Burke v. Kakaako Land Company, LLC

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-JAN-2025
07:53 AM
Dkt. 132 MO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

BUTCH BURKE; QUEEN AUTO, LLC; TROPICAL LAMP & SHADE CO., LTD;
TROPICAL OTTO PARTS; U. OKADA & COMPANY, LTD.; and THEODORE
UYEDA, Plaintiffs/Counterclaim Defendants-Appellees,
v.
KAKAAKO LAND COMPANY, LLC, Defendant/Counterclaimant/
Cross-claim Defendant-Appellant;
and
CEDRIC CHUN and CALVERT J.T. CHUN, Defendants/Cross-claim
Defendants-Appellants,
and
CITY AND COUNTY OF HONOLULU, Defendant/Cross-claim
Defendant/Cross-claimant-Appellee
and
HAWAII COMMUNITY DEVELOPMENT AUTHORITY, Defendant/
Cross-claim Defendant-Appellee,
and
STATE OF HAWAII, Defendant/Cross-claimant/
Cross-claim Defendant-Appellee,
and
DOE DEFENDANTS 1-50, Defendants/Cross-claim Defendants

KAKAAKO LAND COMPANY, LLC, a Hawaii Limited Liability Company,
Plaintiff-Appellant,
v.
HEIRS AND ASSIGNS OF CHARLES S. DESKY; HEIRS AND ASSIGNS OF
MINNIE DESKY; HEIRS AND ASSIGNS OF FLORENCE DESKY; HEIRS AND
ASSIGNS OF HENRY BERNARD CHRISTIAN; HEIRS AND ASSIGNS OF PAUL
BERNARD CHRISTIAN; HEIRS AND ASSIGNS OF ADELE M. CHRISTIAN; and
Heirs of persons named above who are deceased, or persons holding
under said Heirs, and spouses, assigns, successors, personal
representatives, executors, administrators, and trustees of
persons named above who are deceased; STATE OF HAWAII; CITY AND
COUNTY OF HONOLULU, Defendants-Appellees,
and
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

DOES 1-100; and all other persons unknown claiming any right,
title, estate, lien or interest in the real property described
and TO ALL WHOM IT MAY CONCERN, Defendants
and
STATE OF HAWAII, Counterclaimant-Appellee, v. KAKAAKO LAND
COMPANY, LLC, a Hawaii Limited Liability Company,
Counterclaim Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NOS. 1CC141001912 and 1CCV-XX-XXXXXXX (Consolidated))

MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

This case involves the disputed ownership of several
streets in Kaka#ako (the Desky Streets). After a bench trial,1
the Circuit Court of the First Circuit ruled that the Desky
Streets are owned by the State of Hawai#i. Kakaako Land Company,
LLC (KLC) and its members Cedric Chun and Calvert J.T. Chun
appeal from the February 16, 2022 First Amended Final Judgment
for the State and the City and County of Honolulu. We affirm.

I. BACKGROUND

In 1896, Charles S. Desky acquired 65 acres of land
(the Property) in what is now known as Kaka#ako. He subdivided
the Property and laid out the Desky Streets. He recorded a map
showing the subdivided lots and the Desky Streets on January 14,
1897. He sold the lots, which are not at issue here.
In 1903, the territorial legislature passed a joint
resolution about the Desky Streets. It stated:

Whereas, Charles S. Desky is ready and willing to
convey to the Territory certain streets in Kewalo, Honolulu,
Island of Oahu, without cost or charge to the Territory; and
Whereas, it would be a benefit to the public to have
such streets owned and controlled by the Government;
Therefore
Be it Resolved by the Legislature of the Territory of
Hawaii:

1
The Honorable Jeffrey P. Crabtree presided.
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That the Superintendent of Public Works[2] be, and he
is hereby authorized and directed to accept from said
Charles S. Desky a deed conveying to the Territory (without
charge to the Government) all the title of said Charles S.
Desky in and to the following named streets, situated in
Kewalo aforesaid, to wit:

[naming the Desky Streets]
Resolved, also, that after such conveyance said named
roads be maintained, repaired and cared for by the
Government as public highways.

