HomeMy WebLinkAboutCOM 0343.050 2012-2014 Page 1 of 2
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Murashige, Laura COM 5473
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From: Nawahine [keauea @hawaii.rr.com]
Sent: Wednesday, March 05, 2014 10:13 PM �] P if
To: counciltestimony @co.hawaii.hi.us
Subject: Fw: Proposed testimony - Please review and comment.
Attachments: rev1935.pdf; NAH_Kohala Kai_Abstract_H1202_030712.pdf; HRS501-82.doc
From: Charles Flaherty
Subject: Proposed testimony - Please review and comment.
Aloha Mr. Chair and members of the Hawai'i County Council.
The following are my personal opinions based upon documents discovered during research and should
not be construed as legal opinions.
The state owns the ala loa trail, not the applicant. The public already has two public easements/accesses
across this property; one easement is twenty feet back from the shoreline and the other is the ala loa trail.
Please refer to the following attachments:
1. Section 5041 from the Revised Laws (1935), Territory of Hawai'i
2. Hawai'i Revised Statutes 501-82 "Tenure of holder of certificate of title".
3. March 7, 2012 Memo from D. Moana Rowland to Na Ala Hele
Please note:
1. The law that was in effect at the time of the 1938 stipulation was the 1935 Revised Laws of the
Territory of Hawaii (attached). Section 5041 of those laws states the holder of certificate of title
holds it free and clear, except "when the certificate of title does not state that the boundary
of such way has been determined" While the 1938 stipulation states that the boundary of the
Main Government Road has been determined and contains the specific metes and bounds from a
survey of the Main Government Road, it is moot as to the ala loa. In fact, there is no document
that contains a determination of the boundary of the ala loa. It is only referred to maps
containing a general description of location. Therefore, ala loa was and is a subsisting
encumbrance on the certificate of title. It was not a claim to be asserted or waived. It has
always been and continues to be owned by the state. Section 5041 of the 1935 Revised Laws
now exists as Hawai'i Revised Statute 501-82 (see attached). Today's HRS contains basically
the same language as the 1935 law. If there is no determination of boundary for a public
highway or private way or the public highway or private way, then it exists as a subsisting
encumbrance on the title. The ala loa is exempted from the certificate of title of the Kohala Kai
property. The state retains title and the right-of-way to the ala loa trail. It appears the Territory
withdrew its claim to the ala loa knowing the Territory continued to possess a subsisting
encumbrance on the certificate of title because the ala Loa's boundaries were never surveyed.
2. There have been statements made during the county council public hearings that there will be no
public access through the Kohala Kai property if this Grant of Easement is not passed. This is
not true. As Rowland (see attached NAH Kohala Kai Abstract HI202 030712.pdf) specifically
describes a public easement 20 ft in from the shoreline through the original Kohala Kai
subdivision. While she acknowledges she has no knowledge as to the safety of such access, it
nevertheless exists regardless of the county council's decision on the GOE. So the GOE is
simply acknowledging what was already granted via the final subdivision approval back in
Comm. No. 3 613. 50
Ref.To: P/Courr"i/
1/6/9014 Ref_ Date MAR 4 7 2014
Page 2 of 2
2002. Unfortunately, the intention of this easement is to move the public away from the ala loa trail
and to the edge of cliffs.
3.
I believe the Finance Committee voted 8-1 in favor of Resolution 140-13 because you have been given
misinformation and bad advice. Look at the documentation, the palapala. It speaks for itself.
There is a state-wide attack on public trails, native tenant rights, and traditional and customary practices
by private interests. I hope the county council does not become party to this disturbing trend.
Please support Hawaiian rights and culture. Malama ala loa...please vote "no" on Resolution 140-13
and allow the community to resolve this complex issue in a pono manner.
Mahalo,
Charles Flaherty
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3/6/2014
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REVISED, ,
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HAWAII '
1935
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rising the S
CompStatutes of the Territory,
a consolidated, revised and annotated.
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PUBLISHED BY AUTHORITY .
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' HONOLULU, T.H.
HONOLULU STAR-BULLETIN
1935. -
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:41-;:,' Ch.144.
A,,
CERTIFICATE OF TITLE. Sees.5041-5044. I'
''' 'of any description established by law on land and the buildings thereon,
• i;-m the interest of the`owner in land or buildings; or to change the laws of
or ,igscent except as provided in scion 5089; or the rights of partition between
scent and other cotenants; or the right to take the same by eminent
rip, . a or to relieve such land from liability to be recovered by an assignee in
he r„sin;
;t,gruptcy under the provisions of law relating to preferences; or to change
.ht ,°'::,affect in any way any other rights or liabilities created by law and appli-
Able to unregistered land; except as otherwise expressly provided in this
ehapter. [L. 1903, C. 56, s. 70; R. L. 1925, s. 3259.]
id
in h CERTIFICATE OF TITLE.
I S
a
's, :Sec. 5041. Tenure of holder of certificate of title. Every applicant receiv- '4
jug a certificate of title in pursuance of a decree of registration, and every $,
St subsequent purchaser of registered land who takes a certificate of title for ;
value and in good faith, shall hold the same free from all incumbrances except
tr those noted on the certificate, and any of the following incumbrances which
Y may be subsisting, namely:
II First, liens, claims or rights arising or existing under the laws or Constitu-
e ' #;ion of the United States, which the statutes of the Territory cannot require
•
n t,6 appear of record in the registry.
1 Second, unpaid taxes for the preceding six years.
', ,; Third, any public highway, or any private way laid out under the provi-
s sions of law, when the certificate of title does not state that the boundary of 1 ''
such way has been determined.
" :1; Fourth, any lease for a term not exceeding one year.
Fifth, any liability to assessment for betterments, or statutory liability
' which may attach to land as a lien prior to or independent of, the recording
or registering of any paper; provided, however, that if there are easements or
other rights, appurtenant to a parcel of registered land which for any reason
liave failed to be registered, such easements or rights shall remain so appur- l
tenant notwithstanding such failure, and shall be held to pass with the land
Until cut off or extinguished by the registration of the servient estate, or in
any other manner.
Sixth, the possibility of reversal or vacation of the decree of registration
upon writ of error issued within ninety days from the entry of such decree ':
Of registration. [L. 1903, c. 56, R. 39; am. L. 1909, c. 139, s. 1; R. L. 1925, ' 11
s..3229; am. imp.L. 1925, c. 192, s. 14; am. L. 1931, c. 222, s. 1; am. imp.L. 1932, 1,
2d, c. 40, s. 65.] "i
See 8.6696,marketing contracts.
Statutory lien, 91 H. 446. Subject to existing highway, 81 H. 787, 789, aff. 61 F. 2d 896.
Sec 5042. Certificate effective from transcription. The certificate first
gistered in pursuance of a decree of registration in regard to any parcel of
shall be entitled in the registration book "original certificate of title, a'
Bred pursuant to decree of the land court, dated at" (stating time and
ace of entry of decree and the number of the case). The certificate shall
' e effect from the date of the transcription of the decree. Subsequent cer-
tificates relating to the same land shall be in like form, but shall be entitled
"transfer from No. " (the number of the next previous certificate relating s
to the same land), and also the words "originally registered" (date, volume
and page of registration) except that where land after original registration 'tt-
i g g
s registered in heirs or devisees, the certificate shall be entitled "registered
transfer by descent or devise from No. " and shall contain the same
information as to the decree as an original certificate. [L. 1903, c. 56, s. 42;
am,L. 1913, c. 21, s. 1; R. L. 1925, s. 3232; am. L. 1927, c. 258, s. 8.] F
Notation of encumbrances on certificate, L. Ct. rule 14. ..
Sec. 5043. Certificates, when two or more owners. Where two or more
persons are registered owners as tenants in common, or otherwise, one owner's
duplicate certificate may be issued for the whole land, or a separate duplicate )
may be issued to each for his undivided share. [L. 1903, c. 56, s. 43; R. L. 1925, .
8. 3233.]
Sec. 5044. Substitution, one certificate for several, several for one; sub-
divisions, map. A registered owner holding one duplicate certificate for sev- ;;
805
i
•
NA ALA HELE
:::.'4:415;;1,0 Hawaii Trail 6 Access System
March 7, 2012
Ref: H12:02 Kohala Kai Estates
TO: Irving Kawashima, NAH Trails
Clem Chang, NAH Trails
FROM: D. Moana Rowland, Abstractor
SUBJECT: Disposition of the "Kohala-Kawaihae Road" (also known as the "Puuhue-
Kawaihae Road" and the "Mahukona-Kawaihae Trail" through Kohala Kai
Estates designated as Tax Map Keys: 5-9-17-1 to 8, situate at Kahua 2nd
and Waika, North Kohala
The Kohala-Kawaihae Road also known as the Puuhue-Kawaihae Road
(hereafter Road) and the Mahukona-Kawaihae Trail (hereafter Trail) also referred to as
the Mahukona-Kawaihae Beach Trail and the Alaloa has been identified on maps as
early as 1903 (Exhibit A). According to survey data for the ahupuaa of Kahua 2"d and
Waika, the road was 10 feet wide and the trail 5 five feet wide. The Road crossed the
two ahupuaa running in a north-south direction while the Trail generally followed the
highwater mark about 100 feet from the seashore.
Based on archaeological studies of the subject area, between 1863 and 1910,
the population began to decline and large-scale sugar plantations and cattle ranching
were begun. During this time there was continuing abandonment of both farming and
coastal fishing areas.
