State Ex Rel. Kobayashi v. Zimring , 58 Haw. 106 ( 1977 )

OPINION OF THE COURT BY

RICHARDSON, C J.

The State of Hawaii, plaintiff-appellant, seeks to quiet title¹ in itself as against Maurice and Molly Zimring, defendants-appellees, and their predecessors-in-interest to approximately 7.9 acres of new land added to the acreage of the island of Hawaii when the Puna volcanic eruption of 1955 overflowed the shoreline and extended it. Hereinafter, this new land and similarly created new lands which extend the shoreline are referred to as lava extensions. The disputed lava extension in the instant case lies adjacent to the southerly boundaries of Land Patent Grant No. 4139 (to C.L. Wight) and Land Patent Grant No. 4140 (to H.E. Wilder) in Kehena, Puna, Hawaii, and was created when the 1955 eruption, emanating from an inland source, flowed over the southerly boundaries into the ocean, onto formerly submerged land.

In December of 1960, the Zimrings obtained a deed from the then owners of Grants 4139 and 4140, which described the lands conveyed, in pertinent part, as follows:

1. All of that certain parcel of land (being all of the land described in and covered by Land Patent Grant Number 4139 to C.L. Wight) situate, lying and being at Kehena in the District of Puna, Island, County and State of Hawaii, and thus bounded and described:

[metes and bounds description of Grant 4139 follows in language identical to that used in the original Land Patent Grant, describing one course as ‘along high water mark to end of the 5th course,’ and the total area as ‘64.3 Acres or thereabouts.’]

2. All of those certain parcels of land (being all of the lands described in and covered by Land Patent Grant Number 4140 to H. E. Wilder) situate, lying and being at Kehena, in the District of Puna, Island, County and State of Hawaii, and thus bounded and described:

[metes and bounds description of Grant 4140 follows in language identical to that used in the original Land Patent Grant, describing one course as ‘along high water mark to end of Second course,’ and the total area as ‘9/10 Acres, a little more or less.’]

The conveyances of Grants 4139 and 4140 from W. H. Hill to Herbert C. Shipman in 1944, from Shipman to Francis G. Ruddle in 1959, and from Ruddle to himself, Koshi Miyasaki, Pete Tatsuo Okamoto, Woon Yong Pack and Raymond Y. C. Ho in 1959, were by deeds containing land descriptions identical to that found in the deed the Zimrings received. After receiving the deed, the Zimrings entered upon the disputed lava extension and made improvements thereon which included bulldozing and planting trees and shrubs. In 1968, the State served the Zimrings with a notice and demand to vacate the disputed land and to cease and desist from conducting any further activities thereon. Thereafter, the State filed the instant complaint, joining the Zimrings, their predecessors-in-interest and the predecessors’ spouses.

In their answer, the Zimrings denied the State’s title. They filed a cross-claim against their predecessors-in-interest and also filed two counterclaims, both of which were dismissed by the third circuit upon motion by the State. Upon interlocutory appeal by the Zimrings, this court affirmed the dismissal of the first counterclaim, being a claim of title against the State by adverse possession, but reversed the dismissal of the second counterclaim for damages against the State for trespass, disparagement of title, and interference with contract. State v. Zimring, 52 Haw. 477, 479 P.2d 205 (1970).

The Zimrings had in the meantime interposed a motion for summary judgment based on the affidavit of William K. Kamau, Sr., a kama‘aina witness, who deposed as to his knowledge of Hawaiian usage and custom respecting lava extensions. The trial court granted the Zimring motion, whereupon the State prosecuted its first appeal. In State v. Zimring, 52 Haw. 472, 479 P.2d 202 (companion case of Zimring, supra), this court reversed the entry of summary judgment, relying on the following grounds: (1) the failure of the Kamau affidavit to comply with H.R.C.P. Rule 56(e); (2) the failure of the affidavit to clearly establish the material fact of the existence or absence of Hawaiian usage; and (3) the inadvisability of relying solely on the kind of affidavit submitted, in a case of first impression on a question of vast public importance.

Upon remand, a motion for separate trials of the complaint, counterclaim and cross-claims made by the Zimrings was granted by the trial court, thereby confining the issue in the first trial to the question whether ownership of the subject lava extension was in the State, the Zimrings, or others.

The State moved for summary judgment, attaching copies of Grants 4139 and 4140 and the deeds in the Zimring chain of title which were offered to show that the disputed area was not included in the deeds and that therefore the Zimrings lacked title. The motion was denied by the trial court and trial commenced.

