MARVIN, III v. Pflueger

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No. 23501

DP

213

IN THE INTERMEDIATE cc)URT oF APPEALS w .__§_;.

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oF THE STATE oF HAWAI‘I iii <“-'>

RICHARD MARVIN, III and AMY MARVIN, individually
and as NeXt Friend of IVY MAE MARVIN, SADIE MARVIN,
SAVANNAH MARVIN, and ANABELLE MARVIN, minors; WYLIE HURD;
NICHOLAS FRED MARVIN, individually and as Next Friend
of ALANA MARVIN; AARON MARVIN; BARBARA NELSON;
JEFFREY MCBRIDE; MARETA ZIMMERMAN, individually and
as Next Friend of TEVA DEXTER and LIKO McBRIDE, minors,
Plaintiffs~Appellees,

v.

JAMES PFLUEGER, individually and in his
representative capacity; PFLUEGER PROPERTIES;
PILA7X400, LLC; and DOES 1 thrOugh'lO,
Defendants-Appellants

AND

JAMES PFLUEGER; PFLUEGER PROPERTIES; and PILAYX400, LLC,
Counterclaimants-Appellants,
V.
RICHARD MARVIN, III; AMY MARVIN; NICHOLAS FRED
MARVIN; and JEFFREY MCBRIDE,
Counterclaim Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CiVil NO. 02-1-OO68)

MEMORANDUM OPINION
(By: Foley, Presiding J., Circuit Judges McKenna
and Lee in place of Nakamura, C J., Fujise and
Leonard, JJ., all recused)

Defendants/Counterclaim Plaintiffs-Appellants James

Pflueger (Pflueger), Pflueger Properties, and Pilda 400, LLC

(Pilda 400) (collectively, Defendants) appeal from the Final
Judgment entered on March 20, 2007 in the Circuit Court of the
Fifth Circuit1 (circuit court).

The circuit court entered
judgment in favor of

(1) Plaintiffs Richard Marvin, III

(R. Marvin) and Amy
Marvin (A. Marvin),

individually and as Next Friend of Ivy Mae

Marvin, Sadie Marvin, Savannah Marvin, and Anabelle Marvin,

l

The Honorable Kathleen N.A. Watanabe presided.

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minors; wylie Hurd; Nicholas Fred Marvin (N. Marvin),
individually and as Next Friend of Alana Marvin; Aaron Marvin;
Barbara C. Nelson (Nelson), Trustee of the Barbara C. Nelson
Family Trust dated 12/15/91 (Nelson Trust) (collectively, the
Marvins)2; and Jeffrey McBride (McBride) and Mareta Zimmerman,
individually and as Next friend of Teva Dexter and Liko McBride,
minors (collectively, the McBrides) (the Marvins and McBrides are
collectively referred to as Plaintiffs) and against Defendants as
to Count VIII (Injunctive Relief) of Plaintiffs' Third Amended
Complaint (Third Complaint), consistent with the circuit court's
January 4, 2007 "Findings of Fact and Conclusions of Law; Order"
(FOF/COL/Order); and

(2) the Nelson Trust, R. Marvin, and N. Marvin and
against Defendants as to Count VII (Kuleana3 Rights) of the Third
Amended Complaint and as to Count 1 (Declaratory Relief as to
Access) of Defendants' Third Amended Counterclaim (Third
Counterclaim), consistent with the FOF/COL/Order.

The circuit court dismissed as a matter of law Count VI
(Prescriptive Easement) of the Third Complaint and Defendants'
claim for trespass as to Plaintiffs' water line and catchment
system, as alleged in Count 4 (Trespass) of the Third
Counterclaim. The circuit court, pursuant to a settlement by the
parties and the Stipulation for Partial Dismissal with Prejudice
of Plaintiffs' Claims and Defendants' Counterclaims and Order,
entered on January 29, 2007, dismissed with prejudice (a) Counts
I, II, III, IV, and V of the Third Complaint; (b) Counts 2, 3, 5,
6, 7, 8, and 9 of the Third Counterclaim; and (c) Defendants'
counterclaim for damages for past trespasses as alleged in Count
4 of the Third Counterclaim. The circuit court further dismissed

2 The Third Complaint states that R. Marvin and A. Marvin brought the

'action individually and on behalf of their minor children, Ivy Mae Marvin,

Sadie Marvin, Savannah Marvin, and Anabelle Marvin. At one time, Nelson was
known as Barbara Marvin. The Third Complaint does not indicate what
connection wylie Hurd has to the Marvin family; however, because he is listed
among the Marvins, we include him as one of the Marvins.

3 A kuleana is a "small piece of property, as within an ahupua‘a. Mary

Kawena Pukui & Samuel H. Elbert, Hawaiian Dictiona;y 179 (1986). An ahupua‘a
is a “land division usually extending from the uplands to the sea." Id. at 9.

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all other claims and causes of action alleged in the Third
Complaint and Third Counterclaim.

The Final Judgment incorporated by reference the
FOF/COL/Order, in which the circuit court

(l) granted Plaintiffs' Motion For Partial Summary
Judgment Re: Easement By Necessity and/or Order Issuing
Preliminary Injunction (MPSJ Re Easement) and ordered that
Defendants were enjoined and restrained from interfering with,
blocking, or otherwise making Plaintiffs' access unreasonable or
unsafe;

(2) granted Plaintiffs' Motion for Ex Parte Temporary
Restraining Order (TRO Motion Re Water) and ordered that
Defendants were enjoined and restrained from interfering with,
dismantling, damaging and/or destroying Plaintiffs' water system
that brings water from the western stream and spring to
Plaintiffs' kuleana; and

(3) ordered that Plaintiffs shall present to Pilaa
400, and PilaHa 400 shall execute, a recordable Non Exclusive
Grant of Easement in favor of Plaintiffs.

On appeal, Defendants contend the circuit court erred
in v

(A) granting the MPSJ Re Easement because (l) there
are “non-parties4 whose interests in their adjacent real property
(the other part of a partitioned kuleana) could be affected by
the resulting order," (2) the Marvins' "property is not
landlocked and is not a kuleana," (3) the Marvins' "property
rights were determined in a prior real property partition
action," (4) there is an "absence of evidence establishing
ancient and historic use," and (5) the Marvins' deeds "expressly
note a 'lack of an easement for access to Kuhio Highway (a public

road)'";

4 By non-parties, Defendants mean "the Huddys." The circuit court and
both parties refer to "the Huddys" and the "Huddy family." However, the sole
owner of the Huddy parcel is Heidi K. Huddy-Yamamoto, as Trustee of the Heidi
K. Huddy-Yamamoto Self-trusteed Revocable Trust (Huddy-Yamamoto Trust). For
the sake of simplicity, when we summarize the court's findings and the
parties' arguments, we will refer to Huddy~Yamamoto rather than "the Huddys"
or the "Huddy family."

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(B) "requiring [Defendants] to execute a recordable
Non Exclusive Grant of Easement in favor of {the Marvins] where
no such recorded easement is required under HRS [§] 7-l" (2009
Repl.);

(C) "granting [the Marvins'] motion for summary
judgment on [the Marvins'] claim for entitlement to water
rights";

(D) “dismissing [Defendants'] claim for trespass
against [the Marvins]"; and

(B) "granting [the Marvins'] motion for summary
judgment over [Defendants'] argument that the claims were barred
by laches."

I. EHM3KGR£KHND

The Marvins' land (Marvin parcel or Lot 1-B) comprises

two-thirds of the Haena kuleana, which is located within the

Pila§a ahupuaHa. The other one-third portion of the Haena kuleana
is owned by the Huddy~Yamamot0 Trust (Huddy parcel or Lot 1-A).5
The Haena kuleana is landlocked.