The record contains no deed from Desky to the Territory
conveying title to the Desky Streets, but there is no dispute
that Desky has not exercised ownership over the Desky Streets,
maintained them, or paid real property tax on them, since 1903.
Desky died in 1924, intestate. His granddaughter,
Adele M. Christian, was his last known surviving heir. None of
Desky's heirs exercised ownership over, maintained, or paid real
property tax on, the Desky Streets until December 17, 1985, when
Christian quitclaimed any interest she had in the Desky Streets
to Calvert Chun for $5,000. Christian was retired from
Dole/Castle & Cooke and living alone in a rented basement at the
time. She died in 2000.
On January 10, 1986, Calvert Chun quitclaimed the Desky
Streets to Kakaako Land Company, Incorporated. The trial court
found, and the parties don't contest, that Kakaako Land Company,
Incorporated was converted to KLC. KLC didn't pay real property
tax on the Desky Streets. KLC didn't exercise ownership of the
Desky Streets until 2010, when it began charging people and
businesses for parking. KLC put up signs and towed cars of those
who didn't pay for parking.
On September 11, 2014, several people and businesses
sued KLC. They sought a declaration that KLC did not own the
Desky Streets, and an injunction against KLC charging rent for
parking on, and interfering with the use of, the Desky Streets.
On January 27, 2020, KLC sued Desky's heirs and assigns, the

2
The Superintendent of Public Works "shall have the powers and
duties . . . of the minister of the interior which relate to streets and
highways[.]" Hawai#i Organic Act § 75 (1900).

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City, and the State to quiet title to the Desky Streets. The
cases were consolidated on April 6, 2020.
A jury-waived trial was held on September 28, 29, and
30, and December 3, 2020. The trial court entered amended
findings of fact and conclusions of law. A judgment was entered.
KLC appealed. We remanded for entry of an appealable judgment
under Hawaii Revised Statutes (HRS) § 602-57(3) and State v.
Joshua, 141 Hawai#i 91, 93, 405 P.3d 527, 529 (2017). The First
Amended Final Judgment was entered on February 16, 2022. It
declared that the Desky Streets had been abandoned or surrendered
to the Territory of Hawai#i in 1947 at the earliest, or at the
latest by 1952, and enjoined KLC from exercising any acts of
ownership or control over the Desky Streets.

II. POINTS OF ERROR

KLC contends that the trial court erred by finding and
concluding that: (1) the Desky Streets were automatically
abandoned or surrendered to the Territory of Hawai#i under The
Highways Act, 1892, as amended; (2) Christian had no right,
title, or interest in the Desky Streets when she executed the
1985 quitclaim deed, and conveyed no interest in the Desky
Streets to Calvert Chun; and (3) the 1986 quitclaim deed from
Calvert Chun to KLC's predecessor conveyed no property interest.

III. STANDARDS OF REVIEW

KLC does not challenge the trial court's findings of
fact. See Hawai#i Rules of Appellate Procedure Rule 28(b)(4)(C).
"If a finding is not properly attacked, it is binding; and any
conclusion which follows from it and is a correct statement of
law is valid." Kawamata Farms, Inc. v. United Agri Prods., 86
Hawai#i 214, 252, 948 P.2d 1055, 1093 (1997).
We review conclusions of law under the right/wrong
standard. Est. of Klink ex rel. Klink v. State, 113 Hawai#i 332,
351, 152 P.3d 504, 523 (2007). When a conclusion presents mixed
questions of fact and law, we review it under the clearly

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erroneous standard because the trial court's conclusions depend
on the facts and circumstances of each individual case. Id. A
mixed finding and conclusion supported by the trial court's
findings of fact and applying the correct rule of law will not be
overturned. Id.
We interpret statutes de novo. Barker v. Young, 153
Hawai#i 144, 148, 528 P.3d 217, 221 (2023). We start with the
statute's language; "implicit in the task of statutory
construction is our foremost obligation to ascertain and give
effect to the intention of the legislature, which is to be
obtained primarily from the language contained in the statute
itself." Id. "The rules of statutory interpretation require us
to apply a plain language analysis when statutory language is
clear. Only when there is an ambiguity in a statute are we to
resort to other methods of statutory interpretation." Id. at
149, 528 P.3d at 222.

