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Full Opinion
I am constrained to dissent. This decision is one that will “count for the future.”
The decision will not have any effect on the determination of seaward boundaries of government lands, for the complete dominion of the State over its lands extends beyond low water mark and into the sea and when the government decides to dispose of any of its Oceanside lands to private purchasers, it may select any line it pleases as the seaward boundary of the parcel to be sold.
Because the decision has the potential future impact described above, I will state my position in greater detail than is normal in dissents to decisions which do not have such impact.
The pertinent facts of this case may be stated by reference to the accompanying sketch.
The parcel of land sought to be registered is located in Kainalu, Molokai, and is shown on the sketch as bounded by lines AB, BC, CD, and DA, line DA being the seaward boundary. As stated in the opinion of the court, this parcel is made up of makai portions of the lands covered by Royal Patents 3004 and 3005, dated Febrary 2, 1866.
Royal Patents 3004 and 3005 were issued in conveyance of
â– â– Mean high water line
----Debris line
— • - — » — Vegetation line
The Government Survey of Hawaii, which is the earliest predecessor of the present State Survey Division, adopted the practice of referring to royal patents on government lands as “Grants" in order to distinguish them from “Royal Patents” issued in confirmation of Land Commission awards. So, Royal Patents 3004 and 3005 will hereafter be referred to as Grants 3004 and 3005.
In 1866, when Grants 3004 and 3005 were issued, the ocean frontage was along lines EF, FG and GH. In the course of a century, the frontage receded by erosion to where it is at the present time. In the grants, the seaward boundary was described by the Hawaiian words ma ke kai. At the trial, the parties agreed that ma ke kai may be translated as “along the sea.”
Applicants located the boundary along mean high water line, which is the contour of intersection of ocean frontage with the level of mean high water. Applicants determined the level of mean high water by using tidal information contained in the publications of the United States Coast and Geodetic Survey.
The court below adjudged that applicants correctly located the seaward boundary. The State contends that the court erred in “not finding that ma he kai or the seaward boundary is along the edge of vegetation or the line of debris where waves wash during ordinary high tide.”
The general location of mean high water line, debris line and vegetation line on the ocean frontage of subject parcel is shown on the sketch. The debris line lies inland of the mean high water line, and vegetation line lies farther inland from the debris line. The distance between the mean high water line and the vegetation line is about 30 feet.
The argument of the State in support of its contention may be divided into three parts, as follows:
I.Kamehameha V did not have any knowledge of the data contained in the publications of the United States Coast and Geodetic Survey when he issued Grants 3004 and 3005 in 1866, and so he did not intend to, and did not, give title seaward to the mean high water line determined by using such data.
II.Under Hawaiian land laws, the method of locating seaward boundaries of private lands was by reputation evidence from kamaainas because such laws were based on ancient tradition, custom, practice and usage.
III.The practice and usage of the government survey office in locating the seaward boundaries of oceanside lands was to locate such boundaries along vegetation line or debris line without regard to the words used in the title documents to describe such boundaries.
In Borax, Ltd. v. Los Angeles, 296 U.S. 10 (1935), in holding that mean high water as defined by United States Coast and Geodetic Survey is the limit of federal grant, Chief Justice Hughes stated for the court, at page 22:
“The tideland extends to the high water mark. * * * This does not mean * a physical mark made upon the ground by the waters', it means the line of high water as determined by the course of the tides.” (Emphasis supplied)
In the discussion which follows, I will show that the position of the State is based on spurious historical assumptions and that there is no reason for Hawaii to deviate from the mainstream of American decisions represented by Borax, Ltd. v. Los Angeles, supra.
In the course of the discussion, I will refer to information contained in encyclopedias, historical writings, official documents, and files of early cases appealed to this court. Judicial notice may be taken of such information as “specific facts * * * which are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy.” American Law Institute, Model Code of Evidence, Rule 802 (1942); C. McCormick, Handbook of the Law of Evidence, §§ 329, 331 (1954).
I. The State begins the first part of its argument with the statement that “when the Royal Patents in question were issued in 1866 by Kamehameha IV, the sovereign, not having any knowledge of any of the data contained in the publications of the U. S. Coast and Geodetic Survey, never intended and did not grant title to the land along the ocean boundary in the manner claimed
The quoted statement contains three assumptions — first, that Kamehameha V was solely responsible for the issuance of Grants 3004 and 3005 and the grants expressed his royal will and the will of no one else; second, that Kamehameha V did not have any knowledge of any of the data contained in the publications of the United States Coast and Geodetic Survey; and, third, that Kamehameha V did not intend to, and did not, give title seaward to mean high water line.