The Marvin parcel is abutted on its western and
northern boundaries by Pilae.400's property (Defendants'
propertyW, which is also part of the Pilda.ahupuda; on its
southern boundary by the Huddy parcel; and on its eastern
boundary by the beach and ocean.

At the time of the original Land Commission Award to
Haena, the Haena kuleana was a single parcel. In 1965, the Haena

kuleana was partitioned and Lot 1-A was "alloted in fee simple to

5 During the Great Mahele of l848, Kamehameha III divided communal land
in Hawafi into three roughly equal parts and distributed one part each to
himself, his chiefs (land given to the chiefs was called ahupuda), and the
government. As part of the Kuleana Act of l850, people living on and
cultivating the land could make a claim for that land. The plot they were
awarded was called a "kuleana." Pilda is an ahupuda. within Pilda are
various kuleana including, but not limited to, the Haena kuleana, of which the
Marvin parcel and the Huddy parcel are the only parts. The kuleana is
referred to as the Haena kuleana because it was originally awarded to Haena by
Kamehameha IV, in fee simple, in a Land Commission Award on December 7, l857.

6 Defendants' property was originally owned by the Mary N. Lucas Trust.
In 1997, the Mary N. Lucas Trust conveyed the property to Pflueger Properties
via a Limited waranty Deed. In 200l, Pflueger Properties conveyed the
property to Pilda 400 via a warranty deed. According to Plaintiffs' Third
Complaint, Pflueger was the Trustee of the James Pflueger Trust, which was the
general partner of Pflueger Properties.

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william L.F. Huddy [(william Huddy)] and Elisabeth7 S. Huddy
[(Elisabeth Huddy)], as tenants by the entirety" and Lot 1-B was
"alloted in fee simple to Helen Louise Huntley [(Huntley)] and
Jahne K. Hupy [(Hupy)], as joint tenants."

Huntley and Hupy sold (in l965) and deeded (in l988)
Lot 1-B to Richard Marvin, Jr. (Marvin, Jr.) and Nelson. The
deed conveying Lot 1-B to Marvin, Jr. and Nelson provides:

"Note: Lack of an easement for access to Kuhio Highway (a public
road)." In l996, Marvin, Jr. conveyed his 50% interest to his
sons, R. Marvin and N. Marvin, The deed from Marvin, Jr. to his
sons provides: "SUBJECT, HOwEVER, to the following: . . . (2)
Lack of an easement for access to Kuhio Highway (a public road)."
In l996, Nelson transferred her 50% interest via quitclaim deed
to the Nelson Trust. That quitclaim deed provides: "Note: Lack
of an easement for access to Kuhio Highway (a public road)."

In l995, title to the Huddy parcel was transferred to
the william L.F. Huddy Revocable Living Trust and the Elisabeth
S. Huddy Revocable Living Trust via a quitclaim deed. In 2004,
Elisabeth Huddy, as the surviving spouse of william Huddy,
conveyed her l00% interest in the Huddy parcel to Huddy-Yamamoto
via a quitclaim deed. y

To access Lots 1-A and l~B from Kuhio Highway, the
public road, the owners and tenants of the kuleana must cross
through Defendants' property. Historically, various routes have
been used for this purpose.

A. Underlying Complaints

On April 12, 2002, Plaintiffs8 filed a Complaint for
Damages and Injunctive Relief (original Complaint) against
Pflueger and Pflueger Properties. Plaintiffs asserted the

following, in relevant part:

7 In the FOF/COL/Order, the circuit court refers alternatively to
"Elisabeth Huddy" and "Elizabeth Huddy." In the "Order Confirming Report of
Commissioner and Ordering Partition Accordingly" to which the court refers in
FOF 23, her name is spelled “Elizabeth." In the Quitclaim Deed conveying the
Huddy parcel to william and Elisabeth's trusts, her name is spelled
"Elisabeth." For the sake of simplicity, we refer to her as "Elisabeth."

8 The original and amended complaints were filed on behalf of all
Plaintiffs.

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(l) The Marvin property "is a kuleana adjacent to the
_[Defendants'9] property and is located on the beach at PilaHL
below the [Defendants'] property. The [Defendants'] property is
located on a bluff above the beach at Pilda." '

(2) R. Marvin and N. Marvin resided with their
families in Pilda, and R. Marvin, N. Marvin, and Nelson had an
interest in [Defendants'] property because "the only access road
to and from their real property at Pilda Bay is through
[Defendants'] property."

(3) "Several months after [Defendants' property] was
granted preliminary subdivision approval, [Pflueger]
blocked the [Marvins'] access road to and from their Pilda
residence."

(4) Pflueger represented that he "needed to 're-route'
the [Marvins'] access road so that it would not run through his
subdivision."

(5) In the summer of 200l, Pflueger proceeded to re-
reroute the Marvin access route by various means.

(6) The re-routed access road was inadequate for the
purposes of ingress and egress.

(7) The Marvins asked Defendants to remedy the
problems with the access road, but Defendants failed and/or
refused to make the new road safe or restore the former access
road, '

The original Complaint alleged negligence, loss of
quiet enjoyment, intentional infliction of emotional distress,
trespass, and nuisance. Plaintiffs sought general, special, and
punitive damages; preliminary and permanent injunctive relief;
and reasonable attorney's fees, costs, and interest. In addition
to requesting preliminary and permanent injunctions with regard

to the access road and other matters, Plaintiffs requested an

9 Plaintiffs added Pila‘a 400 as a defendant in their First Amended
Complaint. For the sake of simplicity, we include Pila‘a 400 in the category
of "Defendants" in our summary of the original complaint. The First Amended
Complaint is otherwise similar in all relevant respects to the original
Complaint.

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injunction preventing Pflueger from "diverting or in any way
interfering with [Plaintiffs'] water."

On May 7, 2002,_Defendants filed their answer, in which
they generally denied the allegations made in the complaint.

On September l7, 2002, Plaintiffs filed their First
Amended Complaint, in which they added Pilae.400 as an
additional defendant.

On January 9, 2003, Plaintiffs filed their Second
Amended Complaint, in which Plaintiffs asserted all of the
allegations contained in the original Complaint and, for the
first time, punitive damages (Count VI), quiet title to
prescriptive easement (Count VII), and violation of kuleana

rights (Count viii>. count viii provides:
COUNT VIII

VIOLATION OF KULEANA RIGHTS

90. As owners of a kuleana parcel under Land Court
Award No. 6527, Plaintiffs Marvin are entitled to all
benefits and protections of Hawaii law regarding kuleana[].
Such rights include reasonable and convenient access for the
normal use of their property.

9l. Plaintiffs' kuleana is taro land which has
historically enjoyed abundant water from the stream located
to the west of the kuleana. Plaintiffs are entitled to
water rights in and to and across Defendants' property based
upon ancient use, prescriptive rights, and necessity,
pursuant to HRS 7~1.

92. Plaintiffs desire to have their kuleana rights
affirmed, specifically located and quantified, and rendered
a matter of public record.

93. Plaintiffs and their predecessors have made
consistent use of multiple alternate access routes over the
past century. On information and belief, these routes have
passed over the land of Defendants and third party kuleana
owners.

94. The uses by Plaintiffs of access over Defendants'
lands have been consistent throughout the terms of ownership
by Plaintiffs and their predecessors for generations.

