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                                                             Electronically Filed
                                                             Supreme Court
                                                             SCWC-14-0000472
                                                             25-AUG-2017
                                                             08:40 AM



          IN THE SUPREME COURT OF THE STATE OF HAWAII

                               ---o0o---


               GOLD COAST NEIGHBORHOOD ASSOCIATION,

                  Respondent/Plaintiff-Appellee,


                                   vs.


                          STATE OF HAWAIʻI,

                  Petitioner/Defendant-Appellant.

                        (CIV. NO. 07-1-1122)



            STATE OF HAWAIʻI BY ITS ATTORNEY GENERAL,

                 Petitioner/Plaintiff-Appellant,


                                   vs.


     TROPIC SEAS, INC.; THE ASSOCIATION OF APARTMENT OWNERS OF 

DIAMOND HEAD BEACH, INC.; OLIVIA CHEN LUM, TRUSTEE OF THE OLIVIA 

 CHEN LUM REVOCABLE LIVING TRUST; CLARENCE KWON HOU LUM, TRUSTEE 

  OF THE CLARENCE KWON HOU LUM TRUST AND TRUSTEE UNDER THE WILL 

AND ESTATE OF CHOW SIN KUM LUM; JEANNE S.J. CHAN AND HOWARD N.H. 

    CHAN, TRUSTEES OF THE JEANNE S.J. CHAN TRUST; DIAMOND HEAD 

    AMBASSADOR HOTEL, LTD.; DIAMOND HEAD APARTMENTS, LTD.; C S 

   APARTMENTS, LTD.; THE ASSOCIATION OF APARTMENT OWNERS OF 2987 

 KALAKAUA CONDOMINIUM; TAHITIENNE, INCORPORATED; THE ASSOCIATION 

  OF APARTMENT OWNERS OF 3003 KALAKAUA, INC.; THE ASSOCIATION OF 

              APARTMENT OWNERS OF 3019 KALAKAUA, INC.,

                  Respondents/Defendants-Appellees.

                         (CIV. NO. 10-1-0888)



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         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

      (CAAP-14-0000472; CIV. NOS. 07-1-1122 AND 10-1-0888)


                              AUGUST 25, 2017


  McKENNA AND POLLACK, JJ., AND CIRCUIT COURT JUDGE CASTAGNETTI, 

 IN PLACE OF WILSON, J., RECUSED, WITH NAKAYAMA, J., DISSENTING, 

                WITH WHOM RECKTENWALD, C.J., JOINS


                OPINION OF THE COURT BY POLLACK, J.


                         I.       INTRODUCTION


          For at least the past 65 years, residents and visitors

of Oʻahu have been free to walk along the cement path atop a

seawall (the Seawall) on or near the seaward boundaries of

property between 2943 Kalākaua Avenue and 3019 Kalākaua Avenue

to access the beach, shoreline, and ocean in order to swim,

surf, fish, and enjoy other activities of island living.            Over

the course of these many decades, the State has paid for and

completed repairs and maintenance on the Seawall, enabling the

public to continue to safely use the footpath.          As recently as

2006, the Hawaiʻi State Legislature appropriated funds to repair

the Seawall.   However, the State shortly thereafter disclaimed

any duty to maintain the Seawall, prompting commencement of this

lawsuit to require the State to maintain and keep the Seawall in

good and safe condition.

          The Circuit Court of the First Circuit (circuit court)

ruled that based on the applicable law and the uncontested

evidence in this case, the State had obtained an easement for


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public use over and across the Seawall by virtue of common law

implied dedication.     The Intermediate Court of Appeals (ICA)

unanimously agreed.     We conclude that in light of (1) Hawaii’s

long-standing principles of common law, (2) the historical

significance and deep roots of implied dedication in this

jurisdiction as evidenced by nearly 150 years of this court’s

precedent, and (3) the undisputed evidence in this case, the

circuit court and the ICA correctly determined that the State

obtained an easement over and across the Seawall by common law

implied dedication.

          In addition to determining that the State owned an

easement over and across the Seawall by implied dedication, the

circuit court also ruled that the State owned the real property

under the Seawall by virtue of surrender under Hawaii Revised

Statutes § 264-1(c)(2) (2007).       Given this court’s precedent,

however, ownership of the Seawall was not transferred to the

State by virtue of surrender.       Thus, the circuit court and the

ICA erred in concluding that the State owns the Seawall and the

real property under the Seawall.

          Given our disposition with respect to the merits of

Gold Coast’s claims in this case, we also determine whether the

circuit court properly denied Gold Coast’s motion for attorneys’

fees and costs against the State.         Although the ICA determined

that an award of both fees and costs was permissible in this

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case, we conclude that this ruling and the circuit court’s

ruling were both partially erroneous because the State waived

its sovereign immunity with respect to costs but not attorneys’

fees.

                            II.      BACKGROUND

A.      Construction, Public Use, and State Repairs to the Seawall

             At issue in this case is a length of seawall that

stretches from the seaward boundaries of property between 2943

Kalākaua Avenue and 3019 Kalākaua Avenue (the Seawall).               The

Seawall runs along Waikiki’s “Gold Coast,” an area of

condominiums and cooperative apartments located on ocean front

lots near the Diamond Head end of Kalākaua Avenue.1              The Seawall

was originally constructed by private parties over eighty years

ago.    Since approximately 1930, the Seawall has been used by

both residents and members of the general public, without

interference or restriction, to access the ocean and to traverse

along the Waikīkī coastline.




      1
            Specifically, the Seawall subject to the instant litigation
borders eleven properties identified by the following Tax Map Key Nos. and
owned or managed by the corresponding entities: Tropic Seas, Inc. (TMK No. 3-
1-032:030), Diamond Head Beach Hotel (TMK No. 3-1-032:029), Diamond Head
Ambassador Hotel, Ltd. (TMK Nos. 3-1-032:028, 27, 26), Diamond Head Apts.
Ltd. (TMK No. 3-1-032:004), C S Apts Ltd. (TMK No. 3-1-032:003), 2987
Kalakaua Condominium (TMK No. 3-1-032:002), Tahitienne, Incorporated (TMK No.
3-1-032:001), 3003 Kalakaua (TMK No. 3-1-033:011), and 3019 Kalakaua Avenue
(TMK No. 3-1-033:009).




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           For decades, the State has maintained the Seawall,

conducted necessary repairs to the Seawall, and otherwise

assumed responsibility to preserve and manage the Seawall.               In

at least 1982, 1984, and 1993, the State conducted various

repairs to the Seawall, and local and state appropriations were

made by the relevant legislative bodies in contemplation of

further repairs in at least 1989, 1992, and 2006.            By

stipulation of the parties in this case, the repairs were

described as follows:

              In June 1982, the State of Hawaii Department of Land
           and Natural Resources (DLNR), Land Division, performed
           “emergency repair work” to “shore approximately 40 feet of
           the Seawall along the boundary of Diamond Head Apartments.”
           By 1981 Haw. Sess. Laws Act 1, Item K-2, the State
           legislature authorized the expenditure of $25,000.00 for
           these repairs.

              Sometime in 1982, the DLNR, Land Division, performed
           repairs and “rehabilitated broken sections of the Seawall”
           from the Elks Club property to near the Diamond Head end of
           Kalākaua Avenue. The funding for the repairs was
           appropriated by 1981 Haw. Sess. Laws Act 1, Item K-2, and
           by 1981 Haw. Sess. Laws Act 264, Item K-2.

              “Sometime after May 1984,” the State performed
           additional repair work on “one or more portions of the
           Seawalls pursuant to work identified as Job No. 1-0L-31,
           Waikiki Seawall Walkway Rehabilitation, Phase III.” The
           original scope of this project consisted of “rehabilitating
           seawalls, constructing hand railing and other incidental
           and appurtenant work necessary to complete this project.”2



     2
            A table included with the parties’ stipulation shows that during
Phase III, the State conducted the following repairs: “[c]rack repair on
walkway--chip off loose material and epoxy the crack”; “[r]epair nosing at
edge of walkway”; “[r]emove loose concrete topping and pour 4” thick x 3’6”
wide concrete later”; “[r]epair walkway--remove loose concrete topping and
replace with 2” thick cement mortar (Taper new concrete left to right, see G-
2)”; and “[a]dd new concrete walkway on top of existing wall.”




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             On December 8, 1992, following Hurricane Iniki, the
          Honolulu City Council passed a resolution authorizing the
          DLNR “to rehabilitate the existing Seawall walkway located
          in Diamond Head, Oahu and identified by TMK Nos. 3-1-
          032:001, 002, 003, 004, 026, 027, 028 and 029, and 3-1-
          033:002, 003 , 004, 005, 006, 007, 008, 009, 010, 011, 053,
          and 056.” The repair and rehabilitative work conducted
          pursuant to this project was limited to portions of the
          Seawall in front of the Diamond Head Ambassador Hotel. The
          construction was authorized by the Hawaiʻi legislature by
          1989 Haw. Sess. Laws Act 316, Item K-11. Repairs were
          completed in September 1993 at a contract price of
          $609,605.00. Pursuant to this project, “the State built or
          rebuilt essentially the entire wall in front of . . . three
          properties” along the Seawall, although “to the extent the
          State built the wall makai of the then shoreline the wall
          [was] on State property.”

             In an October 13, 1993 letter from the DLNR, the
          Manager-Chief Engineer of the DLNR stated that further
          repair work on the Seawall was scheduled for TMK Nos. 3-1-
          32:029, 004, 003, 002, 001, 3-1-033:011 and 009.

             In 2006, the Hawaiʻi legislature appropriated $2 million
          for “plans, design and construction for the resurfacing of
          the seawall and installation of railings along Waikiki’s
          Gold Coast.” The appropriation was included within H.B.
          1900 in a section titled “Waikiki Seawall Improvements,
          Oahu.”

(Emphases added.)

          Since at least 1975, various assertions made by the

State have further manifested its long-held position that the

Seawall serves as a public right-of-way and that the State has

the duty and responsibility to maintain the Seawall for use by

the public.   The parties stipulated that the following relevant

documents would be entered into evidence in this case:

             A February 27, 1975 memorandum authored by Wallace W.
          Weatherwax, Deputy Attorney General (DAG Weatherwax), to
          the Department of Transportation’s Harbors Division
          intended to resolve the Harbors Division’s inquiry as to
          “whether or not the State has the responsibility to
          maintain and improve a public right of way which passes
          over a seawall located within” TMK No. 3-1-33-2 and TMK No.
          3-1-33-53. In the memorandum, DAG Weatherwax stated the
          fact of “the use by the public of this right of way since

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          1930” and concluded that “the State has the responsibility
          to maintain the public right of way over the seawall.”

             A 1982 Environmental Assessment issued by the DLNR
          regarding the repair of a portion of the Seawall near the
          Diamond Head Apartments, in which the DLNR stated that
          “[t]he top of the seawall serves as a public walkway for
          residents and beachgoers to traverse along the shores of
          Waikiki Beach” and that “[r]esidents, surfers, beachgoers
          and fishermen use the top of the seawall to traverse
          between the Diamond Head end of Waikiki Beach and Sans
          Souci Beach.”

             A document dated May 1984 relating to the “Waikiki
          Seawall Walkway Rehabilitation” project stating that “the
          State has a right-of-way over the seawall and has obtained
          a right-of-entry onto” certain properties “for the
          rehabilitation of the seawall walkway.”

             A “Notice of Determination (Negative Declaration)”
          relating to the “Waikiki Seawall Walkway Rehabilitation
          Project” issued by the DLNR, Water and Land Development
          Division, with a handwritten notation at the top
          identifying the document as “1992-10-23-OA-FEA-Waikiki
          Seawall Walkway,” describing proposed repairs to the
          Seawall in the amount of $550,000.00 and stating that “the
          State of Hawaiʻi has a right-of-way over all the seawalls
          and walkways and is responsible to keep them in good and
          safe condition” and that “the walkways are used by the
          general public.”

(Emphases added.)    Thus, for many decades, the Seawall has been

enjoyed by members of the general public and repaired,

maintained, and overseen by the State.

          Gold Coast Neighborhood Association (Gold Coast) is “a

non-profit incorporated organization doing business in the City

and County of Honolulu, and is comprised of individuals and

organizations that own, live in, or have an interest in real

property along Kalakaua Avenue on the Waikiki coastline in the

City and County of Honolulu, State of Hawaii.”          Many of the

members of Gold Coast represent the apartments and condominiums



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located along the Seawall.       Following an appropriation of funds

to repair the Seawall by the Hawaii State Legislature in 2006,

counsel for Gold Coast and representatives from the State

discussed the need for maintenance to the Seawall.            However, at

a point during these discussions, the State informed Gold

Coast’s counsel that it now disclaimed any duty to maintain the

Seawall.

                   B.      Circuit Court Proceedings

            On June 22, 2007, Gold Coast filed a complaint against

the State seeking a declaration from the circuit court that “the

State is required to maintain the Seawall and keep it in good

and safe condition.”      In its complaint, Gold Coast identified

the Seawall as bordering twenty-one properties on Kalākaua

Avenue.    Gold Coast also sought an order awarding it attorneys’

fees and costs “as allowed by law.”

            In July and August of 2007, the parties filed cross-

motions for summary judgment.3        Gold Coast contended in its

summary judgment motion that the State was obligated to maintain

the Seawall by virtue of its ownership of the Seawall, or, in

the alternative, by virtue of an easement over the Seawall.                 The

State rejected these arguments in its summary judgment motion


     3
            The Honorable Eden E. Hifo presided over the summary judgment
proceedings in this case.




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and contended, inter alia, that Gold Coast had failed to join

indispensable parties to the action because it had not joined

all those property owners whose interests in property under or

near the Seawall might be affected by the litigation.

          Prior to the circuit court’s ruling on the parties’

summary judgment motions, Gold Coast filed a first amended

complaint (First Amended Complaint) removing ten of the twenty-

one properties and adding one property.         At a continued hearing

on the parties’ summary judgment motions on August 20, 2008, the

court heard oral argument on whether the First Amended Complaint

“cured the problem” alleged by the State regarding indispensable

parties to the lawsuit.     The State contended that the First

Amended Complaint was not sufficient to cure Gold Coast’s

failure to join indispensable parties, arguing in part that the

various homeowners’ associations were not legally authorized to

represent private property owners in the litigation.           Gold Coast

responded that each of the properties named in the First Amended

Complaint was represented by associations that had agreed on

behalf of their members to join Gold Coast and support the

lawsuit and that the associations were entitled to represent

their property owners’ interests.         Thus, “each individual

owner’s interest [was] secured and represented” by the relevant

association that was authorized to act on the owner’s behalf.



