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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              09-MAR-2020
                                                              10:49 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


            JIJUN YIN, Petitioner/Plaintiff-Appellant,

                                    vs.

           P.I. AGUIAR, AS PERSONAL REPRESENTATIVE OF
 VIRGINIO C. AGUIAR, JR., DECEASED, KEVIN AGUIAR and AGEE, INC.,
                Respondents/Defendants-Appellees.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-XX-XXXXXXX; CIV. NO. 11-1-0331)

                              MARCH 9, 2020

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          In this case, the Petitioner filed a complaint in the

Circuit Court of the Third Circuit (circuit court) alleging that

the Respondent’s cattle trespassed onto his property causing

damage to his sweet potato crop.       In granting the Respondent’s

motion for summary judgment, the circuit court concluded that
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the Petitioner’s land was neither “properly fenced” nor

“unfenced,” and therefore Hawaii’s statutory law governing the

trespass of livestock onto cultivated land did not apply to the

Petitioner’s property.     Further, the circuit court determined

that a provision in the Petitioner’s lease, making the

Petitioner fully responsible for keeping cattle out of his

cultivated land, was not void against public policy.            The

Intermediate Court of Appeals affirmed the circuit court’s

judgment.

            Upon review of the legislative history of the statutes

that govern the trespass of livestock onto the cultivated land

of another, we conclude that the legislature intended to hold

owners of livestock liable for the damage caused by the trespass

of their animals on cultivated land whether the land is properly

fenced or not.    Further, we determine that the lease provision

in this case has the effect of absolving the Respondent of

liability for livestock damage to Petitioner’s cultivated land

and therefore is contrary to statutory law and public policy,

and it is thus invalid.

                              I. BACKGROUND

            On August 10, 2009, Paradise Homes, LLC, entered into

an eighteen-month lease (“lease”) in which it agreed to lease

fifty acres of land to Jijun Yin for agricultural purposes in

the Pauka‘a area of the District of Hilo, Hawaii.          Under the

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“Rent” subsection of the lease was a provision that stated,

“Licensee is fully responsible [for] keeping cattle[] out of

[their] crops.”        Additionally, one page of the lease was an

unsigned and undated page that stated, “Remove all cattle[]

across from my farmland.          Do [n]ot raise cattle[] across from my

[f]armland.”       In February 2010, another lease between Paradise

Homes and Yin was executed, and the provision, stating “Licensee

is fully responsible [for] keeping cattle[] out of [their]

crops,” was included in the 2010 lease.

               On August 29, 2011, Yin filed a complaint

(“complaint”) against Virginio Aguiar, Jr.,1 Kevin Aguiar, and

Agee, Inc. (collectively “the Aguiars”), who owned and pastured

cattle near Yin’s leased property.            The complaint alleged that

in September 2009, Kevin Aguiar “released and/or caused” cattle

owned by the Aguiars to trespass onto Yin’s leased property that

resulted in the cattle eating some of Yin’s sweet potato crop.2

Following this incident, the complaint contended, a meeting was

held between Yin and         Kevin Aguiar and Paradise Homes’ managing

agent, Teresa Prekaski,3 and an agreement was reached that the




      1
               Virginio died during the pendency of the suit.
      2
            The complaint stated that Virginio was the President and Director
of Agee, Inc., and Kevin Aguiar was an employee.
      3
               Paradise Homes, LLC was also the owner of the property leased by
the Aguiars.


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Aguiars would prevent their cattle from trespassing onto the

property possessed and farmed by Yin.

            In March 2011, the complaint stated, Kevin Aguiar

released more than 50 cattle in close proximity to Yin’s

property, resulting in the cattle trespassing onto Yin’s

property and destroying over 13 acres of Yin’s sweet potato

crop.   After Yin removed the cattle from his property, the

complaint alleged, Yin noticed that Kevin Aguiar had left open

his gate and allowed his cattle to again trespass onto Yin’s

property.   The complaint contended that the trespassing cattle

caused more than $190,000 worth of damage, including the “loss

of [Yin’s] over 13 acres of sweet potato crop and damage to his

fencing.”

            The complaint asserted that the Aguiars were strictly

liable to Yin for the damage to his crops caused by the trespass

of their cattle in accordance with statutory law.           Yin also

claimed that Kevin Aguiar knew or should have known that

allowing the cattle outside of the fenced and gated area where

he pastured the cattle would likely result in the cattle

trespassing onto Yin’s property and that his crops were

destroyed as a direct and proximate result of the Aguiars’




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“willful, wanton, deliberate, intentional and/or negligent

conduct.”4

             The Aguiars’ answer to the complaint admitted that a

meeting occurred in September 2009 between Kevin Aguiar, Yin,

and Prekaski after an incident on Yin’s leased property, but the

answer denied the essential allegations of the complaint.

Additionally, the Aguiars raised numerous defenses, including

failure to state a claim, comparative negligence, assumption of

the risk, lack of notice, failure of Yin to mitigate damages,

statute of limitations, laches, estoppel, waiver, and unclean

hands.   The Aguiars alleged that they exercised reasonable care

at all times, and that their conduct was not a proximate cause

of Yin’s alleged damages.5       Thus, the Aguiars requested that the

complaint be dismissed with prejudice.

             After discovery was conducted, the Aguiars filed a

motion for summary judgment as to all claims.           In a memorandum

accompanying the motion, the Aguiars argued that they were

entitled to summary judgment because, as a matter of law, they

did not owe a duty to construct a cattle fence that prevented

the cattle from entering Yin’s land.         Instead, the Aguiars

     4
            Additionally, the complaint alleged that the Aguiars were liable
for Yin’s severe emotional distress and that Yin was entitled to punitive
damages.
     5
            The Aguiars also denied that they engaged in intentional,
outrageous, or aggravated conduct that warranted the assessment of punitive
damages.


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contended, Yin was solely responsible for constructing a cattle

fence because he assumed the duty when he leased the land; the

Aguiars noted that Yin’s lease specifically provided that “he

‘is fully responsible [for] keeping cattle[] out of [their]

crops.’”

           The Aguiars also asserted that Hawaii Revised Statutes

(HRS) § 142-63 did not prevent the entry of summary judgment in

their favor because the statute did not apply to Yin’s claims as

“it is only applicable to claims involving trespass on ‘properly

fenced cultivated ground[.]’”6       Yin’s property was not “properly

fenced,” the Aguiars contended, because “the fence was poorly

constructed and did not prevent cattle from entering his land.”