95. As a result of Plaintiffs' ownership of a
kuleana, they claim ownership of easement(s) over
Defendants' property, as an interest in Defendants'
property.

On March 3, 2003, Defendants filed their answer to the
Second Amended Complaint. As their "Eighteenth Defense,"

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Defendants asserted that "Plaintiffs have failed to name
indispensable parties to this action."

On May 8, 2006, Plaintiffs filed their Third Complaint.
In Count III (intentional infliction of emotional distress),
Plaintiffs alleged that Defendants had engaged in a course of
conduct intended to harass, annoy, and inflict emotional distress
upon the Marvins by, among other things, "threatening to cut off
the MARVIN's water access."

B. ’ Plaintiffs' Motions

1. TRO Motion Re Water

On May 30, 2006, Plaintiffs filed their TRO Motion Re,

water,” in which they moved ex parte

for a Temporary Restraining Order [(TRO)] restraining and
enjoining the Defendants, their employees, agents, assigns,
lessees, sublesses [sic] and any person(s) who claim an
interest in [Defendants' property] . . . from damaging,
dismantling, destroying or otherwise interfering with
Plaintiffs' water line and holding tank that are Plaintiffs'

sole source of water to their kuleana at Pila'a . . . until
a hearing can be held on the merits of Plaintiffs' claims
herein.

Plaintiffs argued the following. when the Marvin family
purchased their parcel over 40 years prior, an irrigation ditch
brought water from a stream on Defendants' property, across the
western boundary between Defendants' property and the Marvin
parcel, and onto the Marvin parcel. The stream was and
traditionally had been the only source of fresh water for the
Haena kuleana. In l970, when R. Marvin started living on the
Marvin parcel, the irrigation ditch was filled with sediment, so
R. Marvin installed PVC pipes in the ditch to carry the water
from the stream to the Marvin parcel. At the time the TRO Motion
Re water was filed, the stream water running through the PVC pipe
was Plaintiffs' only source of fresh water for use at the Marvin
parcel, and without the water, the Marvin family could no longer
continue residing there. Plaintiffs reasserted that the Marvin
parcel was entitled to water under HawaiH_law.
Plaintiffs also asserted that their attorney had

received a letter from an attorney purporting to represent

m The TRO Re water was filed on behalf of all Plaintiffs.

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Pflueger employees, demanding that the Marvins remove their
holding tank and water pipe from the stream or risk removal of
such by said Pflueger employees, Plaintiffs argued that they
would suffer irreparable injury unless the circuit court granted
their TRO Motion Re water.

On June 5, 2006, Defendants filed a memorandum in
opposition. Defendants argued that Plaintiffs had not
established a prima facie water rights claim; the Marvins' claim
to water rights did not give the Marvins a legal basis to install
and maintain an artificial stream diversion system on Defendants'
property; and the Marvins could not install and maintain an
artificial stream diversion system without a permit from the
State of Hawafi Commission on water Resource Management.
Defendants did not argue that Plaintiffs had failed to join a
necessary or indispensable party to the action.

On June 7, 2006, Plaintiffs filed a reply memorandum.

On May 30, 2006, the circuit court filed an order
granting the TRO Motion Re water, §

2. MPSJ Re Easement

On June 6, 2006, Plaintiffs filed the MPSJ Motion Re
Easement,“ in which they requested summary judgment on their
claim to an easement by necessity. Plaintiffs asserted that
"[a]s owners of an ancient kuleana that is landlocked,
Plaintiffs' entitlement to an easement by necessity is derived
not only from an expressed reservation contained in the
Defendant's [sic] grant, but also from case law and statutory law
governing landlords‘ title subject to tenants' or kuleana owners'
use." Plaintiffs additionally asked the circuit court "to enter
a preliminary injunction against the Defendants to prevent them
from interfering with Plaintiffs' access "

On June i9, 2006, Defendants filed a memorandum in
opposition. Defendants argued that based on the existence of
material issues of fact, Plaintiffs were not entitled to summary

judgment on their easement by necessity claim; an easement by

n The MPSJ Re Easement was filed on behalf of only R. Marvin, N.
Marvin, and Nelson. For the sake of simplicity, we state that it was filed by
Plaintiffs.

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necessity is limited to ingress and egress and must not impose an
unreasonable burden on the servient landowner; an owner of an
easement by necessity is responsible for maintenance and repair
of the access road; and based on the existing court order,
Plaintiffs were not entitled to injunctive relief. Defendants
did not assert that Plaintiffs had failed to join a necessary or
indispensable party to the action.

On June 23, 2006, Plaintiffs filed a reply memorandum.

On August 9, 2006, a four-day evidentiary hearing
commenced on the MPSJ Re Easement and TRO Motion Re water
(evidentiary hearing). Numerous witnesses testified regarding,
among other things, a kuleana's entitlement to an access road and
water; a prior lawsuit over access through Defendants' property
to various kuleana, in which william Huddy and R. Marvin had
participated as plaintiffs (R. Marvin was named without his
authorization) and Pflueger had been named as a defendant;
traditional access and other access routes to the Marvin parcel;
the prospect of re-routing the access road the Marvins currently
used; and Defendants' blocking of Marvins' access to Marvins'
parcel.

Although she did not participate in the action as a
party, Huddy-Yamamoto testified at the evidentiary hearing on
behalf of Defendants, As Trustee of the Huddy~Yamamoto Trust,
she is the sole owner of the Huddy parcel. At the hearing,
Huddy-Yamamoto and Defendants' counsel engaged in the following

exchange:

[Huddy~Yamamoto] I had been told by my father that we
were caretakers of the land and that 1 was to always make it
available to my family and friends

[Defendants' counsel]. Is that what you believe your
responsibility is?

A. Absolutely, it's my responsibility.

Q. Do you and your mother want vehicular access to
your property, lot lA?

A. Yes, we do want vehicular access.

Q. You understand you're not a party to this current
court proceeding?

A. Yes.

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Q. Do you understand that this court proceeding is
involving access to lots lA and lB?

A. Yes.

Q. Do you want to participate in this process as a
party?

A. Yes.

Q} Do you want this Court to decide these issues of
access to lots lA and lB without your involvement as a
party?

A. I want to be involved.

Q. . . . [D]o you have access to an attorney?

A. Yes.

Q. And is it your understanding that, and 1
understand you're not a party to this, that one of the
issues that we're dealing with in this evidentiary hearing

involves access to the original kuleana, which would be lots
1A and 1B?

A. Yes.

Q. Have you been told that the -- another issue
involved in this dispute is water access?

A. Yes.
Q. For lot lB?
A. Yes.

Q. And do you want water access for -- drinking water
for lot 1A?

A. Yes.
Q. Do you have it now?
A. NO.

On cross-examination, Huddy-Yamamoto testified that
Plaintiffs' counsel had asked if she wanted to participate in
this case before the filing of the original Complainti Huddy-
Yamamoto told Plaintiffs' counsel that she did not want to
participate and she would "work things out" with Pflueger
regarding access to the Huddy parcel, but instead of contacting
Pflueger, she went to the planning commission to discuss the
matter. Huddy~Yamamoto testified at the evidentiary hearing that
the Huddy parcel was being sporadically provided with irrigation
water and she preferred to have fresh spring water running to the

parcel.

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Following the evidentiary hearing and a site
inspection, the circuit court issued its FOF/COL/Order on
January 4, 2007 and its Final Judgment on March 20, 2007,

On April 17, 2007, Defendants timely filed their notice

of appeal,
II. STANDARDS OF REVIEW

A. Summary Judgment

"we review the circuit court's grant or denial of
summary judgment de novo." Querubin v. Thronas, 107 Hawaid.48,

56, 109,P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic

Recycling, Inc., 105 HawaFi 490, 501, 100 P.3d 60, 71 (2004)).