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          At the close of the August 20, 2008 hearing, the court

ruled that Gold Coast had not failed to join indispensable

parties, reasoning that “given the First Amended Complaint . . .

there have been amendments to ensure that the condominiums or

co-ops that are contiguous to the seawalls that are identified

by the TMKs in [the First Amended Complaint] are members of

[Gold Coast], which is the party.”         The court further elaborated

that it did not construe “the fact that the individual owners of

the condos are not named parties” to be an “impediment to the

lawsuit going forward, inasmuch as the [Associations of

Apartment Owners] bind them all.”         The court then ruled that

Gold Coast could proceed in the litigation under the theories of

common law implied dedication and surrender under Hawaii Revised

Statutes (HRS) § 264-1, but that both issues were subject to

genuine issues of material fact precluding summary judgment.

          On April 26, 2010, the State filed its own complaint

for declaratory relief with the circuit court, naming as

defendants some of the individual owners and associations of the

properties included in Gold Coast’s First Amended Complaint.               In

its complaint, the State sought a declaration that “[the State]

does not own the seawalls or the real property under the

seawalls” and that “the State does not have an easement by

prescription or implication over the seawalls.”          The circuit



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court, in accordance with the State’s unopposed motion,4

consolidated the case brought by Gold Coast with the case

brought by the State.5

            On March 18, 2011, the parties filed a First

Stipulation of Facts (Stipulated Facts) pertaining to the

identities of the parties and the portions of the seawall at

issue in the case.      The Stipulated Facts described past repair

work and construction completed on the Seawall, including the

State’s performance of various repairs to the Seawall in 1982,

1984, and 1993, and local and state legislative appropriations

in contemplation of further repairs in 1989, 1992, and 2006, as

described in greater detail above.         The parties stipulated to

events surrounding the State’s sale to the Gold Coast in 2003 of

a non-exclusive easement for “the right, privilege, and

authority to construct, use, maintain and repair” a ladder

accessing the ocean from a 37-square-foot portion of land along

the Seawall.    The parties further stipulated that TMK No. 3-1-


      4
            The State in its motion to consolidate contended that it had
“specifically” filed its complaint so that the disposition of the case
relating to ownership and maintenance of the Seawall would “explicitly
[bind]” the individual property owners and associations, rather than solely
Gold Coast acting on their behalves.
      5
            On September 13, 2010, Gold Coast filed a second amended
complaint (Second Amended Complaint) removing TMK No. 3-1-033:010 from the
complaint. Thus, the current litigation involves eleven properties. These
eleven properties are owned or managed by various entities, each of which is
a member of Gold Coast. See supra note 1.




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033:009 was subject to an “easement of right of way for

pedestrians.”     The parties agreed that as otherwise stated by

the Stipulated Facts, “the State does not hold an express

easement over any of the seawalls [which are the] subject of

these lawsuits.”6

            On March 22, 2011, the circuit court7 held a bench

trial at which three witnesses for Gold Coast testified.8                June

Anderson, a resident of Diamond Head Apartments on the Gold

Coast since 1971, testified that she has regularly observed

members of the public walking along the Seawall, climbing over

the Seawall to access the ocean, and otherwise utilizing the

Seawall for recreational purposes.         Ms. Anderson also testified

that before becoming a resident of her Gold Coast building, she

visited the Waikīkī area as early as 1952 and traversed the

Seawall as a general member of the public several times.9


      6
            Specifically, the Stipulated Facts relate that “[o]ther than    as
stated in paragraph 40, the State does not hold an express easement over    any
of the seawalls subject of these lawsuits.” (Emphasis added.) However,
because the Stipulated Facts does not contain a paragraph 40, it appears    that
this stipulation refers to the immediately preceding paragraph regarding    the
easement held by the State over TMK No. 3-1-033:009.
      7
            The Honorable Virginia L. Crandall presided over the trial.
      8
            Russel Tsuji, an official of DLNR, testified for the State
regarding public access to the Seawall, the buildings located near the
Seawall, and the appearance and condition of the Seawall.
      9
            The record reflects an agreement between the parties that
declarations submitted by the three witnesses during summary judgment
proceedings would be entered into the record in support of Gold Coast’s
claims. In the declaration submitted by Ms. Anderson, she further stated

                                                              (continued. . .)

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According to Ms. Anderson, since 1971, she has never “seen

anyone attempt to keep people from walking on the [S]eawall

walkway.”    Ms. Anderson further testified that her building,

Diamond Head Apartments, was not “insured for the [S]eawall” and

that the residents have “never considered [the Seawall] [their]

property really.”10     Similarly, Robert Gentry, a resident of the

Gold Coast since 1982 and president of the Gold Coast

Neighborhood Association, testified that from his residence, he

observed a “[t]remendous amount of recreational activity” by

members of the public utilizing the Seawall and the ocean

beyond, including swimming, fishing, surfing, dog-walking, and

lifeguarding activities.       Mr. Gentry added that he has “never”

tried to stop anyone from walking along the Seawall.11            Mr.


(. . .continued)

that she “also observed many other people walking along the Diamond Head
Seawall” during her visits to the area between 1952 and 1958.
      10
            In her declaration, Ms. Anderson also stated that to the best of
her knowledge, “during the time in which [she has] been familiar with the
Diamond Head Seawall, no owner of property adjacent to the Diamond Head
Seawall has ever blocked the public from accessing the Diamond Head Seawall,
performed any repairs on the Diamond Head Seawall, or exerted any other
similar form of control or act of ownership over the Diamond Head Seawall.”
      11
            In Mr. Gentry’s declaration submitted during summary judgment
proceedings, Mr. Gentry elaborated that to the best of his knowledge, (1) “no
owner of property along the Diamond Head Seawall, including [Mr. Gentry] and
other members of the [Gold Coast Neighborhood Association], has ever blocked
the public from using the Diamond Head Seawall,” (2) the Gold Coast
Neighborhood Association “assumes that owners of property bordering the
Diamond Head Seawall do not have the right to block the public from using the
seawall,” and (3) “owners of property along the Diamond Head Seawall . . .
have acquiesced in the public’s use of the Diamond Head Seawall as a walkway
and for recreational purposes.”




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Gentry also noted that, to the best of his knowledge, his

building has never had insurance over the walkway on the

Seawall.

           The circuit court heard additional testimony from Guy

Bishaw, a Waikīkī resident who does not own property on the Gold

Coast and who does not have a relationship with the Gold Coast

Neighborhood Association, who described his continuous use of

the Seawall for ocean access and other recreational purposes

since the 1950s.    Mr. Bishaw further testified that in all the

time he has used the Seawall to reach various surf spots, no one

has “ever tried to stop [him] from walking on the wall” or “told

[him] that the seawall was private property and [he] better not

walk on the wall.”

           On November 29, 2013, the circuit court issued its

Findings of Fact, Conclusions of Law, and Order (Findings of

Fact and Conclusions of Law).       The circuit court determined that

Gold Coast had prevailed on its implied dedication and surrender

claims and was therefore “entitled to a declaratory ruling” that

the State has an easement over and across the Seawall by implied

dedication and that the State owns the Seawall and the real

property under the Seawall by surrender.

           In its Findings of Fact and Conclusions of Law, the

circuit court made extensive findings of fact regarding the

parties, the identification and characteristics of the

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properties at issue, access to the Seawall from Kalākaua Avenue,

the history of the State’s repair work on the Seawall and

communications by the State regarding its responsibility to

maintain the Seawall, miscellaneous facts regarding various

properties included in the lawsuit,12 and a site visit conducted

by the court and counsel for Gold Coast and the State.             The

court also made findings of fact regarding the public’s use of

the Seawall, stating in finding of fact (FOF) 103 that “[t]he

public has used the Seawall for both shoreline and ocean access

for decades and has done so without any apparent interference

from any private landowners along the Gold Coast.”

            In its conclusions of law, the circuit court addressed

common law implied dedication and also evaluated surrender under

the Hawaii Revised Statutes.

            Under the law of implied dedication, the circuit court

stated that Gold Coast was required to demonstrate “an offer and

acceptance of dedication both of which may be implied based on

the circumstances.”      The court determined that if “regular and

continuous use by the public” was the only evidence of implied


      12
            In finding of fact (FOF) 52, the court found that the property
identified as TMK No. 3-1-033:009 was registered in land court. In FOF 105,
the court also found that TMK No. 3-1-033:009 was subject to an express
easement for pedestrian use in favor of the State. In FOF 106, the court
found that “[o]ther than as stated in [FOF 105], the State does not hold an
express easement over any portion of the Seawall that is the subject of these
lawsuits.”




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dedication, “the time period must be ‘much longer’ than the

twenty year prescriptive period under HRS § 657-31,” relying on

this court’s decision in In re Banning, 73 Haw. 297, 832 P.2d

724 (1992).    Proof of an offer of dedication was evidenced by

“the long-continued public use of the Seawall as a walkway from

the 1930s to the present.”       Acceptance of the offer of

dedication was demonstrated both by the “uncontroverted direct

evidence of public use of the Seawall as a walkway from at least

1952 to when [the] suit was filed” and the State’s “assertion of

dominion and control over the Seawall through the State’s

statements that the Seawall is a public right of way and the

State’s actions in repairing and rehabilitating the Seawall.”

            Additionally, the circuit court determined that in

order to prevail under the surrender theory pursuant to HRS §

264-1(c) (2007), Gold Coast must prove, “at the very least,” the

following two elements: (1) “the Seawall is a thoroughfare that

was opened, laid out, or built by private parties,” and (2) “the

owners have not exercised an act of ownership over the Seawall

for five years or more.”13



      13
            The circuit court also addressed and rejected the State’s
argument that “formal acceptance by the State is required in order to
transfer ownership by surrender,” concluding that the plain language of the
surrender statute did not support such a reading because “[i]f formal
acceptance were required, the transfer would not be ‘deemed’ to have taken
place” as set forth by the statute.




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            With respect to the first two elements of HRS § 264-

1(c), the court concluded that the Seawall exists as a walkway

running along the shoreline that was originally constructed by

private parties; the court further determined that Gold Coast

had established that the owners had not exercised an act of

ownership over the Seawall for five years or more.            The court

recognized the possibility of a third requirement that the State

hold a preexisting easement over the relevant property arising

from this court’s decision in In re Banning, 73 Haw. 297, 832

P.2d 724 (1992).     The court concluded that this requirement, if

applicable, would also be satisfied because the State held an

express easement over TMK No. 3-1-033:009 and a prescriptive

easement “over all the remaining parcels” with the exception of

TMK Nos. 3-1-032:029 and 30 “where the Seawall is almost wholly

within property registered in land court.”14          As a result, the

court determined that Gold Coast proved that the Seawall “was

surrendered to the State in accordance with HRS § 264-1(c),”

with the exception of those portions of the Seawall located at

TMK Nos. 3-1-032:029 and 3-1-032:030, which were properties

registered in land court.       See HRS § 501-87 (2006) (providing

      14
            Although the court concluded that the third element, that the
State hold a preexisting easement over the relevant property, was satisfied
in this case, it maintained in conclusion of law 11 that it was “not
convinced” that this element was required to effectuate a surrender under HRS
§ 264-1(c).




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that land registered in land court cannot be deemed to have been

surrendered under the Hawaii Revised Statutes).

          The circuit court issued its Final Judgment concluding

that the State holds an easement by implied dedication over the

Seawall including those portions of the Seawall at TMK Nos. 3-1-

032:029 and 3-1-032:030.      The Final Judgment additionally

determined that the State owns the Seawall and the real property

underneath the Seawall except as to those portions at TMK No. 3-

1-032:029 and TMK No. 3-1-032:030 that are on privately owned

land registered in land court.       The State’s complaint for

declaratory judgment in Civil No. 10-1-10888-04 VLC was

dismissed with prejudice.      The Final Judgment set forth that

each party “shall bear its/his/her own attorneys’ fees and

costs.”

          Gold Coast subsequently filed a motion for attorneys’

fees and costs in the amount of $376,539.25 (Motion for

Attorneys’ Fees and Costs), asserting that the State’s sovereign

immunity was “not implicated” because the State had filed its

own complaint against Gold Coast and that Gold Coast was

entitled to fees under the private attorney general doctrine.

Gold Coast also suggested that even if sovereign immunity barred

an award of attorneys’ fees, the “interest[s] of justice” would

require the court to invoke its inherent authority under the

Hawaii Revised Statutes to award Gold Coast the fees it sought.

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Finally, Gold Coast contended that it was entitled to costs

against the State pursuant to HRS § 607-24 (1993) because it

received a final judgment against the State and was the

prevailing party in the litigation.        The State in its opposition

argued that fees were barred by the State’s sovereign immunity

and that Gold Coast did not meet the requirements to merit a fee

award under the private attorney general doctrine.           The State

alternatively contended that even if Gold Coast was entitled to

fees, the requested amount must be substantially reduced.             As to

costs, the State argued that Gold Coast was not a prevailing

party, and, in the alternative, that Gold Coast had provided

“absolutely no detail as [to] any of their charges.”           On May 12,

2014, the circuit court entered an order denying Gold Coast’s

Motion for Attorneys’ Fees and Costs (Order Denying Fees and

Costs) because the State “ha[d] not waived its sovereign

immunity as to an award of attorneys’ fees and costs in the

circumstances of this case.”

                        C.     ICA Proceedings

          The State appealed the circuit court’s Findings of

Fact and Conclusions of Law and the Final Judgment to the ICA.

The State argued that the circuit court erred on the merits by

ruling that the State acquired an easement over the Seawall by

common law implied dedication and/or that it owned the Seawall



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by virtue of surrender under HRS § 264-1(c).15          The State

contended that “state law specifically prohibits the State from

acquiring ownership of real property or any interest in real

property without the State’s acceptance,” and because the State

did not formally accept transfer of the Seawall, no implied

dedication or surrender of the Seawall was effectuated.             In

support of its argument, the State relied on HRS §§ 171-30

(1993), 26-7 (2009) (last amended 1990), 107-10 (Supp. 2001),

and 520-7 (2006).16     The State additionally asserted that the

evidence was insufficient to support a finding of common law

implied dedication or statutory surrender.

