Preview:

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

owners of oceanfront real property in Hawai#i on and/or after May 19, 2003 (oceanfront, littoral, or riparian owners), challenging the constitutionality of Act 73, 2003 Haw. Sess. Laws at 128 (Act 73). Plaintiffs alleged that Act 73:
a. Took oceanfront owners' rights to claim accreted land (other than that which restored previously eroded land and that which was the subject of registration or quiet title proceedings on May 20, 2003) and declared all such land to be "state land"; b. Took from oceanfront owners' [sic] their property rights in (1) all accreted oceanfront land which existed on May 20, 2003 and which had not previously been registered or been made the subject of then-pending registration proceedings; and (2) all future accretion which was not proven to be the restored portion of previously accreted land; c. Damaged oceanfront owners' remaining property by depriving them of ownership of the land abutting the ocean; and d. Damaged all accreted lands by placing them in the conservation district.

Plaintiffs sought just compensation, blight damages, a declaratory judgment that Act 73 was unenforceable under the Hawai#i State Constitution unless and until Defendant-Appellant State of Hawai#i (State) pays just compensation to Plaintiffs and the class they represented, and an injunction forbidding the State from asserting ownership or control over the affected property and from enforcing Act 73. On September 1, 2006, the Circuit Court of the First Circuit2 (circuit court) entered an order granting Plaintiffs' February 13, 2006 amended motion for partial summary judgment (PSJ) on Plaintiffs' claim for declaratory relief. In relevant part, the circuit court declared that
Act 73 . . . represented a sudden change in the common law and effected an uncompensated taking of, and injury to, (a) littoral owners' accreted land, and (b) littoral owners' right to ownership of future accreted land, insofar as Act 73 declared accreted land to be "public land" and prohibited littoral owners from registering existing and future accretion under [Hawaii Revised Statutes (HRS)] Chapter 501 and/or quieting title under [HRS] Chapter 669.

2

The Honorable Eden Elizabeth Hifo presided.

2

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

This interlocutory appeal by the State followed. We vacate that part of the PSJ order which concluded that Act 73 effected an uncompensated taking of and injury to littoral owners' right to ownership of future accreted land and remand this case to the circuit court for further proceedings consistent with this opinion. THE LEGAL LANDSCAPE A. notes:
Where title to real property describes a boundary line as a body of water, the common law has developed several different doctrines that respond to the issues raised by the moveable nature of those bodies of water. Accretion, dereliction (or reliction), erosion and avulsion are ancient common-law doctrines rooted in the Roman law of alluvion and the civil law doctrine of accession. As applied, these doctrines are as complex and muddy as the movements of the water. The term "accretion" denotes the process by which an area of land is increased by the gradual deposit of soil due to the action of a boundary river, stream, lake, pond, or tidal waters. The term "dereliction," or its modern counterpart "reliction," denotes the process by which land is exposed by the gradual receding of a body of water. The term "erosion" denotes the process by which land is gradually covered by water. The term "avulsion" denotes the process by which there is a sudden and perceptible change in the location of a body of water. . . . . Where the change in location of a body of water is caused by accretion, reliction, or erosion, the boundary line between the abutting landowners moved with the waterway. Thus the riparian or littoral owner is given title to lands that are gradually added by accretion or reliction. In some circumstances, whether the accretion occurs on the banks of a river or stream rather than on the banks of other bodies of water may be critical in determining the ownership of the accreted lands. Similarly, a riparian owner loses title to lands that are submerged through the process of erosion. In contrast, if the boundary river, stream, lake, or tidal water changes its location because of the process of avulsion, the boundary line remains the same. In some circumstances, the doctrine of re-emergence[ 3] will be applied to both accretive and

Definitions and General Doctrines In his treatise on real property, Professor Powell

3 The re-emergence doctrine typically applies to the following fact pattern:

A owns a riparian parcel while B owns an adjacent upland (continued...)

3

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

avulsive changes to determine the ownership of certain lands.

Richard M. Powell, 9 Powell on Real Property

Download Maunalua Bay Beach Ohana 28 v. State.

Hawaii Law