Specifically, the Aguiars stated that Yin’s fence was only two

and one half to three feet tall and used hog wire instead of

barbed wire.   Because the fence was under four feet tall and

used loosely-wound hog wire, it did not satisfy the definition

of a “lawful fence” under HRS § 142-61, the Aguiars argued.7                Nor


     6
           HRS § 142-63 (1993) provides the following:

           If any cattle, horse, mule, ass, swine, sheep, or goat,
           trespasses on any properly fenced cultivated ground, the
           owner thereof shall pay upon proof, the full amount of the
           damage or loss to the landowners, or to any person in
           possession of the land, whoever suffers the damage or loss.
     7
           HRS § 142-61 (1993) provides, in relevant part, the following:

           (a) Every fence made of stone, posts and rails, posts and
           boards, posts and wire, or other suitable materials shall
           be a lawful fence, provided that it is not less than four
                                                            (continued . . .)

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did HRS § 141-64 apply, contended the Aguiars, because the

statute only applies to trespass claims on unfenced cultivated

ground, and Yin’s property was not unfenced.8           Thus, because they

were not liable for Yin’s alleged damages, the Aguiars

concluded, they were entitled to summary judgment.

            In his memorandum in opposition, Yin argued that the

lease between himself and Prekaski was unenforceable because it

was “contrary to the public good.”         Yin contended that Hawaii

law supports the principle that courts should not enforce

contracts contrary to public policy.         (Citing Inlandboatmen’s

Union v. Sause Bros., Inc., 77 Hawaii 187, 196, 881 P.2d 1255,

1264 (App. 1994).)      Yin argued that his lease violated an

explicit public policy established by HRS §§ 142-63 and 142-64

that shifts the liability of livestock damage from the property


(. . . continued)

            feet in height, substantially built, strong and close,
            existing in good state of repair, and capable of turning
            either all stock or all stock excepting swine, attempting
            to pass through the fence.

            (b) Woven wire, or what is otherwise known also as hog-
            wire, used as a type of wire by itself or with a
            combination of barbed wire or plain wire, when supported on
            posts and properly fastened thereto and meeting the minimum
            height and stock turning requirements prescribed in
            subsection (a), shall be a lawful fence.
      8
            HRS § 142-64 (1993) provides that “[i]f any of the animals
mentioned in section 142-63 trespasses on any unfenced cultivated ground, the
owner thereof shall pay upon proof, the full amount of the damage or loss to
the landowner or to any person in possession of the land, whoever suffers the
damage or loss.”



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owner to the livestock owner.       Thus, cattle owners hold the

burden to prevent their cattle from doing damage to adjacent

farmland and are liable for the damage caused by their cattle,

Yin concluded.

          In reply, the Aguiars maintained that they were

entitled to summary judgment because Yin did not raise any

genuine dispute of material fact and his argument that his lease

violated public policy was unsupported by the facts.

Specifically, the Aguiars contended that neither the statutes

nor public policy prevented Prekaski from requiring Yin to build

a fence to protect his property because HRS §§ 142-63 and 142-64

do not prohibit landlords from requiring their tenants to

construct fencing as part of lease agreements.

          The circuit court granted the Aguiars’ motion and

concluded that they met their burden of producing evidence that

HRS §§ 142-63 and 142-64 did not apply because Yin’s property

was not “properly fenced” so as to prevent cattle from entering.9

And HRS § 142-64 did not apply, the court stated, because the

land was not “unfenced.”      Further, the court concluded that the

lease provision at issue was not void against public policy

under the standards described in Inlandboatmen’s Union because

the provision only shifts the duty to fence from the rancher to


     9
          The Honorable Greg K. Nakamura presided.



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the farmer by a contract on lands leased to them by a common

lessor.10

            The court’s order granting summary judgment as to all

claims was filed on March 27, 2015, and its order granting in

part and denying part the Aguiars’ motion for fees and costs was

granted on June 9, 2015.       The court issued its judgment on

July 1, 2015, incorporating the rulings on these orders.             Yin

filed a timely notice of appeal from the judgment.

                           II. ICA PROCEEDINGS

            On appeal, Yin argued that the circuit court erred in

granting summary judgment in favor of the Aguiars based on the

court’s erroneous interpretation of HRS §§ 142-63 and 142-64 and

its conclusion that he had a contractual obligation to protect

his crops from damage by trespassing cattle that precluded any

liability on the part of the Aguiars.         Yin contended that HRS

§§ 142-63 and 142-64 taken together, impose liability for

livestock damage to cultivated land, whether the land is legally

fenced or not.     This is bolstered by the statutes’ legislative

history, Yin explained, as the statutes were amended to their


     10
            The circuit court also concluded that the Aguiars satisfied their
burden to produce evidence that they are third-party beneficiaries of the
provision of Yin’s lease that provides that Yin “is fully responsible [for]
keeping cattle[] out of [their] crops” because the Aguiars produced evidence
that they “bargained with Ms. Prekaski for the . . . provision.”
Additionally, the court found that the Aguiars met their burden of producing
evidence that it was reasonable for them to rely upon Yin’s lease in
continuing to maintain cattle on Ms. Prekaski’s land and that they had the
power to impose the duty set forth in the lease provision at issue upon Yin.


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present forms in 1975 with the intent to simplify determination

of damages in animal trespass cases.        Rather than combining the

two statutes, the 1975 amendment was grafted onto the pre-

existing statutes that divided liability according to whether or

not the land was fenced, Yin argued.        As to the lease, Yin

argued that evidence of the contract between Prekaski and Yin

was not sufficient to summarily render the statutes’ public

policy inapplicable to this case.

          The Aguiars responded that they were not liable for

any damage to Yin’s crops because Yin bore the duty to build a

fence by the inclusion of a provision in his lease making him

responsible for damage caused by cattle to his crops.

Additionally, the Aguiars argued that HRS §§ 142-63 and 142-64

did not prevent the enforcement of the lease or relieve Yin of

his duty under the lease because the statutes were irrelevant as

they did not provide that cattle owners must construct fencing

on properties where cattle are kept.        And regarding the lease

itself, the Aguiars contended that Yin failed to identify a

specific policy or statute that prevented the lease from

requiring him to construct fencing and failed to explain why his

lease is different from other contracts through which a party

assumes duties as part of the contract.         Nor did HRS §§ 142-63

and 142-64 apply because they do not address liability when a



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fence is neither properly fenced nor unfenced, the Aguiars

argued.11

            In its summary disposition order, the Intermediate

Court of Appeals (ICA) first stated that Yin’s opening brief

made new arguments concerning the interpretation, legislative

intent, and legislative history of HRS §§ 142-61, 142-63, and

142-64 that had not been made before the circuit court.12                The

ICA explained that it would not address such arguments, and it

would only consider the plain meaning and application of the

statutes.    The ICA found that the plain and unambiguous meaning

of those statutes demonstrated that neither HRS § 142-63 nor HRS

§ 142-64 applied because Yin’s property was neither unfenced nor

properly fenced.     And because Yin affirmatively accepted the

duty to keep the cows off his property, the ICA concluded, the

Aguiars were not liable for the damage caused by their cattle.13


     11
            Yin also challenged the circuit court’s order granting in part
and denying in part the Aguiars’ motion for fees and costs, arguing inter
alia that Yin’s success on appeal would obviate the prevailing party basis
for the award under Hawaii Arbitration Rules (HAR) Rule 25.
     12
            The ICA’s summary disposition order can be found at Yin v.
Aguiar, No. CAAP-XX-XXXXXXX, 2019 WL 948460 (App. Feb. 27, 2019).
     13
            The ICA also concluded that the Aguiars met their burden of
producing evidence that the purpose of the lease provision was to benefit
them in that Yin had the duty to fence his property to prevent cattle from
entering, it was reasonable for the Aguiars to rely on the lease provision in
continuing to maintain cattle on the land, and the Aguiars met their burden
of producing evidence that they were intended beneficiaries of the lease.
The ICA did not expressly rule on Yin’s argument that the lease violated a
public policy established by HRS §§ 142-63 and 142-64. The ICA affirmed the
circuit court’s award of fees and costs.