            Further, the State argued that the Seawall could not

be surrendered to the State because it was not a “trail” or

“public highway” within the meaning of HRS § 264-1, and, thus,

      15
            The State also contended that the circuit court lacked
jurisdiction, arguing that the declaratory judgment statute was inapplicable,
that Gold Coast lacked standing, and that the action constituted an improper
quiet title action to which Gold Coast was “not a proper party” and to which
the “actual owners” of the properties were indispensable parties. The ICA
rejected the State’s jurisdictional claims and determined that Gold Coast’s
complaint could not be treated as an action for quiet title. Gold Coast
Neighborhood Ass’n v. State, 136 Hawaii 340, 353, 361 P.3d 1243, 1256 (App.
2015). The ICA did not rule on the State’s argument regarding indispensable
parties. To the extent that the State repeats on certiorari its argument
that the circuit court failed to join indispensable parties, this issue is
addressed below.
      16
            Although the State raised arguments based on HRS §§ 171-30, 26-7,
and 520-7 before the circuit court, it only raised HRS § 107-10 in support of
its argument before the ICA by letter to the appellate clerk dated May 7,
2015, after submission of its Opening Brief. Gold Coast filed a motion to
strike the letter, which the ICA denied as moot following issuance of its
opinion in the case. On certiorari before this court, the State relies on
the four statutes.




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it was not a type of property subject to surrender under the

statute.   The State distinguished this case from Levy v.

Kimball, 50 Haw. 497, 443 P.2d 142 (1968), in which this court

held that a particular seawall constituted a “public highway”

within the meaning of HRS § 261-1, because unlike in Levy, the

State had not acquired a preexisting express easement over the

Seawall with the exception of TMK No. 3-1-033:009.

           Gold Coast cross-appealed the circuit court’s Order

Denying Fees and Costs, contending that it was entitled to

attorneys’ fees under the private attorney general doctrine,

that the State had waived its sovereign immunity because it had

filed its own complaint against Gold Coast, and that the

interests of justice required the court to award fees using its

inherent authority.

           On June 30, 2015, the ICA issued a published opinion

affirming the circuit court’s conclusion that the State had

acquired an easement over the Seawall by common law implied

dedication and the Seawall and real property under the Seawall

by surrender.   Gold Coast Neighborhood Ass’n v. State, 136

Hawaii 340, 357, 361 P.3d 1243, 1260 (App. 2015).          Relying on In

re Banning, 73 Haw. 297, 832 P.2d 724 (1992), the ICA held that

both the owners’ offer of dedication and the State’s acceptance

of that offer could be implied from the history of use and

maintenance of the Seawall from “well before” 1969 to 2006.

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Gold Coast Neighborhood Ass’n, 136 Hawaii at 354, 361 P.3d at

1257.   In support of its conclusion, the ICA relied on the

evidence of the “public’s open and continuous non-permissive use

of the Seawall as a walkway from as early as 1956”; the ICA also

cited “the State’s recognition of the entire Seawall as a public

walkway in 1975, 1982, 1984, 1992, and 2006” and “the State’s

repairs to portions of the Seawall in 1982, 1984, and 1993.”

Id. at 355, 361 P.3d at 1258.       The ICA further noted that the

parties “[did] not dispute” the circuit court’s finding that the

“public has used the Seawall for both shoreline and ocean access

for decades and has done so without any apparent interference

from any private landowners along the Gold Coast.”           Id. at 354-

55, 361 P.3d at 1257-58.      The ICA therefore determined that the

circuit court did not err in concluding that the State held an

easement over and across the Seawall by virtue of implied

dedication.    Id. at 355, 361 P.3d at 1258.

           With respect to surrender, the ICA stated that a

seawall that “is used as a public thoroughfare” may qualify as a

“public trail” or “public highway” subject to surrender under

HRS § 264-1.    Id. (quoting Levy, 50 Haw. at 499-500, 443 P.2d at

144; HRS § 264-1(c) (2007)).      The ICA observed that it was

undisputed that the Seawall was “built by private parties and

completed by 1930” and that “no owners of the Seawall exercised

ownership over the Seawall for at least five years prior to

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litigation.”   Id.   As a result, the ICA concluded that the

circuit court did not err in determining that the real property

under the Seawall was surrendered to the State with the

exception of those parcels registered in land court that were

not subject to the surrender statute.        Id. at 355-56, 361 P.3d

at 1258-59.

           The ICA also addressed the State’s general argument

that various provisions of the Hawaii Revised Statutes operate

to preclude surrender or implied dedication of property to the

State absent the State’s formal consent.         Id. at 356, 361 P.3d

at 1259.   Quoting from portions of HRS §§ 171-30 (1993), 26-7

(2009) (last amended 1990), and 107-10 (Supp. 2001), the ICA

concluded that these provisions did not operate to require the

State’s formal consent because both doctrines of surrender and

common law implied dedication “are well established means for

the public to acquire State land without the State’s consent via

public use.”   Gold Coast Neighborhood Ass’n, 136 Hawaii at 356,

361 P.3d at 1259.    The ICA reasoned that the State’s

interpretation of HRS §§ 171-30, 26-7, and 107-10 “is not only

inconsistent with the language of the statutes, but if adopted,

would produce an absurd result in that it would silently abolish

the doctrines of implied dedication and surrender.”           Id.

           Lastly, the ICA addressed Gold Coast’s appeal of the

circuit court’s denial of attorneys’ fees and costs.           Id. at

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356-57, 361 P.3d at 1259-60.       On this issue, the ICA concluded

that the circuit court had erred in barring attorneys’ fees on

the basis of the State’s sovereign immunity because “‘the

doctrine of sovereign immunity is unavailing and inapposite’

when the ‘case deals with a suit initiated by the State.’”             Id.

at 357, 361 P.3d at 1260 (alteration omitted) (quoting State ex

rel. Anzai v. City & Cty. of Honolulu, 99 Hawaii 508, 515-16, 57

P.3d 433, 440-41 (2002)).       The ICA also determined that the

circuit court erred in denying Gold Coast costs, stating that

“Gold Coast prevailed against the State” and citing HRS § 607-24

(1993).   Id.     Therefore, the ICA affirmed the circuit court’s

Findings of Fact and Conclusions of Law and Final Judgment, and

it vacated the circuit court’s Order Denying Fees and Costs and

remanded for reconsideration of Gold Coast’s Motion for

Attorneys’ Fees and Costs.       Id.

                    III.      STANDARDS OF REVIEW

          “The interpretation of a statute is a question of law

reviewable de novo.”       State v. Arceo, 84 Hawaii 1, 10, 928 P.2d

843, 852 (1996) (quoting State v. Camara, 81 Hawaii 324, 329,

916 P.2d 1225, 1230 (1996)).       “Similarly, a trial court’s

conclusions of law are reviewable de novo under the right/wrong

standard.”      State v. Kelekolio, 94 Hawaii 354, 356, 14 P.3d 364,




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366 (App. 2000) (citing State v. Lopez, 78 Hawaii 433, 440, 896

P.2d 889, 896 (1995)).

           “The trial court’s grant or denial of attorneys’ fees

and costs is reviewed under the abuse of discretion standard.”

Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawaii 92, 105,

176 P.3d 91, 104 (2008) (quoting Kahala Royal Corp. v. Goodsill

Anderson Quinn & Stifel, 113 Hawaii 251, 266, 151 P.3d 732, 747

(2007)).

                         IV.      DISCUSSION

           The State makes three principal arguments on

certiorari.     First, the State argues that HRS §§ 171-30, 26-7,

and 107-10 operate to preclude common law implied dedication and

surrender under HRS § 264-1(c) without the State’s formal

consent or acceptance.     Second, the State contends that the

circuit court was required to “make the actual owners of the

real property parties to the case” and that its failure to do so

constituted error.     Third, the State submits that the ICA erred

in determining that Gold Coast was entitled to attorneys’ fees

based on the ICA’s reasoning that the filing of a complaint by

the State for declaratory relief waived its sovereign immunity

in this case.




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                     A.     Indispensable Parties

          The State’s argument on the issue of indispensable

parties contends that “the actual property owners” must be

joined to a lawsuit that determines ownership of the owners’

properties.   Gold Coast responds that it need not join the

individual owners of the properties at issue because their

interests are sufficiently represented by the various apartment

owners’ associations that are members of Gold Coast, the named

plaintiff in this case.

          Gold Coast’s Second Amended Complaint sought a

declaration that the State is responsible for maintaining the

Seawall bordering eleven identified properties that are managed

by various entities.      See supra notes 1, 5.      Each of these

entities is a member of plaintiff Gold Coast Neighborhood

Association and joined Gold Coast for the purpose of having it

represent the entity’s and owners’ interests in this litigation.

          The State acknowledged before the circuit court that

the individual owners of properties located on the eleven

parcels at issue in this litigation could have “their rights in

this matter” “protect[ed] or represent[ed]” by “their respective

condominium associations” thereby obviating any requirement to

join the individual owners, but submitted that such

representation was only permitted by a provision of the Hawaii

Revised Statutes that was repealed in 2004 by Act 164 of the

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Hawaii State Legislature.     See HRS § 514A-93 (1993) (“actions

may be brought by the manager or board of directors, in either

case in the discretion of the board of directors on behalf of

two or more of the apartment owners . . . with respect to any

cause of action relating to the common elements or more than one

apartment”), repealed by 2004 Hawaii Session Laws Act 164, § 26

at 813.   However, although HRS § 514A-93 (1993) was repealed by

Act 164 prior to commencement of proceedings in this case, the

act retained and relocated within the Hawaii Revised Statutes

the authority of apartment and condominium associations to

represent the interests of their owners in litigation.            See 2004

Hawaii Session Laws Act 164, § 2 at 761-62 (codified at HRS §

514B-104(a)(4) (2006)).     Further, although HRS § 514A-93 (1993)

was repealed in 2004, language identical to the prior version of

HRS § 514A-93 was reenacted at HRS § 514A-93 in 2007 and made

retroactively effective to July 1, 2006.         See HRS § 514A-93

(Supp. 2007); 2007 Hawaii Session Laws Act 244, § 2 at 745.

Thus, at the time Gold Coast initiated this litigation on June

22, 2007, its members were statutorily entitled to “[i]nstitute,

defend, or intervene in litigation” on behalf of their

respective owners.    HRS § 514B-104(a)(4) (2006); see also HRS §

514A-93 (Supp. 2007) (permitting the manager or board of

directors to bring actions on behalf of owners).           The circuit


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court therefore did not err in concluding that Gold Coast need

not join the individual owners as indispensable parties.17

                 B.     Common Law Implied Dedication

            Next, the State contends that various disparate

provisions of the Hawaii Revised Statutes operate to condition

the implied dedication of private property to the State upon the

State’s formal consent or acceptance.         Gold Coast responds that

the statutes relied upon by the State do not require the State’s

formal acceptance as an additional element to the common law

doctrine of implied dedication that has long existed in the

State of Hawaii.

           In 1892, Queen Liliʻuokalani and the Kingdom of Hawaiʻi

adopted the common law of England as the basis of its

jurisprudence by legislation entitled “Act to Reorganize the

Judiciary Department.”      See L. 1892, ch. 57, § 5; see also

Damien P. Horigan, On the Reception of the Common Law in the

Hawaiian Islands, III, 13 Haw. Bar. J. 87, 111-12 (1999).              The

present-day codification of this legislation can be found at HRS

§ 1-1, which provides in relevant part as follows:

      17
            The individuals or entities named as parties by the State’s
complaint that were not included in Gold Coast’s subsequent Second Amended
Complaint filed answers responding specifically to the State’s complaint.
Each of these individuals or entities asserted that the State was responsible
for maintaining the Seawall and raised as a defense to the State’s complaint
“the public’s consistent and extensive use of the seawalls” for “at least 50
to 100 years.”




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            The common law of England, as ascertained by English
            and American decisions, is declared to be the common
            law of the State of Hawaii in all cases, except as
            otherwise expressly provided by the Constitution or
            laws of the United States, or by the laws of the
            State, or fixed by Hawaiian judicial precedent, or
            established by Hawaiian usage . . . .

HRS § 1-1 (2009) (emphasis added).         Thus, the common law of

England applies in the State of Hawaiʻi except as otherwise

expressly provided by Hawaiʻi law, federal law, or by Hawaiian

judicial precedent or usage.

            The common law has historically provided for the

dedication of private property for public use.18           In re Banning,

73 Haw. 297, 304-05, 832 P.2d 724, 728-29 (1992).            Common law

dedication of private property is “accomplished either

expressly, as by deed, or impliedly, as by acts and conduct

which manifest an intent to give the property for public use.”

Maui Ranch Estates Owners Ass’n v. Maui Cty., 6 Haw. App. 414,

421, 724 P.2d 118, 123 (1986) (citing City of Kechi v. Decker,

230 Kan. 315, 634 P.2d 1099 (1981); 23 Am. Jur. 2d Dedication §

3 (1983)); see also Banning, 73 Haw. at 304, 832 P.2d at 728-29

(“A common law dedication may be accomplished without any

statement, written or spoken, for one who invites or merely

permits the public to use his or her land for a long period may

      18
            Private property may also be dedicated for public use by statute,
which occurs when “the statutory provisions” relating to dedication are
“complied with.” Maui Ranch Estates Owners Ass’n v. Maui Cty., 6 Haw. App.
414, 421, 724 P.2d 118, 123 (1986).




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be held to have made an offer of implied dedication.” (quoting

R.A. Cunningham, The Law of Property 751 (1984))).            “A common

law dedication does not operate as a grant but as an equitable

estoppel,” 23 Am. Jur. 2d Dedication § 54 (2013), whereby “the

owner is estopped to deny permanent public access” because the

owner has “admitted the public to use the land over a long

time.”     Banning, 73 Haw. at 304, 832 P.2d at 729 (quoting R.A.

Cunningham, The Law of Property 751 (1984)); see also 23 Am.

Jur. 2d Dedication § 54 (common law dedication is applied

“because of lack of a grantee capable of taking”).

            Under the common law, formal acceptance is not

required to effectuate an implied dedication.19           Indeed, in its

explicit adoption of common law implied dedication in 1869, the

Supreme Court of the Kingdom of Hawaiʻi in The King v. Cornwell,

3 Haw. 154, 161 (Haw. Kingdom 1869), considered that acceptance

could be inferred from public use.         The Cornwell court

established that in Hawaiʻi, “[o]rdinarily, there is no other


      19
            See Vitauts M. Gulbis, Implied acceptance, by public use, of
dedication of beach or shoreline adjoining public waters, 24 A.L.R.4th 294
(1983) (“Under generally accepted common-law principles, the implied
acceptance of an implied or express offer to dedicate, can be shown by
maintenance or improvement of the property by local government activity or by
use by members of the unorganized public.” (footnotes omitted)); 26 C.J.S.
Dedication § 2 (2011) (a common-law dedication requires “the implied
acceptance of the use of property” or, alternatively, “the express acceptance
of the municipality”); Steve A. McKeon, Public Access to Beaches, 22 Stan. L.
Rev. 564, 573 (1970) (common law implied dedication requires “[n]o
formalities” and “public use itself may be taken as evidence of acceptance”).