In 1934, the landowners of Kahua 211d (Bishop Trust Company) and Kahua 1s`or
Kahualiilii and Waika (Hawaiian Properties, Limited for Elizabeth Kalanianaole Woods)
initiated proceedings to have their lands registered in the Land Court of the Territory of
Hawaii. Bishop Trust applied for title to lands containing 5,416 acres in Land Court
Application No. 1036 (Ld. Ct. App No.). Hawaiian Properties sought to register title to
6,727 acres in Ld Ct App No. 1043. All three ahupuaa ran from the sea across the
Kohala Mountain Road to the summit along the top edge of Honokane.
Division of Forestry& Wildlife • Dept.of Land& Natural Resources • 1151 Punchbowl Street, Room 224 • Honolulu,Hawaii 96813
The Territorial and County governments were given an opportunity to make
claims for any roads or trails within the above lands for public use.
E.L. Wung, the County Engineer, interviewed old timers from Kohala in 1936
about the Road and Trail and was told both had fallen into disuse. In spite of this, Wung
advocated that both should be reserved to the government.
In December 1936, George Kimball, the (then) Deputy Attorney General for the
Territory of Hawaii, made a claim for the Road (10 feet wide) and Trail (5 feet wide).
However, he was of the opinion that the Territory would be better served if the
government agreed to withdraw its claim to the Road and Trail in exchange for fee
simple title to the 60 foot wide public highway (Kohala Mountain Road) that ran through
the subject lands. (Note: The Akoni-Pule Highway was not built until 1973).
A bureaucratic tug-of-war began with a series of letters from 1936 until 1938
whereby the county continued to insist the Road and Trail be reserved, while the
Territorial government felt otherwise. In a letter dated March 1, 1938, from Jon Wiig,
the former Deputy Attorney General to Samuel Spencer, the chairman and Executive
Officer of the Board of Supervisors, for the County of Hawaii, it appears a line was
drawn in the sand regarding the matter. Herein is an excerpt from that letter:
Our investigation of the facts relating to the claims for the two
trails has convinced us that if the claims were litigated in the Land
Court we would be unsuccessful in establishing them.
The applicants, in consideration of our withdrawal of our claims
for the two trails, have agreed to grant to the Territory in fee
simple a strip of land 60 feet wide across the lands covered by the
applications for the main government road, containing an area of 20
acres. This method of settlement of the claims of the Territory meets
with our approval, and meets with the approval of Mr. R.D. King,
Principal Cadastral Engineer of the Territory.
Our purpose of advising you of this proposed settlement is to
notify you that because of the information we have at hand we do not
propose to litigate the claims for the trails, and if the Board of
Supervisors are of a different opinion and feel that the claims should
be pressed, that it assume the responsibility of presenting the claims
in court. Counsel for the applicants have indicated that should the
claims be pressed they would be unwilling to grant the 60 foot right
of way to the Territory.
We, too, are desirous of having these cases settled and will
proceed with the settlement along the lines mentioned above unless we
hear from you by March 15, 1938 . If you are not in agreement with our
proposed settlement we shall of course hold the matters in abeyance
until a satisfactory settlement can be arranged.
(Signed) Jon Wiig, Deputy Attorney General
2
This stance did not deter the County Board of Supervisors. In a letter dated
March 5, 1938, Ms. Kaaua, the County Clerk stated in part:
Please be advised that the Board is not desirous of acquiring the
sixty (60) foot right-of-way on the main government road, but is
satisfied with the present forty (40) foot right-of-way; the said
Board is also willing to waive any reservation of what is known as the
"Puuhue-Kawaihae Road", but is unwilling to abandon its rights to the
so-called "Mahukona-Kawaihae Beach Trail", as this trail is part of the
old trail that leads right around the island, and the Board feels that
at some later date, a road may be built between Mahukona and Kawaihae.
Response by the Territorial Deputy Attorney General (Wiig) dated March 7, 1938
stated in part:
The Board states as its reasons for being unwilling to abandon
the beach trail that it is part of an old trail that goes around the
island and that at some later date a road may be built between
Mahukona and Kawaihae.
We are informed that the Territorial Highway Engineer is of the
opinion that the territory should acquire a 60 foot right of way for
the government road across the properties involved because in order to
secure grants in aid from the United States Government the latter
government requires that the territory have at least a 60 foot right
of way. The Territorial Highway Engineer also states there are other
reasons why it is desirable that the territory have a 60 foot right of
way. As we stated in our letter to you, the applicants are not
willing to give us a 60 foot strip of land if either of the claims for
trails are pressed.
In this connection, you stated as one of the reasons, and perhaps
the prime reason, why you are desirous of claiming the "Mahukona-
Kawaihae Beach Trail" that at some future time a road may be built
between Mahukona and Kawaihae. We assume from this statement that you
believe that it would be possible to use this trail as part of the
right of way for an improved road. It must be borne in mind by the
Board that even though the County were successful in establishing its
claim it would only acquire an easement by prescription having a width
of not more than 5 feet and that it could only be used in the future
for the purpose for which it has been used in the past. Our Supreme
Court has held that an easement acquired by prescription for a foot
path may not be used as a road sufficiently wide for carriages. It
follows that the land across which a trail runs could not be further
burdened by the construction of a road for automobiles. If and when a
road is built across this property it will be necessary to acquire
from the owners a right of way for road purposes and the easement for
the beach trail, if awarded by a court, would be of no value for that
purpose.
We believe that after weighing all of the facts and circumstances
in these two cases the preferable manner of settlement is to waive the
claim for the beach trail and accept from the land owners a strip of
land 60 feet wide in fee simple for the main government road. Unless
we hear from you to the contrary we shall proceed with such a
settlement .
(Signed) Jon Wiig, Deputy Attorney General
3
No further communication between the county and Territory are found in the files.
Apparently the county acquiesced because when the Land Court issued its final decree
for title, the Road and Trail were not reserved to the territory. The following is a
synopsis of the title registration proceedings.
On April 27, 1938, the Territory of Hawaii filed a Withdrawal of Answer and Claim
in the Land Court. This document effectively withdrew the Territory's original claim
made in December 1936 for the Road and Trail.
On June 10, 1938, Bishop Trust (Bishop) and Hawaiian Properties (HP) were
issued decrees confirming their ownership of the lands they sought to register. By this
time Kahua Ranch was the fee simple owner of the subject lands and was issued
Transfer Certificate of Title (TCT) 18,481 (Land Court Application No. 1036) and 18,484
(Land Court Application No. 1043). TCT 18,481 covered the ahupuaa of Kahua 2nd
and TCT 18,484 covered Kahua 1st and Waika.
Both TCTs identified the subject lands by metes and bounds survey together with
corresponding map identified as Map 1. Although Map 1 of each application identified
the subject Road and Trail, the TCTs failed to show either as a reservation in favor of
the Territory nor were those features listed as encumbrances upon the said lands.
On July 21, 1938, a Deed from Kahua Ranch to the Territory of Hawaii conveying
the 60 foot right of way for Kohala Mountain Road was recorded in the Land Court of
the Territory of Hawaii. By this action, the exchange for the Road and Trail was
complete. All subsequent transfers and conveyances fail to cite the Road and Trail as
encumbrances on any portion of the lands registered in Ld. Ct. App. Nos. 1036 or 1043.
In 1975, Kahua Ranch consolidated its land holdings from two separate Land
Court Applications into Land Court Consolidation No. 129. The State Survey Office
reviewed the request for consolidation and approved it as submitted, without addressing
the Road or Trail issue. Records in Ld. Ct. Cons. No. 129 including its Map 1 fail to
disclose the Road or Trail as encumbrances upon the subject lands.
Currently, the subject parcels 1 through 8 are shown on Ld. Ct. Cons. 129 Map 9
as Lots 69-71 and 75-80. (Exhibit B). These lots owned by Kohala Kai, LLC., are
subject to Easement 39, for Public Pedestrian Access Purposes, that is intended to be
twenty (20.00) feet from and parallel to the shoreline as shown on Map 9, as set forth by
Land Court Order No. 1455888, filed on April 15, 2002. This encumbrance is noted on
the Deed to Kohala Kai filed in the Land Court as Document Number 3125434 (Exhibit
C).
Therefore, based on the available records, the Road and Trail were not reserved
to the government (either on the county or territorial level) at the time of the Land Court
registration. It is extremely unlikely that this can be reversed in the future. Easement
39 is meant to provide shoreline access, although it is not clear to the author of this
4
memorandum whether the legal access provided by this easement does in fact allow
physical access for pedestrians in a safe manner.