The HawaiH.Supreme Court has often articulated that

summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the effect
of establishing or refuting one of the essential elements of
a cause of action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and the inferences drawn therefrom in the light
most favorable to the party opposing the motion.

Querubin, 107 Hawafi at 56, 109 P.3d at 697 (quoting Durette,

105 Hawai‘i at 501, 100 P.3d at 71).
Hawafi Rules of Civil Procedure (HRCP) Rule 56(e)

provides in relevant part:
Rule 56, Summary judgment.

(e) Form of affidavits; further testimony; defense
required. . . . when a motion for summary judgment is made
. . , an adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading, but
the adverse party's response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial. If the adverse
party does not so respond, summary judgment, if appropriate,
shall be entered against the adverse party.

Thus, "[a] party opposing a motion for summary judgment cannot
discharge his or her burden by alleging conclusions, 'nor is [the
party] entitled to a trial on the basis of a hope that [the
party] can produce some evidence at that time.'" Henderson v.
Prof'l Coatings Corp., 72 Haw. 387, 401, 819 P.2d 84, 92 (1991)

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(quoting 10A Charles Alan wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure: Civil 2d § 2727 (1983)).

B. Injunctive Relief

Generally, the granting or denying of injunctive
relief rests with the sound discretion of the trial court
and the trial court's decision will be sustained absent a
showing of a manifest abuse of discretion. Abuse of
discretion may be found where the trial court lacked
jurisdiction to grant the relief, or where the trial court
based its decision on an unsound proposition of law.

Sierra Club v. Dep't of Transp., 120 HawaFi 18l, 197, 202 P.3d
l226, l242, reconsideration denied, 2009 WL l567327 (2009)
(quoting Hawai‘i Pub. Emplovment Relations Bd. v. United Pub.
WorkerS, LoCal 646, AFSCME, AFL-CIO, 66 Haw. 46l, 467, 667 P.2d
783, 783 (1933>).

C. Equitable Relief

"The relief granted by a court in equity is
discretionary and will not be overturned on review unless the
circuit court abused its discretion by issuing a decision that
clearly exceeds the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment of the
appellant." Aickin v. Ocean view Invs. Co., Inc., 84 HawaiH
447, 453, 935 P.2d 992, 998 (1997) (internal quotation marks,
citation, and brackets omitted).

2 D. Findings of Fact and Conclusions of Law

"In this jurisdiction, a trial court's FOFs [Findings
of Fact] are subject to the clearly erroneous standard of review.
An FOF is clearly erroneous when, despite evidence to support the
finding, the appellate court is left with the definite and firm
conviction in reviewing the entire evidence that a mistake has
been committed." Chun v. Bd. of Trs. of the Emplovees' Ret. Svs.
of the state of Hawafi, 106 HawaiU_416, 430, 106 P.3d 339, 353
(2005) (internal quotation marks, citations, and ellipses
omitted) (quoting Allstate Ins. Co. v. Ponce, 105 Hawafi 445,
453, 99 P.3d 96, 104 (2004)). "An FOF is also clearly erroneous
when the record lacks substantial evidence to support the
finding, we have defined "substantial evidence" as credible
evidence which is of sufficient quality and probative value to

enable a person of reasonable caution to support a conclusion."

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Leslie v. Estate of Tavares, 91 HawaiU_394} 399, 984 P.2d 1220,
1225 (1999) (internal quotation marks and citations omitted)
(quoting state v. Kotis, 91 HawaiH.319, 328, 984 P.2d 78, 87
(l999)).

A COL [Conclusion of Law] is not binding upon an
appellate court and is freely reviewable for its
correctness. This court ordinarily reviews COLs under the
right/wrong standard. Thus, a COL that is supported by the
trial court's FOFs and that reflects an application of the
correct rule of law will not be overturned. However, a COL
that presents mixed questions of fact and law is reviewed
under the clearly erroneous standard because the court's
conclusions are dependent upon the facts and circumstances
of each individual case.

§hgn, 106 HawaFi at 430, 106 P.3d at 353 (internal quotation
marks, citations, and brackets in original omitted) (quoting
Ponce, 105 HawaFi at 453, 99 P.3d at 104).

III. DISCUSSION

A. Whether the circuit court should have joined
Huddy-Yamamoto

1. Applicable FOFs and COL

The FOF/COL/Order provides the following in relevant

part:

90. [Huddy-Yamamoto] testified that she was asked by
Plaintiffs' attorney to participate in the instant lawsuit
against the Defendants, but she refused.

92. In 1988, william Huddy participated in a lawsuit
against [Pflueger], among other defendants, in a Complaint
for Damages and Other Relief in a dispute over road access
through Defendants' Pilaa property to various kuleana.

93. The lawsuit alleges, among other allegations,
that the Defendants, including [Pflueger], "failed to
provide any access to the Plaintiff Kuleana Owners parcels"
and "that the Defendants acted willfully, intentionally and
maliciously in destroying roadways providing access to the
Plaintiff Kuleana Owners' properties."

94. The lawsuit further alleges that despite [TROs]
preventing Defendants from destroying the access roads to
Plaintiffs' kuleana, Defendants destroyed or blocked access
to the existing access roads to the Plaintiffs' kuleana.

95. The lawsuit also alleges that Defendants
installed fence posts and wire fences throughout their
property with the intention of fencing livestock upon
Defendants' property in order to block access to existing
roads to the Plaintiffs' kuleana, including such fences that
unnecessarily and unreasonably narrow access to the
Plaintiffs' kuleana property and unnecessarily impeded
access to their kuleana, in contempt of the [TROs].

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96. [R. Marvin] was named as a plaintiff in the 1988
Complaint; however, he had not authorized Plaintiffs'
attorneys to include him in the lawsuit.

97. Furthermore, [Pflueger] called [R. Marvin] after
the lawsuit was filed and told him that if he would withdraw
from the suit, the Marvin family would always be able to get
to their property.

98. [R. Marvin] relied on [Pflueger's] representation
that the Marvin kuleana would always have access, and
withdrew from the lawsuit.

99. There is nothing in the record to suggest the
outcome of the Huddy claim for access in the 1988 lawsuit.

l00. Access to their kuleana was never in contention
between the Marvin family and william Huddy because the
Huddy family always had a trail to their house.

101. Neither Elisabeth Huddy or [Huddy-Yamamoto]
reside at the Pilda kuleana.

102. There are no facts in the record to suggest that
[Huddy-Yamamoto] will be prejudiced by not participating in
the instant lawsuit\ Indeed, [she] were asked to
participate, and refused. The access [she] currently
enjoy[s] is "now improved, and easier access than before.“

103. Based on Defendants' witness Bruce Graham‘s
testimony that the Marvin side of the kuleana was the "House
Lot" side that the Huddy side of the kuleana was the "ldi,"
[Huddy-Yamamoto] is entitled to irrigation water. [Huddy-
Yamamoto] testified that she has irrigation water to her
kuleana from [Pflueger],

104. There are no facts in the record to suggest that
[Huddy-Yamamoto] will be prejudiced by the Plaintiffs' claim
to irrigation and drinking water in the instant case.

105. [Huddy-Yamamoto] enjoys access and water to
their kuleana and specifically refused to participate in
this case.

142. Defendants, who now argue that [Huddy-Yamamoto]
is an indispensable party with respect to road access,
failed to bring [Huddy-Yamamoto] into the instant case when
filing their Motion to Establish Temporary Roadway Access in
2003,

(Record references omitted.)