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                       III. STANDARDS OF REVIEW

                          A. Summary Judgment

          We review a circuit court’s grant or denial of summary

judgment de novo.    Querubin v. Thronas, 107 Hawaii 48, 56, 109

P.3d 689, 697 (2005) (citing Hawaii Cmty. Fed. Credit Union v.

Keka, 94 Hawaii 213, 221, 11 P.3d 1, 9 (2000)).

                     B. Statutory Interpretation

          “The interpretation of a statute is a question of law

reviewable de novo.”     Peer News LLC v. City & Cty. of Honolulu,

138 Hawaii 53, 60, 376 P.3d 1, 8 (2016).

                             IV. DISCUSSION

     A. Livestock Owners Are Liable for Damages Caused by Their
              Livestock Trespassing onto Cultivated Land.

          In its decision, the ICA only considered “the plain

meaning and application of HRS §§ 142-61, 142-63, and 142-64,”

and it did not examine the legislative history of HRS §§ 142-63

or 142-64 because it concluded that the statutes were

unambiguous and Yin failed to raise such arguments before the

circuit court.

          HRS §§ 142-63 and 142-64 provide as follows:

          §142-63 Trespass on fenced cultivated land. If any cattle,
          horse, mule, ass, swine, sheep, or goat, trespasses on any
          properly fenced cultivated ground, the owner thereof shall
          pay upon proof, the full amount of the damage or loss to
          the landowners, or to any person in possession of the land,
          whoever suffers the damage or loss.

          §142-64 On unfenced cultivated land. If any of the animals
          mentioned in section 142-63 trespasses on any unfenced

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          cultivated ground, the owner thereof shall pay upon proof,
          the full amount of the damage or loss to the landowner or
          to any person in possession of the land, whoever suffers
          the damage or loss.

          Yin maintains that the ICA erred because its

interpretation of HRS §§ 142-63 and 142-64 created an

unreasonable loophole in the statutes by holding that his land

was neither “unfenced” nor “properly fenced.”          Yin asserts that

the statutes impose liability on owners of livestock for all

damages caused to crops when the livestock trespasses on another

person’s land.

          We first consider whether the ICA erred in concluding

that the statutes were unambiguous and then review whether the

ICA erred in determining that neither HRS §§ 142-63 nor 142-64

were applicable in this case.

  1. There Exists Ambiguity as to a Livestock Owner’s Liability
   When a Fence Does Not Satisfy the Qualifications of a “Lawful
                               Fence.”

          It is well established that “implicit in the task of

statutory construction is [an appellate court’s] foremost

obligation to ascertain and give effect to the intention of the

legislature.”    Louie v. Hawaii Gov’t Emps. Ass’n, 133 Hawaii

385, 400, 328 P.3d 394, 409 (2014) (quoting State v. Wheeler,

121 Hawaii 383, 390, 219 P.3d 1170, 1177 (2009)).          “When there

is doubt . . . or uncertainty of an expression used in a

statute, an ambiguity exists.”       Farmer v. Admin. Dir., 94 Hawaii


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232, 236, 11 P.3d 457, 461 (2000) (quoting Konno v. Cty. of

Hawaii, 85 Hawaii 61, 71, 937 P.2d 397, 407 (1997)); see also

State v. DeMello, 136 Hawaii 193, 206, 361 P.3d 420, 433 (2015)

(Pollack, J., dissenting) (“Assigning the statute’s ambiguous

language a ‘plain meaning’ without reference to the legislative

history . . . would not only be an abuse of the plain meaning

doctrine, but it would also be contrary to this court’s duty to

‘ascertain and give effect to the intention of the

legislature.’” (quoting State v. McKnight, 131 Hawaii 379, 388,

319 P.3d 298, 307 (2013))).

            Under the Hawaii Revised Statutes, the owner of “any

cattle” that “trespasses on any properly fenced cultivated

ground, . . . shall pay upon proof, the full amount of the

damage or loss to the landowners.”         HRS § 142-63 (emphasis

added).14   Although HRS Chapter 142 does not provide a definition

for “properly fenced,” it defines “lawful fence” as a “fence

made of stone, posts and rails, posts and boards, posts and

wire, or other suitable materials . . . provided that it is not

less than four feet in height, substantially built, strong and

close, existing in good state of repair, and capable of turning

either all stock or all stock excepting swine, attempting to

      14
            HRS §§ 142-63 and 142-64 apply to “any cattle, horse, mule, ass,
swine, sheep, or goat.” For readability, this opinion refers to these
animals collectively as “cattle” or “livestock.”



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pass through the fence.”15      HRS § 142-61(a).      If the fence is

made of “[w]oven wire,” otherwise known as “hog-wire,” then it

must be “supported on posts and properly fastened thereto and

meet[] the minimum height and stock turning requirements

prescribed in subsection (a)” in order to constitute a “lawful

fence.”   HRS § 142-61(b).

           The Hawaii Revised Statutes unequivocally impose

liability on the owners of livestock in situations when their

animals damage a crop owner’s “properly fenced” cultivated land.

To constitute “properly fenced,” the fence must be (1) at least

four feet in height, (2) “substantially built,” (3) “strong and

close,” (4) “existing in [a] good state,” and (5) “capable of

turning [away] all stock . . . attempting to pass through the

fence.”   HRS § 142-61.     A failure by the crop owner to satisfy

any of these requirements would result in a determination that

the property was not “properly fenced.”          But proving all four of

these elements results in circular reasoning because a property

that is otherwise “properly fenced” would not allow livestock to

gain entry as the definition requires that the fence be capable

of “turning [away] all stock.”        That is, the trespass itself

would arguably relieve the livestock owner from liability


     15
            Based on our discussion of the legislative history of the
livestock statutes, see infra, we deduce that “lawful fence” is intended to
be used to define “properly fenced.”