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mode of showing an acceptance by the public of a dedication than

by its being made use of by them,” but considered that if public

use was the only evidence of dedication, it must have continued

for a longer period than that required to effectuate a

prescriptive easement.     Id. at 161-62.

          Following Cornwell, our courts have continued to

recognize common law implied dedication as a method of

transferring interests in property to the State and have

repeatedly noted that formal acceptance is not a prerequisite.

See, e.g., Maui Ranch, 6 Haw. App. at 421, 724 P.2d at 123

(common law dedication may be accomplished “impliedly, as by

acts and conduct which manifest an intent to give the property

for public use”); Banning, 73 Haw. at 304-05, 832 P.2d at 728-29

(“[T]he acceptance may also be implied by the nature of the

public use . . . . In other words, the duration and type of

public use can raise both the presumption of the owner’s intent

(or offer) to dedicate land to public use, as well as constitute

acceptance by the public.” (citations omitted)); Wemple ex rel.

Dang v. Dahman (Wemple II), 103 Hawaiʻi 385, 397, 83 P.3d 100,

112 (2004) (although the county had not formally accepted a

statutory dedication, an additional significant question

remained regarding whether “the public had an easement over [a]

privately owned road because the road had been impliedly

dedicated to the public”); City & Cty. of Honolulu v. Boulevard

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Props., Inc., 55 Haw. 305, 306, 517 P.2d 779, 781 (1973)

(implied dedication of streets for use by the public may occur

when land is subdivided into lots and streets, a plat showing

such subdivision is recorded, and sales of the lots are made);

see also David M. Forman & Susan K. Serrano, Traditional and

Customary Access and Gathering Rights, in Native Hawaiian Law -

A Treatise 779, 818 (Melody Kapilialoha MacKenzie et al. eds.,

2015) (observing that “[a]ccess along Hawaiian trails may be

protected where there has been an implied dedication of a public

right-of-way across private land” and analyzing Cornwell, 3 Haw.

154).   Though continuous use of the property by members of the

public is commonly relied upon in determining whether a

dedication occurred, conduct evincing an implied acceptance may

also include actions attributable to the government, such as

“maintenance of sidewalks, beach patrols, or the installation of

utility connections by local government bodies.”           See Gulbis,

supra note 19 (stating that such conduct “has been held to

support an implied acceptance of an express offer to dedicate”).

           Despite its deeply entrenched and long historical

presence in our jurisprudence, the State contends that various

provisions of the Hawaii Revised Statutes operate to preclude

the implied dedication of private property to the State without

the State’s explicit acceptance.          The State therefore suggests

that the doctrine of common law implied dedication has been

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implicitly abolished in Hawaii, insofar as it contends that an

implied acceptance of an offer of dedication is insufficient to

deem private property dedicated to the public.          See Banning, 73

Haw. at 304, 832 P.2d at 728-29.         However, statutes which

abrogate the common law must do so expressly, not impliedly, and

such statutes “must be strictly construed.”          Burns Int’l Sec.

Servs., Inc. v. Dep’t of Transp., 66 Haw. 607, 611, 671 P.2d

446, 449 (1983).    Additionally, review of the statutory

provisions cited by the State and the relevant caselaw refute

the State’s contention that Hawaii’s common law doctrine of

implied dedication may not transfer interests in private

property to the State absent the State’s formal consent.

            i.     Abrogation of common law disfavored

          HRS § 1-1 provides that the only exception to the

general applicability of common law principles in this

jurisdiction occurs when state or federal law “expressly

provide[s]” otherwise.     See HRS § 1-1 (2009) (emphasis added).

Our courts have repeatedly recognized the importance of the

common law and have demonstrated an unwillingness to impliedly

reject its principles; they have also determined that subsequent

statutory enactments will not be construed as abrogating the

common law “unless that result is imperatively required.”

Minneapolis Fire & Marine Ins. v. Matson Nav. Co., 44 Haw. 59,

67-68, 352 P.2d 335, 340 (1960) (emphasis added) (quoting

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Gabriel v. Margah, 37 Haw. 571, 580 (Haw. Terr. 1947)); E. Star, 


Inc., S.A. v. Union Bldg. Materials Corp., 6 Haw. App. 125, 141, 


712 P.2d 1148, 1159 (1985) (same).        This court has also held

that “statutes which are in derogation of common law must be

strictly construed,” and we have refused to reject common law

rules absent a finding of “express [legislative] intent.”             Burns

Int’l Sec. Servs., Inc. v. Dep’t of Transp., 66 Haw. 607, 611,

671 P.2d 446, 449 (1983) (declining to abrogate common law

principle of non-transferability of licenses because, in part,

there was no “express intent that the legislature had forsaken

the common law rule”).

          This strong reluctance to abolish common law rights

and remedies absent a finding of express legislative intent is

not unique to Hawaiʻi and has, in fact, been expressed by the

United States Supreme Court and the courts of numerous state and

federal jurisdictions.     See, e.g., United States v. Texas, 507

U.S. 529, 534 (1993) (“In order to abrogate a common-law

principle, the statute must ‘speak directly’ to the question

addressed by the common law,” in part, because the legislature

has “not [written] upon a clean slate.” (quoting Mobil Oil Corp.

v. Higginbotham, 436 U.S. 618, 625 (1978))); Isbrandtsen Co. v.

Johnson, 343 U.S. 779, 783 (1952) (“Statutes which invade the

common law . . . are to be read with a presumption favoring the

retention of long-established and familiar principles, except

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when a statutory purpose to the contrary is evident.”); Globe &

Rutgers Fire Ins. v. Draper, 66 F.2d 985, 991 (9th Cir. 1933)

(“The courts are reluctant to construe statutes in derogation of

the common law.”); Gallegos v. Lyng, 891 F.2d 788, 798 (10th

Cir. 1989) (“implied repeals of the common law are disfavored

and should be found only where such a statutory purpose is

evident”); Pac. Ins. v. Champion Steel, LLC, 323 Conn. 254, 264,

146 A.3d 975, 982 (Conn. 2016) (“It is fundamental that if the

legislature wishes to abrogate the common law, it must do so

expressly.”); Cal. Ass’n of Health Facilities v. Dep’t of Health

Servs., 940 P.2d 323, 331 (Cal. 1997) (“As a general rule,

‘unless expressly provided, statutes should not be interpreted

to alter the common law, and should be construed to avoid

conflict with common law rules.’” (alteration omitted) (quoting

Goodman v. Zimmerman, 32 Cal. Rptr. 2d 419, 424 (Cal. Ct. App.

1994))).

ii.	    Hawaii Revised Statutes do not reflect express legislative
                  intent to abrogate the common law

             The Hawaii Revised Statutes, and in particular, HRS §§

264-1(c)(1), 171-30, 26-7, 107-10, and 520-7, do not

“imperatively require” abrogation of common law implied

dedication, nor do they evince an express legislative intent to

do so.     Minneapolis Fire & Marine Ins. v. Matson Nav. Co., 44

Haw. 59, 67-68, 352 P.2d 335, 340 (1960); Burns Int’l Sec.


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Servs., Inc. v. Dep’t of Transp., 66 Haw. 607, 611, 671 P.2d

446, 449 (1983).

                        a.    HRS § 264-1(c)(1)

          Although not expressly relied upon by the State, the

dissent contends that HRS § 264-1(c)(1) abrogates common law

dedication with respect to ways and trails.          Dissent at 20.        We

therefore begin our analysis by considering the analogous

concepts of statutory dedication as set forth in the Hawaii

Revised Statutes and common law implied dedication and the

treatment of the two doctrines by courts of this jurisdiction.

          HRS § 264-1(c)(1) sets forth the requirements to

effectuate a statutory dedication of certain private lands for

public use in the State of Hawaiʻi.       At the commencement of this

litigation, HRS § 264-1(c)(1) provided in relevant part:

          (c) All roads, alleys, streets, ways, lanes, trails,
          bikeways, and bridges in the State, opened, laid out, or
          built by private parties and dedicated or surrendered to
          the public use, are declared to be public highways or
          public trails as follows:

                (1) Dedication of public highways or trails shall be
                by deed of conveyance naming the State as grantee in
                the case of a state highway or trail and naming the
                county as grantee in the case of a county highway or
                trail. The deed of conveyance shall be delivered to
                and accepted by the director of transportation in the
                case of a state highway or the board of land and
                natural resources in the case of a state trail. In
                the case of a county highway or county trail, the
                deed shall be delivered to and accepted by the
                legislative body of a county.

HRS § 264-1(c)(1) (2007).      HRS § 264-1(c)(1) constitutes a

method of executing a dedication by statute (“statutory


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dedication”) because it delineates procedures to effect “a

dedication of land to public use . . . pursuant to statute.”               23

Am. Jur. 2d Dedication § 3 (2013); see also Maui Ranch Estates

Owners Ass’n v. Maui Cty., 6 Haw. App. 414, 421, 724 P.2d 118,

123 (1986) (“Dedication of land for public use may be achieved

either by statute or by common law.        Statutory dedication occurs

when the statutory provisions are complied with.”).

            Although the Hawaii Revised Statutes provide for a

method of statutory dedication, HRS § 264-1(c)(1) does not

provide an exclusive method of dedicating private property for

public use in the State of Hawaiʻi.       Rather, HRS § 264-1(c)(1)

exists alongside common law implied dedication, which our courts

have long recognized.     See, e.g., The King v. Cornwell, 3 Haw.

154, 155, 161-62 (Haw. Kingdom 1869); Maui Ranch, 6 Haw. App. at

421, 724 P.2d at 123; In re Banning, 73 Haw. 297, 304-05, 832

P.2d 724, 728-29 (1992); Wemple II, 103 Hawaiʻi 385, 397, 83 P.3d

100, 112 (2004); Wemple ex rel. Dang v. Dahman (Wemple I), 102

Hawai‘i 27, 72 P.3d 499 (App. 2002), rev’d, 103 Hawaii 385, 83

P.3d 100 (2004).    Indeed, decisions of this jurisdiction

analyzing HRS § 264-1(c) have also simultaneously reaffirmed the

viability of common law implied dedication as a way of

transferring property interests to the State in addition to the

method of statutory dedication codified in the Hawaii Revised

Statutes.    See Wemple II, 103 Hawaiʻi at 392-93, 397, 83 P.3d at
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107-08, 112 (concluding that although the road was not dedicated

to the county by virtue of HRS § 264-1 (Supp. 1990), it remained

a “significant” question whether the public held an easement

over the road by operation of common law implied dedication);

Banning, 73 Haw. at 304-05, 313, 832 P.2d at 728-29, 732

(detailing doctrine and requirements of common law dedication

and then separately analyzing HRS § 264-1 (1985)); Maui Ranch, 6

Haw. App. at 421-22, 724 P.2d at 123-24 (same).               The coexistence

of common law dedication and statutory dedication in our state

exemplifies the principle that “[e]ven in the same jurisdiction,

a dedication of land to public use may be made either according

to the common law or pursuant to statute.”              23 Am. Jur. 2d

Dedication § 3 (2013).

               For example, in Wemple II, this court was called upon

to review a grant of summary judgment determining that a private

roadway had been dedicated to a county for public use.                103

Hawaiʻi at 392-93, 83 P.3d at 107-08.            The court noted that the

ICA in its published opinion in the case20 had already

“thoroughly analyzed the complex history of the public road

system in Hawaiʻi” and had correctly concluded that HRS § 264-1

“prevents a private road from becoming a ‘county highway’ . . .


      20
               See Wemple I, 102 Hawaiʻi 27, 72 P.3d 499, rev’d, 103 Hawaiʻi 385,
83 P.3d 100.




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without express acceptance of the private road by the County

Council,” which had not occurred.            Id.

             Significantly, the Wemple II court in its unanimous

opinion explicitly recognized the continued viability of common

law implied dedication in Hawaiʻi.           In addition to determining

that the private roadway had not been dedicated to the county by

virtue of HRS § 264-1, this court also analyzed the ICA’s

“conclu[sion] as a matter of law” that “the public had an

easement over the privately owned road because [the] road had

been impliedly dedicated to the public.”            Id. at 397, 83 P.3d at

112.    We concluded that the ICA had erred in resolving the issue

of implied dedication as a matter of law.            Id.   As stated by the

Wemple II court, “Whether an implied easement exists depends on

the parties’ intent and is therefore a question of fact.”                Id.

Based on the record, we concluded that there remained questions

of fact regarding the parties’ intents, thus making summary

judgment inappropriate.        Id.   As a result, this court reversed

the ICA’s decision, vacated the trial court’s grant of summary

judgment, and remanded to the trial court for further

proceedings.      Id. at 398, 83 P.3d at 113.21


       21
            The dissent characterizes Wemple II as a “refus[al] to apply the
theory of implied dedication to transfer a privately owned road to the county
as a county highway.” Dissent at 24. However, as discussed, this court in
Wemple II specifically acknowledged the viability of common law implied
dedication; indeed, we remanded to the trial court based in part on our

                                                                (continued. . .)

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            Wemple I and Wemple II reflect our historical

application of common law implied dedication as an alternative

means of transferring interests to the State separate and apart

from HRS § 264-1(c)(1).       Indeed, Wemple II manifested its

approval of the ICA’s following summary in Wemple I on the

viability of common law implied dedication and its interplay

with statutory dedication:

            To summarize, HRS § 264–1 requires that before a county can
            be held responsible and liable for the maintenance or
            repair of a private road that has been dedicated,
            surrendered, or abandoned to public use, there must have
            been “unequivocal acceptance” of the private road by the
            legislative body of the county. Maui Ranch Estates Owners
            Ass’n v. County of Maui, 6 Haw.App. at 421, 724 P.2d at
            123. That is, all the requirements for statutory
            dedication, abandonment, or surrender must be completed.
            However, a privately owned road that has not been
            statutorily dedicated, surrendered, or abandoned to public
            use by technical compliance with HRS § 264–1 may still be
            impliedly dedicated, surrendered, or abandoned to public
            use for a general roadway easement.

Wemple I, 102 Hawaiʻi at 53, 72 P.3d at 525 (emphasis added).22

            Therefore, for the reasons stated, and because this

court has firmly recognized that the two doctrines exist in


(. . .continued)

conclusion that “[w]hether an implied easement exists” was a question to be
determined based on the “parties’ intent[s].” 103 Hawaii at 397, 83 P.3d at
112.
      22
            This court in Wemple II described with approval the ICA’s
“thorough[] analy[sis] [of] the complex history of the public road system in
Hawaiʻi,” which concluded with the text quoted above. 103 Hawaiʻi at 392, 83
P.3d at 107; see also Wemple I, 102 Hawaiʻi at 47-53, 72 P.3d at 519-25.
Thus, to the extent that it was approved of by this court in Wemple II, the
ICA’s summary from Wemple I may inform our understanding of the doctrine of
implied dedication.