COL 12 provides, "The Court finds that [Huddy-Yamamoto]
is not an indispensable party as [she is] not prejudiced by the
instant proceeding, and [she] refused to participate in the
instant lawsuit."

2. Parties’ arguments on appeal

Defendants contend the circuit court erred in granting

the MPSJ Re Easement where the Marvins failed to join Huddy-

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Yamamoto, who is an "indispensable" party to this action pursuant
to HRCP Rule 19(a) and the court erred as a matter of law in
concluding otherwise. Defendants argue that without Huddy-

Yamamoto as a party to this action,

[Defendants] could conceivably be forced to grant an
easement to [Huddy-Yamamoto], or [her] successors in
interest, in a separate suit, wrongfully burdening
[Defendants' property] with two separate rights of access.

Conversely, a court could determine (and rightfully
so) that the Haena kuleana is, pursuant to HRS section 7-1,
entitled to only one access and, in the event an easement is
recorded in favor of the Marvin [parcel], [Huddy-Yamamoto]
would be deprived of even indirect access to [her] parcel,
particularly in view of the fact that [R. Marvin] stated
unequivocally that he is not willing to grant the Huddy
parcel a right of access over the Marvin [parcel].

Plaintiffs first respond that because Defendants did
not contest FOF 102 in their opening brief, FOF 102 is binding on
this court, Furthermore, Plaintiffs argue that Defendants "filed
no motion to dismiss, omitted this argument from [their]
opposition papers and Answer to Third Amended Complaint and
dumped the issue on the Marvins literally on the day of [the
evidentiary hearing], which foreclosed them from even filing a
written response.“ Second, Plaintiffs cite to numerous FOFs
supporting the circuit court's conclusion that Huddy-Yamamoto was
not an indispensable party.” Third, Plaintiffs assert that
granting the Marvins access by the specified route did not
adjudicate or affect Huddy-Yamamoto's rights under HRS § 7-1.
Fourth, Plaintiffs argue that Huddy-Yamamoto was asked to join

Plaintiffs as a party, but refused to do so, and furthermore,

” Plaintiffs' answering brief states that

the court properly found that 1) [Huddy-Yamamoto] was asked to
participate in the lawsuit and refused (FOF Nos. 90, 102, 105), 2)
[Huddy-Yamamoto] appeared and testified at these hearings about
access and water (FOF No. 89), 3) [Huddy-Yamamoto's] father
i[William] Huddy sued Pflueger for access in 1988 and the outcome
of that claim is unknown (FOF Nos. 92-99), 4) the Marvins and
Huddy-Yamamoto have never disputed each others' access or water
rights (FOF No. 100), 5) Huddy-Yamamoto's access was actually
improved after the 2001 mudslide and is easier now than ever
before (FOF No. 102), 5) [sic] Huddy-Yamamoto does not reside on
her kuleana (FOF No. 101), 6) Huddy-Yamamoto has access to
Pflueger's irrigation water (FOF No. 103), 7) no facts in the
record suggest that Huddy-Yamamoto will be prejudiced by the
Marvins' claims to access or water in this case (FOF No. 104), and
8) no facts in the record suggest that Huddy-Yamamoto will be
prejudiced by not intervening in this case (FOF No. 102).

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Huddy-Yamamoto could have filed a motion to intervene. Fifth,
Plaintiffs assert that "neither Pflueger nor [Huddy-Yamamoto]
made any attempt to bring [Huddy-Yamamoto] into this case, and
the court found three separate times that [Huddy-Yamamoto]
declined to participate." Additionally, the circuit court
granted the Marvins a "non-exclusive easement" that "numerous
kuleana owners at Pilaa have used and continue to use." Sixth,
Plaintiffs argue that "any benefit realizable by [Defendants]
from [Huddy-Yamamoto's] joinder was obtained by [Huddy-
Yamamoto's] testimony on [Pflueger's] behalf, without the need to
make her a party." Seventh, Plaintiffs contend that if Pflueger
was concerned about the prejudice to him by Huddy-Yamamoto's
absence, he could have brought a third-party complaint against
her, but Pflueger did not do so. Eighth, Plaintiffs state that
the only case cited by Defendants in their opening brief does not
concern HRCP Rule 19.

3. Defendants' failure to quote FOFs on appeal

HawaFi Rules of Appellate Procedure (HRAP) Rule
28(b)(4)(C) states "when the point [on appeal] involves a finding
or conclusion of the court or agency, [the points of error shall
include] either a quotation of the finding or conclusion urged as
error or reference to appended findings and conclusions[.]" HRAP
Rule 28(b)(4) also states, however, that "the appellate court, at
its option, may notice a plain error not presented." Plaintiffs
are correct that Defendants did not quote or refer to an appendix
of specific FOFs in their points of error; nevertheless, we
review Defendants' arguments for plain error.

4. Timing of Defendants' assertion of

indispensability

Plaintiffs argue that the Marvins "dumped" the issue of
Huddy-Yamamoto's absence from this case as a party "literally on
the day of [the evidentiary hearing] " In a position statement
filed five days prior to the commencement of the evidentiary
hearing, Defendants argued that access rights could not be
determined in the absence of Huddy-Yamamoto, who was a "necessary
and indispensable" party pursuant to HRCP Rule 19(a). However,
that was not the first time Defendants argued that Huddy-Yamamoto

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should have been joined. In their answer to Plaintiffs' Second
Amended Complaint, Defendants maintained in their "Eighteenth
Defense" that "Plaintiffs have failed to name indispensable
parties to this action." Defendants had no reason to raise this
defense earlier because Plaintiffs had not asserted claims based
on kuleana rights until Plaintiffs filed the Second Amended

Complaint.

5. Defendants' failure to join Huddy-Yamamoto; Huddy-
Yamamoto's failure to intervene

Plaintiffs contend the circuit court did not err by
failing to join Huddy-Yamamoto because Huddy-Yamamoto failed to
file a motion to intervene, Pflueger did not attempt to bring
Huddy-Yamamoto into this case, and Pflueger failed to bring a
third-party complaint against Huddy-Yamamoto. ,Regardless of the
foregoing, the circuit court still could have ordered Huddy-
Yamamoto to be joined. §ee HRCP Rule 19(a) ("If the person
should join as a plaintiff but refuses to do so, the person may
be made a defendant, or, in a proper case, an involuntary
plaintiff"); Lau v. Bautista, 61 Haw. 144, 154, 598 P.2d 161, 168
(1979) ("Under Rule 19(a), if such a person has not been joined,
'the court shall order that he be made a party.'").

6. Applicable law regarding joinder

HRCP Rule 19 provides in relevant part:
Rule 19. J0iNDER 0F PERs0Ns NEEDED FOR JUsT ADJUDicATi0N.

(a) Persons to be joined if feasible. A person who/is
subject to service of process shall be joined as a party in
the action if (1) in the person's absence complete relief
cannot be accorded among those already parties, or (2) the
person claims an interest relating to the subject of the
action and is so situated that the disposition of the action
in the person's absence may (A) as a practical matter impair
or impede the person's ability to protect that interest or
(B) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed interest,
If the person has not been so joined, the court shall order
that the person be made a party. If the person should join
as a plaintiff but refuses to do so, the person may be made
a defendant, or, in a proper case, an involuntary plaintiff.