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because a “proper[] fence[]” would have been able to turn away

the animal.16

           Thus, while HRS § 142-63 clearly holds livestock

owners liable when “any cattle . . . trespass[] on any properly

fenced cultivated ground,” HRS § 142-61 seemingly renders this

provision a virtual nullity absent intentional damage to an

otherwise “proper[] fence[].”        This incongruity creates

ambiguity in the application of the plain text of these statutes

and specifically as to a livestock owner’s liability when a

fence does not satisfy the qualifications of a “lawful fence”

under HRS § 142-61 because, under the interpretation given by

the circuit court, such a fence would also render liability

under HRS § 142-64 inapplicable.          The ICA therefore erred in

concluding that the statutes were unambiguous.17




     16
            Indeed, the Aguiars argued in their Answering Brief that, inter
alia, “[t]he inadequacy of [Yin]’s fence is established by evidence that
cattle walked through or over [his] fence.”
     17
            To the extent that the ICA did not consider the legislative
history or intent of the statutes because Yin did not raise the issues before
the trial court, we have previously held that appellate courts may “resolve[]
a properly preserved issue by answering a threshold or dispositive question
of law, even though the argument is not advanced by the parties.” Cox v.
Cox, 138 Hawaii 476, 488, 382 P.3d 288, 300 (2016) (citing Waldecker v.
O’Scanlon, 137 Hawaii 460, [466-67], 375 P.3d 239, 245–46 (2016); Akamine &
Sons, Ltd. v. Hawaii Nat’l Bank, 54 Haw. 107, 114–15, 503 P.2d 424, 429
(1972)). Because Yin properly preserved the argument that HRS §§ 142-63 and
142-64 provide that livestock owners are liable for the damages caused by the
trespass of their animals, the ICA had the duty to give effect to the
intention of the legislature in applying these statutes.



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  2. The Legislature Intended To Impose Liability on Livestock
         Owners for All Proven Damages to Cultivated Land.

           When we interpret ambiguous statutes, “[t]he meaning

of the ambiguous words may be sought by examining the context[]

with which the ambiguous words, phrases, and sentences” were

enacted.   State v. Brantley, 99 Hawaii 463, 464, 56 P.3d 1252,

1253 (2002) (first alteration in original).          We may also “resort

to extrinsic aids in determining legislative intent” such as

legislative history.     Id. at 464-65, 56 P.3d at 1253-54.

           This case involves the interpretation of HRS §§ 142-63

and 142-64, which were last amended in 1975.          Specifically, we

are required to determine the meanings of the terms “properly

fenced” and “unfenced” as used in these provisions.           The terms

first appeared in the statutes addressing the trespassing of

livestock (“livestock statutes”) in 1888, but the livestock

statutes had protected trespass onto cultivated land as early as

1841.   We therefore begin our review of the legislative history

of HRS §§ 142-63 and 142-64 by considering the evolution of the

early laws regarding livestock trespass and the amendments made

in 1888 and 1975.

            a. Early Laws Regarding Livestock Trespass

           The first statute regarding trespassing livestock was

enacted in 1841 as part of the Laws of the Hawaiian Kingdom

(“1841 Act”).   Translation of the Constitution and Laws of the


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Hawaiian Islands, Established in the Reign of Kamehameha III,

Ch. XIV, at 58 (1842) [hereinafter Laws of 1842].            When the 1841

Act was enacted, King Kamehameha III explained that “there [was]

at the present time a considerable number of people who [were]

greatly annoyed by having their cattle held in confinement

without cause” and that “farmers [were] greatly annoyed, by

having their vegetables destroyed” by unconfined cattle.             Id.

To resolve this problem, King Kamehameha III made it “illegal

for beasts to [roam] at large, unless the cultivated grounds

[were] enclosed by a fence.”      Id.    If the “cultivated ground”

was surrounded by a fence, then animals were allowed to roam,

but “if any animal [was] really mischievous and br[oke] away the

fence or jump[ed] over it, then the owner of the animal [was

required to] pay according to the amount of food destroyed and

the loss sustained.”     Id.   The 1841 Act distinguished that

situation from one in which a fence “bec[a]me rotten” or “f[e]ll

down” and exposed the cultivated land.         Id.     In such cases, the

owner of “the animal not being [at] fault and not being of a

mischievous character shall pay no fine.”            Id.   However, “if it

was generally known that the fence was poor and out of repair,

and on that account most of the people confined their animals,”

the animal owner was liable for “all damages done by his

animals.”   Id. at 58-59.



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             In 1846, “in consideration of the numerous petitions

presented” to “[t]he Nobles and Representatives of the Hawaiian

Islands,” a law entitled “Joint Resolutions Respecting Estrays”

was enacted (“1846 Act”), increasing statutory protection to the

owners of cultivated land.        2 Statute Laws of His Majesty

Kamehameha III, at 72 (1847) [hereinafter 1847 Stat. Laws].

Under the 1846 Act, “if any kine,[18] horse, mare, mule or ass

commit[ed] any trespass on any cultivated ground,” the livestock

owner was liable to the cultivated landowner for “the sum of

five dollars for the trespass of each animal” and “the full

amount of” the damage to the production of land.              Id. § 1, at

72.   The 1846 Act also included a provision that made livestock

owners liable for the trespass of their animals onto

uncultivated land.19      Id. § 2, at 72.      The 1846 Act thus

increased statutory protection to landowners by making the

livestock owner liable for trespass onto cultivated and

uncultivated land regardless of the existence or condition of a

fence.     See id.

      18
            “Kine” is an archaic plural of “cow.”   Kine, Webster’s Unabridged
Dictionary (2d. ed. 2001).
      19
             Section 2 of the 1846 Act provided as follows:

             That if any animal or animals of any person commit any
             trespass on any uncultivated ground, the owner of the
             animal or animals shall forfeit and pay to the owner of the
             ground, four times the amount of damage done, or of value
             destroyed.

1847 Stat. Laws § 2, at 72.


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             A decade later, a new law “Relating to Estrays and

Pounds” was passed (“1856 Act”).           Laws of His Majesty Kamehameha

IV, 1856 Sess. Laws, at 49 [hereinafter 1856 Sess. Laws].

Section 5 of the 1856 Act provided that if any livestock “commit

a tres[]pass on any cultivated ground, the owner of said animal

or animals shall forfeit and pay to the owner of the ground the

sum of fifty cents for the trespass of each animal” plus “full

amount” of any damage to the “productions of the land.”20              Id. §

5, at 50.     Like the previous iteration of the law, the 1856 Act

required an owner of livestock to pay a set amount per head for

the trespass of the owner’s animals onto “any uncultivated

ground.”21    Id. § 6, at 50.      In addition, the 1856 Act contained


      20
             Section 5 of the 1856 Act provided in part as follows:

             If any horse, mule, ass, hog, or neat cattle, commit a
             tres[]pass on any cultivated ground, the owner of said
             animal or animals shall forfeit and pay to the owner of the
             ground the sum of fifty cents for the trespass of each
             animal, excepting sheep and goats, which shall be six
             cents; and if any productions of the land be destroyed or
             other damage done by the animal or animals, the owner
             thereof shall further pay to the loser the full amount of
             such damage or loss[.]