IV. DISCUSSION

A. The trial court correctly concluded that the
Desky Streets were automatically surrendered
to the Territory of Hawai#i under Revised
Laws of Hawaii § 6111 (1945) as amended.

The disposition of this appeal turns on the application
of The Highways Act, 1892, as amended. It was in effect when the
Desky Streets were laid out. It originally provided, in relevant
part:

SECTION 1. This Act may be cited in all public
proceedings as "The Highways Act, 1892."
DEFINITION OF PUBLIC HIGHWAY.

SECTION 2. All roads, alleys, streets, ways, lanes,
courts, places, trails and bridges in the Hawaiian Islands,
whether now or hereafter opened, laid out or built by the
Government, or by private parties, and dedicated or
abandoned to the public as a highway, are hereby declared to
be public highways.
All public highways once established shall continue
until abandoned by due process of law.

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DEDICATION OF HIGHWAYS BY PRIVATE PERSONS.
SECTION 3. Any road, alley, street, way, lane, court,
place, trail or bridge laid out, constructed, opened or
maintained by individuals or corporations as a highway, may
become a public highway by dedication or abandonment, or
surrender thereof to general use by such individual or
corporation; provided that the same shall be accepted or
adopted by the Minister of Interior.
DEDICATION OR ABANDONMENT.

SECTION 4. Dedication or abandonment of any highway,
mentioned in Section 2 of this Act, may be by deed or by a
surrender or abandonment; such surrender or abandonment
shall be taken to be when no act of ownership by the owner
thereof has been exercised within five years.
OWNERSHIP OF PUBLIC HIGHWAYS IN THE GOVERNMENT.

SECTION 5. The ownership of all public highways and
the land, real estate and property of the same shall be in
the Hawaiian Government in fee simple.

The Highways Act, 1892 was amended in 1913 by Act 107.
By that time, the Territory had been divided into counties. 1913
Haw. Sess. Laws Act 107:

transferred the "general supervision, charge and control of
all public highways, roads, alleys, streets, ways, lanes,
squares, courts, trails and bridges in the Territory . . .
from the superintendent of public works of the Territory to
the several boards of supervisors or other governing bodies
of the several political subdivisions of the Territory[.]["]

Wemple ex rel. Dang v. Dahman, 102 Hawai#i 27, 49, 72 P.3d 499,
521 (App. 2002) (quoting 1913 Haw. Sess. Laws Act 107, § 1 at
153), rev'd on other grounds, 103 Hawai#i 385, 83 P.3d 100
(2004). Although the responsibility for maintaining public
highways was transferred to the counties, title remained with the
Territory. 102 Hawai#i at 47, 72 P.3d at 519 (citing Susan E.
Jaworowski, Roads in Limbo: An Analysis of the State-County
Jurisdictional Dispute 8, Legislative Reference Bureau Report
No. 11 (1989)); see In re Am. Sugar Co., 29 Haw. 820, 825-26
(Haw. Terr. 1927) (noting "the County of Maui is charged with the
burden of maintaining and repairing the highways within its
borders" but "these considerations cannot operate to deprive the
Territory of its title to the roadways").

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KLC argues that "upon passage of the 1913 amendments,
the ability of the government to obtain ownership of private
roads through surrender or abandonment was the exclusive domain
of the counties." That is not correct. After 1913, private
roads could be surrendered to either the Territory or a county;
surrender to a county required formal acceptance, but surrender
to the Territory did not. See Gold Coast Neighborhood Ass'n v.
State, 140 Hawai#i 437, 461, 403 P.3d 214, 238 (2017) (noting
that by 1947, "the surrender statute had eliminated the
requirement of the State's acceptance when such properties were
surrendered to the state government, but retained the provision
requiring formal acceptance with respect to surrender to the
various counties" (emphasis added) (footnote omitted)).
In 1947 the legislature created two categories of
public highways:

(1) territorial or federal-aid highways, which are all those
under the jurisdiction of the territorial highway engineer
or the superintendent of public works pursuant to chapter 89
or any other law; and (2) county highways, which are all
other public highways.