Please contact me if you have any questions or comments regarding this matter.
c: Theresa Denham,HP
Rick Gmirkin,NPS
5
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Map by AB Loebenstein dated 1903
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•
L442 STATE OF HAWAII
t OFFICE OF ASSISTANT REGISTRAR
RECORDED •
i JUN 21,2004 08:02 AM
Dee No(s)3128434
on Cents)580.424
Issuance at Ceras)702.160
aigFi
sf11 11111 ASSISTANTREGISTRAR •
CONVEYANCE TAX:$18500.00
20 111 21
LAND COURT SYSTEM [ REGULAR SYSTEM
AFTER RECORDATION,RETURN TO: RETURN BY:MAIL 0 PICKUP_❑
Kohala Kai,LLC Escrow No.21502167-015 ME
C- Ernest W.Moody,Manager Job No, 00159969
2116 Redbird Drive
Las Vegas,Nevada 89134 flc Total pages:
Tax Map Key Nos.(3)6-9.017.0001,(3)5-9-017.0002, 53-0 0003,(3)5-9-017-0004,
(3)54017-0005,(3)5-9-017.0008,(3) 17-0007 and(3)5-9-017-0006
WARRANTY DEED
THIS DEED,made this JUN t 7?.YO4
OHANA MAKAI,LLC,a Alvah limited day 2004, a II
liability company,and P-QifANA MAIM,LLC,a Hawaii
limited liability company,hereinafter collectively called the'Grantor',in favor of KOHALA(CAI,LLC,a
Hawaii limited liability company,whop address Is 2118 Redbird Drive,Las Vegas,Nevada 89134,
hereinafter called the'Grantee,—
WITNESSETH THAT:
The Grantor, in consideration of the turn of TEN DOLLARS ($10.00) and other valuable
consideration paid by the Grantee to Old Republic Exchange Eschewer Company, a Cai tonne
corporation.in connection with a tax-free exchange of properties under Section 1031 of the internal
Revenue Code of 1988,as amended, the receipt of which is hereby adowsdedged by the Grantor,does
hereby pant, bargain. sell and convey unto the Grantee, in fee simple, all of the property more
particularly described vi Exhibit A attached hereto end made a part hereof;
And the reversions,remainders,rants,issues and profits thereof end at of the estate,right,We
end interest of the Grantor,both at law and in equrly,therein and thereto:
TO HAVE AND TO HOLD the sense, together with all buildings, knprovernents, rig ts,
-- tenements,privileges and apps thereon and t eraunto belonging or appertaining or held and
enjoyed thesewih.unto the Grantee according to the tenancy hereinafter set forth.forever.
The Grantor does hereby covenant with the Grantee that the Grantor is seised of the property
herein described in fee simple; that said property is free and dear of and from an liens and
encumbrances,except for the ten of real property taxes not yet by law regtdred to be paid,and except as
may herein specifically be set forth:that the Grantor has good right to sell and convey said property,as
aforesaid;and,that the Grantor will WARRANT AND DEFEND the same unto the Grantee against the
lawful claims and demands of all persons,except as aforesaid.
342305 v3 1
SXN 1 BIT C
This conveyance and the warranties of the Grantor are expressly declared to be in favor of the
Grantee,as tenant to**varsity,Its successors and assigns.
This instrument may be executed in counterparts,each of which shall be deemed an original,and
said counterparts shall together constitute one and the same agreement,binding all of the parties hereto,
notwithstanding all of the parties are not signatory to the original or the same counterparts. For all
purposes. including, without limitation, recordation. filing and delivery of this instrument, duplicate
unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages
assembled as one document.
The rights and obligations of the Grantor and the Grantee shalt be binding upon and inure to the
benefit of their respective heirs, devisees, personal representatives and assigns. All obligations
undertaken by two or more persons shall be deemed to be joint and several unless a contrary intention Is
clearly expressed elsewhere herein.
IN W fTNESS WHEREOF,the Grantor and the Grantee have executed these presents on the day
and year first above written.
[The remainder of this page Is intentionally left blank-signature pages)follow(s)1
342305 v3 2
K•OHANA MAKAL,LLC,a Hawaii limited liability
company
By KAHUA RANCH ITE
Its Sole M:...sir•„'a/�
By � tt SA4& C.,o*k l.10.S.
STATE OF HAWAII )
) SS.
CITY AND COUNTY OF HONOLULU )
On this JUN 1 7 2004
2004, before me personally day of
appeared -,?AA t 1� to me
personally known, being by me duly sworn or affirmed,did say that such persona executed the
foregoing instnsnent as the free act and deed of such persons,and if appt$able in the shown,
having been duly authorized to execute such i.:,r M such-•
4 Ili
No,Public,state of Hawaii r
My Commission Expires:__
JANE A.NAGASAKO
Norory Public,Hata of Hawaii
Commission expires: 06/30/2005
342305 v3 3
P-0HANA MAKAI,LLC,a Hawaii limited liability
company
By PONOHOLO RANCH,LIMITED
Its Sole Member
diere-
r {L S
By GAI j49
Grantor
STATE OF HAWAII
SS.
CITY AND COUNTY OF HONOLULU )
On appeared ,this cc�Y of JUN 17 2004 2004, before me personalty
to me
personally known,who,being by me duly sworn or afiirmed,did say that such parsons executed the
foregoing instrument as the free act and deed of such persons,and if applicable in the«_• «s shown.
having been duly authorized to execute each instrument in such capacity.
Ilk
Fa1V.� f �►.�
Print N:^::
Notary Pubic,State of Hawaii {
My Conmi)ssion Expires:
JANE A.NAGASAKO
Weir PubSc,Skria of
commission ate: Morose
342305 v3 4
KONAL.A LLC
400.1rirsiejarralle....0 —we*,
m::.,W.Moody
its Manager
Grantee
STATE OF eiTL./f'4,'j//I
COUNTY OF $A) 4/44
On this 1 day of J/14 2004, before me personalty
appeared ERNEST W. Y,to me personalty known.who.being by me duty sworn or affirmed,did
say that such person executed the foregoing instrument as the free act and deed of such person,and if
applicable in the capacity shown, having been duty authorized to execute such instrument in such
fly.
Print Namtc
:.., L Notary Pubfc.SW,of Dill/Mkh/�J
X 1111 1=: TH ESSEt4FELp s
NOTARY PI wog CAVF "s I My Cornntssion Expires: J'A? 204
SAN Ds.&RAS
MY COMM.EXP.PE13.2
342305 v3 5
EXHIBIT A
All of that certain parcel of land situate at Ka hue,District of North Kohala,island and County of
Hawaii,State of Hawaii,described as follows:
Lot 71,area 5,600 acres,more or less,as shown on Map 9,
Lot 78,area 5.003 acres,more or less,as shown on Map 10,
Lot 79,area 5.007 acres,more or less,as shown on Map 10,
Lot 80,area 5.006 acres,more or less,as shown on Map 10,
Lot 75,area 5,140 acres,more or less,as shown on Map 9,
Lot 76,area 8.390 acres,more or less,as shown on Map 9,
Lot 77,area 28.175 acres,more or less,as shown on Map 9,
Lot 69,area 12,663 square feet,or 0.291 acres,more or lass,as shown on Map 9,
Lot 70,area 9,211 square feet,or 0.211 acres,more or less,as shown on Map 9,
filed In the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land
Court Consolidation No.129 of Kahua Ranch,Limited;
Together with any easements described In Transfer Certificate of Title No.580,424. `
Being all of the lend described in Transfer Certificate of Title No.580,424.
Subject,however,to the following encumbrances:
1. Reservation in favor of the State of Hawaii of all mineral and metallic mines.
2. Shoreline setbacks: 'Shoreline setbacks established pursuant to the laws of the Slate of
Hawaii, or any political subdivision thereof, and any ordinances, rules or regulations adopted or
promulgated by any governmental authority pursuant to such laws.'
pursuant 3.e Seaward of the State Hamn .
*Determination of the seaward boundary of the land described
herein
4. Claims arising out of customary or traditional rights and prarfices, including without
limitation those exercised for subsistence,c Mural,religious,access or gathering purposes as provided
for In the Hawaii Constitution or the Hawaii Revised Statutes,as amended.
5. Memorandum of Waler Agreement by and between Kah a Ranch Limited,a Hawaii
corporation,and Ponoholo Ranch,Limited,a Hawaii corporation,poration,•Ks hua/Ponoholo^,and Gentry-Pacific,
Ltd.,a Hawaii corporat ion,'Gentry-Pacific',dated June 30,1999 recorded In said Office as Land Court
Document No.2556893.
6. Restriction of Vehicular Access Rights,as shown on Map 8,es set forth by Land Court
Order No.144767,filed on January 31,2002.
342305 v3 6
7. Easement 39,for Public Pedestrian Access Purposes,shown thereon is intended to be
twenty(20.00)feet from and parallel to the shoreline as is from time to time established,as shown on
Map 9,as set forth by Land Court Order No.145588,filed on April 15,2002.
8. As to Lot 71:
(a) Easement 31(20 feet wide),for Drainage Purposes,as shown on Map 9,
as sat forth by Land Court Order No.145588,tried on April 15,2002.
•
(b) Easement 37(20 feet wide),for Public Pedestrian Access Purposes,as
shown on Map 9,as set forth by Land Court Order No.145588,filed on
April 15,2002.
(c) Easement 40, for Landscaping and Budding Setback Purposes, as
shown on Map 10,as set forth by Land Court Order No.151155,filed on
June 9,2003.
(d) Easement 44(15 feet wide),for Landscaping Purposes,as shown on
Map 10,as set forth by Land Court Order No.151155,fled on June 9,
2003.
9. As to Lot 78: Easement 44(15 feet wide),for Landscaping Purposes,as shown on Map
10,as set forth by Land Court Order No,151155,filed on June 9,2003.
10. As toLot79:
(a) Easement 32(20 feet wide),for Drainage Purposes,as shown on Map 9,
as set forth by Land Court Order No.145588,fried on April 15,2002.