1856 Sess. Laws § 5, at 50.
      21
             Section 6 of the 1856 Act provided in part as follows:

             If any of the animals enumerated in the last preceeding
             section commit a trespass on any uncultivated ground, the
             owner of such animal or animals shall forfeit and pay to
             the owner of the ground twelve and a half cents for the
             trespass of each animal, excepting sheep and goats, for
             which he shall pay six cents per head, and if any damage be
             done by the animal or animals, the owner thereof shall pay
             to the loser the full amount of such damage[.]

1856 Sess. Laws § 6, at 50.


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a provision that increased the penalties listed in sections 5

and 6 when the trespass occurred onto “land enclosed by a lawful

fence”:

            The owner of any horse, mule, ass, neat cattle, swine,
            sheep or goat trespassing upon land enclosed by a lawful
            fence, shall forfeit and pay to the owner of such land, if
            cultivated, twice the penalty prescribed in section fifth;
            and if the land is uncultivated, . . . twice the penalty
            prescribed in section sixth, and shall also in each case
            pay the full amount of damage done by such animal or
            animals.

Id. § 8, at 51 (emphases added).

            The 1856 Act also provided the criteria a barrier

needed to meet to qualify for additional penalties as a “lawful

fence” under section 9 of the 1856 Act.22         Id. § 9, at 51.

Accordingly, trespass onto any cultivated or uncultivated land

that was enclosed with anything less than a lawful fence would

be compensable only under sections 5 or 6.          In addition, the

1856 Act increased protections to landowners by broadening the

category of animals for which a livestock owner was liable to

include “hog,” “swine,” “sheep” and “goats.”           See id. §§ 5, 6,

      22
            The 1856 defined a “lawful fence” as follows:

            Every enclosure shall be deemed a lawful fence which is
            four feet high, if made of stone, and if made of wood, iron
            wire, or an artificial pali, five feet high; if made upon
            an embankment of a ditch three feet deep, or upon an
            artificial or natural pali three feet high, then the fence
            must be two feet high said fence to be substantial,
            reasonably strong and close, made to turn stock. If the
            fence be a ditch only, then it shall be nine feet wide at
            the top and four feet deep, and if a hedge, five feet high,
            thigh and high to turn stock.

1856 Sess. Laws § 9, at 51.



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8, at 50-51.    The 1856 Act thus created a liability scheme that

held a livestock owner liable for the trespass of the owner’s

animals onto any land, cultivated or uncultivated, and the

existence of a lawful fence only determined the additional

damages that would be awarded.

            In 1859, these provisions were compiled and codified

into Hawaii’s first civil code (“1859 Civil Code”) as sections

239, 240, 242, and 243.        See The Civil Code of the Hawaiian

Islands §§ 239, 240, 242, 243, at 54-55 (1859) [hereinafter 1859

Civ. Code].    The provisions in the 1859 Civil Code were largely

the same as the 1856 Act, with the exception of section 243,

which amended the definition of a “lawful fence.”23            See 1859

Civ. Code § 243, at 54.        These provisions were also compiled

into the civil code in 1884 and were unchanged except for minor

stylistic changes in section 239 (trespass onto cultivated land)




      23
            The 1859 Civil Code defined “lawful fence” as follows:

            Every fence shall be deemed a lawful fence which is five
            feet high, if made of stone; or which is five feet high, if
            a hedge, or if made of wood, iron wire, or an artificial
            pali; or which is two feet high, if made upon an embankment
            of a ditch three feet deep, and at least two feet wide at
            the bottom, or upon an artificial or natural pali, three
            feet high. If the fence be a ditch only, then it shall be
            nine feet wide at the top, and four feet deep. Every fence
            to be a lawful fence, shall be substantially built, and
            reasonably strong and close to turn stock.

1859 Civ. Code § 243, at 55.



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and an addition in section 240.24         Compare id. §§ 239-243, at 54-

55 with Compiled Laws of the Hawaiian Kingdom §§ 239-243, at 55-

57 (1884) [hereinafter 1884 Civ. Code].

           Thus, the evolution of the early statutes addressed

the concerns of farmers who were “greatly annoyed, by having

their vegetables destroyed” by unconfined livestock, Laws of

1842, at 58, and indicated the framers’ intent to impose

liability on livestock owners for the trespass of their animals

onto all cultivated land and to provide increased protection to

cultivated land enclosed with a lawful fence.

           We next consider whether amendments made to the

livestock statutes in 1888 introducing the terms “properly

fenced” and “unfenced” were intended to exclude certain

cultivated land from statutory protection.

                            b. 1888 Amendments

           Beginning in 1846, the livestock statutes provided

statutory protection to all cultivated land, and they afforded

an even greater level of protection in 1856 to lawfully fenced,

cultivated land by increasing the amount of statutory damages a

crop owner received for the physical trespass.           1847 Stat. Laws

§§ 1-2, at 72; 1856 Sess. Laws §§ 5-8, at 50-51; 1859 Civ. Code

§§ 239-243, at 54-55; 1884 Civ. Code §§ 239-243, at 55-57.

     24
            Section 240 of the Civil Code was amended in 1864 by adding a
paragraph that empowered the “Governor of Oahu” to impound livestock grazing
on certain public roads and environs. 1884 Civ. Code § 240, at 56.


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These statutes thus placed liability on livestock owners for

trespass of their animals onto any cultivated land.            See Laws of

1842, at 58-59; 1847 Stat. Laws §§ 1-2, at 58-59; 1856 Sess.

Laws §§ 5-8, at 50-51; 1859 Civ. Code §§ 239-243, at 54-55; 1884

Civ. Code §§ 239-243, at 55-57.

           In 1888, a statute amending and consolidating the law

relating to “Pounds, Estrays, Brands and Marks” was enacted

(“1888 Act”).    Laws of His Majesty Kalakaua I, 1888 Sess. Laws

Act 35, at 74 [hereinafter 1888 Sess. Laws].           An original draft

of the 1888 Act (“Bill No. 27”) indicates that the drafters of

the bill intended to continue providing statutory protection to

all cultivated land by setting forth a livestock owner’s

liability for trespass onto cultivated land into a single

provision.25    This consolidated provision functionally

incorporated the increased penalties from the prior law and

substituted the phrase “enclosed by a lawful fence” with

“properly fenced.”      The provision in the original draft of Bill

No. 27 read as follows:

           Sec. IX: If any cattle horse, mule, ass, hog, sheep or
           goat shall trespass on any cultivated ground, the same
           being properly fenced, and shall destroy or injure the
           growing crop, or shall break the fence, or commit other
           waste or damage, the owner thereof shall pay to the
           landowner the full amount of such damage or loss. But if


      25
            Prior to 1888, the civil code contained one provision addressing
trespass onto any cultivated land (§ 239) and one provision addressing
trespass onto any uncultivated land (§ 240). 1884 Civ. Code §§ 239, 240, at
55-56. A third provision doubled the penalties in sections 239 and 240 when
the land was “enclosed by a lawful fence.” Id. § 242, at 57.