The first assumption is false. The second assumption may be true, but is immaterial. The third assumption may or may not be true, but, in any event, it is immaterial.
The first assumption would have been correct if Grants 3004 and 3005 covered crown lands. Under the Act of June 7, 1848, “An Act Relating to the Lands of His Majesty the King and of the Government,” the sovereign was empowered to dispose of any of the crown lands “according to his royal will.” But the same act provided with respect to government lands as follows;
“ * * And we do hereby appoint the Minister of the Interior and his successors in office to direct, superintend, and dispose of said lands, as provided in the Act to organize the Executive Departments, done and passed at the Council House in Honolulu, the 27th day of April, A. D., 1845: Provided, however, that the Minister of the Interior and his successors in office shall have the power, upon the approval of the King in Privy Council, to dispose of the government lands to Hawaiian subjects, upon such other terms and conditions as to him and the King in Privy Council, may seem best for the promotion of agriculture, and the best interests of the Hawaiian Kingdom.”
This provision, and the provisions of the Act of April 27, 1845, mentioned therein, were incorporated in the Civil Code of 1859. The provisions of the code pertinent to this case are contained in sections 39, 42, 43 and 44. Section 39 placed the custody and
Grants 3004 and 3005, being in conveyance of government lands, were presumably issued in accordance with the code provisions mentioned above. Thus, the responsibility for their issuance lay not with Kamehameha V but with the department of the interior headed by the minister of the interior, and the will expressed therein was the collective will of Kamehameha V, his minister of the interior and his other ministers who were members of the cabinet council.
With reference to the second assumption, it is immaterial whether Kamehameha V had any knowledge of any of the data contained in the publications of the United States Coast and Geodetic Survey. It is also immaterial whether the King’s ministers had any such knowledge. What is material is whether in 1866 Hawaii was sufficiently advanced scientifically to know that tide levels could be determined by the use of assembled tidal data, so that such knowledge might be imputed to the King and his ministers.
Scientific study of the tides dates from 1687, with the publication o'f Isaac Newton’s Principia. Automatic tide gauges came into use about 1830. The first tide table was published by the British Admiralty in 1833, and this was followed by the publication of the tide table of the French Hydrographic Service in 1839. The United States Coast and Geodetic Survey began publishing its tide tables in 1853. 26 Encyclopedia Americana, p. 612 (1963 ed.); 21 Encyclopedia Britannica, p. 195 (1967 ed.).
There are no historical materials from which this court may determine whether the tide tables mentioned above were avail
W. D. Alexander, A Brief Account of the Hawaiian Government Survey, Its Objects, Methods and Results (1889); and Curtis J. Lyons, A History of the Hawaiian Government Survey with Notes on Land Matters in Hawaii, Appendixes 3 and 4 of Surveyor’s Report for 1902 (1903),
that by 1866 Hawaii had attained sufficient scientific sophistication to know that tide levels could be determined by the use of assembled tidal data.
The Hawaiian Government Survey, about which Alexander and Lyons wrote in the publications mentioned above, was established in 1870 with an appropriation of $5,000 which the minister of the interior obtained that year from the legislature.
Alexander was the first surveyor general. He served in that position for more than 30 years until 1901, when he resigned to accept a position with the United States Coast and Geodetic Survey. He was born in Honolulu, educated at Yale, from which he graduated in 1855 with honors and as class salutatorian, and returned to Honolulu in 1857. He was a fellow of the Royal Geographic Society and a member of the Astronomical Society. Hawaiian Historical Society, 21st Annual Report 1912, p. 6.
Lyons stated on page 9 of his history:
“The newly appointed Surveyor-General placed himself in communication with the U.S. Coast Survey. The officers of this bureau were extremely courteous, and loaned to the Hawaiian Survey a high class base-line apparatus and other instruments. The methods of the Coast Survey, also of the British Ordinance Survey, the Great Indian- Survey and the Australian and New Zealand Surveys were studied for suggestive guidance in this work.”
Lyons was Alexander’s assistant from the inception of the Survey. Before taking that position, he had extensive experience in ahupuaa, kuleana, and grant surveying. He did his surveying
Alexander published his account of the Hawaiian Government Survey by order of the minister of the interior. The account contains the following statement on page 18:
“During the latter part of 1872 a self registering tide gauge, constructed by Mr. F. L. Clarke, was in operation at the Honolulu Light-house for several months. It finally broke down, owing to a failure of the clock work but its records are sufficient to indicate the general laws of the tides at this place. A second tide gauge at Hilo was swept away by an extraordinary rise of the sea, but has been replaced, and is again in operation. A new tide gauge of the most improved pattern, has been promised us by the U.S. Coast Survey.”