(b) Determination by court whenever joinder not
feasible. If a person as described in subdivision (a)(1)-
(2) hereof cannot be made a party, the court shall determine
whether in equity and good conscience the action should
proceed among the parties before it, or should be dismissed,
the absent person being thus regarded as indispensable. The

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factors to be considered by the court include: first, to
what extent a judgment rendered in the person's absence
might be prejudicial to the person or those already parties;
second, the extent to which, by protective provisions in the
judgment, by the shaping of relief, or other measures, the
prejudice can be lessened or avoided; third, whether a
judgment rendered in the person's absence will be adequate;
fourth, whether the plaintiff will have an adequate remedy
if the action is dismissed for nonjoinder.

This court has explained:

Pursuant to [HRCP] Rule 19(a)(1), a party must be
joined if feasible if relief cannot be afforded among those
already parties. Rule 19(a)(2)(A) provides that a person
must be joined if feasible if the person has an interest in
the subject matter of the action and disposition of the case
in his or her absence may impair his or her ability to
protect that interest or, under Rule 19(a)(2)(B), leave any
of the persons already parties subject to the risk of
multiple or inconsistent obligations because of the
interest.

Int'l savings & Loan Ass'n v. Carbonel, 93 Hawafi 464, 470, 5
P.3d 454, 460 (App. 2000>.

"where joinder [of a "party to be joined" (necessary
party“) under HRCP Rule 19(a)] is feasible, the court need not
proceed under Rule 19(b) to determine whether to proceed or
dismiss for lack of an indispensable party." Lau, 61 Haw. at
154, 598 P.2d at 168. It follows that if it is infeasible to
join a necessary party, the court should proceed to Rule 19(b)
and apply the factors set forth therein to determine whether that
party is indispensable.

This court has explained that in examining the 19(b)

factors,

a court should consider all of the factors and employ a
functional balancing approach. Because of the flexibility
of the "equity and good conscience" test and the general.
nature of the factors listed in HRPP [sic] Rule 19(b),
whether a particular nonparty described in Rule 19(a) will
be regarded as indispensable depends to a considerable
degree on the circumstances of each case.

Carbonel, 93 Hawafi at 470, 5 P.3d at 460 (quoting GGS Co. v.
Masuda, 82 HaWai‘i 96, lO5, 919 P.2d lOO8, lOl7 (App. l996)).

“ ln UFJ Bank Ltd. v. Ieda, 109 Hawafi 137, 143, 123 P.3d 1232, 1238
(2005), the Hawaii supreme Court refers to a "party to be joined if feasible"
under Rule 19(a) as a "necessary" party.

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7. Analysis under HRCP Rule l9(a)

Preliminarily, we note that in the proceedings below
and on appeal Defendants argue that the Huddy-Yamamoto is an
"indispensable" party to this action, yet Defendants base their
argument on HRCP Rule 19LaL. As we have discussed, the
determination of whether a party is "indispensable" is made
according to 19LbL, not 19LaL, and if the circuit court
determines it is feasible to join a necessary party pursuant to
19(a), the court need not proceed to an "indispensability"
analysis under 19(b). see supra Part III.A.6.

In the FOF/COL/Order, the circuit court does not
indicate whether it based its finding that Huddy-Yamamoto was not
an indispensable party on HRCP Rule 19(a) or 19(b). The circuit
court merely states that Huddy-Yamamoto was not "indispensable."
Given the circuit court's repeated use of the term
"indispensable," we are left to infer that the court found that
Huddy-Yamamoto was not necessary a party under 19(a) and the
court then proceeded to analyze the facts according to 19(b).
See UFJ Bank Ltd. v. Ieda, 109 HawaFi 137, 143, 123 P.3d 1232,
1238 (2005) (brackets in original omitted) (holding that
"[a]lthough the circuit court did not expressly make the initial
determination that KKLw is a necessary party under HRCP Rule
19(a), we believe that such determination can be logically
inferred from its ultimate ruling that 'KKLw is an indispensable
party without which the court cannot in equity and good
conscience proceed based on the factors outlined in said HRCP
Rule 19(b).'").

a. Necessary party

-Huddy-Yamamoto was a necessary party in this action,
pursuant to HRCP Rule 19(a)(2). According to Rule 19(a)(2), a
person should be joined in an action if (1) a person "is subject

to service of process" and

(2) the person claims an interest relating to the subject of
the action and is so situated that the disposition of the
action in the person's absence may (A) as a practical matter
impair or impede the person's ability to protect that
interest or (B) leave any of the persons already parties
subject to a substantial risk of incurring double, multiple,
or otherwise inconsistent obligations by reason of the
claimed interest.

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i. Kuleana's entitlement to easement and
water
Preliminarily, we note that the parties presented
arguments below and on appeal regarding the Marvins' rights to a
right of way by necessity and to water. However, the issue is
whether the kuleana, not any particular part-owner of the
kuleana, enjoys those rights.
with regard to rights of way, HRS § 7-1 provides in
relevant part that "[t]he people shall . . . have a right to
the right of way." In Henry v. Ahlo, 9 Haw. 490, 490-91
(Haw. Rep. 1894), Ahlo appealed from the decision of the
Commissioner of Private ways for the District of Koolaupoko,
Island of<Fahu (Commissioner). Henry was prevented from
entering or exiting his land from a government road because Ahlo
had blocked access to the road with a gate. ;dL at 491. The
Commissioner decided that Henry was entitled to have a road
running from the government road between two kuleana and
continuing on to Henry's land. ;d; The supreme Court of the
Republic of HawaiH affirmed the Commissioner's decision, holding
the owner of a kuleana has a right of way by necessity from the
kuleana to the nearest government road. ;Q; The supreme court
stated, however, that "the plaintiff could not have a number of
roads; he is only entitled to one." ;d; In this case, it is
undisputed that the Huddy parcel and the Marvin parcel are parts
of one kuleana. Pursuant to §en;y, the kuleana is»entitled to

one right of way by necessity through Defendants' property.“

“ Defendants allege in their Amended Opening Brief that the Marvin
parcel is not landlocked because it is "bounded by navigable waters." we
disagree. Black's Law Dictionary 894 (8th ed. 2004) defines "landlocked" as
"[s]urrounded by land, with no way to get in or out except by crossing the
land of another." One definition of the term "surround" is "to extend around
the margin or edge of." Merriam-webster's collegiate Dictionary 1183 (10th
ed. 2000) .

while there is some case law stating that land bordering the sea is not
landlocked, see e.q. Murch v. Nash, 861 A.2d 645, 652 (Me. 2004) ("Land
abutting navigable water is generally not entitled to an easement by necessity
over neighboring land."), secondary authority has noted that

[t]here is a trend in some courts toward a more liberal attitude
in allowing easements by necessity despite access by water. lt
has been said that now that travel even for short distances is
` (continued...)

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with regard to water rights, the supreme Court of the

Territory of Hawaii stated:

whenever it has appeared that a kuleana or perhaps other
piece of land was, immediately prior to the grant of an
award by the land commission, enjoying the use of water for
the cultivation of taro or for garden purposes or for
domestic purposes, that land has been held to have had
appurtenant to it the right to use the quantity of water
which it had been customarily using at the time named. In
some instances a mere reference to the land in the award or
in the records of the land commission as "taro land" ("aina
kalo" or "loi kalo") or as "cultivated land" ("aina mahi")
has sufficed to lead to and to support an adjudication that
that land was entitled to use water for agricultural
purposes. sometimes the testimony of witnesses who appeared
before the land commission in the hearings leading up to the
award that the land was taro land or cultivated land, or
other statements substantially to that effect, have sufficed
to support a similar adjudication.