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           the trespass shall be committed on cultivated ground which
           is not enclosed by a legal fence, the owner of the animal
           or animals shall pay to the owner of the land the sum of
           two dollars for each animal trespassing, excepting sheep
           and goats for which he shall pay twenty-five cents each;
           provided however, that if in any particular case this
           provision shall have an onerous or unjust bearing, owing to
           the large number of animals trespassing, the Judge shall
           have power to diminish the forfeiture.

An Act to Amend and Consolidate the Law Relating to Pounds,

Estrays, Brands and Marks, Bill No. 27 § 9, at 5-6, in 1888

Bills & Laws, #1-77, Box 89 (manuscript) (emphases added)

[hereinafter Bill No. 27] (on file with the Hawaii State

Archives).

           Bill No. 27 specified only two types of cultivated

land: “properly fenced” cultivated land, and cultivated land

“not enclosed by a legal fence.”         This categorization is made

clear by the sentence beginning with “But if” in Bill No. 27

that distinguished between trespass onto “properly fenced”

cultivated land and trespass onto “cultivated” land that was

“not enclosed by a legal fence.”         The term “properly fenced”

thus referred to land that was “enclosed by a legal fence.”

           This original version of the bill draft, which is

preserved in the Hawaii State Archives, has a handwritten

notation in the bill’s margin next to the sentence beginning

with “But if.”    The notation states “Sec 10,” indicating that

this portion of the provision was to be placed into its own

section.   Bill No. 27 § 9, at 5.        When this division was


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incorporated in section 10 in a subsequent draft, a wording

change was made:

          “cultivated ground which is not enclosed by a legal fence,”

                             was rephrased as

                       “any unfenced cultivated ground.”

Sections 9 and 10 accordingly appear as follows in the 1888 Act:

            SECTION 9. If any cattle, horse, mule, ass, swine, sheep
            or goat, shall trespass on any properly fenced, cultivated
            ground, the owner thereof shall pay to the owner of such
            land the full amount of the damage or loss occasioned by
            such estray to such land-owner, and the sum of fifty cents
            for each animal trespassing, excepting sheep and goats, for
            which he shall pay ten cents each[.]

            SECTION 10. If any animals mentioned in Section 9 of this
            Act shall trespass upon any unfenced, cultivated ground,
            the owner thereof shall pay to the owner of such land the
            sum of twenty-five cents for each animal trespassing,
            excepting for sheep and goats, for which he shall pay ten
            cents each. The owner of such lands shall not be entitled
            to claim any damages for such trespass other than said sum
            of twenty-five cents[.]

1888 Sess. Laws §§ 9, 10, at 77-78 (emphases added).26

            While it would appear that the change in wording that

occurred when section 9 was divided into two sections was

intended to be stylistic only,27 the literal wording of section


      26
            There are three undated drafts in the file containing the drafts
of Bill No. 27. The first is a manuscript and appears to be the original
bill draft introduced in the 1888 session. The other two drafts include the
division of section 9 into sections 9 and 10 as discussed. File No. 222-89-
2, in 1888 Bills & Laws, #1-77, Box 89 (on file with the Hawaii State
Archives).
     27
            This is evident, for example, from the similarity of section 10’s
language to section 11 of the 1888 Act.

            SECTION 10. If any animals mentioned in Section 9 of this
            Act shall trespass upon any unfenced, cultivated ground,
            the owner thereof shall pay to the owner of such land
            . . . .
                                                             (continued . . .)

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10 could be read in isolation to mean “no fence” rather than

land “not enclosed by a legal fence.”         This reading of section

10 would exclude all cultivated land with a fence that did not

meet the requirements of a legal fence (“not-properly fenced”)

from any statutory protection against trespassing livestock, in

stark contrast to the purpose and text of the original draft of

Bill No. 27 and its subsequent singularly stated objective to

recodify section 9 into two sections.         The significant effect of

abruptly excluding not-properly fenced, cultivated land from all

statutory protection against trespassing livestock raises the

question of whether the drafters’ use of the term “unfenced” was

intended to depart from the liability scheme that had

historically been a part of the livestock statutes.

            It is well established that statutes in pari materia

should be construed together.        Wells Fargo Bank, N.A. v. Omiya,

142 Hawaii 439, 450, 420 P.3d 370, 381 (2018) (quoting State v.

Kamanao, 118 Hawaii 210, 218, 188 P.3d 724, 732 (2008)).               In

construing each individual part of a statute, the court must

consider the statute as a whole to ensure that all parts produce


(. . . continued)


            SECTION 11. If any of the animals mentioned in Section 9
            of this Act shall trespass on any uncultivated land the
            owner of such animals or animals shall pay to the owner of
            the land . . . .

1888 Sess. Laws §§ 10, 11, at 77-78 (emphases added).


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a sensible and harmonious whole.          Kauai Springs, Inc. v.

Planning Comm’n of Cty. of Kauai, 133 Hawaii 141, 163, 324 P.3d

951, 973 (2014); State v. Davis, 63 Haw. 191, 196, 624 P.2d 376,

380 (1981).

           Under the 1888 Act, a livestock owner whose cattle

trespassed on “any unfenced, cultivated” land or on “any

uncultivated” land was required to pay to the owner of the land

the sum of twenty-five cents per trespassing animal.             1888 Sess.

Laws §§ 10, 11, at 77-78.28       If section 10 only applied to

cultivated land that was wholly unfenced, then the statute would

protect not-properly fenced, uncultivated land to a greater

degree than not-properly fenced, cultivated land.            This is

because the owner of not-properly fenced, uncultivated land

could recover a set sum for the trespass of each animal under

section 11 of the 1888 Act, while the owner of not-properly

fenced, cultivated land could not recover under section 10.

Stated differently, a livestock owner would only be required to

pay the statutory amount for trespass to a crop owner of not-

     28
           Section 11 of the 1888 Act provides as follows:

           SECTION 11. If any of the animals mentioned in Section 9
           of this Act shall trespass on any uncultivated land the
           owner of such animal or animals shall pay to the owner of
           the land the sum of twenty-five cents for the trespass of
           each animal, excepting for sheep and goats, for which he
           shall pay ten cents each, and if any damage be done by the
           animal or animals, the owner thereof shall further pay to
           the land-owner the full amount of such damage.