Lyons’ history, as noted in its title, was a part of the surveyor’s report of 1902. Lyons stated on page 17 as follows:
“The Survey has been the main stand-by in all matters of scientific precision. Very shortly after its inception, enough tide measurements were made with a home-made tide gauge to determine the general law of the tides, and in 1880 a self-registering tide gauge was loaned by the U. S. Coast Survey, which was set up in Honolulu Harbor and kept record for some years. A more modern instrument by Hugo Bilgram was procured and set up in a thorough-going style in 1891. From its record and tide predictions of the Coast Survey Tables are derived, careful records are made of the changes in mean sea level, and any earthquake waves or other deep sea disturbances that come to these shores are noted.”
The significance of the references in Alexander’s account and Lyons’ history to tide measurements and mean sea level is that the determination of mean sea level is indispensable in a scientific survey system in that mean sea level is a necessary point of reference in reducing the lengths of base lines established for surveying purposes to their lengths at mean sea level.
“Tide readings in Honolulu Harbor became necessary because of large foreign vessels invading the Hawaiian shores. Such tidal readings would have no significance or be of no concern to the ancient Hawaiians who navigated the oceans by canoes.”
Such argument displays gross ignorance of the essential requirements of a survey system which makes any claim to accuracy. When the Hawaiian Government Survey undertook to establish an Oahu base-line in 1872, mean sea level had not yet been established and so the surveyors had to work from an assumed mean sea level. In this connection, Lyons states on page 11 of his history:
“In connection with this base a series of exact levels were run from the foot of Nuuanu Street where an assumed mean sea-level was taken, out to the base-line and over its entire length. A bench-mark established on this line of levels on the front of the present Judiciary Building has been the standard of all city work ever since.”
The events related by Alexander and Lyons in their statements quoted above postdated the issuance of Grants 3004 and 3005 by several years. But, from a reading of their publications which clearly show the broad scope of their knowledge regarding contemporary scientific developments, I think that it is not far-fetched to say that in 1866 Alexander and Lyons knew that mean tide levels could be determined by the use of assembled tidal data, and that through them Hawaii had such knowledge.
Turning now to the third assumption, here again the individual intention of Kamehameha V is immaterial. What is material is the collective intention of the King, the minister of the interior and his other ministers who were members of the cabinet council, as expressed in Grants 3004 and 3005.
At the time of the issuance of Grants 3004 and 3005, the minister of the interior was F. W. Hutchison. By virtue of his
The problem exists in this case because the intention of the King and his ministers was not precisely expressed in Grants 3004 and 3005.
In this situation, the task of this court is to arrive at a reasonable conclusion as to their intention upon consideration of relevant factors and to treat such conclusion as their intention. In doing so, I think the relevant factors to be considered are the background of the King and his ministers; the state of the law of other jurisdictions relative to the subject at hand; and the influences tending to affect the thinking of the King and his ministers.
I will now proceed to discuss these factors.
Background of the King and his ministers. Kamehameha V was not a primitive monarch. He knew the world outside of Hawaii through his travels to the United States, England, France and Canada. J. Adler, The Journal of Prince Alexander Liholiho, (1967). He was not a mere figure-head, but a monarch with a mind of his own. Territory v. Liliuokalani, 14 Haw. 88, 90 (1902). He was a man of intelligence, and exhibited considerable administrative ability as the minister of the interior under Kamehameha IV, his younger brother. W. D. Alexander, “Brief Sketch of the Life of Kamehameha V,” Hawaiian Historical Society, 3rd Annual Report 1894, p. 10. He was a member of the committee which codified existing laws and produced the Civil Code of 1859. On this committee he worked with Chief Justice W. L. Lee and Associate Justice G. M. Robertson, and with Chief Justice E. H. Allen after the death of Chief Justice Lee. Civil Code of 1859, Preface, p. iii. He thus had considerable exposure to legal matters.
Harris was a native of New Hampshire, educated at Harvard. He was chief justice from 1877 to 1881. Before that, he served Kamehameha V successively as attorney general, minister of fi
Hutchison was an English physician, who first served Kamehameha V as court physician, and later became his minister of the interior. Kuykendall, supra, p. 126. He also served as president of die Bureau of Immigration. As the minister of the interior, he obtained the legislative appropriation required for the establishment of the Hawaiian Government Survey, and obtained the services of Alexander as the surveyor general.
