Lava field on Hawaii Island - Photo by Chuck Denny
Lava field on Hawaii Island in November 2011 - Photo by Chuck Denny

BY ROBERT THOMAS – So you think you’ve seen accretion (the growth of new land on littoral or riparian property)? Check out the video here), showing the latest dramatic lava flow on the Big Island of Hawaii. Now that’s accretion.

Is there a legal angle to this? Of course there is. To start you off, here’s a multiple choice test.

Who owns the new land created when lava flows over private property and into the sea and hardens into fast land:

A.  The property owner over whose land the lava flowed.

B.  The United States.

C.  The State of Hawaii Office of Hawaiian Affairs.

D.  The State of Hawaii.

(And you thought weird hypotheticals only occurred in law school exams.) A hint: the issue was resolved by the Hawaii Supreme Court in 1977, in an opinion authored by Chief Justice William Richardson.

Seriously, do you need to know anything more to realize the correct answer is:

D. The State of Hawaii.

In State ex rel. Kobayashi v. Zimring, 566 P.2d 725 (Haw. 1977), the Hawaii Supreme Court held that this new land is owned by the State. The opinion, relying upon the public trust doctrine, ignored its own prior precedent regarding construction of littoral property descriptions and held the public owns land created by volcanic action. In 1955, a lava flow created 7.9 acres of new land when lava flowed into the ocean. The state assessed the littoral landowner property taxes on the new land, but thirteen years later sought to quiet title in itself, asserting public ownership of the new fast land. The littoral owner’s property description extended private ownership to the “high water mark.”

The Hawaii Supreme Court, however, disregarded the accepted meaning of this term, holding instead the description was merely a “natural monument” and not an “azimuth and distances” description. Id. at 745 (Vitousek, J., dissenting). Not bothered by such details, the court vested title to the new land in the state because to adhere to the deed’s language would, in the court’s view, result in an inequitable “windfall” that should not “enrich” any one landowner, but rather should insure to the collective public. Id. at 734-35.



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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.