2007-07-26_County_ownership_of_Homestead_Road_North_Kona

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Naomi U. Kuwaye, Esq. Jesse K. Souki, Esq. July 26, 2007 Page 2 of 2 but an easement,subject to the County's judgment as to when it will be opened as a public road. See, Territory of Hawaii v.Ala Moana Gardens, 39 Haw. 514(1952). There, the Court held that recording of maps showing streets, and sale of lots,"constitute a dedication"of a road easement for public use,"nor need the streets dedicated by such plat for sale be opened immediately but may be opened by the proper local authorities at such time as the public interest may require,and of this the local authorities are the judges." On rehearing,the court clarified: "The holding is not that there was a statutory dedication and acceptance. . . so as to give title to the Territory and obligation by the supervisors to maintain a public street"but that"maps and plans duly recorded and the sale of lots by the former owners based upon these plans constitute a dedication." 39 Haw.at 655. The Hawaii Appellate Courts thus exercise restraint in declaring that impliedly dedicated roads transfer the fee to the County. The judiciary seems to respect the County executive and legislative authorities' discretion in accepting and opening County roads,even when they are actually in existence and in use as highways. Here, it seems fair to say that the Hawaiian government's actions in laying out these homestead roads on paper at least created a reservation of a road right-of-way for a public highway, in the nature of an easement. It remains unclear whether the County or the State owns the rights to such a right-of-way in an inchoate road. It may be that both the State,as the creator of the subdivision on what would now be state land,and the County,as the entity responsible for county roads, may have a concurrent interest. It is impossible to predict whether the State might have an interest in taking control of a given road,once built. Due diligence would probably dictate that whoever wishes to make use of the road area obtain entitlements or releases from both the State and the County. Please contact the undersigned should you have further questions. Thank you. Very truly yours, IVAN M. TORT OE Deputy Corporation Counsel IMT:stw cc: Lincoln S.T. Ashida, Esq.,Corporation Counsel Gerald Takase, Esq.,Assistant Corporation Counsel Bruce McClure, Director of Department of Public Works Norman Hayashi, Hawaii County Planning Department S:dept\DPW\Roads in Limbo\Ltr to kuwaye&souki re ShopoffGroup\7-26-07\IMTstw