Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Usually, in disputes about who owns oceanfront property (in Waikiki, the really nice part of Waikiki, down on the Diamond Head side), each party claims ownership. Beachfront property, after all, is pretty valuable.

But sometimes, it can be a liability.

So maybe “hot potato” is more accurate in this case, since it involves an old seawall that is badly in need of repair, and it seems everyone is claiming they don’t own it, and that it belongs to someone else. The seawall is located partly on private property and partly on state land, and no one wants to pay to fix it.

The private landowners claim the seawall is a public thoroughfare, and argue it was surrendered to the State because they had not exercised ownership for at least five years.

The trial court agreed, and issued these findings of fact and conclusions of law. The most interesting part of the decision starts on page 37, where the court discusses the law of how the public gains a prescriptive easement. The parties disputed whether a Ninth Circuit decision or a Hawaii court of appeals decision stated the applicable law. The court didn’t choose, but concluded:

There is no evidence that the public sought or received permission to use the Seawall as a walkway, or that the owners asserted that the public use of the Seawall was only by permission of the owners. To the contrary, the evidence is that the public has the right to access the shoreline by way of use of the Seawall as a walkway.

18. The public has continuously and without interruption used the Seawall as a walkway since at least 1952 based on the direct evidence and since 1930 based on circumstantial evidence. The Seawall was constructed in front of the Ida Tenney Castle and Irwin lots in the early 1900s. When the Diamond Head Terrace subdivision was created and the Seawall was constructed in front of the Diamond Head Terrace subdivision parcels, there were express easements given to the State over at least 3 parcels. The State reserved an easement for pedestrian travel over the Seawall by way of its Quitclaim Deed to the two lots at the eastern most end of the Seawall. … These express easements at the time of the creation of the Diamond Head Terrace subdivision are evidence of public use of the Seawall as a walkway in the 1930s.

Order at 39.

According to this story (“Judge: State is owner of crumbling seawall along Waikiki’s Gold Coast“), an appeal may be in the works.

Findings of Fact, Conclusions of Law, and Order, Gold Coast Neighborhood Ass’n v. State of Hawaii, No. 07-1…

– See more at: http://www.inversecondemnation.com/#sthash.kVUOqi5o.dpuf

Comments

comments

SHARE
Previous articleAn Unlimited Christmas Credit Card
Next articleTurning The Tide Of Anti-Business Attitudes In Government
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 rht@hawaiilawyer.com 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.