1888 Sess. Laws § 11, at 78 (emphasis added).


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properly fenced land when the crop owner was not growing crops.

In effect, the statute as a whole would penalize a land owner

for cultivating the land by depriving the crop owner of an

ability to recover the set statutory amount for a trespassing

animal.

            Similarly, an owner of cultivated land who sought to

protect crops with a fence that inadvertently did not fully meet

the requirements of a lawful fence could not recover the

statutory amount.    In contrast, an owner of cultivated land who

made no attempt to protect crops with a fence could recover a

set sum for the trespass of each animal under section 10.             The

statute would consequently have the effect of penalizing the

crop owner who unsuccessfully attempted to qualify for the

increased protection offered by section 9 of the statute,

compared to crop owners who did not take steps to protect their

crops.    Thus, reading section 10 to apply only to wholly

unfenced, cultivated land produces an inharmonious reading of

the 1888 Act as a whole.      See Kauai Springs, Inc., 133 Hawaii at

163, 324 P.3d at 973.

            Additionally, principles of statutory interpretation

instruct that a statute must be read to give effect to all the

sentences, clauses, and words in the statute.          Adams v. CDM

Media USA, Inc., 135 Hawaii 1, 18, 346 P.3d 70, 87 (2015).



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            Under the 1888 Act, before a person could impound

trespassing animals, the person was required to provide a

statement that included the amount of damages and expenses

claimed.    1888 Sess. Laws § 4, at 75.29       These expenses included

the actual expenses incurred in capturing and conveying the

trespassing animal to the pound in all cases and were required

to “be added to the forfeits and damages specified in [sections

9, 10, and 11].”     Id. § 13, at 78 (emphasis added).30         If section

10 applied only to wholly unfenced, cultivated land, this

portion of section 13 would be superfluous when trespass

occurred onto not-properly fenced, cultivated land, a result

that would be in conflict with giving effect to all clauses in a



      29
            Section 4 of the 1888 Act provided as follows:

            SECTION 4. No Pound Master shall receive estrays until the
            person wishing to impound the same, shall have signed his
            name to a statement setting forth the number and species of
            estrays, locality trespassed upon, name of owner or owners
            of such estrays, if known, together with the date on which
            they were taken and the amount of damages and expenses
            claimed. . . .

1888 Sess. Laws § 4, at 75.
      30
            Section 13 of the 1888 Act provided as follows:

            SECTION 13. In all cases where animals are taken up for
            trespass, the actual expenses incurred, or a fair allowance
            for the labor required in catching, driving and conveying
            such animals to the pound, and of giving notice to the
            owner of the same, shall be added to the forfeits and
            damages specified in the preceding sections. Provided
            however, that the charge for such catching, driving and
            conveying to the pound shall not exceed one dollar per
            head.

1888 Sess. Laws § 13, at 78 (emphases added).


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statute.    See Coon v. City & Cty. of Honolulu, 98 Hawaii 233,

250, 47 P.3d 348, 365 (2002) (rules of statutory construction

require rejection of an interpretation that renders any part of

the statutory language a nullity).          Similarly, section 14

applies when “any animals are taken up for trespass” without

limitation as to whether the land is cultivated or

uncultivated.31    The section provides that livestock owners shall

be notified, if known, of “the amount of damage and trespass

fees claimed” when any trespassing animals are caught.             1888

Sess. Laws § 14, at 789.       If the “legal charges” (set forth in

sections 9, 10, and 11 of the 1888 Act) were not paid, the land

owner could impound the animals.          Id.   Again, if section 10 did

not apply to not-properly fenced, cultivated land, the “legal

charges” and impoundment clauses would be nullities despite

section 14 ostensibly applying “[w]hen any animal or animals are

taken up for trespass.”       See Miyagawa v. Ferreira, 10 Haw. 23,

23 (Haw. Rep. 1895) (making no distinction as to whether the



     31
            Section 14 of the 1888 Act provides as follows:

            SECTION 14. When any animal or animals are taken up for
            trespass, the owner, if known, shall be immediately
            notified, if reasonably practicable, of such fact, and of
            the amount of damage and trespass fees claimed, and if he
            shall refuse or fail to pay the legal charges, or in case
            the owner be unknown, then the animal or animals shall be
            impounded forthwith.

1888 Sess. Laws § 14, at 79 (emphasis added).



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trespassed land was fenced or not in recognizing that a “person

whose land has been trespassed on and crops damaged” has a

remedy under section 14 of the “impounding law” of 1888).

Reading “unfenced” to include all cultivated land not included

in section 9 gives full effect to all parts of sections 13 and

14 in the 1888 Act.

          We have also frequently stated that statutes should be

interpreted according to the intent, meaning, and purpose of the

overall statutory scheme and not in a manner that would lead to

absurd and unjust results.      Allstate Ins. Co. v. Hirose, 77

Hawaii 362, 371, 884 P.2d 1138, 1147 (1994); see also Kim v.

Contractors License Bd., 86 Hawaii 264, 269-70, 965 P.2d 806,

811-12 (1998); Richardson v. City & Cty. of Honolulu, 76 Hawaii

46, 60, 868 P.2d 1193, 1207 (1994).        When a literal

interpretation of a statute would lead to absurd or unjust

results, the court may depart from its plain reading.            Franks v.

City & Cty. of Honolulu, 74 Haw. 328, 341, 843 P.2d 668, 674

(1993).

          Beginning in 1856, the definition of “lawful fence” in

the livestock statutes functioned to distinguish between

cultivated land “enclosed by a lawful fence” and all other

cultivated land in order to determine the amount of statutory

damages a livestock owner was required to “forfeit and pay” to


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the aggrieved land owner.      See 1856 Sess. Laws §§ 8, 9, at 51.

The original draft of Bill No. 27 did not change the function of

the “lawful fence” provision, and like the prior law, the 1888

Act envisioned only two types of cultivated land: cultivated

land enclosed by a lawful fence and all other cultivated land.

           Assuming arguendo that “unfenced” meant “no fence,”

the 1888 Act would have, for the first time, created three

categories of fences: lawful fences, no fences, and everything

else in between (e.g., partial fences, not-properly built

fences).   But dividing fences into three groups would result in

irrational and illogical consequences to crop owners in light of

the definition of lawful fence.

           First, to be properly fenced, fenced land must be

capable of preventing the trespass of livestock.

           SECTION 15. Every fence shall be deemed a lawful fence
           which shall be . . . substantially built, strong and close,
           to turn all stock excepting swine, and in good repair. The
           sea, rivers, ponds and natural perpendicular bluffs,
           whenever impassable, shall be legal fences.