Varigny was a Frenchman who served the King with distinction as minister of finance and later as foreign minister. He was also a member of the board of education. Kuykendall, supra, pp. 107, 126.
State of the law of other jurisdictions relative to the subject at hand. At the time of the issuance of Grants 3004 and 3005, the prevailing rule in common law jurisdictions on the location of the seaward boundary of private lands was that such boundary was along the line of ordinary high tide. On the other hand, the rule in civil law jurisdictions was that the boundary was at the line reached by the highest tide during the winter season. J. AngelĂ, A Treatise on the Right of Property in Tide Waters and in the Soil and Shores Thereof, pp. 66-72 (2nd ed. 1847).
The Civil Code of 1859 contained the following provision:
“Section 823. The several courts may cite and adopt the reasonings and principles of the admiralty, maritime, and common law of other countries, and also of the Roman or civil law, so far as the same may be founded in justice, and not in conflict with the laws and customs of this kingdom.”
This was a codification of a similar provision in Chapter I, section III, of the Act of September 7, 1847, “An Act to Organize the Judiciary Department of the Hawaiian Islands.” The provision presently incorporated in R.L.H. 1955, § 1-1, which declares
Influences tending to affect the thinking of the King and his ministers. During the reign of Kamehameha V, the influences which tended to affect the thinking of the King and his ministers were oriented entirely on the side of the common law.
As noted previously, within the cabinet itself, Harris, a New Englander with a Harvard education, exercised predominant influence. Also, within the inner circle, though not a cabinet member, was Chief Justice Allen, who before coming to Hawaii, served one term in the United States Congress as a congressman from Maine. Kuykendall, supra, p. 126; In Memoriam, Hon. Elisha H. Allen, 4 Haw. 687 (1883). In addition to these two men, the following persons were members of the privy council: G. M. Robertson, R. G. Davis, L. Andrews, and A. Fornander. Privy Council Minutes, January 19, 1866. Each one of them, at one time or another, served as associate justice.
I think that in the light of the factors discussed above, the most reasonable conclusion to be arrived at is to attribute to the King and his ministers an intention to follow the prevailing rule in common law jurisdictions and to locate the seaward boundaries of private lands at the line of ordinary high tide.
II. The second part of the State’s argument, which relates to the location of boundaries according to ancient tradition, custom, practice and usage, has no relevance in this case.
The State attempted to establish, by its so-called “reputation evidence from kamaainas,” that vegetation line was, by tradition, custom, practice and usage, the seaward limit of private title to oceanside lands. In this attempt, it elicited from witnesses, who themselves were not kamaainas, testimony that they heard kamaainas, now deceased, say that the edge of vegetation was the high water mark and that vegetation line was the boundary between public land and private land on a seashore in Hawaii. Such testimony is meaningless in this case.
At the time of the issuance of Grants 3004 and 3005, there was no law expressly restricting any conveyance of government lands to an area above the vegetation line and leaving the lower area for use by the public. So, the minister of the interior, with the authority of the King in cabinet council, could have conveyed even to low water mark.
The conveyance in Grants 3004 and 3005 was not specifically to vegetation line, nor was it specifically to low water mark; it was ma ke kai, or to a line along the sea.
So, as previously discussed, the question which confronts this court is, “What did Kaméhameha V and his ministers mean by using the words ma ke kai in describing the seaward boundary?” Ancient tradition, custom, practice, and usage have nothing to do in resolving this question. The factors to be considered have already been mentioned and considered in the preceding portion of this dissent.
It may be argued that tradition, custom, practice and usage are relevant because the words ma ke kai were used with the traditional and customary practice and usage in mind. Even if the cogency of such argument is granted, still no weight need be given to the testimony of State’s witnesses in this regard.
The effect of such testimony is that throughout the Hawaiian kingdom, by tradition and custom, dating from the hoary past, vegetation line was the seaward limit of private title to ocean-side lands and below that line was the seashore or beach which belonged to t'he public.
Such testimony runs counter to the well known fact that in many instances private title to oceanside lands in Hawaii extended to low water mark, as shown in the following reported cases. Haalelea v. Montgomery, 2 Haw. 62 (1858); Territory v. Liliuokalani, 14 Haw. 88 (1902); and Brown v. Spreckels, 14