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Home My WebLink AboutCOM 0374.006 2002-2004 S E.. ~ F .,~,~4 ~G 1P+, ~95g .x'19 y:. ~ r. .I. ry,., ~ 3 ~ ~P 4~.p.yy P .p' w'lG~ STATE ®IF HAWe~II DEPARTI4AENT OF LAND AND NATURAL RESOURCES DIVISION OF FORESTRY AND WILDLIFE P.O. BOX 4849 HILO, HAWAII 96720 (808)974-4221 FAX (808)974-4226 November 26, 2003 0 w James Y. Arakaki, Chair O n Members of Hawaii County Council c ~ Office of the County Council : _ ~ Hawaii County Building 25 Aupuni Street, Room 109 ~ Hilo, Hawaii 96720 ca - T ~ Dear Mr Arakaki, Subject: Bill No. 164 Applicant: Pua'anui Partnership Tax Map Key: 7-6-8: Portion of 5 I would like to ask the Hawaii County Council to defer making a decision on Bill No. 1 <4 until ownership is determined of the 12 foot wide trail through TMK 7-6-8: portion of 5. Our Na Ala Hele Abstractor is currently researching the ownership question. On October 24, 2003, Na Ala Hele Staff did a field inspection and found the trail to be in good historic condition. I recommend that an archeological survey be done in order to determine whether additional buffers are recommended for the trail. If you have questions, please call Irving Kawashima at 974-4217. Sincerely, Roger Imoto Branch Manager cc: Moana Rowland, NAH Abstractor ChrisYuen, County Planning Director Z'c~a~~. tdo. ~:ef. U®t~ _ November 24, 2003 Ref: H03:21 Holualoa TO: Sonia Faust Department of the Attorney General FROM: Michael G. Buck Division of Forestry and Wildlife I. SUBJECT: Request for Legal Opinion Regarding the Ownership of a 12-foot Wide Trail situate at Holualoa 15c and 2nd in the District of North Kona r', Brief Statement of the Legal Problem: We inquire as to who owns the 12-foot wide trail shown on Tax Plat Map 7-6-8. Statement of the Facts: The ahupuaa of Holualoa 1 and 2"d containing 7,330 acres were awarded to Victoria Kamamalu in Land Commission Award No. (LCA) 7713:43 in 1845. Kamamalu died in 1866 and her lands passed by heirship to Bernice Pauahi Bishop. Upon Pauahi's death her estate sold Holualoa 151 and 2nd to W.R. Castle in 1885. In 1887 Castle conveyed to 75 grantees, as tenants in common, shares in those lands. The land was apportioned into 400 shares, but the said shares were not equally divided among the grantees. In essence the 75 grantees owned shares in 7,330 acres that had not been formally subdivided. These grantees formed what became known as "Hui Aina o Holualoa" [translated as the "Holualoa Hui"] and executed a Co-Partnership Agreement in 1889. In September of 1897, a Bill in Equity (Number 932) was filed in the First Circuit Court, ' seeking to partition in severalty to all the Hui members their respective shares in the land. The court appointed J.D. Paris and W. A. Wall as Commissioners to oversee the partition. It would not be until 1914 that the lands were surveyed and laid out on maps showing each Hui members' allotment(s) and respective shares. The court instructed the surveyor to indicate the width of all roads, trails and rights of way on the maps. The maps were filed in the Supreme Court, First Circuit Court and at the (then) Territorial Survey Office. The Commissioners could now execute deeds to the individual Hui members for their lots described by metes and bounds survey. R' ii-1'-U3; +.b ~F'M UOFP.W NAHS. NAAL 4HtL 6;# d The Subject Trail W. A. Wall conveyed Lot #1 representing 55 shares described as Allotment #63 to Elizabeth K. Pilipo in July 1914. In 1940 the deed was recorded at the Bureau of Conveyances in Book 1547 Pages 234-235. Examination of the Holualoa Partition map (Exhibit A) dated May 1914 shows that Allotment #63 is bisected by a 12-foot wide trail. The trail is also depicted on Tax Maps in 1950 and 1960 as dividing TMKs 7-6-8-10 and 11. (Exhibits B and C) The metes and bounds description of Lot #1 is as follows: Lot #1 Coffee Land (55 Shares) Allotment 63 Beginning at the southeast corner of Allotment #66 and running as follows by true azimuths: 1. 