG 863, but denied that the roadway mentioned in the land court application, i.e., Easement 3, had any relation to Parcels 6 and 8, as those parcels were not part of Land Court Application No. 1666. The Haradas contended that Easement 3 was for use only by the parcels mentioned in Land Court Application No. 1666, i.e., Parcels 31 and 32. The Haradas asserted additional defenses; in particular, that the Circuit Court lacked jurisdiction pursuant to HRS § 501-1 because the Haradas' property was registered in land court, and that Plaintiffs-Appellants' claim should be denied because no easements benefitting Parcels 6 and 8 appear on the Haradas' Transfer Certificate of Title.

E. Answer to the Okayamas' Counterclaim

On July 26, 2005, Plaintiffs-Appellants filed an answer to the Okayamas' Counterclaim. They claimed, among other things, that the Okayamas "lack standing to assert their claims contained in the Counterclaim because they do not have clear legal title to parcel 29."

F. Temporary Restraining Order and Preliminary Injunction On July 18, 2005, Plaintiffs-Appellants filed a Motion for Preliminary Injunction regarding Easement 3. The Wilsons claimed that their water line was cut and that the Haradas refused to allow any repair efforts, thereby causing water to leak continuously.

Similarly, on July 19, 2005, Plaintiffs-Appellants filed an ex parte motion for issuance of a temporary restraining order ("TRO Motion"). On July 22, 2005, the Circuit Court granted the TRO Motion, thereby prohibiting the Haradas from interfering with Plaintiffs-Appellants' use of Easement 3 until the court ruled on the Motion for Preliminary Injunction.

On December 23, 2005, the Circuit Court issued its Findings of Fact, Conclusions of Law, and Order Granting Plaintiffs' Motion for Preliminary Injunction Filed July 18, ...

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