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HomeMy WebLinkAboutCOM 0234.001 2002-2004 4o••.p,o. w~: iephen Y Imashiro Richard Wurdeman Mayor ~ - Corporation Coumd •r . •'a ~l[ n'i',jrr U.II1T1tf~J II~ ~FIf1TtItT OFFICE OF THE CORPORATION COUNSEL (01 Aupuni Street. Suite }25 • Hilo, Hawaii 96720A262 • (808) 961-8251 • Faz (808) 961.8622 20 August 1996 OPINION NO. 96-05 MS. DONNA FAYE K. KIYOSAKI Director, Public Works 25 Aupuni Street Hilo, Hawaii 96720 SUBJECT: PAPER ROADS Dear Ms. Kiyosaki: This office continues to receive requests from the Department of Public Works requesting opinions on the ownership of roads. Some of these roads are true "paper" roads, in that they appear on maps but have never been used as roads. Others are old roads which have fallen into disuse and disrepair. Still others, are private roads which have long been in public use. The factual variations are infinite, and too often the factual history is not readily available, without extensive research. Although there may be special circumstances that affect individual roads, the following general principles apply. I. Public Highways Undez the terms of the Highways Act of 1892. (Act 47 of 1892) all roads existing at that time, were declared to .be public highways, and title thereto was vested in the Government. In Re Aonlication of Kellev, 50 Haw. 567 (1968). In addition, all roads, alleys, streets, ways, lanes, bikeways, and bridges opened, laid out, or built by either the Territorial, State or County Governments since 1892, are public highways. HRS §264-1. All such highways are county highways, unless they have been designated to the part of the State Highway System by the Director of Transportation. HRS §264-41, 42, Santos v. Perreira, 2 Haw. App. 387 (1982) ~j Comm. No._ 2 Ref. Toh~~~rM ~ Ref. Date Ms. Donna Faye K. Kiyosaki 2J September 1996 Page 2 Although, under former law title to the rights of way for all public highways was vested in the Territory or State, In Re American Suaar Co. 29 Haw 820 (1927), title to all County Highways was transferred to the Counties by virtue of Act 221 (1965), now part of HRS §264-2. II. Private Highways Those roads, alleys, and streets built, laid out, or opened by private parties, become public highways only when they are surrendered or dedicated to public use. This surrender or dedication may occur either by deed of conveyance, or when the private owner has not ezercised any act of ownership for five years. In all such cases, however, the road does not become a county highway unless it is accepted by the Council, HRS §264-1. A road so dedicated, but not accepted, remains the property of the dedicator, but subject to some prescriptive right by the public, Territory v. Ala Moana Gardens 39 Haw. 517 (1952); Citv and County of Moan Inv Co., 1 Haw. App. 52 (1980), and, until acceptance, remain "roads in limbo". III. Paper Roads The much used term "paper roads" has become a catch all, describing all sorts of unused or abandoned roads. The true meaning, as we understand it to be, is roads which were laid out on a map, such as a subdivision plat, but which are never developed or used. Such roads, in our opinion, remain the property of the dedicator, although subject to an encumbrance that they be kept free of alterations which would prevent statutory dedication. City and County v Boulevard Prover ie 55 Haw. 305 (1973). This type of implied dedication, therefore, although divesting the landowner of the freedom to develop the property does not shift the responsibility of maintenance, or of title. IV. Summary We hope that this attempt to analyze this complez and often controversial subject will be of assistance. We wish to reiterate, however, that on any particular road, the factual history surrounding that road is critical. At times, the absence of such facts may make application of the applicable legal principles impossible. For ezample, was the road in question ever used as a vehicular right of way or is it a trail, and thus subject to the jurisdiction of the State Department of Donna Faye K. Kiyosaki 20 September 1996 Page 3 Land and Natural Resources. HRS §264-1(b). In other Cases, such as those involving "homestead" roads (rights of ways retained by the government as part of the program of land distribution authorized by the Homestead Act of 1895), no one may know whether the road was ever put into use, (and is thus a County Road), or whether it is in fact a "paper' road. In all such cases, however, we recommend that insistence on legalistic technicalities should not be our accepted policy, but that the welfare of concerned members of the public provide the guidance to resolve difficult cases. Sincer ly, . WURDEMAN Corporation Counsel RDW:1504L/bre r 1 f +q~~ e~..' 93- .Ya ~ a ~ ~ +]ua C~.i~icE ~EVE+C ~ y )fl l'1 aC R u ~ ~ 7 IR+I L• 1 i 1 L ~ia 'OU"*c E evRCes so n"c am° °ceaN R~. . ~ C°NSERVa00N ae'C RE$OUFJE$ cNFpq[c4EVi STATE OF HAWAII r'!" ~ `°""E""""~ Cw,~li ~,.r.+.,~. RoRESrev.NOwi~ouEE DEPARTMENT OF LAND AND NATURAL RESOURCES ~~sr°R;c PAESERVa.