355 30' 163.0 feet along Government Road. 2. 332 30' 111.0 " 3. 76 10' 201.0 Heirs of John Uwena. 4. 9 20' 100.0 " 5. 256 10' 225.6 " 6. 14 40' 209.2 Govemment Road. 7. 86 02' 198.0 allotment #62, remainder. 8. 190 50' 138.0 Nettie L. Scott's 8 shares. 9. 77 35' 798.0 " 10. 351 21' 337.0 " 11. 84 46' 18.0 along trail. + 12. 88 35' 190.0 " 13. 82 59' 495.0 " 14. 80 28' 307.0 " 15. 169 33' 241.4 " 16. 79 31' 356.5 " 17. 147 15' 59.0 Government Road. 18. 178 55' 269.0 " 19. 163 10' 75,0 " 20. 147 34' 419.4 " 21. 162 50' 123.0 " 22. 154 30' 6.0 " 23. 262 30' 559.0 Mariana Moerira's 2 shares. 24. 153 06' 138.0 " 25. 253 30' 946.0 LCA 3660, the stone wall being the boundary 26. 351 52' 440.0 Koike's shares 27. 261 52' 557.0 J. Mello Pedro Jr. 2 shares 28. 351 00' 120.0 Chan Chow's 2 shares 29. 261 27' 149.0 " " 30. 351 00' 62.0 allotment #66 31. 261 27' 361.0 " to the initial point containing an area of 46.84 acres 2 11 -03; __/IAN ~ Unl-!.W N4HS/N4ALAH6LE# Following the metes and bounds description of Lot #1 the deed contains the following recitation: Reserving and excepting LCA 7746:1 and the trail from upper Government Road to the Kailua Road, which runs through Lot #1, (Coffee Land) for 55 shares in allotment #63. The deed fails to disclose whom the trail is reserved for. The case files regarding Equity No. 932 do not contain information regarding disposition of the trail. Discussion of the Problem Lot #1 has been resubdivided and consolidated with adjoining parcels identified on current tax maps as numbers 5, 10 and 23. (Exhibit D) The subdivision map dated 1994 reflecting the consolidation does not delineate the Trail alignment shown on the 1950 Tax Map. i The current landowner (Twigg-Smith doing business as Pua'anui Partnership) of 7-6-8-5 is the proprietor of a bed and breakfast establishment on the property. He is in the process of constructing a restaurant and additional rooms and is seeking County ~ approval. Twigg-Smith is considering selling the property that includes the trail corridor. An adjacent landowner (Inaba) is questioning why the Trail alignment is not shown on current tax maps and why the Trail is included in the sale of the Twigg-Smith property. The Planning Commission of the County of Hawaii is requesting protection of the Trail I, until Na Ala Hele (NAH) can determine if it is a public trail and if it should be put back on 11 current tax maps. If the Trail were deemed to be a public right-of-way, the setback requirements would be affected and may have significant impacts on building activity. Although the Holualoa Hui was created in 1887, NAH has not been able to locate a map that depicts the Trail alignment prior to 1892. However a site inspection by NAH Hilo Staff confirms the Trail is easily discernable on the ground and is approximately 1'/=mile long. The Trail is between 4 to 10 feet wide with 3-foot high rock walls on either side. A survey map prepared by John Weeks in 1968 provides an accurate representation of the Trail. (Exhibit E) The Weeks map fails to indicate locations along the trail where adjacent landowners have knocked down sections of the rock walls. Based on the ambiguity of the reservation discussed above, ownership of the Trail remains unresolved. It is not clear if the Trail is a public right-of-way under the jurisdiction of the County of Hawaii or the Department of Land and Natural Resources, or if the Trail is in fact a privately owned feature. In an effort to resolve this matter, NAH is seeking guidance from the Attorney General's office. NAH requests that Yvonne Izu be assigned this case as she has worked with the program on numerous issues in the past. 3 II-Lb-U3, d~S/F'P?I ~ UUFAW N.=HS N4o.LAHt L6 p-s ~ If you have any questions, please contact Doris "Moans" Rowland at 587-0057. She is the Abstractor for the NAH Program. Enclosures: Exhibit A 1914 Holualoa Partition Map ~ Exhibit B 1950 Tax Map Exhibit C 1960 Tax Map Exhibit D 2003 Tax Map Exhibit E 1968 John Weeks Survey Map fi, 4