(b) Easement 33(20 feet wide),for Drainage Purposes,as shown on Map 9,
as set forth by Land Court Order No.145588,filed on April 15,2002.
(c) Easement 41, for Landscaping and Building Setback Purposes, as
shown on Map 10,as set forth by Land Court Order No.151155,filed on
June 9,2003.
(d) Easement 44(15 feet wide),for Landscaping Purposes,as shown on
Map 10,as set forth by Land Court Order No.151155,Ned on June 9,
2003.
11. As to Lot BO:
(a) Easement 33(20 feet wide),for Drainage Purposes,as shown on Map 9,
as set forth by Land Court Order No.145588,filed on April 15,2002.
(b) Easement 41, for Landscaping and Build-mg Setback Purposes, as
- shown on Map 10.as set forth by Land Court Order No.151155,Med on
June 9,2003.
(c) Easement 44(15 feet wide),for Landscaping Purposes,as shown on
Map 10,as set forth by Land Court Order No.151155,fled on June 9,
2003.
342305 v3 7
12. As to Lot 75:
(a) Easement 35,for Drainage Purposes,as shown on Map 9,as set forth
by Land Court Order No.145588,flied on April 15,2002.
(b) Easement 38(20 feet wide),for Drainage Purposes.as shown on Map 9,
as set forth by Land Court Order No.145588,filed on April 15,2002.
(c) Easement 41, for Landscaping and Building Setback Purposes, as
shown on Map 10,as set forth by Land Court Order No.151155,filed on
June 9,2003.
(d) Easement 43(15 feet wide),for Landscaping Purposes,as shown on
•
Map 10,as set forth by Land Court Order No. /51155,f led on June 9,
2003.
13. As to Lot 76:
(a) Easement 36(20 feet wide),for Drainage Purposes,as shown on Map 9,as set
forth by Land Court Order No.145588,fled on April 15,2002.
(b) Easement 38,for Public Pedestrian Access Purposes,as shown on Map 9,as set
forth by Land Court Order No.145588,filed on April 15,2002.
(c) 10,as set forth by Land CourtOrde No.151155,15 flied on June 9 2003. on Map
(d) Easement 43(15 feet wide),for Landscaping Purposes,as shown on Map 10,as
set forth by Land Court Order No.151155,fled on June 9,2003.
14. As to Lot 77:
(a) Easement 34(20 feet wide),for Drainage Purposes,as shown on Map 9,
as set forth by Laid Court Order No.145588,fled on April 15,2002.
(b) Easement 35,for Drainage purposes,as shown on Map 9,as set forth
by Land Court Order No.145588,tired on April 15,2002.
(c) Easement 41, for Landscaping and Building Setback Purposes, as
shown on Map 10,as set forth by Land Court Order No.151165,tiled on
June 9,2003.
15.* Restrictions or limitations on the use or development of any portion of the land which may
constitute a historical or burial site.
End of Exhibit A
542305 v3 8
2011 Hawaii Code
DIVISION 3. PROPERTY; FAMILY
TITLE 28. PROPERTY
501. Land Court Registration
§501-82 Tenure of holder of certificate of
title.
Universal Citation: HI Rev Stat § 501-82 (2011 through Reg Sess)
§501-82 Tenure of holder of certificate of title. (a) Every applicant receiving a
certificate of title in pursuance of a decree of registration, and every subsequent purchaser
of registered land who takes a certificate of title for value and in good faith, hold the
same free from all encumbrances except those noted on the certificate in the order of
priority of recordation, and any of the following encumbrances which may be subsisting,
namely:
(1) Liens, claims, or rights arising or existing under the laws or Constitution of the United
States, which the statutes of this State cannot require to appear of record in the registry;
provided that notices of liens for internal revenue taxes payable to the United States, and
certificates affecting such liens, shall be deemed to fall within this paragraph only if the
same are recorded in the bureau of conveyances as provided by chapter 505;
(2) Unpaid real property taxes assessed against the land and improvements covered by
the certificate of title, with interest, penalties, and other additions to the tax, which, unless
a notice is filed and registered as provided by county real property tax ordinance, shall be
for the period of three years from and after the date on which the lien attached, and if
proceedings for the enforcement or foreclosure of the tax lien are brought within the
period, until the termination of the proceedings or the completion of the tax sale;
(3) State tax liens, if the same are recorded in the bureau of conveyances as provided by
section 231-33;
(4) Any public highway, or any private way laid out under the provisions of law, when
the certificate of title does not state that the boundary of such way has been determined;
(5) Any lease, coupled with occupancy, for a term not exceeding one year; provided that
the priority of the unrecorded lease shall attach only at the date of the commencement of
the unrecorded lease and expire one year from the date or sooner if so expressed;
(6) Any liability to assessments for betterments, or statutory liability which may attach to
land as a lien prior to or independent of, the recording or registering of any paper of the
possibility of a lien for labor or material furnished in the improvement of the land;
provided that the priority of any such liability and the lien therefor(other than for labor
and material furnished in the improvement of the land which shall be governed by section
507-43) shall cease and terminate three years after the liability first accrues unless notice
thereof, signed by the officer charged with collection of such assessments or liability,
setting forth the amount claimed, the date of accrual, and the land affected, is registered
and noted on the certificate of title within such three year period; provided further that if
there are easements or other rights, appurtenant to a parcel of registered land which for
any reason have failed to be registered, such easements or rights shall remain so
appurtenant notwithstanding such failure, and shall be held to pass with the land until cut
off or extinguished by the registration of the servient estate, or in any other manner;
(7) The possibility of reversal or vacation of the decree of registration upon appeal; or
(8) Any encumbrance not herein required to be registered as provided in sections 501-241
to 501-248 and relating to a leasehold time share interest.
(b) For the purposes of this section, an encumbrance shall be deemed sufficiently noted
on a certificate if the notation:
(1) References a document by name or number which contains an encumbrance; and
(2) Indicates that the referenced document contains an encumbrance to which the
registered land is subject.
(c) Except as provided in sections 501-241 to 501-248, if the title of a recorded document
indicates that it contains an encumbrance, the assistant registrar shall note the document
as an encumbrance on the certificate of title or the new certificate of title issued upon
recordation of such document, as applicable. [L 1903, c 56, §39; am L 1909, c 139, §1;
RL 1925, §3229; am imp L 1925, c 192, §14; am L 1931, c 222, §1; am imp L 1932 2d, c
140, §65; RL 1935, §5041; RL 1945, §12641; am L 1945, c 255, §1; am L 1949, c 144,
§1; RL 1955, §342-42; HRS §501-82; am L 1972, c 91, §1(q), (r); am L 1973, c 128, §3;
am L 1989, c 14, §17 and c 20, §2; am L 1994, c 206, §2; am L 1998, c 219, §71
Revision Note
"Sections 501-241 to 501-248" substituted for "chapter 501, part ".
Case Notes
Dower must be noted. 21 H. 431, 434; 35 H. 816.
Encumbrances which need not be noted: Third paragraph, relating to highways,
construed. 31 H. 787, 789, affd 61 F.2d 896. See 39 H. 514. Relating to private ways,
construed. 40 H. 730. Fifth paragraph, relating to statutory liens, construed. 31 H. 446.
"Good faith" of purchaser. See 33 H. 343; 35 H. 816; 37 H. 270; 44 H. 235, 248, 353
P.2d 1007; 44 H. 365, 367-68, 355 P.2d 40, affg 44 H. 147, 355 P.2d 40; 50 H. 189, 436
P.2d 207.
Purchaser of lease noted on certificate of title holds free of unregistered sublease. 33 H.
343.
Whether holder of equitable right may, by registration, cut off equities which otherwise
would be superior, raised but not decided. 44 H. 235, 247, 353 P.2d 1007.
Unauthorized city and county deed, effect of. 44 H. 365, 367-68, 355 P.2d 40, affg 44 H.
147, 355 P.2d 40.
Knowledge of unregistered encumbrance does not disqualify holder of certificate of title
from protection against it. 50 H. 189, 436 P.2d 207.
Maintenance of city and county sewer line across premises is required to be noted as an
"encumbrance". 50 H. 189, 436 P.2d 207.
Whatever equitable rights may be possessed by holder of unregistered encumbrance, they
cannot be asserted against holder of certificate of title. 50 H. 189, 436 P.2d 207.
One who takes a certificate of title to registered land for value and in good faith holds
land free of all encumbrances except those noted on the certificate and enumerated in
statute. 58 H. 580, 574 P.2d 524.
City condemning registered land may invoke the same rights and protections regarding
the registered land as may be invoked by a private land purchaser. 60 H. 40, 587 P.2d
294.
Reference to height restriction on transfer certificate of title within document identified as
a "consent" deemed to be insufficient notation of an encumbrance under this section;
because height restriction was never explicitly and separately noted on 1988 transfer
certificate of title, defendant-appellant was entitled to hold lot free from such restriction.
75 H. 370, 862 P.2d 1048.
Cited: 41 H. 490, 497, remanded 256 F.2d 208, modified 42 H. 661, app. dism'd 267 F.2d
449; 74 H. 85, 839 P.2d 10.
Disclaimer: These codes may not be the most recent version. Hawaii may have more
current or accurate information. We make no warranties or guarantees about the
accuracy, completeness, or adequacy of the information contained on this site or the
information linked to on the state site. Please check official sources.