Territory v. Gay, 31 Haw. 376, 383 (Haw. Terr. l921). The
supreme court further stated that

[i]f any of the lands were entitled to water by immemorial
usage, this right was included in the conveyance as an
appurtenance. An easement appurtenant to land will pass by
a grant of the land, without mention being made of the
easement or the appurtenances. But if lands had no such
rights, and no additional grant of water rights was made, it
certainly could take nothing by having been a portion of the
ahupuaa.

;Q; at 386; see also Carter v. Territorv, 24 Haw. 47, 54 (Terr.
Haw. 1917) (upholding the finding of the Commissioner of water
that kuleana and other lands had appurtenant to them the right to
water for irrigation), overruled on other grounds by McBrvde
sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330 (1973).

Moreover,

[e]very portion of land, large or small, ahupuaa, or ili or
kuleana, upon which people dwelt was, under the ancient
Hawaiian system whose retention should, in my opinion,
continue unqualifiedly, entitled to drinking water for its
human occupants and for their animals and was entitled to

“(...continued) _

almost always by motor vehicle, it is not reasonable to require a
landlocked owner and those wishing to visit the owner to make the
trip by boat.

25 Am. Jur. 2d Easements and Licenses § 38 (2d ed. 2004).

Although not specifically addressed by any court in this jurisdiction,
it appears that Hawafi has adopted the more liberal attitude in allowing
easement by necessity where land is bordered by water. In Rogers v. Pedro, 3
HaW. App. 136, 138-39, 642 P.2d 549, 551-52 (1982), this court upheld an
easement by necessity for a parcel which bordered the sea and did not question
whether the property was landlocked.

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water for other domestic purposes. At no time in Hawaii's
judicial history has this been denied. whenever it is
proven that people dwelt, at the time of the award of the
land commission, upon a piece of land awarded, it will be
easily found and adjudicated that piece of land was and is
entitled to water for all domestic purposes.

Gay, 31 Haw. at 395 (emphasis added).
The HawaFi supreme Court has stated that

[t]he trial court's task, sitting as Commissioner of Private
ways and water Rights, was to determine as precisely as
possible the amount of water that was actually being used
for taro cultivation at the time of the Land commission
Awards. The burden of proof was on the person asserting the
right.

McBryde sugar, 54 Haw. at 188-89, 504 P.2d at 1340 (footnote
omitted); but see also Carter, 24 Haw. at 59 ("It is very
difficult at this late day to show what quantity of water was
used upon a particular parcel of land by ancient custom when it
first became the subject of private ownership. where the use of
water upon land by ancient custom is shown by satisfactory
evidence the right is not to be denied merely because the
quantity has not been measured and cannot be proven.")
2 In the instant case, it is undisputed that the Huddy
parcel and Marvin parcel are parts of one kuleana, which may have
appurtenant to it a right to water for certain purposes, in a
limited amount.

ii. Huddy-Yamamoto's "interest relating to

the subject of the action"

HRCP Rule 19(a)(2) provides in part that "[a] person
who is subject to service of process shall be joined as a party
in the action if . . . the person claims an interest relating to
the subject of the action." At the evidentiary hearing, Huddy-
Yamamoto testified that she wanted to participate in this
proceeding as a party because she did not want the circuit court
to determine the issues of access to the Huddy parcel and the
Marvin parcel without her involvement.

As part owner of the kuleana, along with the Marvins,
Huddy-Yamamoto has an interest relating to the kuleana's
easement. Pursuant to Henry, the kuleana is entitled to only one
right of way by necessity. 9 Haw. at 491. Because the Marvins

and Huddy-Yamamoto are part owners of the same kuleana, Huddy-

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Yamamoto's ability to access her parcel is closely intertwined
with the Marvins' claim to an easement to their parcel. Huddy-
Yamamoto has an interest in the easements' location and other
characteristics because depending on where the easement runs,
Huddy-Yamamoto's ability to access her parcel could be impacted.
As Defendants argue in their opening brief, Huddy-Yamamoto could
"be deprived of even indirect access" to her parcel. At the
evidentiary hearing, Huddy-Yamamoto testified that she wanted
vehicular access to the Huddy parcel.

Huddy-Yamamoto's ability to access water is also
closely intertwined with the Marvins' claim to water rights.
Huddy-Yamamoto has an interest in continued access to water. The
court's determination regarding the kuleana's historical
entitlement to water, if any, including the location of the water
source and direction in which the water flows, could greatly
impact this interest. Huddy-Yamamoto also has an interest in
accessing an adequate amount of water. Because the Marvins and
Huddy-Yamamoto share the kuleana, the amount of water being
accessed by their respective parcels must be, as precisely as
possible, similar to "the amount of water that was actually being
used for taro cultivation at the time of the Land commission
AWards." McBryde, 54 HaW. at l88-89, 504 P.2d at l340. At the
evidentiary hearing, Huddy-Yamamoto testified that she wanted the
Huddy parcel to have access to drinking water, preferably fresh
spring water, rather than the water the parcel was receiving from

Pflueger's irrigation lines.
iii. Huddy-Yamamotos' ability to protect her

interest

HRCP Rule 19(a)(2)(A) provides in part that "[a] person
who is subject to service of process shall be joined as a party
in the action if . . . the person . . . is so situated that the
disposition of the action in the person's absence may . . . as a
practical matter impair or impede the person's ability to protect
that interest." In this case, Huddy-Yamamoto is "so situated
that the disposition of the action" in her absence may "as a
practical matter impair or impede" her ability to protect her

interests. As of the time of the evidentiary hearing, Huddy-

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Yamamoto was traveling to her parcel along an "eastern route"
right of way through Defendants' property and obtaining water
from Defendants' irrigation lines, both with Defendants'
permission only. There is no evidence in the record on appeal
that Defendants are legally bound to continue providing Huddy-

_Yamamoto with the right of way or water. If the circuit court

were to determine that (a) Defendants are not required to
continue providing Huddy-Yamamoto with a right of way and water
and (b) the right of way and water to which the kuleana is
entitled are in locations that do not reach the Huddy parcel or
the kuleana is not entitled to more water than what flows to the
Marvins' parcel, it may "impair or impede" Huddy-Yamamoto's
ability protect her interest in accessing her parcel and
obtaining an adequate amount of water there.
iv. Additional obligations to parties
already joined

HRCP Rule 19(a)(2)(B) provides that "[a] person who is
subject to service of process shall be joined as a party in the
action if . . . the person . . . is so situated that the
disposition of the action in the person's absence may . . . leave
any of the persons already parties subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent
obligations by reason of the claimed interest." Huddy-Yamamoto's
non-joinder in this litigation may leave Defendants "subject to a
substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed interest " For
instance, if Huddy-Yamamoto were to remain uninvolved in this
case, she could later make claims for, among other things, any
one or a combination of the following: the easement should be
located elsewhere, the kuleana's water source should be located
elsewhere, the kuleana's water should flow along a different
path, and/or the kuleana is entitled to a different amount of
water. In that case, another judgment might subject Defendants

to "double, multiple, or otherwise inconsistent obligations,"

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especially considering the kuleana is entitled to only one
easement and a limited amount of water.“
b. "Feasibility"
The circuit court found that Huddy-Yamamoto refused to

participate in the action:

90. [Huddy-Yamamoto] testified that she was asked by
Plaintiffs' attorney to participate in the instant lawsuit
against the Defendants, but she refused.