After trial, in accordance with its Findings of Fact contained in paragraphs numbered one to fourteen, the trial court entered the following conclusions of law:

1. This Court has jurisdiction of the parties and the subject matter of this action.

2. The State has failed to carry its burden of proof to establish its title in the land.

3. Because of the unreasonable delay in pressing its claim, resulting in detriment to Zimrings, and because its actions in its several transactions with Zimrings caused Zimrings to believe that they owned the subject land, as a matter of fundamental fairness, the State is precluded from asserting title to the subject land and denying Zimrings such title.

4. Because Hawaiian usage prior to 1892 gave to the owner of land along the seashore, title to land created by volcanic eruption when the eruption destroyed the pre-existing seashore boundary and formed a new boundary along the sea, Herbert Shipman owned the land formed in 1955 abutting Grants 4139 and 4140.

5. Herbert Shipman’s Deed passed title to all of Grants 4139 and 4140, and, by operation of law, to the land formed in 1955, abutting Grants 4139 and 4140. Mr. Ruddle’s deed to himself and his associates passed title to the same land. The Deed of Ruddle and associates of December 19, 1960 passed title to the same land. Zimrings thus acquired and now hold title to the land in dispute.

From the judgment entered, the plaintiff State of Hawaii appeals. We turn now to the major issues raised in this appeal.

I

We first examine the question of whether the State, as plaintiff, has, as the circuit court found, failed to carry its burden of proof to establish quiet title in itself to the disputed lava extension.² It is well settled in Hawaii that in an action to quiet title the burden is on the plaintiff to prove title in and to the land in dispute, and that absent such proof it is unnecessary for the defendant to make any showing. Harrison v. Davis, 22 Haw. 465, 466 (1915).

In support of its claim to title the State advances the proposition that all private ownership stems from Land Commission Awards, Royal Patents, Land Patents or some document of title issued by the sovereign and that absent such documents, title belongs to the sovereign. A short historical survey is necessary to an understanding of the State’s argument.

It was long ago acknowledged that the people of Hawaii are the original owners of all Hawaiian land. The Constitution of 1840, promulgated by King Kamehameha III, states:

KAMEHAMEHA I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and the people in common, of whom Kamehameha I, wg.s the head, and had the management of the landed property.

Fundamental Law of Hawaii (1904) at 3 (emphasis added).

Responding to pressure exerted by foreign residents who sought fee title to land, and goaded by the recognition that the traditional system could not long endure, King Kamehameha III undertook a reformation of the traditional system of land tenure by instituting a regime of private title in the 1840’s. In adopting a system under which individuals could hold title to land, the public domain, which theretofore had been all-encompassing, necessarily was diminished.

A Board of Commissioners to Quiet Land Title, commonly known as the Land Commission, was created in 1846 for the “investigation and final ascertainment or rejection of all claims of private individuals,” and was empowered to make Land Commission Awards. The Minister of Interior was authorized to issue Royal Patents upon such awards, upon payment of commutation by the awardee to the government, usually set at one-third the value of the unimproved land at the time of the award.³ A Land Commission Award furnished as good and sufficient a ground upon which to maintain an action against any person as a Royal Patent. Act of August 10, 1854, Laws of Hawaii, 1854; RLH 1925, Vol. II at 2146-7.

In 1847, the King together with the Privy Council determined that aland mahele, or division, was necessary for the prosperity of the Kingdom. The rules adopted to guide such division were, in part, (1) that the King shall retain all his private lands as individual property and (2) that of the remaining lands, one-third was to be set aside for the Government, one-third to the chiefs and konohiki,⁴ and one-third for the tenants.⁵ The Great Mahele was started in 1848, with the chiefs and konohiki first coming forward to settle their interests by agreement with the King. The Mahele agreements were essentially reciprocal quitclaims and did not convey title. Detailed claims had to be presented to the Land Commission for formal Land Commission Awards.

Once the Mahele agreements with the chiefs and the konohiki had been completed, there was to be a division of the remaining lands between the King and the Government. The King’s motives in undertaking such a division were indicated by this court in Estate of His Majesty Kamehameha IV, 2 Haw. 715, 722 (1864):

Even before [the King’s] division with the [chiefs and konohiki], a second division between himself and the government or state was clearly contemplated, and he appears to have admitted that the lands he then held might have been subjected to a commutation in favor of the government, in like manner with the lands of the chiefs. The records of the discussion in Council show plainly his Majesty’s anxious desire to free his lands from the burden of being considered public domain, and as such, subjected to the danger of confiscation in the event of his islands being seized by any foreign power, and also his wish to enjoy complete control over his own property. Moved by these considerations and by a desire to promote the interest of his Kingdom, he proceeded with an exalted liberality to set apart for the use of the government the larger portion of his royal domain, reserving to himself what he deemed a reasonable amount of land as his own estate.