~oN .amc orois~oN mR"s P.O. BOX 621 .va,ERRESOUace",aNace~+En- HONOLULU, HAWAII 96809 October 13, 1999 Ref LD-DSM The Honorable Stephen Yamashiro Mayor County of Hawaii 25 Aupuni Street, Room 215 Hilq Hawaii 96720 Dear Mayor Yamashiro: Subject: Legal Interpretation of the Definition of "Public Highway" under Sectio? 264-1(a), Hawaii Revised Statutes (HRS) This letter provides you and your staff with an update on the State's position with regard to paper roads under the definition of "public highways" pursuant to §264-1(a), HRS. In the past, the Department considered paper roads unencumbered State lands under the jurisdiction of the Board of Land and Natural Resources (BLNR). The Department has recently amended its position on paper roads after consulting with the Department of Attorney General (DAG). We now are of the view that homestead paper roads are public highways which have been laid out by the government and fall under §264-I(a), HRS. In their opinion of July 21, 1999 (attached), the DAG concluded that "a paper road which has been delineated or laid out on a subdivision map and originally created by either the State or a county, is a public highway, and, in general, is owned by the county in which the highway lies." Thus, in most instances, the homestead paper road would be a county public highway. The DAG went on to advise us that the BLNR should no longer grant easements over county public highways, including paper roads, and that applicants should be referred to the respective county for appropriate action. Consequently, we would like to inform you that the BLNR will ?o longer issue easements, deeds or other conveyance instruments for county paper roads. We may, however, make an exception where the issuance of a quitclaim deed by the BLNR is specifically requested by the county and required to clear title for the conveyance of the road from the county to a private party. Accordingly, proceeds from the sale of abandoned county public highways may be retained by the county pursuant to §264-3, HRS. The Honorable Stephen Yamashiro October 13, 1999 Page 2 If you have any questions regarding the above, please feel free to contact Land Division administrator, Dean Uchida, at 587-0446 or Deputy Attorney General, Ms. Dawn Chang, at 587- 2993. Thank you. Very Truly Yours, ~„c.a/ - TIMOT E. JOHNS Chairperson Enclosure cc: Public Works Department Corporation Counsel T o.~,; BENJAMIN J. CAYETANO R~ GOVERNOR - ~ ~ 4TTORNEV GENERA~~x 1 THOMAS R. KELLER P qST DEPUTY ATTORNEY GENERq~ STATE OF HAWAII DEPARTMENT OFTHE ATTORNEY GENERAL LANDlTRANSPORTATION DMSION ROOM 300, KEKUANAO'A R W LDING 465 SOUTH KING STREE7 HONOLUW, HAWAII 96813 _ July 21, 1999 The Honorable Timothy E. Johns - Chairperson of the Board of Land and Natural Resources 1151 Punchbowl Street Honolulu, Hawaii 96813 Dear Mr. Johns: Re: Request for Legal Interpretation of the Definition of "Public Highway" under HRS 264-1 (a) THE QUESTION This is in response to your predecessor's May 6, 1998 memorandum asking whether the Board of Land and Natural Resources (BLNR) may sell an access easement over a "paper road."' To put it another way, the question is, does the BLNR own paper roads, pursuant to Hawaii Revised Statutes (HRS) § 264-2, so that it may dispose of said roads under § 171-13, HRS. 1 For purposes of this opinion, the term "paper road" means a road which has been planned by the government for the purpose of providing access to a government created homestead lot, but does not actually exists on the ground. Often paper roads are shown on subdivision maps. The Honorable Timothy E. Johns July 21, 1999 Page 2 BP.IEF ANSWER In brief, we conclude that a paper road which has been delineated or laid out on a subdivision map and originally created by either the State or a county, is a public highway, and in general,' is owned by the county in which the highway lies. Thus, in most instances, the county, not BLNR has jurisdiction to disDOSe of the road. BACKGROUND The question of how to treat a paper road under § 204-1, HRS, has arisen from time to time when the BLNR has been asked to grant a property owner an easement over a paper road on public land for access to the property owner's lot. The matter generally arises in the context of a request by homestead subdivision lot owner for an access easement from the State over the paper road in order to qualify for financing for a residence_ Financial institutions cenerally require a homestead lot to have access to a public highway before the applicant may qualify for a mortgage. Historically, the BLNR has granted to homestead lot owners easements fir access purposes over these paper roads. This action makes sense only if a paper road is not a county "public highway" owned by the county and as such may be treated as unencumbered state land subject to conveyance by the BLNR. An ,example of the problem arose recently on the island of Hawaii, where the government (State) created homestead lots on state public lands for leases and fee simple homestead ownership, pursuant to the Land Act of 1895 (Act). Section 212 of the Act authorized the Commission of Public Lands' to survey and set 2We say "in general" because although the specific determination of whether a paper road is owned by the State or county will be factually based in each instance, almost all if not all homestead paper roads will be county public highways. 