Page 1 of 1
Murashige, Laura
From: oneheartl @hawaiiantel.net
Sent: Wednesday, March 05, 2014 11:16 PM
To: counciltestimony @co.hawaii.hi.us
Cc: oneheart@aloha.net
Subject: Opposition to Resolution 140-13
Attachments: KohalaKaiTestimony030514.docx; rev1935.pdf; HRS501-82.doc; NAH_Kohala
Kai_Abstract_H 1202_030712.pdf
Aloha mai,
Please see attached testimony with other attachments referred to in testimony.
Mahalo,
Chuck Flaherty
3/6/2014
March 5, 2014
RE: Opposition to Resolution 140-13
Aloha Mr. Chair and members of the Hawaii County Council.
The following are my personal opinions based upon documents discovered during research and
should not be construed as legal opinions.
The state owns the ala loa trail, not the applicant. The public already has two public
easements/accesses across this property; one easement is twenty feet back from the shoreline and
the other is the ala loa trail.
Please refer to the following attachments:
1. Territory of Hawai'i, Revised Laws (1935), Section 5041, "Tenure of holder of certificate of
title".
2. Hawai'i Revised Statutes 501-82 "Tenure of holder of certificate of title",
3. March 7, 2012 Memo from D. Moana Rowland to Na Ala Hele,
The state owns the ala loa trail, not the applicant.
The law that was in effect at the time of the 1938 stipulation was the 1935 Revised Laws of the
Territory of Hawai'i (attached). Section 5041 of those laws states the holder of certificate of title
holds it free and clear, except "when the certificate of title does not state that the boundary
of such way has been determined". While the 1938 stipulation states that the boundary of the
Main Government Road has been determined and contains the specific metes and bounds from a
survey of the Main Government Road, it is moot as to the ala loa. In fact, there is no land court
document that contains a determination of the boundary of the ala loa. The ala loa is described
as a line drawn on maps showing its approximate location. Therefore, the ala loa was and is a
subsisting encumbrance on the certificate of title to this property. It was not a claim to be
asserted or waived. It has always been and continues to be owned by the state. Section 5041 of
the 1935 Revised Laws has become Hawai'i Revised Statute 501-82 (see attached). After almost
80 years, they both contain basically the same language. If there is no determination of boundary
for a public highway or private way, then it exists as a subsisting encumbrance on the title. The
ala loa remains as a subsisting encumbrance on the certificate of title of the Kohala Kai property
to this very day. The state retains title and the right-of-way to the ala loa trail. The Territory
withdrew its claim to the ala loa knowing the Territory continued to possess a subsisting
encumbrance on the certificate of title because the ala Loa's boundaries were never surveyed.
Kohala Kai public access will not disappear with `no' vote
There have been statements made during the county council public hearings that there will be no
public access through the Kohala Kai property if this Grant of Easement is not passed. This is
not true. In her memo (see attached NAH Kohala Kai Abstract HI202 030712.pdf), Rowland
specifically describes a public easement 20 ft in from the shoreline through the original Kohala
Kai subdivision. While she acknowledges she has no knowledge as to the safety of such access,
it nevertheless exists regardless of the county council's decision on the GOE. The trails are a
very specific requirement of Special Management Area Minor Permit No. 84 and SMA Major
Permit No. 06-10. Unfortunately, so far certain individuals and interests seem to be intent on
moving the public and Hawaiians away from the ala loa trail and their rights.
I believe the Finance Committee voted 8-1 in favor of Resolution 140-13 because it was given
misinformation and bad advice. Look at the documentation, the palapala. It speaks for itself.
People are writing from Kauai, Oahu, Maui, and around Hawai'i island telling about their
experiences and comparing notes. It is now clear that there is a state-wide attack on public trails,
native tenant rights, and traditional and customary practices by private interests. I hope the
county council does not intend to become a party to this disturbing trend.
Please support Hawaiian rights and culture and the public interest. Malama ala loa...please vote
"no" on Resolution 140-13 and allow the community to resolve this complex issue in a pono
manner.
Mahalo,
Charles Flaherty
REVISE
D LAWS
I I, OF
l
HAWAII AWAI I
,,
lI
1935
rising the S
CompStatutes of the Territory,
consolidated, revised and annotated.
```10RY OR h. .
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PUBLISHED BY AUTHORITY .
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v' HONOLULU, T.H.
_- HONOLULU STAR-BULLETIN
`t`
1935.
a
r` /
,
Ch.144. "
CERTIFICATE OF TITLE. Secs.5041-5044. 'i'
t':
'`,,of any description established by law on land and the buildings thereon,
• -in the interest of the"owner in land or buildings; or to change the laws of
07,:
hcent except as provided in scion 5089; or the rights of partition between
,, , eoarceners and other cotenants; or the right to take the same by eminent i,
he r;`"u ain; or to relieve such land from liability to be recovered by an assignee in
s , ;ahikruptcy under the provisions of law relating to preferences, or to change
iii I affect in any way any other rights or liabilities created by law and appli-
..e,ibl eer [unregistered t 56,and; except as otherwise
3259] expressly provided in this s.
la chap
CERTIFICATE OF TITLE. 0
'6, q ;Sec. 5041. Tenure of holder of certificate of title. Every applicant receiv-
ing a certificate of title in pursuance of a decree of registration, and every ':
St subsequent purchaser of registered land who takes a certificate of title for ,:
value and in good faith, shall hold the same free from all incumbrances except
tr those noted on the certificate, and any of the following incumbrances which
V may be subsisting, namely:
a First, liens, claims or rights arising or existing under the laws or Constitu-
e ' tion of the United States, which the statutes of the Territory cannot require
n 0 appear of record in the registry. ,''
1 Second, unpaid taxes for the preceding six years. 't
Third, any public highway, or any private way laid out under the provi
s sons of law, when the certificate of title does not state that the boundary of
such way has been determined.
" ;Ii Fourth, any lease for a term not exceeding one year.
Fifth, any liability to assessment for betterments, or statutory liability
i which may attach to land as a lien prior to or independent of, the recording
or registering of any paper; provided, however, that if there are easements or {'
other rights, appurtenant to a parcel of registered land which for any reason
have failed to be registered, such easements or rights shall remain so appur- .
tenant notwithstanding such failure, and shall be held to pass with the land
until cut off or extinguished by the registration of the servient estate, or in
any other manner.
Sixth, the possibility of reversal or vacation of the decree of registration
upon writ of error issued within ninety days from.the entry of such decree '
of registration. L. 1903, c. 56, s. 39; am. L. 1909, c. 139, s. 1; R. L. 1925, I
a 3229; am. imp. L. 1925, c. 192, s. 14; am. L. 1931, c. 222, s. 1; am.aim L. 1932,
P• imp.24, c. 40, s. 65.] 1;
�
See s.6896,marketing contracts.
Statutory lien, 31 H. 446. Subject to existing highway, 31 H. 787, 789, aff. 61 F. 2d 896.
,,Sec 5042. Certificate effective from transcription. The certificate first
gistered in pursuance of a decree of registration in regard to any parcel of ;a
shall be entitled in the registration book "original certificate of title,
Fred pursuant to decree of the land court, dated at" (stating time and
ace of entry of decree and the number of the case). The certificate shall „r'
e effect from the date of the transcription of the decree. Subsequent cer- r
tficates relating to the same land shall be in like form, but shall be entitled iA
"transfer from No. " (the number of the next previous certificate relating
to the same land), and also the words "originally registered" (date, volume
and page of registration) ; except that where land after original registration
18 registered in heirs or devisees, the certificate shall be entitled "registered
transfer by descent or devise from No. " and shall contain the same
t.
information as to the decree as an original certificate. [L. 1903, c. 56, s. 42;
am.L. 1913, c. 21, s. 1; R. L. 1925, s. 3232; am. L. 1927, c. 258, s. 8.] l'
Notation of encumbrances on certificate, L. Ct.rule 14. ll.
Sec. 5043. Certificates, when two or more owners. Where two or more ,,
Persons are registered owners as tenants in common, or otherwise, one owner's ,-
duplicate certificate may be issued for the whole land, or a separate duplicate )
may be issued to each for his undivided share. [L. 1903, c. 56, s. 43; R. L. 1925, 1,
8. 3233•]
Sec. 5044. Substitution, one certificate for several, several for one; sub- ,
divisions, map. A registered owner holding one duplicate certificate for sev- 1
■
805
f
2011 Hawaii Code
DIVISION 3. PROPERTY; FAMILY
TITLE 28. PROPERTY
501. Land Court Registration
§501-82 Tenure of holder of certificate of
title.