To effect this, the King signed and sealed two instruments. By one instrument, the King, having “set apart forever to the chiefs and people the larger part of my royal land, for the use and benefit of the Hawaiian Government,” retained for himself and his heirs certain designated lands, thereafter referred to as Crown Lands. By the second instrument, the King “set apart forever to the chiefs and people of my Kingdom” the remaining designated lands. Id. at 723. Until 1865, when Crown Lands were made inalienable,⁶ Kamehameha III and his successors acted like private owners respecting such lands. The deeds executed by the King upon sale of any portion of the Crown Lands are known as Kamehameha Deeds.

The public domain, which previous to the Mahele had been all-inclusive, was diminished by withdrawals of the Crown Lands and the lands successfully claimed by chiefs, konohiki and tenants. It included, inter alia, the lands surrendered to the Government by the King, the lands ceded by the chiefs in lieu of commutation, the lands purchased by the government, and all lands forfeited by the neglect of claimants to present their claims to the Land Commission within the period fixed by law.⁷ In 1893, following the overthrow of the monarchy, the Republic declared that Crown Lands were Government property and part of the public domain.⁸

As to lands which were overlooked in the Mahele and thus unassigned, the question arose whether they were Crown or Government Lands. This court in Thurston v. Bishop, 7 Haw. 421 (1888), adopted the position that such unassigned lands remained part of the public domain.⁹

Following the Mahele, portions of the public domain were sold from time to time in order to provide landless citizens with land and to obtain revenues for public expenditures. Purchasers of these lands were issued documents called Grants or Royal Patent Grants.

This encapsulation of the origin and development of the private title in Hawaii makes clear the validity of the basic proposition in Hawaiian property law that land in its original state is public land and if not awarded or granted, such land remains in the public domain. To establish legally cognizable private title to land in the great majority of cases, one must show that he or a predecessor-in-interest acquired a Land Commission Award, a Royal Patent, a Kamehameha Deed, a Grant, a Royal Patent Grant, or other government grant for the land in question. Thurston v. Bishop, 7 Haw. 421 (1888); In re Title of Pa Pelekane, 21 Haw. 175 (1912). Such award or grant can be demonstrated by either the document itself or through the application of the “presumption of a lost grant.” In re Title of Kioloku, 25 Haw. 357 (1920); United States v. Fullard-Leo, 331 U.S. 256 (1947).

Aside from acquisition of documented title, one can also show acquisition of private ownership through operation of common law or as established by pre-1892 Hawaiian usage pursuant to HRS § 1-1 which reads:

§ 1-1. Common law of the State; exceptions. The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage.

Therefore, we find the State’s position that all land not awarded or granted remains public land to be basically correct. We would only add that transfer to private ownership can also be shown through the operation of common law or as established by pre-1892 Hawaiian usage.

Since the subject lava extension was created in 1955, there could not be any Land Commission award for it.¹⁰ The record is barren of any evidence that the extension was ever the subject of a government grant. We therefore now turn to the question of whether there is any pre-1892 Hawaiian usage or common law doctrine which establishes private ownership to the extension.

II

Respecting the existence of pre-1892 Hawaiian usage, the trial court concluded that there was traditional usage by which a Zimring predecessor-in-interest acquired the disputed lava extension. See Conclusion of Law No. 4, supra.

The trial court recognized that “there is a paucity of evidence in this area [of usage and custom],” (Tr. p. 190), but based its conclusion of usage on Findings of Fact 13 and 14. In Finding of Fact 13, the court found the lava flows of 1868 and 1887 to be relevant to the instant case. These two flows were the only ones between 1846 (when private land ownership originated in Hawaii) and November 1892¹¹ which created new lava extensions abutting private lands. Regarding the 1868 flow, the court found (emphasis added):

One flow, that of 1868, added land to a previously granted Land Commission Award, granted in 1854. The evidence showed that the Boundary Commission (1876) and the Royal Patent, issued in 1877, both followed the new shoreline and'included newly created land. Both the Boundary Commission and the Royal Patent expressly referred to the 1868 flow. This is the only documentary evidence offered on Hawaiian usage before 1892.

. The 1887 flow created a lava extension which abutted the property of C. C. Harris, a private owner. Respecting this, the court found:

There is no direct evidence of governmental action between 1887 and 1892, but a tax map was introduced which showed that the whole of that land to the post-1887 seashore [i.e., including the lava extension] was still listed as privately owned some 85 years later.