'The Commission .~f Public Lands is the predecessor to the Board o` Land and Natural Resources. Act 32, 1302 Haw. Sess. Laws. 95. The Honorable Timothy E. Johns July 21, 1999 Page 3 apart portions of public lands for homestead lots and roads. In many instances, the government subdivided and sold the lots but never constructed or built the planned roads that were intended to connect the lots to a public highway. The roads, however, were shown on subdivision maps created by the government. In a memorandum dated June 8, 1992, we advised the Hawaii District Land Agent that such a paper road was not a "public highway" within the meaning of HRS ~ 264-1. We stated that in order for a road to be a public highway the road had to exist on the ground. Because of that conclusion, we further advised that paper roads on the public land in question should be treated as unencumbered state lands within the jurisdiction of the Department of Land and Natural Resources, rather than public highways subject to county jurisdiction. As such, the roadway lands could be disposed of by the State. For the reasons which follow, we reconsider the memorandum of June 8, 1992, and conclude that homestead paper roads are roads that have been "laid out" within the meaning of HRS ~ 264-1 and are thus "public highways." As to whether the spcific public highway, (Kalaniauli Road, Olaa Summer Lots, Puna, Hawaii, TMK 3rd/1-9-03), is under the jurisdiction of the State or under the jurisdiction of the county, we find that the road is owned by the county and subject to its disposition, not the BLNR's. DISCUSSION A. Definition of Public Highway. Hawaii Revised Statutes ~ 264-1, defines "public highway" as follows: (a) A11 roads, alleys, streets, ways, lanes, bikeways, and bridges in the State, opened, laid out, or built by the government are declared to be public highways. [Emphasis added.] The Honorable Timothy E. Johns July 21, 1999 Page 4 The definition of public highways under HRS § 264-1(a), is identical to the original definition of public highways found in the Highways Act o` 1892. The terms "opened" and "built" in the statute are apt to describe a road that actually has been built and exists on the ground. The term "laid out," on the other hand, is more likely to describe a road that has not been built yet, but is intended to be built. Zn order to ,certain the true meaning of a statute, we are generally guided by canons of statutory interpretation. "[T]he fundamental starting point is the language of the statute .itself." Mathewson v. Aloha Airlines Inc., 82 Haw. 57, 71, 919 P.2d 969, 983 (1995). When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. (citation omitted). And fifth, in construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining the legislative intent. (citation omitted). Peterson v Hawaii Elec Liaht Co Inc 85 Haw. 322, 328, 944 P.2d 1265, 1271 (1997). There is no statutory definition for the term "laid out." The term "lay out," however, is defined in ordinary terms as meaning "to plan in detail; to map out; to arrange as grounds or plans. (Webster's New International Dictionary, 2d ed., unabridged, 1950.)" In the Matter of Bishop Trust Co Ltd., 40 Haw. 730, 732 (1955), reh'g denied, 41 Haw. 650 (1955). In Bishop Trust, the Supreme Court of Hawaii, described the term "laid out," as meaning a road which is "delineated on a map or otherwise located and defined." Id., 40 Haw. at 732. The Honorable Timothy E. Johns July 21, 1999 Page 5 Similarly, in Watson v. Greely, 69 Ca1.App. 643, 232 P. 475 (CA 1924), the court distinguished roads that actually had been built or constructed from roads which had only been "laid out." In Watson, the definition of a "highway" under the relevant statute was as follows: In all counties of this state public highways are roads, streets, alleys, lanes, courts, places, trails, and bridges, laid out or erected as such by the public, or if laid out or erected by others, dedicated or abandoned to the public [.j Id., 69 Ca1.App. at 649, 232 P. at 478. The court in distinguishing between the two types of highways made the following observation:' [T]he words `laid out' do not in themselves imply the building or construction of a structure or other work. One about to build a house would not say that he intended to `lay out' a house, much less would he say after it was built or completed that it had been `laid out.' Nor would those words be the apt ones to use in expressing the idea of the building and completion of a levee or a canal or a ditch. Hence, it is only reasonable to assume that if the legislature, in defining highways, intended to say that only such ways as had roads