Universal Citation: HI Rev Stat § 501-82 (2011 through Reg Sess)
§501-82 Tenure of holder of certificate of title. (a) Every applicant receiving a
certificate of title in pursuance of a decree of registration, and every subsequent purchaser
of registered land who takes a certificate of title for value and in good faith, hold the
same free from all encumbrances except those noted on the certificate in the order of
priority of recordation, and any of the following encumbrances which may be subsisting,
namely:
(1) Liens, claims, or rights arising or existing under the laws or Constitution of the United
States, which the statutes of this State cannot require to appear of record in the registry;
provided that notices of liens for internal revenue taxes payable to the United States, and
certificates affecting such liens, shall be deemed to fall within this paragraph only if the
same are recorded in the bureau of conveyances as provided by chapter 505;
(2) Unpaid real property taxes assessed against the land and improvements covered by
the certificate of title, with interest, penalties, and other additions to the tax, which, unless
a notice is filed and registered as provided by county real property tax ordinance, shall be
for the period of three years from and after the date on which the lien attached, and if
proceedings for the enforcement or foreclosure of the tax lien are brought within the
period, until the termination of the proceedings or the completion of the tax sale;
(3) State tax liens, if the same are recorded in the bureau of conveyances as provided by
section 231-33;
(4) Any public highway, or any private way laid out under the provisions of law, when
the certificate of title does not state that the boundary of such way has been determined;
(5) Any lease, coupled with occupancy, for a term not exceeding one year; provided that
the priority of the unrecorded lease shall attach only at the date of the commencement of
the unrecorded lease and expire one year from the date or sooner if so expressed;
(6) Any liability to assessments for betterments, or statutory liability which may attach to
land as a lien prior to or independent of, the recording or registering of any paper of the
possibility of a lien for labor or material furnished in the improvement of the land;
provided that the priority of any such liability and the lien therefor (other than for labor
and material furnished in the improvement of the land which shall be governed by section
507-43) shall cease and terminate three years after the liability first accrues unless notice
thereof, signed by the officer charged with collection of such assessments or liability,
setting forth the amount claimed, the date of accrual, and the land affected, is registered
and noted on the certificate of title within such three year period; provided further that if
there are easements or other rights, appurtenant to a parcel of registered land which for
any reason have failed to be registered, such easements or rights shall remain so
appurtenant notwithstanding such failure, and shall be held to pass with the land until cut
off or extinguished by the registration of the servient estate, or in any other manner;
(7) The possibility of reversal or vacation of the decree of registration upon appeal; or
(8) Any encumbrance not herein required to be registered as provided in sections 501-241
to 501-248 and relating to a leasehold time share interest.
(b) For the purposes of this section, an encumbrance shall be deemed sufficiently noted
on a certificate if the notation:
(1) References a document by name or number which contains an encumbrance; and
(2) Indicates that the referenced document contains an encumbrance to which the
registered land is subject.
(c) Except as provided in sections 501-241 to 501-248, if the title of a recorded document
indicates that it contains an encumbrance, the assistant registrar shall note the document
as an encumbrance on the certificate of title or the new certificate of title issued upon
recordation of such document, as applicable. [L 1903, c 56, §39; am L 1909, c 139, §1;
RL 1925, §3229; am imp L 1925, c 192, §14; am L 1931, c 222, §1; am imp L 1932 2d, c
140, §65; RL 1935, §5041; RL 1945, §12641; am L 1945, c 255, §1; am L 1949, c 144,
§1; RL 1955, §342-42; HRS §501-82; am L 1972, c 91, §1(q), (r); am L 1973, c 128, §3;
am L 1989, c 14, §17 and c 20, §2; am L 1994, c 206, §2; am L 1998, c 219, §7]
Revision Note
"Sections 501-241 to 501-248" substituted for "chapter 501, part ".
Case Notes
Dower must be noted. 21 H. 431, 434; 35 H. 816.
Encumbrances which need not be noted: Third paragraph, relating to highways,
construed. 31 H. 787, 789, affd 61 F.2d 896. See 39 H. 514. Relating to private ways,
construed. 40 H. 730. Fifth paragraph, relating to statutory liens, construed. 31 H. 446.
"Good faith" of purchaser. See 33 H. 343; 35 H. 816; 37 H. 270; 44 H. 235, 248, 353
P.2d 1007; 44 H. 365, 367-68, 355 P.2d 40, affg 44 H. 147, 355 P.2d 40; 50 H. 189, 436
P.2d 207.
Purchaser of lease noted on certificate of title holds free of unregistered sublease. 33 H.
343.
Whether holder of equitable right may, by registration, cut off equities which otherwise
would be superior, raised but not decided. 44 H. 235, 247, 353 P.2d 1007.
Unauthorized city and county deed, effect of. 44 H. 365, 367-68, 355 P.2d 40, affg 44 H.
147, 355 P.2d 40.
Knowledge of unregistered encumbrance does not disqualify holder of certificate of title
from protection against it. 50 H. 189, 436 P.2d 207.
Maintenance of city and county sewer line across premises is required to be noted as an
"encumbrance". 50 H. 189, 436 P.2d 207.
Whatever equitable rights may be possessed by holder of unregistered encumbrance, they
cannot be asserted against holder of certificate of title. 50 H. 189, 436 P.2d 207.
One who takes a certificate of title to registered land for value and in good faith holds
land free of all encumbrances except those noted on the certificate and enumerated in
statute. 58 H. 580, 574 P.2d 524.
City condemning registered land may invoke the same rights and protections regarding
the registered land as may be invoked by a private land purchaser. 60 H. 40, 587 P.2d
294.
Reference to height restriction on transfer certificate of title within document identified as
a "consent" deemed to be insufficient notation of an encumbrance under this section;
because height restriction was never explicitly and separately noted on 1988 transfer
certificate of title, defendant-appellant was entitled to hold lot free from such restriction.
75 H. 370, 862 P.2d 1048.
Cited: 41 H. 490, 497, remanded 256 F.2d 208, modified 42 H. 661, app. dism'd 267 F.2d
449; 74 H. 85, 839 P.2d 10.
Disclaimer: These codes may not be the most recent version. Hawaii may have more
current or accurate information. We make no warranties or guarantees about the
accuracy, completeness, or adequacy of the information contained on this site or the
information linked to on the state site. Please check official sources.
[ ALA HELE
i Trail s Access System
1
March 7, 2012
Ref: H12:02 Kohala Kai Estates
TO: Irving Kawashima, NAH Trails
Clem Chang, NAH Trails
FROM: D. Moana Rowland, Abstractor
Disposition of the "Kohala-Kawaihae Road" (also known as the "Puuhue-
Kawaihae Road" and the "Mahukona-Kawaihae Trail" through Kohala Kai
Estates designated as Tax Map Keys: 5-9-17-1 to 8, situate at Kahua 2nd
and Waika, North Kohala
The Kohala-Kawaihae Road also known as the Puuhue-Kawaihae Road
(hereafter Road) and the Mahukona-Kawaihae Trail (hereafter Trail) also referred to as
the Mahukona-Kawaihae Beach Trail and the Alaloa has been identified on maps as
early as 1903 (Exhibit A). According to survey data for the ahupuaa of Kahua 2nd and
Waika, the road was 10 feet wide and the trail 5 five feet wide. The Road crossed the
two ahupuaa running in a north-south direction while the Trail generally followed the
highwater mark about 100 feet from the seashore.
Based on archaeological studies of the subject area, between 1863 and 1910,
the population began to decline and large-scale sugar plantations and cattle ranching
were begun. During this time there was continuing abandonment of both farming and
coastal fishing areas.
In 1934, the landowners of Kahua 2"d (Bishop Trust Company) and Kahua 1st or
Kahualiilii and Waika (Hawaiian Properties, Limited for Elizabeth Kalanianaole Woods)
initiated proceedings to have their lands registered in the Land Court of the Territory of
Hawaii. Bishop Trust applied for title to lands containing 5,416 acres in Land Court
Application No. 1036 (Ld. Ct. App No.). Hawaiian Properties sought to register title to
6,727 acres in Ld Ct App No. 1043. All three ahupuaa ran from the sea across the
Kohala Mountain Road to the summit along the top edge of Honokane.
Division of Forestry&`/Vildi e • Dept.of Land&Natural Resources • 1151 Punchbowl Street,Room 224 • Honolulu,Hawaii 96813
The Territorial and County governments were given an opportunity to make
claims for any roads or trails within the above lands for public use.
EL. Wung, the County Engineer, interviewed old timers from Kohala in 1936
about the Road and Trail and was told both had fallen into disuse. In spite of this, Wung
advocated that both should be reserved to the government.
In December 1936, George Kimball, the (then) Deputy Attorney General for the
Territory of Hawaii, made a claim for the Road (10 feet wide) and Trail (5 feet wide).
However, he was of the opinion that the Territory would be better served if the
government agreed to withdraw its claim to the Road and Trail in exchange for fee
simple title to the 60 foot wide public highway (Kohala Mountain Road) that ran through
the subject lands. (Note: The Akoni-Pule Highway was not built until 1973).
A bureaucratic tug-of-war began with a series of letters from 1936 until 1938
whereby the county continued to insist the Road and Trail be reserved, while the
Territorial government felt otherwise. In a letter dated March 1, 1938, from Jon Wiig,
the former Deputy Attorney General to Samuel Spencer, the chairman and Executive
Officer of the Board of Supervisors, for the County of Hawaii, it appears a line was
drawn in the sand regarding the matter. Herein is an excerpt from that letter:
Our investigation of the facts relating to the claims for the two
trails has convinced us that if the claims were litigated in the Land
Court we would be unsuccessful in establishing them.
The applicants, in consideration of our withdrawal of our claims
for the two trails, have agreed to grant to the Territory in fee
simple a strip of land 60 feet wide across the lands covered by the
applications for the main government road, containing an area of 20
acres. This method of settlement of the claims of the Territory meets
with our approval, and meets with the approval of Mr. R.D. King,
Principal Cadastral Engineer of the Territory.
Our purpose of advising you of this proposed settlement is to
notify you that because of the information we have at hand we do not
propose to litigate the claims for the trails, and if the Board of
Supervisors are of a different opinion and feel that the claims should
be pressed, that it assume the responsibility of presenting the claims
in court. Counsel for the applicants have indicated that should the
claims be pressed they would be unwilling to grant the 60 foot right
of way to the Territory.