In Finding of Fact 13, the trial judge stated that “the evidence reveals consistent indications, from the nature of ancient Hawaiian land grants under the traditional system, to the usage of State surveys and tax maps into the 1960’s, that Hawaiian usage was always to give lava-extended shorelines to the abutting . . . owner.”

We hold that the isolated pre-1892 governmental actions cited by the Zimrings are insufficient to establish the asserted usage. There simply were too few lava flows over private oceanfront land between 1846 and 1892 to establish a usage.

Furthermore, there was no evidence adduced at trial as to pre-Mahele practice with respect to new lava extensions. The conjecturing of one counsel as to what the “custom must have been”¹² is not competent. Even assuming that competent evidence had established a traditional usage by which a landholder acquired the right to use lava extensions, such evidence would be of little weight in this case. Under the traditional and more communal economic system in preMahele Hawaii, the ahupua‘a were designed to be self-sufficient economic units. Thus, had a practice existed which allowed the landowners the use of lava extensions, such practice would have made good economic sense since denial of access to the ocean and fishing grounds would have rendered the ahupua‘a something less than self-sufficient. The economic necessity for such a practice would not have carried over into a private property regime within the framework of a private enterprise economic system. Moreover, the interests a landholder may have enjoyed under the traditional system, within which there was no private title and all land was held in trust for the people by the King, are of little relevance in determining private rights to title under a private property regime.

Tax map treatment of the lava extension created in the 1887 lava flow, relied upon by the trial court to determine usage, indicates only what the tax department assumed about ownership of land. A usage must be based on actual practice, and the drawing of maps and surveys is not tantamount to a practice of awarding or granting title. The tax department is in no position to adjudicate land titles and has no authority to award land or grant land patents. Any assumptions which that department makes or any practices which it follows are no substitute for action by the appropriate governmental body or adjudication by the appropriate tribunal.

Nor can the asserted usage be sustained by reference to government treatment of the lava flow of 1868, which created a lava extension at Pakini Nui, an ahupua‘a awarded by name only to Victoria Kamamalu by the Land Commission in 1854 and the subject of Royal Patent No. 4475 in 1861. Pursuant to an 1862 statute which required all persons who had received awards by name only to apply to a Boundary Commission for a determination of their boundaries,¹³ the awardee made such application and Commissioner R. A. Lyman determined the boundaries of the ahupua‘a of Pakini Nui to include the 1868 lava extension. In 1877 a second Royal Patent was issued with a metes and bounds description encompassing the lava extension.¹⁴

It was the duty of the Boundary Commission to determine the boundaries of awarded land,¹⁵ and it is questionable whether the Commission had the authority to increase an award made by the Land Commission. In the Pakini Nui case, an increase was clearly accomplished since the original 1854 award could not have included a lava extension created eight years later in 1862. The reasons for the inclusion of the extension in Commissioner Lyman’s boundary determination do not appear anywhere, and any suggestions as to what they may have been are speculative. However, irrespective of whether such increase was authorized or not and the reasons therefor, the issuance of the second Royal Patent in 1877 served as a quitclaim of the interest of the government in the lava extension¹⁶ and now serves as the basis for private title in the extension.

In this case, however, there is no Royal Patent covering the lava extension in question and we do not find that the government’s sole act of quitclaiming its interest in the Pakini Nui lava extension sufficient to give rise to a usage. Our hesitancy to rely upon a single act to establish usage is reinforced in this case by the absence of any evidence as to the reasons for that act.

We agree with the trial court that there is a paucity of evidence establishing usage and moreover find such paucity fatal. We do not find substantial evidence that “Hawaii usage prior to 1892 gave to the owner of the land along the seashore, title to land created by volcanic eruption when the eruption destroyed the pre-existing seashore boundary and formed a new boundary along the sea . . .. ”¹⁷ Reversing the trial court in its finding of usage, we turn to whether the common law establishes private ownership of lava extensions.

III

No court sitting at common law has had occasion to deal with the question of lava extensions. We understand this case to be one of first impression and are mindful of its potential impact. The decision is one which will count for the future. In surveying the common law, the only doctrines which are even of conceivable application are those of accretion and avulsion. We agree with the appellees’ statement in the proceedings below that “the common law on accretion and avulsion in other states is not directly on point.” However, the appellees contend that the “logic of cases based on these concepts would lead to the rule that volcanic additions on the Island of Hawaii go to the abutting owner.” We disagree.