Id. (quoting 1947 Haw. Sess. Laws Act 142, § 1 at 251). The
legislation also provided:

All roads . . . in the Territory, opened, laid out, or built
by private parties and . . . surrendered to the public use,
are declared to be public highways. . . . Such surrender
shall be deemed to have taken place if no act of ownership
by the owner of any such road . . . has been exercised for
five years and when, in the case of a county highway, in
addition thereto, the board of supervisors of the city and
county or county has, thereafter, by a resolution, adopted
the same as a county highway.

1947 Haw. Sess. Laws Act 142, § 1 at 252 (emphasis added).
Act 142 amended Revised Laws of Hawaii (RLH) § 6111 (1945) and
took effect on May 17, 1947. 1947 Haw. Sess. Laws Act 142, § 2
at 252.
The supreme court noted, in a case involving a
privately built seawall that was regularly used by the public for
beach access:

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Hawai#i appears to be "one of the few jurisdictions which
have provided, at one time or another, for vesting the fee
of a highway or road laid out by a private party and
abandoned to the public in the central government." In re
Kelley, 50 Haw. 567, 579, 445 P.2d 538, 546 (1968)
(discussing [The Highways Act, 1892]). . . . The fact that
ownership is automatically "deemed" surrendered to the State
after such a relatively brief [five-year] period counsels in
favor of an interpretation of the statute that is more
narrow than broad when considering a seawall not enumerated
within [HRS] § 264-1(c)(2) [(2007)].

Gold Coast, 140 Hawai#i at 463, 403 P.3d at 240 (emphasis added)
(citations and footnote omitted).
Here, KLC does not dispute that Desky and his heirs
performed no act of ownership over the Desky Streets after 1903.
Thus, the trial court was right when it concluded that "[t]he
[Desky] Streets were automatically abandoned or surrendered to
the Territory of Hawai#i in 1947 at the earliest, or 1952 [(five
years after Act 142 (1947) took effect)] at the latest, pursuant
to [T]he Highways Act, [1892,] as amended in 1947[.]" RLH § 6111
(1945, as amended); Gold Coast, 140 Hawai#i at 463, 403 P.3d at
240.
KLC argues that the Desky Streets could not have been
surrendered to the Territory because they were not burdened by
express easements in favor of the Territory, which KLC maintains
is a prerequisite to surrender. KLC relies on Gold Coast, Levy
v. Kimball, 50 Haw. 497, 443 P.2d 142 (1968), and Application of
Banning, 73 Haw. 297, 832 P.2d 724 (1992). The issue in Gold
Coast was whether the State had to maintain a privately built
seawall. The supreme court noted that "seawall" was "not
included in the categories of properties that may be surrendered
to the State pursuant to HRS § 264-1(c)(2)" (2007), the successor
statute to The Highways Act, 1892.3 140 Hawai#i at 462, 403 P.3d

3
HRS § 264-1 (2007) provided, in relevant part:
(c) All roads, alleys, streets, ways, lanes, trails,
bikeways, and bridges in the State, opened, laid out, or
built by private parties and . . . surrendered to the public
use, are declared to be public highways or public trails as
follows:

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at 239. The court then held that "the State obtained an easement
over and across the Seawall by implied dedication" and "thus has
the right and the duty to maintain the surface of the Seawall
over and across which it has an easement." 140 Hawai#i at 459-
60, 403 P.3d at 236-37 (cleaned up). Gold Coast does not support
the proposition that a road can only be surrendered to the State
if it is burdened by an express easement in the State's favor.
Levy was a personal injury case filed by a woman who
tripped and fell off a seawall. The State had "an easement over
this seawall for the express purpose of providing a path for
public travel." 50 Haw. at 498, 443 P.2d at 144. The State
argued that its easement was a "non-possessory interest . . . for
a right to use the top of the seawall as a footpath by the
general public" and its only duty was "to maintain the intangible
interest in the surface of the seawall, but not the seawall
itself which the [State] does not own, in a reasonably safe
condition for those using it." Id. at 499, 443 P.2d at 144. In
response, the supreme court stated that although seawalls were
not mentioned in RLH § 142-1 (1955) (relating to highways,
sidewalks, parks, and streets), "it can be fairly implied that a
seawall such as that which is in question here which is used as a
public thoroughfare is included in the term 'public highways'."
Id. Then, citing to authority for the proposition that a
municipality has a duty of care to keep public highways in a safe
condition for travel, the supreme court held that the State "owed
plaintiff a duty of care to maintain the seawall in a safe
condition." Id. at 500, 443 P.2d at 145. The supreme court did