We, too, are desirous of having these cases settled and will
proceed with the settlement along the lines mentioned above unless we
hear from you by March 15, 1938 . If you are not in agreement with our
proposed settlement we shall of course hold the matters in abeyance
until a satisfactory settlement can be arranged.
(Signed) Jon Wiig, Deputy Attorney General
2
This stance did not deter the County Board of Supervisors. In a letter dated
March 5, 1938, Ms. Kaaua, the County Clerk stated in part:
Please be advised that the Board is not desirous of acquiring the
sixty (60) foot right-of-way on the main government road, but is
satisfied with the present forty (40) foot right-of-way; the said
Board is also willing to waive any reservation of what is known as the
"Puuhue-Kawaihae Road", but is unwilling to abandon its rights to the
so-called "Mahukona-Kawaihae Beach Trail", as this trail is part of the
old trail that leads right around the island, and the Board feels that
at some later date, a road may be built between Mahukona and Kawaihae.
Response by the Territorial Deputy Attorney General (Wiig) dated March 7, 1938
stated in part:
The Board states as its reasons for being unwilling to abandon
the beach trail that it is part of an old trail that goes around the
island and that at some later date a road may be built between
Mahukona and Kawaihae.
We are informed that the Territorial Highway Engineer is of the
opinion that the territory should acquire a 60 foot right of way for
the government road across the properties involved because in order to
secure grants in aid from the United States Government the latter
government requires that the territory have at least a 60 foot right
of way. The Territorial Highway Engineer also states there are other
reasons why it is desirable that the territory have a 60 foot right of
way. As we stated in our letter to you, the applicants are not
willing to give us a 60 foot strip of land if either of the claims for
trails are pressed.
In this connection, you stated as one of the reasons, and perhaps
the prime reason, why you are desirous of claiming the "Mahukona-
Kawaihae Beach Trail" that at some future time a road may be built
between Mahukona and Kawaihae. We assume from this statement that you
believe that it would be possible to use this trail as part of the
right of way for an improved road. It must be borne in mind by the
Board that even though the County were successful in establishing its
claim it would only acquire an easement by prescription having a width
of not more than 5 feet and that it could only be used in the future
for the purpose for which it has been used in the past. Our Supreme
Court has held that an easement acquired by prescription for a foot
path may not be used as a road sufficiently wide for carriages. It
follows that the land across which a trail runs could not be further
burdened by the construction of a road for automobiles. If and when a
road is built across this property it will be necessary to acquire
from the owners a right of way for road purposes and the easement for
the beach trail, if awarded by a court, would be of no value for that
purpose.
We believe that after weighing all of the facts and circumstances
in these two cases the preferable manner of settlement is to waive the
claim for the beach trail and accept from the land owners a strip of
land 60 feet wide in fee simple for the main government road. Unless
we hear from you to the contrary we shall proceed with such a
settlement .
(Signed) Jon Wiig, Deputy Attorney General
3
No further communication between the county and Territory are found in the files.
Apparently the county acquiesced because when the Land Court issued its final decree
for title, the Road and Trail were not reserved to the territory. The following is a
synopsis of the title registration proceedings.
On April 27, 1938, the Territory of Hawaii filed a Withdrawal of Answer and Claim
in the Land Court. This document effectively withdrew the Territory's original claim
made in December 1936 for the Road and Trail.
On June 10, 1938, Bishop Trust (Bishop) and Hawaiian Properties (HP) were
issued decrees confirming their ownership of the lands they sought to register. By this
time Kahua Ranch was the fee simple owner of the subject lands and was issued
Transfer Certificate of Title (TCT) 18,481 (Land Court Application No. 1036) and 18,484
(Land Court Application No. 1043). TCT 18,481 covered the ahupuaa of Kahua 2nd
and TCT 18,484 covered Kahua 1sI and Waika.
Both TCTs identified the subject lands by metes and bounds survey together with
corresponding map identified as Map 1. Although Map 1 of each application identified
the subject Road and Trail, the TCTs failed to show either as a reservation in favor of
the Territory nor were those features listed as encumbrances upon the said lands.
On July 21, 1938, a Deed from Kahua Ranch to the Territory of Hawaii conveying
the 60 foot right of way for Kohala Mountain Road was recorded in the Land Court of
the Territory of Hawaii. By this action, the exchange for the Road and Trail was
complete. All subsequent transfers and conveyances fail to cite the Road and Trail as
encumbrances on any portion of the lands registered in Ld. Ct. App. Nos. 1036 or 1043.
In 1975, Kahua Ranch consolidated its land holdings from two separate Land
Court Applications into Land Court Consolidation No. 129. The State Survey Office
reviewed the request for consolidation and approved it as submitted, without addressing
the Road or Trail issue. Records in Ld. Ct. Cons. No. 129 including its Map 1 fail to
disclose the Road or Trail as encumbrances upon the subject lands.
Currently, the subject parcels 1 through 8 are shown on Ld. Ct. Cons. 129 Map 9
as Lots 69-71 and 75-80. (Exhibit B). These lots owned by Kohala Kai, LLC., are
subject to Easement 39, for Public Pedestrian Access Purposes, that is intended to be
twenty (20.00) feet from and parallel to the shoreline as shown on Map 9, as set forth by
Land Court Order No. 1455888, filed on April 15, 2002. This encumbrance is noted on
the Deed to Kohala Kai filed in the Land Court as Document Number 3125434 (Exhibit
C).
Therefore, based on the available records, the Road and Trail were not reserved
to the government (either on the county or territorial level) at the time of the Land Court
registration. It is extremely unlikely that this can be reversed in the future. Easement
39 is meant to provide shoreline access, although it is not clear to the author of this
4
memorandum whether the legal access provided by this easement does in fact allow
physical access for pedestrians in a safe manner.
Please contact me if you have any questions or comments regarding this matter.
c: Theresa Donham,HP
Rick Gmirkin,NPS
5
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'1•J•
L-542 STATE OF HAWAII
OFFICE OF ASSISTANT REGISTRAR
RECORDED
�..., .,� JUN 21,2004 08:02 AM
h"tom ; • Doc ND(s)3126434
on Cent/)580,424
•
!swine a Csrtis)702.159
•
�I1111111111111111111 111111111111111111{I II�� ASSISTANT REGISTRAR
CONVEYANCE TAX:$16300.00
20 1H 21
Y�L LAND COURT SYSTEM REGULAR SYSTEM
AFTER RECORDATION,RETURN TO: RETURN BY: MAIL❑ PICKUP]:
�(---�1 Kohala Kai,LLC Escrow No.21502167-015 ME
C..- Ernest W.Moody,Manager Job No, 00159969
Drive
Redbird Dr
Las Vegas,Nevada 89134 fciTC Total pages:Q
Tax Map Key Nos.(3)6-9-017-0001,(3)59-017-0002, 5-9-0 0003,(3)5-9-017-0004,
(3)5-9-017-0006,(3)5-9-017-0006,(3)'S- 17-0007 and(3)5-9-017-0006
WARRANTY DEED
THIS DEED, made this day of JUN )7 200
OHANA MAKAI, LLC,a Hawaii Drafted 2004,by Hawaii tfabdAty campsny,and P-011ANA MAKA1,LLC,a Hawaii
hail ad liability company,hereinafter cofeclively called the"Grantor',in favor of KOHAL.A KAI,LLD,a
Hawaii limited liability company,whose address Is 2110 Redbird Drive,Les Vegas,Nevada 69134,
hereinafter called the'Grantee',—
WITNESSETH THAT:
The Grunter, in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration paid by the Grantee to Old Republic Exchange Faclwator Company, a California
corporation,in connection with a tax-tree exchange of properties under Section 1031 of the Internal
Revenue Code of 1988,as amended, the recu Il of width is hereby=know/edged by the Grantor,does
hereby grant, bargain, sell and convey unto the Grantee, In fee eirepie, all d the property more
particularly described i1 Eldhibit A attached hereto end made a part hereof;
And the reversions,remainders,rents,issues and profits thereof and of of the estate.right.Ube
and interest of the Grantor,both at law and in equity,therein and thereto:
TO HAVE AND TO HOLD the came, together with all buildings, improvements, rte,
easements,privileges and appurtenances thereon and thereunto belonging or appertaining or held and
enjoyed therewith,unto the Grantee according to the tenancy hereinafter set forth.forever.
The Grantor does hereby covenant with the Grantee that the Grantor is seised of the properly
herein described in fee simple; that said property is free and dear of and from all (lens and
encumbrances,except for the len of real property taxes not yet by taw required to be paid,and except as
may herein speciically be set forth;that the Grantor has good right to sell and convey said property,as
aforesaid;and,that the Grantor wilt WARRANT AND DEFEND the same unto the Grantee against the
lawful claims and demands of all persons,except as aforesaid.
342305 v3 1
1XHIBIT C
This conveyance and the warranties of the Grantor are expressly declared to be in favor of the
Grantee,as tenant in severalty,its successors and assigns.
This instrument may be executed in counterparts,each of which shall be deemed an original,and
said counterparts shalt together constitute one and the same agreement,binding all of the parties hereto,
notwithstanding standing all of the parties are not signatory to the original or the same counterparts. For ail
purposes, including, without limitation, recordation, firing and delivery of this instrument, duplicate
unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages
assembled as one document.