As known at common law, “the term ‘accretion’ denotes the process by which the area of owned land is increased by the gradual deposit of soil due to the action of a bounding river, stream, lake, pond, or tidal waters.” 7 R. Powell, Real Property (1976) ¶ 983. When accretion is found, the owner of the contiguous land takes title to the accreted land. Halstead v. Gay, 7 Haw. 587, 588 (1889). Professor Powell indicates that the “basic justification for a doctrine which permits a boundary to follow the changing stream bank is the desirability of keeping land riparian which was riparian under earlier facts, thus assuring the upland owners access to the water and the advantages of this contiguity.” Id.

While the accretion doctrine is founded on the public policy that littoral access should be preserved where possible, the law in other jurisdictions makes it clear that the preservation of littoral access is not sacrosanct and must sometimes defer to other interests and considerations. For example, it is well established in California “that accretions formed gradually and imperceptibly, but caused entirely by artificial means . . . belong to the state or its grantee, and do not belong to the upland owner.” Carpenter v. City of Santa Monica, 63 Cal. App. 2d 772, 794, 147 P.2d 964, 975 (1944); People v. Hecker, 179 Cal. App.2d 823, 4 Cal. Rptr. 334 (1960). In California it is also well settled that being cut off from contact with the sea is not basis for proper complaint. In Los Angeles Athletic Club v. Santa Monica, 63 Cal. App.2d 795, 799, 147 P.2d 976, 978 (1944), a companion case to Carpenter, supra, the court noted (citations omitted):

It is well settled that the littoral rights of an upland owner who owns no title to tidelands adjoining his property are subject to termination by whatever disposition of tidelands the state, or its grantees, in the exercise of their trust, choose to make.”

Likewise, in cases where there have been rapid, easily perceived and sometimes violent shifts of land (avulsion) incident to floods, storms or channel breakthroughs, preexisting legal boundaries are retained notwithstanding the fact that former riparian owners may have lost their access to the water. Garrett v. State, 118 N.J. Sup. 594, 601, 289 A.2d 542, 546 (1972). See also Nebraska v. Iowa, 143 U.S. 359 (1892).

In determining in whom lava extensions should vest, we are guided by equitable principles and must balance between competing interests. On the one hand, there is the interest of the former littoral owner seeking to regain access to the ocean. On the other hand is the interest of the public at large, the original and ultimate owner of all Hawaiian land.

Certainly, a grant of the lava extension to the former littoral owner would compensate him for the loss of the beach-frontage character of his property. However, it is the windfall of the added acreage which such owner would also be afforded which this court finds troublesome. If a one-third acre parcel fronting the ocean is flowed over by lava which adds one or two seaward acres to the parcel, is it equitable that its owner acquire property which is three or six times the size of the preexisting parcel? If a littoral owner is to be thus compensated for lava devastation, should not an upland pasture or farm owner be also compensated with pasture or farm land for the destruction of what had been the chief economic attribute of his parcel?

It is impossible for any court to fashion a legal doctrine which will equitably compensate all victims of lava devastation. This court believes that it is within the province of the legislature to determine the nature and extent of compensation for such natural disasters.

Rather than allowing only a few of the many lava victims the windfall of lava extensions, this court believes that equity and sound public policy demand that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee. Given the paucity of land in our island state and the concentration of private ownership in relatively few citizens, a policy enriching only a few would be unwise. Thus we hold that lava extensions vest when created in the people of Hawaii, held in public trust by the government for the benefit, use and enjoyment of all the people.

Under public trust principles,¹⁸ the State as trustee has the duty to protect and maintain the trust property and' regulate its use. Presumptively, this duty is to be implemented by devoting the land to actual public uses, e.g., recreation. Sale of the property would be permissible only where the sale promotes a valid public purpose.

While the Zimrings cannot be granted the private beachfront title which they seek, they, as members of the public, would share in public access to the lava extension and to the ocean, unless the interest in allowing public access is outweighed by some other public interest, or unless the land is sold in furtherance of the public interest.

IV

The appellees argue as a separate and independent ground for dismissing the State’s claim that the State failed to show how it acquired a claim to the disputed lava extension from the federal government. In response to the State’s argument that the federal government ceded the disputed land to the new state in the Admission Act,¹⁹ the appellees argue that the only federal public lands which passed to the State were lands ceded to the United States by the Republic of Hawaii in 1898. Since the subject land was created in 1955, they argue that it could not have been part of “ceded lands” and therefore, was not conveyed to the State pursuant to the Admission Act.

Section 5(b) of the Admission Act reads:

Except as provided in subsection (c) and (d) of this section, the United States grants to the State of Hawaii, effective upon its admission into the Union, the United States’ title to all the public lands and other public property within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union ....

Section 5(g) of the Act indicates that “‘public lands and other public property’ means, and is limited to, the lands and properties that were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation ... or that have been acquired in exchange for lands and properties so ceded.”