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harmony, see Wemple II, 103 Hawaii at 397, 83 P.3d at 112,23 HRS

§ 264-1(c)(1) evinces no intent to abrogate the concept of

common law dedication, much less does it “imperatively

require[]” such result.       Burns Int’l Sec. Servs., Inc., 66 Haw.

at 611, 671 P.2d at 449; Minneapolis Fire & Marine Ins., 44 Haw.

at 67-68, 352 P.2d at 340.

                   b.    HRS §§ 171-30, 26-7, 107-10

            In support of its contention that the common law

doctrine of implied dedication may not transfer interests in

private property to the public without the State’s explicit

acceptance, the State primarily relies on HRS §§ 171-30 (1993),

26-7 (2009) (last amended 1990), and 107-10 (Supp. 2001).

However, a clear intent to abrogate common law implied

dedication in this jurisdiction is absent in these provisions.




      23
            Although predating both this court’s decisions in Banning and
Wemple II, the State and the dissent suggest that the ICA’s 1986 decision in
Maui Ranch, 6 Haw. App. 414, 724 P.2d 118, indicates that private land may
only be dedicated to the State by statutory dedication as codified at HRS §
264-1(c)(1). In Maui Ranch, however, the ICA clearly stated that
“[d]edication of land for public use may be achieved either by statute or by
common law.” 6 Haw. App at 421, 724 P.2d at 123 (emphasis added); see also
id. (dedication may occur “[i]n the absence of statute” (quoting 23 Am. Jur.
2d Dedication § 45)). The ICA also acknowledged that common law dedication
may be accomplished “impliedly, as by acts and conduct which manifest an
intent to give the property for public use.” Id. (citations omitted). The
ICA thus clearly manifested its approval of the common law doctrine of
implied dedication, see id., which was subsequently reaffirmed by this court
in Banning, 73 Haw. 297, 832 P.2d 724, and Wemple II, 103 Hawaiʻi 385, 83 P.3d
100.




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            HRS § 171-30 grants authority to the Board of Land and

Natural Resources (BLNR) to acquire interests in “all real

property” and provides in relevant part as follows:

            (a) The board of land and natural resources shall have the
            exclusive responsibility, except as provided herein, of
            acquiring, including by way of dedications:

                  (1) All real property or any interest therein and the
                  improvements thereon, if any, required by the State
                  for public purposes . . . .

HRS § 171-30(a)(1) (1993).       BLNR thus has the exclusive

responsibility of “acquiring” real property that the State needs

for public purposes, including by dedication.           HRS § 171-

30(a)(1).    Although BLNR is assigned responsibility to

affirmatively acquire property by way of purchase or statutory

dedication, the statute does not address obtaining the State’s

formal approval or acceptance of dedicated property in all

cases, particularly when it is merely a passive recipient.24

Indeed, this statute has been in effect for more than 50 years

and no case in this jurisdiction has considered it relevant

within the context of common law implied dedication, much less

has it been interpreted to abrogate or modify the doctrine of


      24
            Additionally, HRS § 171-30(a)(1) may simply function to identify
the state entity administratively responsible for acting and initiating a
transaction when the State requires the acquisition of real property for
public use. See Island-Gentry Joint Venture v. State, 57 Haw. 259, 263-64,
554 P.2d 761, 764-65 (1976) (authority of BLNR to “acquir[e]” real property
under HRS § 171-30 also signifies that BLNR is the entity responsible for
“initially enter[ing] into a contract for the acquisition of land” when
required for public use).




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implied dedication.     See, e.g., Banning, 73 Haw. at 304-09, 832

P.2d at 728-31; Wemple II, 103 Hawaiʻi at 397, 83 P.3d at 112;

Maui Ranch, 6 Haw. App. at 420-22, 724 P.2d at 123-24.            In light

of these considerations, HRS § 171-30 neither manifests an

express intent to abrogate common law implied dedication nor

imperatively requires such result.         See Burns Int’l Sec. Servs.,

Inc., 66 Haw. at 611, 671 P.2d at 449; Minneapolis Fire & Marine

Ins., 44 Haw. at 67-68, 352 P.2d at 340.

          HRS §§ 26-7 and 107-10 likewise do not evince a clear

intent to abrogate or modify common law implied dedication.                HRS

§ 26-7 establishes the composition and authority of the

Department of the Attorney General.         The provision delineates

the various powers and duties of that office and provides that

the Attorney General “shall . . . approve as to legality and

form all documents relating to the acquisition of any land or

interest in lands by the State.”          HRS § 26-7 (2009) (last

amended 1990) (emphasis added).       HRS § 107-10 similarly requires

that no real property interest “shall be acquired” by the State

“by agreement, gift, devise, eminent domain, or otherwise . . .

without the prior approval of the attorney general as to form,

exceptions, and reservations.”       HRS § 107-10 (Supp. 2001)

(emphasis added).    These provisions do not relate or speak to

conveyance of property interests by way of implied dedication.

Rather, HRS §§ 26-7 and 107-10 merely give the Attorney General

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final authority to review and approve the documents relating to

acquisitions of land interests and to inspect such acquisitions

as to form, exceptions, and reservations.         See HRS §§ 26-7, 107-

10; see also Island-Gentry Joint Venture v. State, 57 Haw. 259,

265, 554 P.2d 761, 766 (1976) (noting that under HRS § 26-7,

“the Attorney General has the further exclusive authority to

approve as to the legality and form of all documents relating to

the acquisition of any land or interest in land by the State”).

These provisions express no intent to abrogate common law

implied dedication, nor have they ever been mentioned by our

courts as having any relevance to the doctrine.          See Burns Int’l

Sec. Servs., Inc., 66 Haw. at 611, 671 P.2d at 449.

                         c.    HRS chapter 520

          The State also argued before the circuit court that

HRS chapter 520 operated to preclude the implied dedication of

the Seawall for public use in this case.         However, HRS chapter

520, titled “Landowners’ Liability,” does not demonstrate an

express intent to abrogate implied dedication as a method of

transferring interests in private property to the State.

Rather, “[t]he purpose of this chapter is to encourage owners of

land to make land and water areas available to the public for

recreational purposes by limiting their liability toward persons

entering thereon for such purposes.”        HRS § 520-1 (2006).       To

accomplish this purpose, HRS chapter 520 shields from liability

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private property owners who allow the public to use their land

for recreational purposes.      See HRS § 520-4 (2006).

            Additionally, to further protect private property

owners, HRS § 520-7 provides that “[n]o person shall gain any

rights to any land by prescription or otherwise, as a result of

any usage thereof for recreational purposes as provided in this

chapter.”    HRS § 520-7 (2006) (emphasis added).        HRS chapter 520

thus also concerns itself with the property rights of private

landowners as they relate to the recreational user, seeking to

balance public recreational use and private property rights in

order to incentivize permissive public use of private land.                HRS

chapter 520 does not, however, speak to the rights or

responsibilities of the State in relation to the private

property owner.

            Since its enactment in 1969, HRS chapter 520 has never

been interpreted to suggest an abrogation of common law implied

dedication.    To the contrary, this court has expressly

considered the effect of HRS chapter 520 on implied dedication

and has found the two to be reconcilable.         See Banning, 73 Haw.

at 305-08, 832 P.2d at 729-30.       In Banning, this court

considered whether continuous public use of private property

raises a conclusive presumption that the landowner intended to

offer the property for dedication.        Id.   The Banning court noted

that the general intent of HRS chapter 520 to encourage

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landowners to permit public use of private lands could be

undermined by such a conclusive presumption.             Id. at 307-08, 832

P.2d at 730.      In keeping with this intent, the court determined

that continuous public use raises only a rebuttable presumption

of implied dedication, thus concluding that the common law

doctrine of implied dedication and HRS chapter 520 exist in

harmony.     Id. at 308, 832 P.2d at 730.         Therefore, HRS chapter

520 has already been determined by this court to not evince an

express intent to abolish common law implied dedication or to

imperatively require that result.            See Burns Int’l Sec. Servs.,

Inc., 66 Haw. at 611, 671 P.2d at 449; Minneapolis Fire & Marine

Ins., 44 Haw. at 67-68, 352 P.2d at 340.

  d.      Implicit abolishment of common law implied dedication is
                                improper

             The State contends that the foregoing statutes require

both the Attorney General and the BLNR to formally consent to

all transfers of real property interests to the State.               The

State thus asserts that implied acceptance is insufficient to

effectuate an implied dedication of property to the State.                 This

conclusion, which abrogates the common law doctrine of implied

dedication as a means of transferring interests in private

property to the public, is not supported by the authority cited

by the State.      First, the common law doctrine of implied

dedication has been repeatedly recognized in this jurisdiction


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for over 150 years, and this court itself has reaffirmed its

viability as recently as 2004.        See Cornwell, 3 Haw. at 161-62

(recognizing common law implied dedication and observing that

“[o]rdinarily, there is no other mode of showing an acceptance

by the public of a dedication than by its being made use of by

them”); Maui Ranch, 6 Haw. App. at 421, 724 P.2d at 123 (common

law dedication may be accomplished “impliedly, as by acts and

conduct which manifest an intent to give the property for public

use”); Banning, 73 Haw. at 304-05, 832 P.2d at 728-29 (“[T]he

acceptance may also be implied by the nature of the public use .

. . . In other words, the duration and type of public use can

raise both the presumption of the owner’s intent (or offer) to

dedicate land to public use, as well as constitute acceptance by

the public.” (citations omitted)); Wemple II, 103 Hawaii at 397,

83 P.3d at 112 (although the county had not formally accepted a

statutory dedication, an additional significant question

remained regarding whether “the public had an easement over [a]

privately owned road because the road had been impliedly

dedicated to the public”);25 City & Cty. of Honolulu v. Boulevard

Props., Inc., 55 Haw. 305, 306, 517 P.2d 779, 781 (1973)

(implied dedication of streets for use by the public may occur

      25
            Significantly, the proceedings in this case commenced only three
years after this court affirmed the common law principle of implied
dedication in Wemple II, 103 Hawaii at 397, 83 P.3d at 112.




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when land is subdivided into lots and streets, a plat showing

such subdivision is recorded, and sales of the lots are made).26

Abrogation of such a deeply-rooted principle of law is

contradictory to our jurisdiction’s requirement that the common

law governs unless “otherwise expressly provided.”27            HRS § 1-1

(2009) (emphasis added); Minneapolis Fire & Marine Ins., 44 Haw.

at 67-68, 352 P.2d at 340 (subsequent statutory enactments will

not be construed as abrogating the common law “unless that

result is imperatively required”).         Indeed, the fact that HRS §

1-1 requires adherence to the common law unless “otherwise

     26
            The dissent agrees that Cornwell, 3 Haw. 154, “contemplate[s]
implied dedication of Kingdom highways,” but asserts that this case was
superseded by The Highways Act in 1892. Dissent at 22 n.6. However, our
courts have repeatedly--over the course of the past century and as recently
as 2004--acknowledged the vitality of common law implied dedication as a
method of transferring property interests to the State. See supra.

             The dissent, however, characterizes this body of caselaw as
“sporadic and disparate,” relating only “peripherally . . . to the issue at
hand,” dissent at 19, which should be disregarded because despite repeatedly
affirming the doctrine, our courts “have not applied implied dedication to
public highways,” dissent at 21. As an initial matter, the dissent describes
as one of the “question[s] raised by this case” “whether private property
rights may be dedicated . . . to the State without the State’s formal
consent.” Dissent at 6. Because this body of caselaw speaks directly to
whether private property can be impliedly dedicated to the State in the
absence of its formal or express acceptance, it does, in fact, relate
precisely “to the issue at hand.” Additionally, the viability of common law
implied dedication is not dependent on whether the facts in these cases may
or may not have established an implied dedication; rather, our courts have
repeatedly concluded that under the appropriate circumstances, private
property may be impliedly dedicated to the State absent its formal
acceptance. See Cornwell, 3 Haw. at 161-62; Maui Ranch, 6 Haw. App. at 421,
724 P.2d at 123; Banning, 73 Haw. at 304-05, 832 P.2d at 728-29; Wemple II,
103 Hawaii at 397, 83 P.3d at 112.
     27
            The ICA similarly concluded that the State’s argument, if
adopted, “would produce an absurd result in that it would silently abolish
the doctrines of implied dedication and surrender.” Gold Coast Neighborhood
Ass’n v. State, 136 Hawaiʻi 340, 356, 361 P.3d 1243, 1259 (App. 2015).



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expressly provided” suggests that impliedly abolishing the

common law is itself inconsistent with HRS § 1-1.

            Further, that the State is required to rely on a

combination of disparate provisions of the Hawaii Revised

Statutes exposes an important point: none of the provisions

relied upon provide for the abrogation of Hawaii’s common law

doctrine of implied dedication or evince express legislative

intent to do so.    Even combined, the statutes cited by the State

do not support an implicit abolishment of common law implied

dedication.   Decisions of this court that have considered two of

the provisions relevant to this case repudiate any argument that

they operate to impliedly abrogate the doctrine.           See Wemple II,

103 Hawaiʻi at 397, 83 P.3d at 112 (considering as a

“significant” question whether an easement was created over a

roadway by virtue of implied dedication even after finding a

lack of compliance with HRS § 264-1 (Supp. 1990)); Banning, 73

Haw. at 307-08, 832 P.2d at 730 (concluding that in light of

legislative intent behind HRS chapter 520, public use

constituted a rebuttable presumption of implied dedication).

The remaining provisions relied on by the State have been

codified in the Hawaii Revised Statutes for decades, and no case

has ever cited to them as relevant to or inconsistent with the

doctrine.



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          Permitting the implied repeal of a common law doctrine

that has been recognized by this court as recently as 200428

would permit the implied abrogation of the common law in other

areas of our jurisprudence, in direct contradiction to the

mandate of HRS § 1-1 that the common law governs unless

“otherwise expressly provided.”       HRS § 1-1.     As stated by this

court, “statutes which are in derogation of common law must be

strictly construed.”     Burns Int’l Sec. Servs., Inc., 66 Haw. at

611, 671 P.2d at 449 (emphasis added); see also Akai v. Lewis,

37 Haw. 374, 378 (Haw. Terr. 1946) (“It is also well settled

that under the rule of strict construction it is not to be

presumed that the lawmakers intended to abrogate or modify a

rule any further than that which is expressly declared or

clearly indicated.”); Pac. Ins. v. Champion Steel, LLC, 323

Conn. 254, 264 (Conn. 2016) (“It is fundamental that if the

legislature wishes to abrogate the common law, it must do so

expressly.”).