upon them were county highways, it would not have used the phrase "laid out" as descriptive thereof, but would have said that those ways only are highways upon and over which roads have been built, and, naturally, would have employed more apposite words or phrases in defining the same. Id., 69 Cal.App. at 649-50, 232 P. at 478. One might read the s~atute to mean that in order for a road to be considered a public highway all three elements (opened, _aid out, and built) must be satisfied. We do not agree with The Honorable Timothy E. Johns July 21, 1999 Page 6 this reading. The terms used to describe a public highway in HRS § 264-1, are "opened, laid out, or built." (Emphasis added). If the legislature, when it enacted HRS § 264-1(a), had intended that only highways which had actually been built could qual_fy as public highways, it would not have used the disjunctive "or" to set apart the three verbs listed in the definition of "public highway." Moreover, there would have been no point to using the term "laid out" in the statute if the term independently of the other verbs in the section did not by itself mean "public highway." If the statute intended to include only reads that had in fact been constructed by the government, the term "laid out" would be meaningless surplusage. A cardinal rule of statutory construction is to give effect to all parts of a statute so that no clause, sentence. cr word is rendered superfluous, void, or insignificant if a construction can be legitimately found which would give force to and preserve t, ~ all words of the statute. State v. Ortiz, 74 Haw. 343, 351-52, 845 P.2d 547, 551-52 (1993), recon. denied, 74 Haw. 650, 849 P.2d 81 (1993). To use the terms "laid out" and "built" in the conjunctive would be redundant and would not give to "laid out" a separate meaning. Based upon the above, we are of the view that a road such as the homestead paper road on the Big Island which has been delineated on a subdivision map created by the government, falls within the definition of "public highway" under HRS § 264-1(a), even though the road does not exist on the ground.' "Attorney General Opinion No. 63-54 states that a "public highway" pursuant to § 142-1, Revised Laws of Hawaii 1955, which is the predecessor to § 264-1, HRS, "is a road or street actually constructed and existing on the ground. It does not refer to a mere `paper' road or an unimproved way not open to the general public as a road." We are now of the view that the statement in AG Op. 6=-54 is incorrect, but because the discussion on the status of paper roads was not relevant to the question posed in the opinion, the statement does not. affec*_ the conclusion. reached in AG Op. 63-54, nor is the statement control:..ing precedent in the present analysis. The Honorable Timothy E. Johns July 21, 1999 Page 7 B. Ownership and DisDOSition of Public HiQhwavs. Public highways are of two types: (1) State highways, which are all those under the jurisdiction of the department of transportation; and (2) County highways, which are all other public highways. Section 264-1(a), HRS, defines two types of public highways. The first consists of those public highways under the jurisdiction of the Department of Transportation (DOT). These the statute declares are state public highways. Section 264-1(a)(1), HRS. State public highways are more particularly described in chapter 264. Generally they are federal aid highways which run around the perimeter of each island. All other public highways are county public highways. Section 264-1(a)(2), HRS. The counties own in fee simple their respective county public highways by . virtue of HRS § 264-2. In most, if not all cases a homestead oaner road would nog fall under the jurisdiction of DOT. accordingly, it would be a county public highway. CONCLUSION In view of the conclusion we have reached in this opinion, °(...continued) The question raised in AG Op. No. 63-54 was whether the County of Hawaii could sell a state-established homestead paper road. The opinion concluded that a county could not because it did own the highway under § 142-2, RLH. Section 142-2, RLH, limited the ownership of county public highways to "only such highways acquired by the counties by eminent domain, purchase, dedication - or surrender." Since the count; had not acquired the paper `road' through any of these means, the opinion rightly concluded that the county could not sell it. Act 221, 1965 Haw. secs. Laws 338, amended § 142-2, to provid=_ that by virtue of section 142-2, HRS, itself the county owns in fee simple all county public highways acquired by whatever means and may dispose of them in accordance with the laws. The Honorable Timothy E. Johns July 21, 1999 Page 8 we advise that the BLNR should no longer grant easements over - county public highways (which include paper roads) to homestead lots. Instead applicants should be referred to the county for appropriate action. Very m y yours, ' Chan Deputy Attorne General APPROVED: ~ Earl I. Anzai Attorney Gene al ! Sm10