102. There are no facts in the record to suggest that
[Huddy-Yamamoto] will be prejudiced by not participating in
the instant lawsuit. Indeed, [she was] asked to
participate, and refused. The access [she] currently
enjoy[s] is "now improved, and easier access than before.“

105. [Huddy-Yamamoto] enjoys access and water to
[the] kuleana and specifically refused to participate in
this case.

Likewise, COL 12 provides:

12. The Court finds [Huddy-Yamamoto] is not an
indispensible party as [she is] not prejudiced by the
instant proceeding, and [she] refused to participate in the
instant lawsuit.

However, the circuit court did not make any specific findings
regarding the "feasibility" of joining Huddy-Yamamoto in the
action. see HRCP Rule 19(a) (entitled, "Persons to be joined if
feasibl€"); Lag, 61 Haw. at 154, 598 P.2d at 168 (holding that
where joinder of a necessary party is feasible, the court need
not proceed under Rule 19(b) to determine whether to proceed or
dismiss for lack of an indispensable party). we do not see how

it would have been infeasible to join Huddy-Yamamoto. There is

” The decision the circuit court arrived at in Huddy-Yamamoto's
absence underscores this danger. The court found both that (l) Huddy-Yamamoto
was not an indispensible party in this case based in part on its finding that
"the access [Huddy-Yamamoto] currently enjoy is now improved, and easier
access than before" and (2) the Marvins were entitled to an easement by
necessity that would allow them "vehicular and pedestrian access along the
current route." If the circuit court meant that the kuleana was entitled to
only one access road across Defendants' property, the court's failure to join
Huddy-Yamamoto impaired or impeded her ability to protect her interest because
she may have lost her ability to utilize her current route and may have no
alternate route available to her, Alternatively, if the circuit court meant
that both Huddy-Yamamoto and the Marvins were entitled to access their
respective properties along two separate routes, then Defendants would have
been "subject to a substantial risk of incurring double, multiple or
inconsistent obligations by reason of the claimed interest" because the
finding obligated Defendants to provide two rights of way to one kuleana,
contrary to the holding in Henry that a kuleana owner is entitled to only one
right of way by necessity. 9 Haw. at 491.

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no evidence in the record on appeal that she was not subject to
service of process. §ee HRCP Rule 19(a),("A person who is
subject to service of process shall be joined as a party in the
action . . . ."). Even if she refused to participate in the
action, Rule 19(a) provides that "[i]f the person should join as
a plaintiff but refuses to do so, the person may be made a
defendant, or, in a proper case, an involuntary plaintiff."
c. Sufficiency of Huddy-Yamamoto's testimony
Plaintiffs argue that "any benefit realizable by
[Defendants] from [Huddy-Yamamoto's] joinder was obtained by

[Huddy-Yamamoto's] testimony on [Pflueger's] behalf, without the

4 need to make her a party."' However, we refuse to speculate as to

what evidence Huddy-Yamamoto might put forth on remand and how
the circuit court might weigh it compared to her testimony at the
evidentiary hearing.

d. Result

FOFs 102 and 104 are clearly erroneous, and the

portion of COL 12 stating that Huddy-Yamamoto was not prejudiced
by the proceeding is wrong¢ If it was feasible to join Huddy-
Yamamoto in this case, the circuit court plainly erred by not
ordering her to be joined.

8. Analysis under HRCP Rule 19(b)

If the circuit court were to find that it is infeasible
to join Huddy-Yamamoto in this action, she would be an
"indispensible" party pursuant to HRCP Rule 19(b). Rule 19(b)
requires the court to consider several factors in determining
whether a party is indispensable, including whether the absentee
party or an existing party may be prejudiced by a decision,
whether relief may be formed so as to lessen or avoid prejudice,
and whether a judgment rendered without the absent party will be
adequate.

For the reasons we cite in Part III.A.7.a iii-iv §gpra
of this discussion, Huddy-Yamamoto and Defendants would be
prejudiced by the circuit court's decision in this case. with
regard to the second and third Rule 19(b) factors, if Huddy-
Yamamoto is not joined in this action, the circuit court can

offer no relief that would serve to avoid or lessen the prejudice

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to Huddy-Yamamoto or Defendants and the judgment would not be
adequate without Huddy-Yamamoto's presentation of evidence in
support of an easement to the Huddy parcel and the parcel's
access to water.

B. Remaining arguments

Defendants' remaining arguments are based on the
FOF/COL/Order.“ Given our holding that the circuit court
plainly erred by failing to join Huddy-Yamamoto in this action,

we need not address these points because the circuit court's

“ Defendants also argue the following:

(l) "The circuit court erred in finding that the Marvin [parcel] was
entitled to an easement pursuant to HRS [§] 7-1, because such access is based
on ancient and historic use, and the Marvin[s] . . . base their claim on

decidedly modern use of [Defendants' property]."

(2) The Haena kuleana's historical access right is to Lot 1-A (the

Huddy Parcel). The subsequent partition and/or subdivision of a kuleana
parcel does not multiply kuleana access rights, thereby creating responding
burdens to the servient estate. The landlocked condition of Lot 1-A that is
alleged to create the "necessity“ for an easement arose long after the time of
the kuleana parcel's severance from the servient estate (Defendants' property)
and Lot 1-A is bounded by navigable waters.

(3) Because the deeds conveying Lot 1-B from Huntley and Hupy
explicitly note the lack of an easement, the Marvins waived their claim for
one. The absence in the deeds of an express right to an easement shows that
the parties to the deed "intended to deprive the property of those rights of
access to the public road."

(4) The circuit court erred because HRS § 7-1 "does not require the
servient estate to execute a recordable easement," and any right of way
automatically runs with the land.

(5) The circuit court erred in granting Plaintiffs' TRO Motion Re
water and entering a TRO enjoining and restraining Defendants from interfering
with, dismantling, and/or destroying Plaintiffs' water system that brings
water from the western stream and spring to their kuleana because (a) the
Marvin parcel has no riparian water rights because under HRS § 7-1, riparian
rights to water benefit only land adjoining a natural watercourse, (b)
Plaintiffs did not demonstrate that their water rights and use preexisted the
Great Mahele, and (c) Plaintiffs did not establish that they are entitled to
unlimited amounts of water to supply all three houses (the two Marvin houses
and the Huddy-Yamamoto house) on kuleana land.

(6) Plaintiffs' claim for an easement by necessity pursuant to HRs
§ 7-1 is barred by laches because "[b]ased on the express language of the
three deeds conveying the property to the [Marvins], they and/or their
predecessors in interest have been aware for more than forty years that they
have no easement across [Defendants' property]." .

(7) The circuit court erred in summarily dismissing Defendants claim
of trespass because even if the Marvins have rights to access water in the
stream and spring pursuant to HRs § 7-1, "that right was not accompanied by
the right to construct water diversion systems on another's property."

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findings and conclusions would inevitably be revised on remand by
Huddy-Yamamoto's presence as a party in this case.
IV. CONCLUSION
The Final Judgment filed on March 20, 2007 in the

Circuit Court of the Fifth Circuit is vacated, and this case is
remanded for further proceedings in accordance with this opinion.

DATED: Honolulu, Hawafi, June 8 , 2010.

william C. McCorriston

(David J. Minkin and

Becky T. chestnut (McCorriston ’/"

Miller Mukai & McKinnon) with ’ 6£;>

him on the briefs) for '
Presiding Judge

Defendants/Counterclaimants-

Appellants. g
Peter van Name Esser /}5ZjZ@aALz&Qz;Zz€z§Z%%;)
(Teresa Tico with him on the

brief) for Plaintiffs/
Counterclaim Defendants- - Acting Associate Judge

Appellees.
\<.0. zia

Acting Associate Judge

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