          Additionally, in Banning, this court stated that

“public policy ‘favors extending to public use and ownership as

much of Hawaii’s shoreline as is reasonably possible.’”

Banning, 73 Haw. at 309–10, 832 P.2d at 731 (quoting Cty. of

Haw. v. Sotomura, 55 Haw. 176, 182, 517 P.2d 57, 61-62 (1973)).

     28
          See Wemple II, 103 Hawaiʻi at 397, 83 P.3d at 112.




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The Banning court specified that this public policy interest

“must be balanced against the littoral landowner’s right to the

enjoyment of his land.”     Id. at 310, 832 P.2d at 731.         As

concluded by the circuit court, “the Seawall is critical to

public access to the shoreline along the Gold Coast.”            It is

further noted that in this case, Gold Coast’s littoral

landowners acknowledge the State’s easement interest over and

across the Seawall.

          Impliedly abrogating the doctrine of implied

dedication would also in cases such as this conflict with our

court’s strong historical commitment to preserving public access

to the ocean by vesting rights in waterways and beaches in the

State when reasonably possible.       See, e.g., In re Ashford, 50

Haw. 314, 440 P.2d 76 (1968) (holding that the boundary of the

State’s ownership of public beaches extended to upper reaches of

wash of waves, rather than the mean high tide line); Sotomura,

55 Haw. at 181-82, 517 P.2d at 61-62 (describing Ashford as a

judicial recognition that the “long-standing public use of

Hawaii’s beaches . . . has ripened into a customary right” and

noting that public policy “favors extending to public use and

ownership as much of Hawaii’s shoreline as is reasonably

possible”); State v. Zimring, 58 Haw. 106, 121, 566 P.2d 725,

735 (1977) (new ocean shoreline formed by volcanic eruption

belonged to the public rather than private property owners,

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because “sound public policy demand[s] that such land inure to

the benefit of all the people of Hawaii”); Diamond v. State, 112

Hawaiʻi 161, 175-76, 145 P.3d 704, 718-19 (2006) (artificially

planted vegetation could not be used to determine shoreline

because it would encourage private landowners to plant

vegetation to extend their property onto the beach and would

thus be contrary to public policy of extending public ownership

and use of beaches).

          Thus, neither the Hawaii Revised Statutes nor Hawaiʻi

caselaw expressly or imperatively requires the implied

abolishment of our deeply-rooted common law doctrine of implied

dedication.

iii.	   The State has an easement over and across the Seawall by
                    virtue of implied dedication

          The circuit court in this case concluded that the

State acquired “an easement over and across the Seawall by

implied dedication.”     The circuit court based this conclusion on

two determinations.     First, the court found that there was

“uncontroverted direct evidence of public use of the Seawall as

a walkway from at least 1952 to when [the] suit was filed.”

Second, the evidence demonstrated that the State asserted

dominion and control over the Seawall through its statements

that the “Seawall is a public right of way” and its actions in

repairing and rehabilitating the Seawall.         The ICA, upon


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reviewing the record, likewise determined that an implied

dedication of the Seawall had occurred: “(1) the owners of the

Seawall made an offer of dedication as early as 1956, and (2)

the State accepted the owners’ offer through the public’s use of

the Seawall since at least 1956, the State’s recognition of the

Seawall as a public walkway since 1960, and the State’s repairs

to the Seawall since 1982.”      Gold Coast Neighborhood Ass’n v.

State, 136 Hawaii 340, 355, 361 P.3d 1243, 1258 (App. 2015).

           An implied dedication requires “an offer and

acceptance of dedication.”      In re Banning, 73 Haw. 297, 304, 832

P.2d 724, 729 (1992).     “When there is no express offer, the

offer may be implied under the circumstances and the acceptance

may also be implied by the nature of the public use.”            Id. at

305, 832 P.2d at 729; see also Maui Ranch Estates Owners Ass’n

v. Maui Cty., 6 Haw. App. 414, 421, 724 P.2d 118, 123 (1986)

(common law implied dedication occurs “as by acts and conduct

which manifest an intent to give the property for public use”);

Wemple II, 103 Hawaiʻi 385, 397, 83 P.3d 100, 112 (2004) (whether

implied dedication occurred is a question of the parties’

intent).   For public use to effectuate an implied dedication, it

must continue for a period longer than the number of years




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required to result in a prescriptive easement.29           Banning, 73

Haw. at 308, 832 P.2d at 730 (citing The King v. Cornwell, 3

Haw. 154, 155, 161-62 (Haw. Kingdom 1869)).

            Generally, the effect of a common law implied

dedication is the creation of an easement over the relevant

property in favor of the State.        See Wemple II, 103 Hawaiʻi at

397, 83 P.3d at 112 (noting that the result of an implied

dedication of a privately owned road would be the creation of an

easement over the road); see also 26 C.J.S. Dedication § 2

(2011) (“The right conferred by common-law dedication is only an

easement . . . .”); 23 Am. Jur. 2d Dedication § 3 (2013) (“[A]

right conferred by common law dedication is usually a mere

easement while in most statutory dedications, the fee of the

property is in the public authority to which the dedication was

made.”).

            In this case, the circumstances reflect an intent to

effectuate a common law implied dedication resulting in an

easement in favor of the public over and across the Seawall.

See Wemple II, 103 Hawaiʻi at 397, 83 P.3d at 112.            Specifically,

both the private owners’ offer and the State’s acceptance of the

      29
             Prior to 1973, the relevant prescriptive period was ten years.
See HRS § 657-31 (1968) (setting prescriptive period at ten years). In 1973,
the Hawaii State Legislature changed the prescriptive period to twenty years.
See 1973 Haw. Sess. Laws Act 26, § 4 at 32; HRS § 657-31 (1993) (setting
prescriptive period at twenty years).




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dedication are clearly implied from the facts surrounding the

public’s use of the Seawall and the State’s own statements and

its repeated repairs and maintenance of the Seawall.30

            The parties stipulated to extensive evidence regarding

the State’s repairs to the Seawall in at least 1982, 1984, and

1993; the parties also stipulated that local and state

appropriations were made by the relevant legislative bodies in

contemplation of further repairs in at least 1989, 1992, and

2006.   The parties further agreed to the entry into evidence of

documents in which representatives of the State--including the

State’s Deputy Attorney General--asserted that “the State has

the responsibility to maintain the public right of way over the

Seawall,” the Seawall has been used by “residents and beachgoers

to traverse along the shores of Waikiki Beach” since at least

1930, and “the State has a right-of-way over all the seawalls

and walkways.”     Testimony at trial likewise demonstrated that

members of the public have continuously and freely used the

Seawall for recreational purposes since at least 1952.             Both the

ICA and the circuit court determined, and the parties do not

dispute, that the “public has used the Seawall for both

shoreline and ocean access for decades and has done so without

      30
            The State does not dispute the circuit court’s findings of fact
or other relevant underlying facts of this case in its application for writ
of certiorari to this court.




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any apparent interference from any private landowners along the

Gold Coast.”     Gold Coast Neighborhood Ass’n, 136 Hawaii at 354-

55, 361 P.3d at 1257-58.

           These facts are more than sufficient to raise a

rebuttable presumption of implied dedication.           See Banning, 73

Haw. at 308, 832 P.2d at 730 (continuous adverse public use

unopposed and acquiesced in for a period longer than the

prescriptive period raises a rebuttable presumption of implied

dedication (citing Cornwell, 3 Haw. 154)).          No evidence was

presented to rebut this presumption, and in fact, the State

conceded in its trial memorandum that “[a]dmittedly members of

the public routinely” traverse the Seawall and “use the path.”

Further, the State itself stipulated to the facts of its

decades’ worth of repairs and maintenance of the Seawall.              In

light of the undisputed evidence in this case, neither the ICA

nor the circuit court erred in concluding that the State

obtained “an easement over and across the Seawall by implied

dedication.”31    Gold Coast Neighborhood Ass’n, 136 Hawaii at 355,

361 P.3d at 1258.


     31
            Despite the fact that the public undoubtedly benefits from the
preservation of access to Hawaii’s shoreline, see Banning, 73 Haw. at 309–10,
832 P.2d at 731, the dissent seeks to characterize our analysis in this case
as leading to an “unfair result” in part because the Gold Coast property
owners allegedly “reap all of the rewards” that the Seawall provides.
Dissent at 36 (emphasis added). This ignores the very core of this case--
namely, that the public also reaps the rewards of the Seawall by using it to

                                                              (continued. . .)

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            The State thus has “the right and the duty” to

maintain the surface of the Seawall over and across which it has

an easement.       See Levy v. Kimball, 50 Haw. 497, 498, 443 P.2d

142, 144 (1968) (“It is a well established rule that an owner of

[an] easement has the right and the duty to keep it in

repair.”); see also Wemple II, 103 Hawaii at 397, 83 P.3d at 112

(observing that “[w]hether an easement exists” by virtue of

common law implied dedication “is significant because, as this

court has held, ‘an owner of an easement has the right and the

duty to keep it in repair’” (quoting Levy, 50 Haw. at 498, 443

P.2d at 144)).      Additionally, any liability potentially arising

in the future stemming from the State’s easement would be

determined by “degree of control rather than mere ownership” of

the easement.      Wemple II, 103 Hawaii at 393, 83 P.3d at 108

(citing Wemple I, 102 Hawaii 27, 72 P.3d 499 (App. 2002), rev’d,

103 Hawaii 385, 83 P.3d 100 (2004)).

            However, we observe that unless otherwise specified

between the parties, “[j]oint use” of an easement and any


(. . .continued)

access the ocean, and it has continued to do so for many decades. Our
determination that the State holds an easement over and across the Seawall in
favor of the general public signifies that the Seawall will “inure to the
benefit of all the people of Hawaii,” State v. Zimring, 58 Haw. 106, 121, 566
P.2d 725, 735 (1977), who will be able to continue using it in order to
access the Waikīkī coastline.




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improvements thereon may “give[] rise to an obligation to

contribute jointly to the costs reasonably incurred for repair

and maintenance.”     Restatement (Third) of Prop.: Servitudes §

4.13(3) (Am. Law Inst. 2000) (setting forth principles relating

to relative duties to repair and maintain easements).32            In Ass’n

of Apartment Owners of Wailea Elua v. Wailea Resort Co., for

example, this court affirmed a lower court’s ruling that an

easement holder was “partly responsible” for costs of repair and

maintenance relating to an easement which was used jointly by

the holder and servient estate.        100 Hawaii 97, 108-09, 58 P.3d

608, 619-20 (2002).      We reasoned in that case that because “the

easement [was] being utilized by both the easement holder . . .

and the servient,” the easement holder had a legal obligation

“to contribute [to] the reasonable costs of repair and

maintenance” together with the servient estate.           Id. at 109, 58

P.3d at 620; see also 28A C.J.S. Easements § 226 (2008) (“When

joint regular use of the easement is made by both the dominant

and servient estates, both estates have the obligation to

      32
            The Restatement (Third) of Property also specifies that “[i]n
allocating costs” for maintenance and repair between the owner of the
servient estate and the owner of the easement, factors that should be
considered include but are not limited to: (1) “the values of their
respective contributions to construction and improvement of any facilities
for enjoyment of the easement . . . including the value of the land
contributed by the servient owner,” (2) “the frequency and intensity of use”
by the servient owner and the easement owner, and (3) “the value of any other
contributions that enhance the value or the servitude or the servient
estate.” Restatement (Third) of Prop.: Servitudes § 4.13 cmt. d.




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contribute jointly to the costs of reasonable repairs unless the

easement itself indicates otherwise.”); Village Green Condo.

Ass’n v. Hodges, 114 A.3d 323, 327-29 (N.H. 2015) (observing

that this rule is based on “the principle that, by using

the easement, both the dominant and servient estates contribute

to its wear and deterioration and, therefore, distribution of

the burden of easement maintenance and repair between both

estates is equitable and just”).           Consistent with these

principles, the State in this case will be jointly responsible

with the relevant property owners for the repair and maintenance

of the surface of the Seawall--over and across which the State

has an easement--in accordance with equitable considerations

relating to their relative use, enjoyment, and contributions to

the Seawall.33


     33
            Thus, contrary to the dissent’s assertion, the State will not be
required to “foot the bill” for the entirety of the Seawall’s upkeep, nor is
it under “no legal obligation” to contribute to its repair and maintenance.
Dissent at 36-37. Additionally, it would be inappropriate for this court to
speculate on a “calculation to determine the parties’ contributory shares,”
dissent at 37, and such a determination is best left to a trial court in the
first instance. See, e.g., Wailea Resort Co., 100 Hawaii at 103, 109, 58
P.3d at 614, 620 (affirming apportionment of costs where, following a bench
trial, the trial court ruled that joint users of easement were jointly
responsible for repair and maintenance costs of easement “in relative
proportion” to parties’ usages).

            Relatedly, the dissent contends that under our analysis, the
State may not “tear down” the entirety of the Seawall if it deems its
apportionment of repairs too costly. Dissent at 36. We note that the State
possesses an easement interest only over and across the surface of the
Seawall, but that the State may exercise its authority and control over the
public’s use of its easement consistent with applicable legal principles.
See Levy, 50 Haw. at 498, 500, 443 P.2d at 144, 145 (describing various
courses of action that the State could pursue to fulfill its duty of care to

                                                              (continued. . .)

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         C.        Statutory Surrender Under HRS § 264-1(c)(2)

              In addition to asserting that various provisions of

the Hawaii Revised Statutes operate to preclude the implied

dedication of private property absent the State’s explicit

acceptance, the State also contends that these same statutes

operate to require the State’s formal consent as an additional

element to surrender under HRS § 264-1(c) (2007).            The circuit

court and the ICA each rejected this argument and concluded that

the Seawall and the real property under the Seawall had been

surrendered to the State.       Gold Coast Neighborhood Ass’n v.

State, 136 Hawaii 340, 355-56, 361 P.3d 1243, 1258-59 (App.

2015).   Although the State’s formal consent is not required to

effectuate a surrender under HRS § 264-1(c)(2), surrender of the

Seawall to the State nevertheless failed to occur in this case

because the State did not hold a preexisting express easement

over the Seawall as provided by this court’s decision in Levy v.

Kimball, 50 Haw. 497, 443 P.2d 142 (1968).




(. . .continued)

maintain its easement “over [the] seawall” in a “safe condition,” such as
“the construction of a handrail on the makai edge of the seawall, or closing
of the seawall to pedestrian traffic, or the posting of signs giving notice
of its condition”).




