                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 18 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



STATE OF HAWAII BY ITS                           No. 09-17816
ATTORNEY GENERAL,
                                                 D.C. No. 1:07-cv-00516-SPK-
             Plaintiff - Appellee,               LEK

  v.
                                                 MEMORANDUM *
STEVE’S AG SERVICES, LTD., a
Hawaii corporation; et al.,

             Defendants - Appellants,

  and

THE NATURE CONSERVANCY; et al.,

             Defendants.



                    Appeal from the United States District Court
                             for the District of Hawaii
                  Samuel P. King, Senior District Judge, Presiding

                        Argued and Submitted June 13, 2011
                                Honolulu, Hawaii

Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Steve’s Ag Services appeals from the district court’s judgment quieting title

of the subject property in favor of the State of Hawaii. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      The district court did not abuse its discretion in rejecting Steve Ag’s

equitable arguments that the State should be precluded from quieting title.

Equitable estoppel requires “proof that one person wilfully caused another person

to erroneously believe a certain state of things, and that person reasonably relied on

this erroneous belief to his or her detriment.” Potter v. Hawaii Newspaper Agency,

974 P.2d 51, 59 (Haw. 1999). Here, however, there is no evidence that the State

willfully misrepresented the eastern boundaries of the Alika and Papa parcels, nor

was there any evidence of reasonable and detrimental reliance by Steve’s Ag or

any of the prior grantees. The doctrine of laches applies when a plaintiff

unreasonably delays in asserting his claim, and this delay prejudices the defendant.

See Adair v. Hustace, 640 P.2d 294, 300 (Haw. 1982). However, there is no

evidence that anybody was using the subject parcel, or asserting a claim of

ownership over it, prior to Steve’s Ag’s logging of trees on the land. Thus, the

State did not unreasonably delay in asserting title. See, e.g., State ex rel.

Kobayashi v. Zimring, 566 P.2d 725, 738 (Haw. 1977) (declining to apply

equitable estoppel against the State because “there was no assertion of title or


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institution of legal action to clear title on the part of either party . . . . We find,

therefore, that there was no obligation or duty to speak on the part of the State

before this action was initiated.”).

       The district court found that the metes and bounds descriptions in CB 85

were ambiguous and could not reliably establish the proper boundaries of Kahuku.

Hawaii law is clear that ambiguous land descriptions, even if contained within a

legally binding document, must be interpreted by the courts: “A surveyed

description of land contained in a decree of court, if it requires construction, is

subject to the same rules of construction as a description contained in a patent, a

deed, or other instrument. . . .” McCandless v. Du Roi, 23 Haw. 51, 54 (1915).

The court’s factual determination that the metes and bounds descriptions in CB 85

“could be off by over 5000 feet,” was not clearly erroneous.

       In light of the ambiguities in CB 85, the district court properly evaluated the

testimony from both parties as to the correct Kahuku boundary. See, e.g., Apo v.

Dillingham Investment Corp., 549 P.2d 740, 744 (Haw. 1976) (“The plaintiffs’

surveyor testified that the description in the original grant could not be applied to

the land because several monuments could not be located. Such testimony is

sufficient to justify the admission of parol evidence to locate the actual boundaries

of the grant.”). The district court judge, sitting as the factfinder, concluded that


                                              3
Wright’s 1908 re-survey in RM 2468 established the proper Kahuku boundary, and

that the subject parcel was not included within Kahuku. This factual finding was

not clearly erroneous.

      We also uphold the district court’s conclusion that the subject parcel was not

contained within the Alika or Papa grants. Under Hawaii law, a known boundary

line of an adjoining property is considered a natural monument, thus it ordinarily

controls over other descriptions in the grant. See In re State, 444 P.2d 909, 911

(Haw. 1968) (“In the case of a conflict in the description of a boundary between a

call for an adjoiner and course and distance, the former will ordinarily take

precedence over the latter.”). However, “[a]ll of these ordinary rules . . . need not

be followed and may be reversed when under the circumstances they do not carry

out the intention of the grantor as to the location or extent of the land described in

the grant.” Apo, 549 P.2d at 745 n.2.

      Here, the Alika and Papa grants indicate that the parcels’ eastern boundaries

extend to large ahus1 on the Kahuku boundary, and the district court did not clearly

err in concluding that the referenced ahus were located on the Kahuku border as

erroneously marked by Wright and Kanakanui in 1902. The district court applied


      1
        An “ahu” is used to mark the boundaries of a parcel of property, and is
often just a heap of stones. Nihipali v. Apuakehau, 144 P.3d 561, 571 n.18 (Haw.
Ct. App. 2006).

                                           4
the proper rules of construction in concluding that the Alika and Papa grants

should extend only to the location of the marked ahus, as opposed to the current

designation of the true Kahuku boundary, because this better carried out the

intention of the parties. While boundary designations ordinarily control over

distance and area, the state law is clear that the rationale underlying the hierarchy

of construction is that there is less of a “likelihood of a mistake being made as to

[natural monuments], but where this reason fails the rule itself fails.” Ookala

Sugar Plantation Co. v. Wilson, 13 Haw. 127, 132 (1900).

      Moreover, an additional rule of construction favors placing the boundary of

the Alika and Papa parcels at the location of the marked ahus rather than the

current Kahuku boundary: the construction of the parties governs if a deed is

ambiguous. See State v. Hawaiian Dredging Co., 397 P.2d 593, 607 (Haw. 1964)

(“If considered ambiguous, the construction given a deed by the parties to it will be

given effect unless it contravenes some rule of law.”). The district court found that

the original grantees erected a fence along the border of the property, as marked by

the 1902 ahus, and that some form of this fence still exists today. Steve’s Ag has

not demonstrated that the district court clearly erred in so finding. Accordingly,

the district court properly concluded that the subject parcel is not contained within

the Alika or Papa parcels.


                                           5
      Because the subject parcel is not contained within Kahuku, nor was it

conveyed as part of the Alika and Papa grants, the subject parcel remains state land

by operation of law. Zimring, 566 P.2d at 731(“[L]and in its original state is public

land and if not awarded or granted, such land remains in the public domain.”).

      AFFIRMED.




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