. . . .
(2) Surrender of public highways . . . shall be
deemed to have taken place if no act of
ownership by the owner of the road, alley,
street, bikeway, way, lane, trail, or bridge has
been exercised for five years and when, in the
case of a county highway, in addition thereto,
the legislative body of the county has,
thereafter, by a resolution, adopted the same as
a county highway or trail.
(Emphasis added.)

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not hold that the seawall had been surrendered to the State, or
that an express easement in favor of the State was a prerequisite
to surrender. Surrender was not even an issue.
KLC's statement that "Banning held that the subject
beach access trail at issue was not surrendered under HRS § 264-1
since the State did not hold an express easement" is also wrong.
That case involved a land court petition to register title to
accreted beachfront land. The supreme court held that HRS
§ 264-1 (1985) did not apply because the petitioners "did not
build or lay out a trail to the general public." 73 Haw. at 312,
832 P.2d at 732.
KLC contends the trial court "ignored contradictory
evidence of the conduct of the State[.]"4 KLC seems to argue
that the State should have been estopped from denying that KLC
owns the Desky Streets because the Hawaii Community Development
Authority (HCDA) obtained orders of condemnation against Desky's
heirs in 1992 and 1994; filed a condemnation proceeding against
Desky's heirs, Calvert Chun, and Cedric Chun in 1995; and wrote a
letter to Cedric Chun and obtained a right of entry from Kakaako
Land Company, Inc. in 2010. The argument is not persuasive.
"Once having acquired the fee [to a public highway], the Hawaiian
Government and its successors, including the Territory and the
State, could not be divested of title except by due process of
law. This provision of [T]he Highways Act[, 1892] has continued
in force until the present." In re Kelley, 50 Haw. 567, 580, 445
P.2d 538, 547 (1968) (cleaned up); see HRS § 264-3 (2020) (public
highway to be disposed of "as provided by law"); 2024 Haw. Sess.
Laws Act 109, §§ 1 & 2 at 278-80 (authorizing director of
transportation to sell, convey, or otherwise dispose of state
highways). KLC has not shown that HCDA had the authority to
disclaim the State's fee ownership of the Desky Streets.
"[E]stoppel will not be applied where the officials on whose

4
The First Amended Final Judgment did not declare that the Desky
Streets were abandoned or surrendered to the City. We disregard KLC's
arguments about the City's conduct.

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conduct or acts it is sought to be predicated acted wholly beyond
their power and authority[.]" State v. Zimring, 58 Haw. 106,
127, 566 P.2d 725, 738 (1977).
The State's amended cross-claim against the City
alleged that the Desky Streets "are not now and never have been
designated state highways by the director of transportation."
KLC thus argues that the Desky Streets are not state highways
because they are not in the state highway system, citing Santos
v. Perreira, 2 Haw. App. 387, 633 P.2d 1118, (1981) and Maui
Ranch Estates Owners Association v. Maui County, 6 Haw. App. 414,
724 P.2d 118 (1986). Maui Ranch involved a claim that a road in
Makawao was a county highway. We held it was not because there
was no evidence the Maui County Council had accepted the
surrender or abandonment of the road as required by HRS § 264-1
(1985). Id. at 422, 724 P.2d at 124. Maui Ranch is inapposite
because a surrender to the State doesn't require the State's
acceptance. Gold Coast, 140 Hawai#i at 461, 403 P.3d at 238.
In Santos, the Santoses claimed to have a roadway
easement over the Perreiras' property. They argued "that the
unimproved dirt road was a surrendered public road pursuant to
HRS § 264-1 (1976, as amended)." HRS § 264-1 (1976, as amended)
provided, in relevant part:

All roads, alleys, streets, ways, lanes, trails, bikeways,
and bridges in the State, opened, laid out, or built by
private parties and . . . surrendered to the public use, are
declared to be public highways. . . . Surrender of public
highways shall be deemed to have taken place if no act of
ownership by the owner of the road, alley, street, bikeway,
way, lane, trail, or bridge has been exercised for five
years and when, in the case of a county highway, in addition
thereto, the legislative body of the county has, thereafter,
by resolution, adopted the same as a county highway.