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                i.     HRS § 264-1 and Levy v. Kimball

            HRS § 264-1(c)(2) dates back to the enactment of “The

Highways Act, 1892,” by Queen Liliʻuokalani and the legislative

assembly of the Kingdom of Hawaiʻi, which set special rules for

statutory dedication and surrender of highways and roads and

included the first codification of the present-day surrender

statute.    See Susan E. Jaworowski, Roads in Limbo: An Analysis

of the State-County Jurisdictional Dispute 8, Legislative

Reference Bureau Report N. 11 (1989).         This first iteration of

the surrender statute required that the Minister of the Interior

expressly accept each surrender of a road, alley, street, way,

lane, court, place, trail, or bridge.         See id.    By 1947,

however, the surrender statute had eliminated the requirement of

the State’s acceptance when such properties were surrendered to

the state government,34 but retained the provision requiring

formal acceptance with respect to surrender to the various

counties.35


     34
            See 1947 Haw. Sess. Laws Act 142, § 1 at 252 (“Such surrender
shall be deemed to have taken place if no act of ownership by the owner of
any such road, alley, street, way, lane, trail or bridge has been exercised
for five years and when, in the case of a county highway, in addition
thereto, the board of supervisors of the city and county or county has,
thereafter, by a resolution, adopted the same as a county highway.” (emphasis
added)).
      35
            The difference in statutory requirements with respect to
surrender to the State versus surrender to the counties existed at
commencement of this litigation, see supra, and the plain language of HRS §
264-1(c)(2) indicates that formal approval is not required when land is

                                                              (continued. . .)

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            The codification of HRS § 264-1(c)(2) as it existed at

the time this litigation was initiated authorizes the surrender

of certain private roads and highways for use by the public, and

it provided in relevant part as follows:

            (c) All roads, alleys, streets, ways, lanes, trails,
            bikeways, and bridges in the State, opened, laid out, or
            built by private parties and dedicated or surrendered to
            the public use, are declared to be public highways or
            public trails as follows:

            . . .

                    (2) Surrender of public highways or trails shall be
                    deemed to have taken place if no act of ownership by
                    the owner of the road, alley, street, bikeway, way,
                    lane, trail, or bridge has been exercised for five
                    years and when, in the case of a county highway, in
                    addition thereto, the legislative body of the county
                    has, thereafter, by a resolution, adopted the same as
                    a county highway or trail.

HRS § 264-1(c)(2) (2007).         Therefore, HRS § 264-1(c)(2) sets as

a threshold rule that only roads, alleys, streets, ways, lanes,

trails, bikeways, and bridges may be “surrendered” within the

meaning of the statute.         Id.

            The term “seawall” is not included in the categories

of properties that may be surrendered to the State pursuant to

(. . .continued)

surrendered to the State. See HRS § 264-1(c)(2) (surrender “shall be deemed
to have taken place” if no act of ownership has been exercised for five years
“and when, in the case of a county highway, in addition thereto, the
legislative body of the county has, thereafter, by a resolution, adopted the
same as a county highway or trail”). Because the plain language of the
statute only requires the formal acceptance of surrendered roads and highways
when a county is the grantee, the argument of the State and of the dissent,
dissent at 26, that various disparate statutes operate to modify the
unambiguous text of HRS § 264-1(c)(2) and impose a requirement of such formal
acceptance when the State is the grantee is contrary to the clear text of the
statute itself.




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HRS § 264-1(c)(2).       This court has held, however, that a seawall

can properly fit within the general ambit of the statute when it

has been expressly opened up as a path of travel for the public.

Levy v. Kimball, 50 Haw. 497, 443 P.2d 142 (1968).              In Levy, a

woman was injured after falling from the top of a seawall in

Waikīkī.     Id. at 497-98, 443 P.2d at 143.         Seeking damages for

her injuries, the woman filed suit against, inter alia, the

State of Hawaiʻi, which had previously “acquired an easement over

[the] seawall for the express purpose of providing a path for

public travel.”36      Id. at 498, 443 P.2d at 144.

             The trial court determined that the State was not

negligent in maintaining the seawall and that it was therefore

not liable for the woman’s injuries.           Id. at 498-99, 443 P.2d at

144.    On appeal, the State contended that its preexisting

easement expressly opening the surface of the seawall as a path

of public travel did not require it to maintain the seawall

       36
             The Levy court’s description of the easement indicates that it
was expressly granted to the State of Hawaiʻi. 50 Haw. at 498, 443 P.2d at
144; see also Ass’n of Apartment Owners of Wailea Elua v. Wailea Resort Co.,
100 Hawaiʻi 97, 109, 58 P.3d 608, 620 (2002) (noting that in Levy, “[t]he
State of Hawaiʻi owned an easement over the seawall that had been obtained for
the purpose of providing a path for public travel”); Steigman v. Outrigger
Enter., Inc., 126 Hawaii 133, 139, 267 P.3d 1238, 1244 (2011) (describing the
seawall in Levy as “state-controlled”); Friedrich v. Dep’t of Transp., 60
Haw. 32, 37, 586 P.2d 1037, 1041 (1978) (stating that the seawall in Levy was
used by the public as a thoroughfare, which purpose had been “provided by the
State”), superseded by statute as recognized in Steigman, 126 Hawaii 133, 267
P.3d 1238. It is noted that the parties’ stipulations and the circuit
court’s findings of fact in this case also confirm that the certificate of
title to the property on which the seawall in Levy was located reflected an
express easement over the seawall in favor of the State.




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because it had only a nonpossessory intangible interest in the

footpath.    Id. at 499, 443 P.2d at 144.       This court noted that

it was a “well established rule” that the owner of an easement

“has the right and the duty to keep it in repair.”           Id. at 498,

443 P.2d at 144.     And while “it is the control and not the

ownership [of the property] which determines liability,” we

noted that the State had “admitted that it control[led] the

seawall.”    Id. at 499, 443 P.2d at 144 (quoting In re Taxes

Victoria Ward, 33 Haw. 235 (Haw. Terr. 1934)).

            This court then quoted the predecessor to HRS § 264-1,

which at the time, stated that “all roads, alleys, streets,

ways, lanes, trails and bridges in the Territory, opened, laid

out or built by private parties and dedicated or surrendered to

the public use, are declared to be public highways.”           Id.

(quoting Revised Laws of Hawaiʻi (RLH) § 142-1 (1955)).            We

considered that “[a]lthough a seawall is not expressly mentioned

in the above enumeration, it can be fairly implied that a

seawall such as that which is in question here which is used as

a public thoroughfare is included in the term ‘public highwasy’

[sic].”     Id. (emphasis added).    Thus, we determined that the

particular seawall at issue in the case--over which the State

held a preexisting express easement for the specific purpose of

opening up a pathway for public travel--constituted a “public

highway” within the meaning of Hawaii’s surrender statute.              Id.

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The Levy court therefore concluded that seawalls will fall

within the scope of HRS § 264-1(c)(2) when the State possesses a

preexisting express easement over the seawall that opens it up

to the public as a highway or thoroughfare.             Id.

             The conclusion in Levy was subsequently confirmed in

In re Banning, 73 Haw. 297, 312, 832 P.2d 724, 732 (1992).37                  In

Banning, after determining that a parcel of accreted beachfront

property had not been impliedly dedicated to the State, this

court considered the State’s argument that the public had

acquired rights in a trail located on the property by virtue of

surrender under HRS § 264-1.         73 Haw. at 312, 832 P.2d at 732.

In rejecting this argument, we cited Levy, 50 Haw. 497, 443 P.2d

142.    We concluded that “unlike the situation here, at the time

of the trip and fall on the seawall in Levy, the State already

held an easement in favor of the general public for use of the

seawall as a path of travel.”          Banning, 73 Haw. at 312, 832 P.2d

at 732 (emphasis added).         Thus, because the State held no


       37
            Following our decision in Levy and before our decision in In re
Banning, 73 Haw. 297, 312, 832 P.2d 724, 732 (1992), the Ninth Circuit Court
of Appeals in Jones v. Halekulani Hotel, Inc., 557 F.2d 1308, 1310 (9th Cir.
1977), determined that the State had acquired a prescriptive easement over a
seawall by “[u]se which [was] constant, uninterrupted, and peaceful.” The
court then briefly noted that a prescriptive easement over a seawall in favor
of the State had been characterized by this court in Levy as a public
thoroughfare or highway within the meaning of HRS § 264-1. Id. at 1311.
Thus, although the Jones court may have noted a relation between the seawall
at issue in its case and HRS § 264-1 generally, it was not called upon to
interpret or apply that statute’s surrender provision.




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preexisting easement over the trail, the Banning court

determined that surrender under HRS § 264-1 did not apply.38                Id.

            This court’s decisions in Levy and Banning are also

reinforced by the nature of the surrender statute.            Hawaiʻi

appears to be “one of the few jurisdictions which have provided,

at one time or another, for vesting the fee of a highway or road

laid out by a private party and abandoned to the public in the

central government.”      In re Kelley, 50 Haw. 567, 579, 445 P.2d

538, 546 (1968) (discussing predecessor statute to surrender

under HRS § 264-1(c)(2)).       Under HRS § 264-1(c)(2) as it existed

when proceedings were initiated in this case, certain roads and

highways are surrendered after only five years of no acts of

ownership.    See HRS § 264-1(c)(2).39      The fact that ownership is

automatically “deemed” surrendered to the State after such a

relatively brief period counsels in favor of an interpretation

      38
            After concluding that the Levy court’s reliance on HRS § 264-1
was distinguishable because in that case, the State held a preexisting
easement over the seawall, the Banning court also noted that the disputed
trail had not been built or laid out by private parties as required by the
surrender statute. Banning, 73 Haw. at 312, 832 P.2d at 732.
      39
            Amendments to the surrender statute enacted by Act 194 of the
2016 legislative session delete and replace the surrender statute at HRS §
264-1(c)(2) with a section on “[c]ondemnation of public highways.” See 2016
Haw. Sess. Laws Act 194, § 3. Pursuant to this new process, the State and
county may initiate condemnation proceedings over public highways, roads,
alleys, streets, ways, lanes, bikeways, bridges, or trails. Id. Private
parties are not entitled to initiate condemnation proceedings, but may
“petition the mayor of the county” in which the road or highway is located to
do so. Id. Thus, surrender of roads and highways after five years without
an act of ownership will no longer be deemed to have occurred under HRS §
264-1(c)(2) (Supp. 2016).




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of the statute that is more narrow than broad when considering a

seawall not enumerated within HRS § 264-1(c)(2).            The surrender

of total ownership rights in a seawall or other similar

structure after only five years, pursuant to a transportation

and highways statute, may, for example, operate to unexpectedly

deprive private property owners of such rights.40           These

considerations inform an interpretation of HRS § 264-1(c)(2)

that includes a seawall only as contemplated by our decision in

Levy: namely, that a seawall falls within the purview of the

statute where it is subject to a preexisting express easement in

favor of the State clearly opening the seawall up as a pathway

for public travel.      50 Haw. at 498-99, 443 P.2d at 144.41


      40
            Consider, for example, that in contrast to the five-year
requirement for surrender under HRS § 264-1(c)(2), a common law implied
dedication evidenced by continuous public use may only be established after
such use of the property has continued for over twenty years. See Banning,
73 Haw. at 308, 832 P.2d at 730. Even where public use has continued for
over twenty years, such use only creates a rebuttable presumption of an
implied dedication. Id. at 307-08, 832 P.2d at 730. Further, if a party
does not successfully rebut the presumption of a dedication, the State is
merely granted an easement over, rather than ownership of, the property.
Wemple II, 103 Hawaiʻi 385, 397, 83 P.3d 100, 112 (2004).
      41
            The dissent disagrees with this reading of the caselaw, in part
based on its contention that neither Levy, 50 Haw. 497, 443 P.2d 142, nor
Banning, 73 Haw. 297, 832 P.2d 724, “expressly states that such a requirement
is necessary under HRS § 261-1.” Dissent at 16 (emphasis added). However, a
seawall is not enumerated in the categories of property subject to surrender
under HRS § 264-1. Levy represents the sole case in this jurisdiction to
consider a particular seawall to fall within the ambit of the statute, and,
as argued by the State, the decision emphasized the legal significance of
that seawall’s express easement in favor of the State. 50 Haw. at 499, 443
P.2d at 144. Subsequently in Banning, we reaffirmed the importance of the
Levy seawall’s preexisting express easement. Banning, 73 Haw. at 312, 832
P.2d at 732. Thus, based on the statute and its caselaw, we reaffirm our
conclusion that a seawall falls within the ambit of HRS § 264-1(c)(2) when it

                                                              (continued. . .)

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ii.     The State does not own the Seawall by virtue of surrender

            As stated, this court’s decision in Levy concluded

that a seawall may fall within the scope of HRS § 264-1(c)(2)

when there is a preexisting express easement in favor of the

State clearly opening it up and identifying it as a pathway for

public travel.      50 Haw. at 499-500, 443 P.2d at 144-45.          Under

this authority, a seawall over which the State holds a

preexisting express easement opening the seawall up as a pathway

for public travel will be deemed surrendered to the State if it

was opened, laid out, or built by private parties and if no act

of ownership has been exercised by its owner for five years.

See HRS § 264-1(c)(2).

            In this case, the parties stipulated that the State

held a preexisting express easement only over a portion of the

Seawall located at TMK No. 3-1-033:009.           However, title to TMK

No. 3-1-033:009 is registered in land court, and property

registered in land court is not subject to the surrender

statute.    See HRS § 501-87 (2006) (land registered in land court

is not subject to surrender under HRS § 264-1).




(. . .continued)

is subject to a preexisting express easement in favor of the State clearly
establishing it as a thoroughfare for public travel.




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           Because the State held no preexisting express

easements over portions of the Seawall subject to HRS § 264-

1(c)(2), the State does not own the Seawall or the real property

underneath the Seawall by virtue of surrender, and the circuit

court and the ICA erred in so holding.         Gold Coast Neighborhood

Ass’n, 136 Hawaii at 355-56, 361 P.3d at 1258-59.

                  D.     Attorneys’ Fees and Costs

           Lastly, we address the State’s appeal of the ICA’s

ruling that Gold Coast was entitled to attorneys’ fees and

costs.   Although the circuit court denied Gold Coast’s request

for attorneys’ fees and costs on the basis of sovereign

immunity, the ICA vacated this ruling of the circuit court and

determined that fees and costs were permissible because the

State had filed its own complaint against Gold Coast and “‘the

doctrine of sovereign immunity is unavailing and inapposite’

when the case ‘deals with a suit initiated by the State.’”             Gold

Coast Neighborhood Ass’n v. State, 136 Hawaii 340, 357, 361 P.3d

1243, 1260 (App. 2015) (alteration omitted) (quoting State ex

rel. Anzai v. City & Cty. of Honolulu, 99 Hawaii 508, 515-16, 57

P.3d 433, 440-41 (2002)).      On certiorari, the State contends

that the ICA erred in awarding attorneys’ fees because the

filing of its own lawsuit for declaratory relief did not waive

its sovereign immunity.