According to the Joint Resolution of Annexation, the Republic ceded to the United States

all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also . . . the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining ²⁰

We do not read “property . . . with every right and appurtenance thereunto appertaining,” as narrowly as do the appellees. It is well known that the term “property” is extremely broad. Without limiting adjectives or other qualifications, the term includes property which is real, personal and mixed, choate and inchoate, corporeal or incorporeal. Hunt v. Authier, 169 P.2d 913, 917 (9th Cir. 1946). The U. S. Supreme Court in interpreting the treaty by which Louisiana was acquired stated that “[t]he term ‘property’ as applied, comprehends every species of title inchoate or complete.” Soulard v. United States, 29 U.S. (4 Peters) 511 (1830).

As a sovereign and independent power and as successor to the Kingdom of Hawaii, the Republic had an interest in any lands to be added to the Territory of the Hawaiian Islands, whether through conquest, discovery, or volcanic activity. Such an interest was recognized in Article 15 of the Republic’s Constitution, which stated:

The Territory of the Republic of Hawaii shall be that heretofore constituting the Kingdom of the Hawaiian Islands, and the territory ruled over by the Provisional Government of Hawaii, or which may hereafter be added to the Republic.²¹

Since the cession was completely voluntary, pursuant to the “expressed desire of the government of the Republic of Hawaii,”²² the Republic could have ceded something less than all of its property rights and interests, retaining, for example, all public land on the Island of Hawaii and all rights to lava extensions thereafter created. However, the Republic chose to cede and voluntarily quitclaim all of its property interests including its right to, and interest in, any future lava extensions. Since the right to future lava extensions was conveyed to the United States at the time of annexation, any lava extension thereafter created should be considered to be among the “lands and properties that were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation. ”²³ Such land passed to the State of Hawaii pursuant to Section 5(b) of the Admission Act. The State thus obtained title to the disputed lava extension upon admission in 1959.

A conclusion that the parcel in question was not conveyed to the State upon admission would be inconsistent with our understanding of congressional intent underlying the land conveyance provisions of the Admission Act. The complex provisions of Section 5 of the Act are indicative of a congressional purpose to convey to the State all public properties not necessary for the uses and purposes of the United States. The federal government has always recognized the people of Hawaii as the equitable owners of all public lands; and while Hawaii was a territory, the federal government held such lands in “special trust”²⁴ for the benefit of the people of Hawaii. Thus the Joint Resolution of Annexation provided in substance, that the existing laws of the United States governing public lands should not apply to Hawaii, that special laws should be enacted for the management and disposition of such property, and that the income derived from it should be used “solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes,” except respecting such property “as may be used or occupied for the civil, military or naval purposes of the United States.”²⁵ In the Hawaii Organic Act, in enacting special laws for the management and disposition of public lands, Congress provided that the United States would have no more than naked title to the public lands other than those set aside for federal uses and purposes. The Organic Act provided:

Sec. 91. That the public property ceded and transferred to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July seventh, eighteen hundred and ninety-eight, shall be and remain in the possession, use, and control of the government of the Territory of Hawaii, and shall be maintained, managed, and cared for by it, at its own expense, until otherwise provided for by Congress, or taken for the uses and purposes of the United States by direction of the President or of the governor of Hawaii.²⁶

The beneficial ownership of the people of Hawaii was again acknowledged in the Admission Act, wherein Congress provided that the public lands conveyed to the State upon admission “shall be held by said State ás a public trust for the support of the public schools and other public institutions, for the betterment of the conditions of native Hawaiians . . . for the development of farm and home ownership on as widespread a basis as possible, for the making of public improvements, and for the provisions of lands for public use.”²⁷

The conveyance of public lands to the State upon admission was subject to the reservation in the Admission Act that any public lands “set aside” for federal use by act of Congress or by order of the President or the governor of Hawaii prior to Statehood or within five years from admission would remain federal property.²⁸ It is not disputed, however, that the subject lava extension has never been “set aside” for federal uses and purposes and that the federal government has never indicated any interest therein.

Excepting lands set aside for federal purposes, the equitable ownership of the subject parcel and other public land in Hawaii has always been in its people. Upon admission, trusteeship to such lands was transferred to the State, and the subject land has remained in public trust since that time.

V

Another issue is whether the State is estopped from asserting its claim to title in this action. This court has stated that “the doctrine of equitable estoppel is fully applicable against the government if it is necessary to invoke it to prevent manifest injustice.” Yamada v. Natural Disaster Claims Commission, 54 Haw. 621, 629, 513 P.2d 1001, 1006 (1973).

