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by Robert Thomas, InverseCondemnation, December 6, 2013
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 contructed in front of the Diamonh Head Terrace subdivision parcels, there were express easements given to the State over at least at 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...
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