The rights and obligations of the Grantor and the Grantee shall be binding upon and Inure to the
benefit of their respective heirs, devisees, personal representatives and assigns. All obligations
undertaken by two or more persons shall be deemed to be joint and several unless a contrary intention is
clearly expressed elsewhere herein.
IN WITNESS WHEREOF,the Grantor and the Grantee have executed these presents on the day
and year first above written.
[The remainder of this page Is intentionally left blank-signature page(s)follow(s))
342305 v3 2
K-OIHANA MAKAI,LLC,a Hawaii limited liability
company
By KAHUA RANCH ITE,
tts Sole M.: /
••.`:`!.MMI ��►� t{1 " �
Sy �(�nri
Its 144er ,te
STATE OF HAWAII
) SS.
CITY AND COUNTY OF HONOLULU a
On this day JUN 1 7 201)4
appeared +n a t{t t t 2004. before me personally
personally krwwn,,w by me to the
duty swam or affirmed,did say that such wantons executed the
foregoing instrument as the free act and deed of such persons,and K applicable in the shown,
having been duty authonzed to execute such i such
No -Public,State of Hawaii
My Commission Expires:
JANE A.NAGASAKO
Nasty Pubic,Siots of Hawaii
Commiuion szplrs:• 08/30/2005
342306 v3 3
P-OHANA MAKAI,LLC,a Hawaii limited liability
company
ByPONOHOLO RANCH.LIMITED
Its Sole Member
$Y ya1 UuCc eL
its
Grantor
STATE OF HAWAII
SS.
CITY AND COUNTY OF HONOLULU )
On this y of JUN 17 2004 , 2004, before me personally
appeared
personally known,who,being by me duly sworn or affemed,did to me
foregoing instnsnent as the free act and deed of such say that such persons executed the
having been duty authorked to execute such anent capacity.applicable in the«:,:« shown.
fir
Print N:y^::
Notary Public,State of HawaN
My Commission Expires
JANE A.NAGASAKO
IVorory Pub&Stay of Hawaii
Cor unission expl er Oa/30/200S
342305 v3 4
KONALA tie
—dace. Ale
m...W.Moody
Its Manager
Grantee
STATE OF e*/./emm
)
COUNTY OF ..5 SS,7M PIMP
On this ji day of Me 2004, before me personally
appeared ERNEST W.MOODY,to me personsay icnown,who,being by me duty seem or affirmed,tire
say that such person executed the foregoing instrument as the free act and deed of midi person,and if
applicable in the capacity Mown. haying been duly euthorized to execute such insburnent in such
capacity.
Print
7.*" l Name SAM, 4.54-44$1-0
Notary Pubic,State of e ittiwAhrto
SETH ESSENFELD
NoTAfra My Commission Expires: 14", 2e, 4o4.
y Pusctiiitro6RN4
sAN Dikoo`courfry -
,...• wry COW.EXP.FEB.70,2006
942306 v3 5
EXHIBIT A
All of that certain parcel of land situate at Kehua,District of North Kohata,Island and County of
Hawaii,State of Hawaii,described as follows:
Lot 71,area 6.600 acres,more or less,as shown on Map 9,
Lot 78,area 5.003 acres,more or less,as shown on Map 10,
Lot 79,area 5.007 acres,more or lass,as shown on Map 10,
Lot 80,area 5.006 acres,more or less,as shown on Map 10,
Lot 75,area 5.140 acres,more or less,as shown on Map 9,
Lot 76,area 8.390 acres,more or less,as shown on Map 9,
Lot 77,area 28.175 acres,more or less,as shown on Map 9,
Lot 69,area 12,663 square feet,or 0.291 acres,more or less,as shown on Map 9,
Lot 70,area 9,211 square feet,or 0211 acres,more or less,as shown on Map 9,
filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land
Court Consolidation No,129 of Kahua Ranch,Limited:
Together with any easements described in Transfer Certificate of Title No.580,424. /
Being all of the land described in Transfer Certificate of Title No.580,424.
Subject,however,to the following encumbrances:
1. Reservation in favor of the State of Hawaii of all mineral and metallic mines.
2. Shoreline setbacks: 'Shoreline setbacks established pursuant to the laws of the State of
Hawaii, or any political subdivision thereof, and any ordinances, rules or regulations adopted or
promulgated by any governmental authority pursuant to such taws.'
3. Seaward boundary: 97etemtinetion of the seaward boundary of the lard described
herein pursuant to the laws of the State of Hawaii".
4. - Claims arising out of customary or traditional tights and practices, inducting without
limitation those exercised for subsistence,sutural,religious,access or gathering purposes as provided
for In the Hawaii Constitution or the Hawaii Revised Statutes,as amended.
5. Memorandum of Water Agreement by and between Kahue Ranch limited.a Hawaii
corporation,and Parabola Ranch,Limited,a Hawaii corporation,'Katwa/Ponehole;and Gentry-Pectic,
Ltd.,a Hawaii corporation,'Gentry-Pacific',dated June 30,1999 recanted In said Office as Land Court
Document No.2556893.
6. Restriction of Vehicular Access Rights,as shown on Map 8,as set forth by Land Court
Order No.144767,filed on January 31,2002.
342305 v3 6
7. Easement 30,for Public Pedestrian Access Purposes,shown thereon Is intended to be
twenty(20.00)feet from and parallel to the shoreline as Is from time to time established,as shown on
Map 9,as set forth by Land Court Order No.145588,fled on April 15,2002.
8. Asto Lot 71:
(a) Easement 31(20 feet wide),for Drainage Purposes,as shown on Map 9,
as set forth by Land Court Order No.145588,filed on April 15,2002
(b) Easement 37(20 feet wide),for Public Pedestrian Access Purposes,as
shown on Map 9,as set forth by Land Court Order No.145588.filed on
April 15,2002.
(c) Easement 40. for Landscaping and Budding Setback Purposes, as
shown on Map 10,as set forth by Land Court Order No.151155,filed on
June 9,2003.
(d) Easement 44(15 feet wide),for Landscaping Purposes,as shown on
Map 10,as set forth by Land Court Order No.151155,fled on June 9,
2003.
9. As to Lot 78: Easement 44(15 feet wide),for Landscaping Purposes,as shown on Map
10,as set forth by Land Court Order No.151155,filed on June 9,2003.
10. As to Lot 79:
(a) Easement 32(20 feet wide),for Drainage Purposes,as shown on Map 9,
as set forth by Lend Court Order No.145588,filed on April 15,2002.
(b) Easement 33(20 feet wide),for Drainage Purposes,as shown on Map 9,
as set forth by Land Court Order No.145588,filed on April 15,2002.
(c) Easement 41, for Landscaping and Budding Setback Purposes, as
shown on Map 10,as set forth by Land Court Order No.151155,fled on
June 9,2003.
(d) Easement 44(15 feet wide),for Landscaping Purposes,as shown on
Map 10,as set forth by Land Court Order No.151155,flied on June 9,
2003.
11. As to Lot 80:
(a) Easement 33(20 feet wide).for Drainage Purposes,as shown on Map 9,
as set forth by Land Court Order No.145588,filed on April 15,2002.
(b) Easement 41, for Landscaping and Building Setback Purposes, as
shown on Map 10.as set forth by Land Court Order No.151155,filed on
June 9,2003.
(c) Easement 44(15 feet wide),for Landscaping Purposes,as shown on
Map 10,as set forth by Land Court Order No.151155,filed on June 9,
2003.
3423,35 r3 7
........... ...........
12. As to Lot 75:
(a) Easement 35,for Drainage Purposes,as shown on Map 9,as set forth
by Land Court Order No.145588,filed on April 15,2002.
(b) Easement 38(20 feet wide),for Drainage Purposes,as shown on Map 9,
as set forth by Land Court Order No.145588,filed on April 15,2002.
(c) Easement 41, for Landscaping and Building Setback Purposes, as
shown on Map 10,as set forth by Land Court Order No.151155,riled on
June 9,2003.
(d) Easement 43(15 feet wide),for Landscaping Purposes,as shown on
Map 10,as set forth by Land Court Order No. 151155,filed on June 9,
2003.
13. As to Lot 76:
(a) Easement 36(20 feet wide),for Drainage Purposes,as shown on Map 9,as set
forth by Land Court Order No.145588,filed on April 15,2002.
(b) Easement 38,for Public Pedestrian Access Purposes,as shown on Map 9,as set
forth by Lend Court Order No.145588,Red on April 15,2002.
(c)
10,as Easement forth by Land Court Order No.155111555,filed on 9 003.on Map
(d) Easement 43(15 feet wide),for Landscaping PAS as shown on Map 10,as
set forth by Land Court Order No.151155,fled on June 9,2003.
14. As to Lot 77;
(a) Easement 34(20 feet wide),for Drainage Purposes,as shown on Map 9,
as set forth by Land Court Order No.145588,fled on April 15.2002.
(b) Easement 35,for Drainage Purposes,as shown on Map 9,as set forth
by Land Court Order No.145588,tiled on April 15,2002.
(c) Easement 41, for Landscaping and Building Setback Purposes, as
shown on Map 10,as a forth by Land Court Order No.151155,filed on
June 9,2003.
15. Restrictions or limitations on the use or development of any portion of the tend which may
constitute a historical or burial site.
End of Exhibit A
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