The trial court, in Findings of Fact Nos. 4 through 12, determined that the following supported estoppel against the State: that on several occasions beginning in May, 1961, the Zimrings informed the State of their belief that they owned the subject lava extension; that on October 23, 1961 the Zimrings and the State executed a mutual deed relating to easements on Grants 4139 and 4140, and that the State did not indicate its claim to the lava extension at that time or during prior negotiations; that the State assessed, and the Zimrings paid, taxes on a parcel that included the subject land; that on September 9, 1964, when the Zimrings and State executed deeds respecting the location of the government road, the State did not indicate a claim to the disputed land; that the Zimrings first learned of the State’s interest in a newspaper article published on May 12, 1965 in the Hawaii Tribune-Herald; and that the State did not make a formal claim until August, 1968.

We note that the record does not support Finding of Fact No. 4 that the Zimrings informed the State of their belief of ownership of the lava extension as early as May, 1961. At that time, the Zimrings merely presented to the State a Certificate of Title and a Continuation which certified title to “that certain parcel of land (being all of the land described in and covered by Land Patent Grant No. 4139 to C.L. Wight)” and “those certain parcels of land (being all of the lands described in and covered by Land Patent Grant No. 4140 to H.E. Wilder).” The Certificate of Title, which the Attorney General found satisfactory, does not indicate any claim to the lava extension abutting Grants 4139 and 4140 and as we discussed in Part III above, the lava extension did not become part of the Grants through operation of law. Similarly, both the deeds relating to the easements and the roadway contain acknowledgment of Zimring ownership “of lands described in Grant 4139 to C.L. Wight, and 4140 to H.E. Wilder” but fail to state that Grants 4139 and 4140 include the lava extension created in 1955, some fifty-seven years after the grants were awarded.

While the evidence does indicate that the Zimrings were assessed, and paid, taxes on the subject parcel since 1961, the collection of taxes on land does not necessarily estop a government from asserting a claim to land. Halvorsen v. Pacific County, 22 Wash.2d 532, 156 P.2d 907 (1945); Gulf Oil Corp. v. State Mineral Board, 291 So.2d 807 (La. App. 1974); International Paper Co. v. Mississippi State Highway, 271 So.2d 395 (Miss. 1973); Dunnick v. Stockgrowers Bank of Marmouth, 191 Neb. 370, 215 N.W.2d 93 (1974). In the instant case, the tax department acted beyond its authority in imposing a tax upon private individuals for public land. It is well settled that “estoppel will not be applied where the officials on whose conduct or acts it is sought to be predicated acted wholly beyond their power and authority . ...” 28 Am. Jur. 2d, Estoppel and Waiver § 122; Farrow v. Charleston, 169 S.C. 373, 168 S.E. 852 (1933); Petty v. Borg, 106 Utah 524, 150 P.2d 776 (1944); accord, Godbold v. Manibog, 36 Haw. 206 (1942).

The State did not inform the Zimrings of its claim to the disputed parcel until 1968, some seven years after the Zimrings had purchased Grants 4139 and 4140. However, “[mjere silence does not create estoppel unless there was some obligation to speak or duty to speak . . . .” Peabody v. Damon, 16 Haw. 447, 455 (1905); Broida v. Hayashi, 51 Haw. 493, 500, 464 P.2d 285, 290 (1970); 31 C.J.S., Estoppel § 87; 28 Am. Jur.2d, Estoppel and Waiver § 53. In the instant case, the question of title to the subject lava extension was not raised in communications between the parties before 1968; there was no assertion of title or institution of legal action to clear title on the part of either party before 1968. We find, therefore, that there was ho obligation or duty to speak on the part of the State before this action was initiated. We are not persuaded that the bulldozing of, and the planting of trees and shrubs on the subject land, in the absence of evidence of ■knowledge and consent of the State, is sufficient to give rise to an obligation to speak.

Andrew S. O. Lee and Edwin Watson, Deputy Attorneys General, for plaintiff-appellant. Franklin E. Zimring (Molly D. Zimring with him on the briefs) for defendants-appellees. Ivan M. Lui-Kwan (Carlsmith Carlsmith Wichman & Case, of counsel) for Herbert C. Shipman et al.

We are also of the opinion that the combination of the collection of taxes on, and silence with respect to a claim for the subject land does not estop the State. International Paper Co. v. Mississippi State Highway Department, supra; Gulf Oil Corp. v. State Mineral Board, supra.