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            “The doctrine of sovereign immunity ‘refers to the

general rule, incorporated in the Eleventh Amendment to the

United States Constitution, that a state cannot be sued in

federal court without its consent or an express waiver of its

immunity.    The doctrine . . . also precludes such suits in state

courts.’”    Nelson v. Hawaiian Homes Comm’n, 130 Hawaii 162, 168,

307 P.3d 142, 148 (2013) (quoting Sierra Club v. Dep’t of

Transp., 120 Hawaii 181, 225-26, 202 P.3d 1226, 1270-71 (2009)).

Thus, the State as sovereign is generally “immune from suit

except as it consents to be sued.”        Id. (quoting Figueroa v.

State, 61 Haw. 369, 381, 604 P.2d 1198, 1205 (1979)).

            The State’s sovereign immunity does not bar actions

seeking prospective declaratory or injunctive relief.            See id.

(observing that sovereign immunity did not bar plaintiffs’

underlying claims for declaratory and injunctive relief); see

also Sierra Club, 120 Hawaii at 226, 202 P.3d at 1271

(recognizing that sovereign immunity does not bar actions

seeking prospective relief).      However, because sovereign

immunity bars actions for damages against the State, and because

“an award of costs and fees to a prevailing party is inherently

in the nature of a damage award,” requests for attorneys’ fees

and costs against the State are generally barred unless there is

a “clear relinquishment” of the State’s immunity.           Sierra Club,


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120 Hawaii at 226, 202 P.3d at 1271 (quoting Fought & Co., Inc.

v. Steel Eng’g & Erection, Inc., 87 Hawaii 37, 51, 951 P.2d 487,

501 (1998); Bush v. Watson, 81 Hawaii 474, 481, 918 P.2d 1130,

1137 (1996)); see also Kaleikini v. Yoshioka, 129 Hawaii 454,

467, 304 P.2d 252, 265 (2013) (observing that a statute

purporting to waive sovereign immunity is to be “strictly

construed . . . in favor of the sovereign” (quoting Taylor-Rice

v. State, 105 Hawaii 104, 110, 94 P.3d 659, 665 (2004))).

Generally, “the State has waived immunity to suit only to the

extent as specified in HRS chapters 661 and 662.”           Kaleikini,

129 Hawaii at 467, 304 P.2d at 265 (observing that HRS § 661-

1(1) (1993) includes a waiver of sovereign immunity for claims

against the State that are based on a statute).

            Gold Coast does not argue that its claims are founded

on any statute operating to waive the State’s sovereign

immunity.   Rather, Gold Coast contends, and the ICA concluded,

that the State waived its sovereign immunity in this case

because it filed its own complaint for declaratory relief

against Gold Coast.     Gold Coast Neighborhood Ass’n, 136 Hawaii

at 357, 361 P.3d at 1260.      In support of this contention, Gold

Coast and the ICA place sole reliance on this court’s statement

in Anzai, 99 Hawaii at 515-16, 57 P.3d at 440-41, that because



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the case “deal[t] with a suit initiated by the State, the

doctrine of sovereign immunity [was] unavailing and inapposite.”

          Anzai centered on a dispute between the State of

Hawaii and the City and County of Honolulu (the County),            in

which the State claimed that it was exempt from real property

taxes levied by the County as a result of recently enacted state

legislation; the County, in turn, discounted the legislation and

required the State to pay the taxes.        99 Hawaii at 510, 513, 57

P.3d at 435, 438.    The State filed a lawsuit against the County

in order to resolve the dispute, alleging in part that the

County was precluded from assessing real property taxes against

the State based on “the doctrine of sovereign immunity.”            Id.

In reviewing the trial court’s grant of summary judgment in

favor of the County, this court observed “[p]reliminarily” that

the State’s reliance on the “doctrine of sovereign immunity” was

“misleading.”   Id. at 515, 57 P.3d at 440.        The Anzai court

explained that the “doctrine of sovereign immunity” referred to

the general rule that a state cannot be sued in federal or state

court without an express waiver of its immunity.           Id.   The court

next reasoned, “However, because this case deals with a suit

initiated by the State, the doctrine of sovereign immunity is

unavailing and inapposite.”      Id. at 515-16, 57 P.3d at 440-41.

The Anzai court then proceeded to explain that the “immunity”

claimed by the State was not based on “sovereign immunity,” but

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rather, on “the constitutional rule of tax immunity.”             Id. at

516, 57 P.3d at 441.      “Keeping this clarification in mind,” the

court then “turn[ed] to the questions presented by [the]

appeal,” which involved no further discussion of the State’s

sovereign immunity.      Id.

            As an initial matter, we note that the dispositive

issue in Anzai was whether the constitutional rule of tax

immunity or certain state legislation precluded the County from

collecting real property taxes from the State.            Id. at 510, 57

P.3d at 435 (concluding that neither basis immunized the State

from such taxation by the County).          The State’s reliance on the

doctrine of sovereign immunity was “unavailing and inapposite”

because rather than argue that it was immune from suit, the

State contended that it was immune from taxation by the County.

Id. at 513, 57 P.3d at 438.        Thus, it was not the doctrine of

sovereign immunity in Anzai that could be relied upon to argue

that the County could not levy taxes against the State, but

rather, the constitutional rule of tax immunity.            Id. at 516-19,

57 P.3d at 441-44.42     The parties’ arguments did not relate to

the State’s ability to be sued or pertain to any purported

      42
            We further note that no court of this jurisdiction (or any other
jurisdiction) has relied on this statement in Anzai, 99 Hawaii at 515-16, 57
P.3d at 440-41, (other than the ICA decision in this case) for the
proposition that the State’s initiation of legal proceedings waives its
sovereign immunity.




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waiver of the State’s sovereign immunity with respect to damages

or attorneys’ fees.43

           Additionally, although the doctrine of sovereign

immunity was “unavailing and inapposite” in Anzai, the

procedural posture of the case in Anzai differs substantially

from the procedural history of the present case.            See id.    In

Anzai, the State filed the complaint that initiated the lawsuit

and sought relief from taxation by the County.           Id.   The State

in Anzai did not argue that it was protected from suit based on

sovereign immunity, nor was the issue of damages or attorneys’

fees raised.

           In this case, by contrast, Gold Coast initiated the

legal proceedings.      Although the State filed its own complaint

several years after Gold Coast’s initial complaint, the State’s

complaint was limited to the subject matter raised by Gold

Coast’s claims in the case.       Like Gold Coast, the State sought

declaratory relief relating to the State’s responsibility to

maintain the Seawall.      Further, the State represented that it

filed its complaint because, after the circuit court’s ruling on

indispensable parties, the State was concerned that individual


     43
            To this extent, Anzai therefore does not provide authority for
the proposition that when the State initiates an action solely for
prospective relief, it automatically waives its sovereign immunity as to
damages or attorneys’ fees. 99 Hawaii 508, 57 P.3d 433.




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property owners and other associations would not be explicitly

bound by a ruling on Gold Coast’s complaint.           Given the

circumstances and procedural history of this case, we do not

conclude that the State’s filing of its complaint for

declaratory relief in this case represented a “clear

relinquishment” of the State’s sovereign immunity.44            Sierra

Club, 120 Hawaii at 226, 202 P.3d at 1271 (quoting Bush, 81

Hawaii at 481, 918 P.2d at 1137).45

            In addition to ruling that Gold Coast was entitled to

attorneys’ fees, the ICA also determined that Gold Coast was

entitled to costs pursuant to HRS § 607-24.           Gold Coast

Neighborhood Ass’n, 136 Hawaii at 357, 361 P.3d at 1260; see

also HRS § 607-24 (1993) (“In all cases in which a final

judgment or decree is obtained against the State . . . any and

all deposits for costs made by the prevailing party shall be


      44
            Alternatively, Gold Coast argued before the ICA that it was
entitled to attorneys’ fees based on this court’s inherent powers pursuant to
HRS § 602-5(a)(6) (1993 & Supp. 2004). In support of this argument, Gold
Coast cites to CARL Corporation v. Department of Education, 85 Hawaii 431,
460, 946 P.2d 1, 30 (1997). However, this court’s decision in CARL
Corporation is distinguishable from the present case, and Gold Coast has not
demonstrated that the CARL Corporation decision supports an award of
attorneys’ fees here.
       45
             Because this court concludes that sovereign immunity bars an
award of attorneys’ fees against the State, we do not address Gold Coast’s
claim regarding the private attorney general doctrine. See Nelson, 130
Hawaii at 172, 307 P.3d at 152 (observing that the State’s sovereign immunity
“bars an award of appellate attorneys’ fees . . . based on the private
attorney general doctrine”).




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returned to the prevailing party, and the prevailing party shall

be reimbursed by the State . . . .”).        In so ruling, the ICA

found that the circuit court had erred in concluding that costs,

like attorneys’ fees, were barred by sovereign immunity.            Gold

Coast Neighborhood Ass’n, 136 Hawaii at 357, 361 P.3d at 1260.

          The State does not challenge on certiorari the ICA’s

ruling that sovereign immunity does not bar an award of costs to

Gold Coast.   This court has concluded that HRS § 607-24 “waives

the State’s immunity for costs ‘in all cases in which a final

judgment or decree is obtained against the State.’”           Kaleikini,

129 Hawaii at 469 n.14, 304 P.3d at 267 n.14 (quoting HRS § 607-

24 (1993)).   Because we determine that Gold Coast prevailed on

its claim that the State acquired an easement over and across

the Seawall by virtue of implied dedication, Gold Coast is

entitled to costs pursuant to HRS § 607-24.          Id.

          In sum, the circuit court correctly concluded that

Gold Coast was not entitled to an award of attorneys’ fees

because the State had not waived its sovereign immunity, and the

ICA erred in concluding otherwise.        Gold Coast Neighborhood

Ass’n, 136 Hawaii at 357, 361 P.3d at 1260.         However, the

circuit court erroneously determined that sovereign immunity

also barred an award of costs in this case.          As held by the ICA,

id., Gold Coast is entitled to costs pursuant to HRS § 607-24,


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which waives the State’s sovereign immunity for costs requested

by a prevailing party when a final judgment has been obtained

against the State.      See Kaleikini, 129 Hawaii at 469 n.14, 304

P.3d at 267 n.14; HRS § 607-24.

                           V.       CONCLUSION

           The common law doctrine of implied dedication has deep

roots in our jurisprudence, and nearly 150 years of this court’s

precedent demonstrate that it is a viable means of transferring

interests in private property to the State for use by the

public.   Given the undisputed evidence in this case, the circuit

court correctly concluded that the State acquired an easement

over and across the Seawall by virtue of implied dedication, and

the ICA properly affirmed this ruling of the circuit court.46

Gold Coast Neighborhood Ass’n v. State, 136 Hawaii 340, 354-55,

361 P.3d 1243, 1257-58 (App. 2015).

            However, this court’s decision in Levy v. Kimball, 50

Haw. 497, 443 P.2d 142 (1968), requires that for a seawall to

fall within the ambit of the surrender statute, it must be

subject to a preexisting express easement in favor of the State


     46
            The dissent argues that our decision “opens the door for other
private property owners to receive free services from the State.” Dissent at
38. We reiterate that this case involves uncontroverted evidence stipulated
to by the parties, which demonstrates that for many decades, the surface atop
the Seawall has been freely used by the public and frequently repaired and
maintained by the State.




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clearly and unambiguously opening the seawall up as a pathway

for public travel.    This requirement was not satisfied with

respect to the Seawall in this case.        Thus, the circuit court

and the ICA each erred in concluding that the Seawall and the

real property underneath the Seawall were surrendered to the

State pursuant to HRS § 264-1(c)(2).        Gold Coast Neighborhood

Ass’n, 136 Hawaii at 355-56, 361 P.3d at 1258-59.

            With respect to the State’s remaining arguments on

certiorari, the circuit court properly determined that Gold

Coast had not failed to join indispensable parties and that an

award of attorneys’ fees was barred by the doctrine of sovereign

immunity.    The ICA’s conclusion that Gold Coast was entitled to

attorneys’ fees is incorrect because the State’s filing of its

own complaint for declaratory relief did not waive its sovereign

immunity from fees in the circumstances of this case and because

Gold Coast has not demonstrated that it merits attorneys’ fees

on any other basis.

            The circuit court did err, however, in concluding that

an award of costs was barred by the doctrine of sovereign

immunity.    The ICA correctly concluded that the circuit court

had erred with respect to this issue because HRS § 607-24 (1993)

waived the State’s sovereign immunity with respect to costs in

this case.



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          Accordingly, the circuit court’s November 29, 2013

Findings of Fact and Conclusions of Law is affirmed with respect

to the court’s determination that the State acquired an easement

over and across the Seawall by virtue of common law implied

dedication, but it is vacated with respect to its conclusion

that the State acquired ownership of the Seawall and the real

property under the Seawall by virtue of surrender under HRS §

264-1(c)(2).   The ICA’s August 7, 2015 Judgment on Appeal is

affirmed with respect to its disposition of the circuit court’s

ruling regarding common law implied dedication but vacated to

the extent that it affirmed the circuit court’s ruling with

respect to surrender under HRS § 264-1(c)(2).

          Additionally, the circuit court’s May 13, 2014 Order

Denying Fees and Costs is vacated with respect to the circuit

court’s determination that Gold Coast was not entitled to costs

and affirmed with respect to its conclusion that Gold Coast was

not entitled to attorneys’ fees.          The ICA’s August 7, 2015

Judgment on Appeal is thus further vacated as to its conclusion

that Gold Coast was entitled to attorneys’ fees but affirmed as

to its conclusion that Gold Coast was entitled to costs.

          Therefore, the circuit court’s February 3, 2014 Final

Judgment is affirmed as to its conclusion regarding implied

dedication but vacated as to its conclusion regarding surrender,

and the case is remanded for proceedings consistent with this

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opinion.   On remand, the circuit court shall consider Gold

Coast’s motion for an award of costs pursuant to HRS § 607-24

following issuance of an amended final judgment in favor of Gold

Coast as to its claim of common law implied dedication.

Douglas S. Chin and                   /s/ Sabrina S. McKenna
William J. Wynhoff                    /s/ Richard W. Pollack
for petitioner
                                      /s/ Jeannette H. Castagnetti
Robert G. Klein,
Jordon J. Kimura,
Randall K. Schmitt, and
Troy J.H. Andrade
for respondent




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