We stated that the facts in the record did not support
Santos's argument:

A public highway is not a state highway unless it is
designated for inclusion in the State Highway System under
HRS § 264-41 (1976). . . . There is no evidence in the
record of the designation, acceptance, or adoption of this
road by the state or the county.

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2 Haw. App. at 390, 633 P.2d at 1122. Our statement was
implicitly overruled in Gold Coast. There, the supreme held that
"the surrender statute had eliminated the requirement of the
State's acceptance when such properties were surrendered to the
state government[.]" 140 Hawai#i at 461, 403 P.3d at 238.
Ownership of a privately laid-out road "is automatically 'deemed'
surrendered to the State after . . . a relatively brief [five-
year] period" under HRS § 264-1(c)(2) (2007).5 140 Hawai#i at
463, 403 P.3d at 240 (emphasis added). That was so whether or
not the director of transportation accepts it or designates it as
a state highway.
In addition, the plain language of the designation
provisions in HRS § 264-41 and HRS § 264-42 was contrary to our
statement in Santos. HRS § 264-41 (1976) provided:

There is established a state highway system which shall
consist of federal-aid highways and other public highways
which may be designated for inclusion in the system pursuant
to section 264-42.

(Emphasis added.) HRS § 264-42 (1976) in turn provided:

The director of transportation acting in cooperation with
appropriate federal and county agencies, may designate for
inclusion in the state highway system, such other public
highways, including county highways, which are used
primarily for through traffic and not for access to any
specific property, whether residential, business, or other
abutting property.

(Emphasis added). Read together, those statutes authorized — but
did not require — the director of transportation to include non-
state highways in the state highway system by designation. They
did not require that the director specifically designate state
highways — such as those surrendered to the state under former
HRS § 264-1(c)(2) — for inclusion in the state highway system
before they could be considered state highways.

5
HRS § 264-1(c)(2) was amended in 2016 to replace the five-year
automatic surrender provision with a procedure for condemnation. 2016 Haw.
Sess. Laws Act 194, § 3 at 596; Gold Coast, 140 Hawai#i at 463 n.39, 403 P.3d
at 240 n.39.

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B. The trial court correctly concluded that the
1985 quitclaim deed from Christian conveyed
no interest in the Desky Streets to Calvert
Chun.

The Desky Streets were surrendered to the Territory
before 1985. Christian had no legal interest in the Desky
Streets when she quitclaimed them to Calvert Chun. Her quitclaim
deed was a legal nullity.

C. The trial court correctly concluded that the
1986 quitclaim deed from Calvert Chun to
KLC's predecessor conveyed no interest in the
Desky Streets.

Calvert Chun had no legal interest in the Desky Streets
when he quitclaimed them to KLC's predecessor. His quitclaim
deed was a legal nullity.

V. CONCLUSION

The circuit court's February 16, 2022 First Amended
Final Judgment is affirmed.
DATED: Honolulu, Hawai#i, January 14, 2025.

On the briefs:
/s/ Keith K. Hiraoka
Jonathan L. Ortiz, Presiding Judge
Cathy S. Juhn,
Erin I. Macdonald, /s/ Clyde J. Wadsworth
for Defendants-Appellants Associate Judge
Kakaako Land Company, LLC,
Cedric Chun and Calvert J.T. /s/ Sonja M.P. McCullen
Chun. Associate Judge

John H. Price,
Deputy Attorney General,
State of Hawai#i,
for Defendant-Appellee
State of Hawai#i.

Ivan M. Lui-Kwan,
Judith Ann Pavey,
Nainoa J. Watson,
for Defendant-Appellee
State of Hawai#i.

Duane W.H. Pang,

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Deputy Corporation Counsel,
City and County of Honolulu,
for Defendant-Appellee
City and County of Honolulu.

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