Furthermore, we do not find Yamada, supra and City of Long Beach v. Mansell, 3 Cal. 3d 462, 476 P.2d 423 (1970), which the Zimrings cite, to be controlling in the instant case. In those cases, the extent of government involvement and participation and private owner reliance was extensive, resulting in manifest injustice. There was no manifest injustice here. We therefore hold, on the facts of this particular case, that the State is not estopped from asserting its claim to the subject parcel. Given the disposition of this appeal, we find it unnecessary to consider the State’s specifications that the trial court erred in denying its motion for summary judgment and in granting the Zimrings’ motion for separate trial.

In conclusión, the subject lava extension when created was public domain, and there is no indication that pursuant to Government grant, operation of common law, or Hawaiian usage, such land ever left public hands. Title to the land passed to the State from the federal government pursuant to the Admission Act.

In view of the foregoing, we find that the trial court erred in not quieting title in the State and further erred in granting title to the Zimrings. We reverse and remand for entry of judgment in accordance with this opinion.

1 The State filed this action on October 3,1968, pursuant to§ 242-l(a), RLH1955, as amended by Act 258, SLH 1967 § 1.

2 See Conclusion of Law No. 2, supra.

3 L. 1846 at 107; RLH 1925, Vol. II at 2120-3. See also J. Chinen, Original Land Titles in Hawaii at 4 (1961).

4 Konohiki in ancient Hawaii were agents of the King or chiefs.

5 Privy Council Records, Vol. II at 250-308.

6 L. 1864 at 69; RLH 1925, Vol. II at 2177-9.

7 After several extensions, konohiki who failed to obtain awards for designated mahele lands were given until January 1, 1895 to present claims to the Minister of Interior. L. 1892, c. 68; R.L.H. 1925, Vol. II at 2151-2.

8 Article 95 of the Constitution of July 3,1894, Fundamental Law of Hawaii at 237 provides:

That portion of the public domain heretofore known as Crown Land is hereby declared to have been heretofore, and now to be, the property of the Hawaiian Government, and to be now free and clear from any trust of or concerning the same, and from all claim of any nature whatsoever, upon the rents, issues and profits thereof.

9 Respecting unassigned lands, W. C. Alexander, Surveyor-General of Hawaii from 1870-1901, wrote:

[I]t appears from the record that during the reign of Kamehameha III, [unassigned lands] were treated as Government property, and that many sales from these lands were made by the Government, patents for which were signed by him.

These facts have peculiar weight, as they indicate the views held on this subject by the very parties who executed the original “Mahele”, and it must be admitted that Kamehameha III, and the able men who composed his Council and who organized this Government, probably understood their own work better than did those of a later generation.

W. Alexander, Appendix to Surveyor-General’s Report: A Brief History of Land Titles in the Hawaiian Kingdom (1882) at 27.

10 The Land Commission was dissolved in 1854. L. 1854 at 21; RLH 1925, Vol. II at 2146-7.

11 November 25, 1892 is the date by which ancient Hawaiian usage must have been established in practice. State v. Zimring, 52 Haw. 472, 479 P.2d 202 (1970).

12 Transcript at 183.

13 L. 1862 at 27.

14 Greenwell v. Paris, 6 Haw. 315 (1882), established the principle that a second patent might be issued on land already patented when the original patent did not contain a metes and bounds description.

15 L. 1862 at 27-8.

16 Mist v. Kawelo, 11 Haw. 587, 589 (1898).

17 Conclusion of Law No. 4.

18 See generally Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892); King v. Oahu Ry. & Land Co., 11 Haw. 717 (1899).

Cf. the discussion infra of the public trust expressly imposed on “public lands” by the Hawaii Admission [Statehood] Act.

19 Act of March 18, 1959, Pub. L. 86-3, 73 Stat. 4.

20 Resolution No. 55 of July 7, 1898 (Newlands Resolution), 30 Stat. 750 (emphasis added).

21 Constitution of July 3, 1894, in Civ. L. 1897 at 5.

22 Preamble to the Treaty of Annexation of 1897, quoted in the Resolution of the Senate of Hawaii Ratifying the Treaty of Annexation, RLH 1905, at 40.

23 Admission Act, § 5(g).

24 Such a special trust was recognized by the Attorney General of the United States, in 22 Op. Atty. Gen. 574 (1899).

25 Joint Resolution of July 7, 1898 30 Stat. 750, 48 U.S.C. 661:

The existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the United States shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil, military, or naval purposes of the United States, or may be assigned for the use of the local government, shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.

26 Act of April 30, 1900, 31 Stat. 141 (emphasis added).

27 § 5(f) (emphasis added).

28 §§ 5(b) and (c). See Senate Rep. No. 80, 86th Cong., 1st Sess., U. S. Code Cong. & Ad. News, 1346, 1362 (1959).