1888 Sess. Laws § 15, at 79 (emphasis added).          To satisfy this

requirement, land would have to be enclosed by a fence or have

an impassable barrier on all four sides.         Any crop owner whose

unfenced property was bordered by a neighbor’s fenced property

on less than all sides would thereby have partially fenced

property, and such land would be excluded from statutory

protection under the 1888 Act if “unfenced” meant “no fence”


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because the land would neither be “properly fenced” or

“unfenced.”   This would force the crop owner to completely

enclose their property with a proper fence or to persuade the

neighbor to dismantle the fence in order to receive the

statute’s protection.     This situation would be further

complicated if the fence on the adjoining property was

improperly built or fell into disrepair because a crop owner

would be required to have the fence fixed to obtain statutory

protection from trespassing livestock.

          Similarly, because the definition of lawful fence

included “impassable” rivers, ponds, and bluffs, any cultivated

land with such a natural barrier would result in the property

being partially fenced unless the barrier completely enclosed

the property.   In such a situation, the cultivated land would

not be considered to have “no fence,” and the landowner would

not be entitled to compensation when livestock trespass occurred

unless the remainder of the property was properly fenced.             A

crop owner with an impassable barrier on the property would

therefore be required to undertake the time and expense to

properly enclose the land with a lawful fence or lose protection

under the statute.    The 1888 Act would thus shift responsibility

for preventing a trespass from livestock owners to crop owners

when circumstances beyond the crop owner’s control rendered

their property not properly fenced.

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           Finally, in order to receive protection under the 1888

Act, the owner of fenced cultivated land would be required to

show that the fence was (1) made of “suitable materials,”

(2) not less than 4½ feet in height, (3) “substantially built,”

(4) “strong and close, to turn all stock,” and (5) in good

repair.   1888 Sess. Laws § 15, at 79.        However, a landowner

would encounter extreme difficulty (absent intentional damage to

the fence) in proving a fence was “substantially built, strong

and close, to turn all stock” in light of the fact that the

claim for damages would have had to result from a trespass.                 If

section 10 provided statutory protection only to cultivated land

with no fencing, a landowner would risk losing all protection

under the statute by choosing to erect a fence.           This would have

the absurd effect of disincentivizing fencing on cultivated land

because a landowner with no fence could always recover for

trespass under section 10, but the owner of fenced cultivated

land would always have to prove the land was “properly fenced”

pursuant to section 9.

           Interpreting “unfenced” to mean “no fence” thus leads

to unjust and absurd results.32       Rather, it is apparent that the


     32
            It is unsurprising that the legislative history for the 1888 law
provides no report or explanation for the change of wording in section 10,
particularly one indicating an intent to depart from the established
liability scheme. See File No. 222-89-2, in 1888 Bills & Laws, #1-77, Box 89
(on file with the Hawaii State Archives).



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1888 Act’s drafters intended sections 9 and 10 to be construed

together such that livestock owners would continue to be liable

for trespass onto all cultivated land as the prior livestock

laws had provided.      Reading “unfenced” to include all land not

enclosed by a lawful fence also maintains the appropriate

function of the “lawful fence” provision and is consistent with

the intent, meaning, and purpose of the overall statutory scheme

as evidenced by the legislative history of the prior livestock

statutes.

            Accordingly, review of the previous legislative

history of the livestock statutes and the application of

principles of statutory construction plainly manifest that the

phrase “any unfenced, cultivated land” was not intended to

exclude all cultivated property not enclosed by a lawful fence

from statutory protection against trespassing livestock.33             The

word “unfenced” in section 10 of the 1888 Act must therefore be

read as including cultivated land not enclosed by a lawful

fence.




      33
             Sections 9 and 10 were recodified into the territorial laws of
Hawaii in 1907, and incorporated into the Revised Laws in 1925, 1935, 1945,
and 1955. Laws of the Territory of Hawaii, 1907 Sess. Laws Act 125, §§ 12,
13 at 290-91; Revised Laws of Hawaii (RLH) §§ 700, 701 (1925); RLH §§ 278,
279 (1935); RLH §§ 1084, 1085 (1945); RLH §§ 20-62, 20-63 (1955).



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                              c. 1975 Amendments

            The provisions in the 1888 Act addressing trespass

onto cultivated land remained substantively unchanged until

1975.     In 1975, HRS §§ 142-63 and 142-64 were amended to their

current form, which permit landowners to recover “the full

amount of the damage or loss” from trespassing livestock

regardless of whether the property is “fenced” or “unfenced.”34

See 1975 Haw. Sess. Laws Act 40, § 1 at 69.           These amendments

effectively eliminated any distinction between fenced and

unfenced cultivated land, thereby treating trespass onto all

cultivated land the same.       Further, the intended purpose of

these amendments indicates an understanding by the legislature

that not-properly fenced, cultivated land would be covered under

the statutory scheme.      The purpose of the amendments was

explained by both a House and Senate report.           The House Report

provided the following:

     34
            As stated, HRS §§ 142-63 and 142-64 provide as follows:

            §142-63 Trespass on fenced cultivated land. If any cattle,
            horse, mule, ass, swine, sheep, or goat, trespasses on any
            properly fenced cultivated ground, the owner thereof shall
            pay upon proof, the full amount of the damage or loss to
            the landowners, or to any person in possession of the land,
            whoever suffers the damage or loss.

            §142-64 On unfenced cultivated land. If any of the animals
            mentioned in section 142-63 trespasses on any unfenced
            cultivated ground, the owner thereof shall pay upon proof,
            the full amount of the damage or loss to the landowner or
            to any person in possession of the land, whoever suffers
            the damage or loss.



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                The purpose of this bill is to modify the liability
          of livestock owners for trespass of their animals upon
          land.

                The bill would amend the present law by making the
          owner of livestock liable for all proven damages or losses
          for the trespass of his animals.

                Presently, the land owner can   recover for property
          damage only if the land is fenced.    He is also entitled to
          a specific monetary amount for each   head of trespassing
          livestock, at the discretion of the   court.

                Owners of unfenced cultivated land can recover only a
          specific monetary amount for each head of trespassing
          livestock, also at the discretion of the court.

                This bill would simplify the determination of damages
          in all animal trespass cases.

H. Stand. Comm. Rep. No. 428, in 1975 House Journal, at 1149

(emphasis added).    Similarly, the Senate Report explained the

following purpose of the Act:

                The purpose of this bill is to modify the liability
          of livestock owners for trespass of their animals upon
          fenced or unfenced cultivated land as well as fenced
          uncultivated land. Also, the bill simplifies the
          determination of damages in all animal trespass cases.

                The deletion of material concerning penalties “per
          head[,”] with varying amounts depending on what kind of
          animal trespassed, is appropriate. The present law
          originated in a predominantly agricultural era and as such,
          has little justification today on a “per head” basis.
          Requiring the livestock owner to bear the full cost of
          damages or loss to the land owner, upon proof of such, is
          more in line with present conditions.

                Your Committee has amended the bill to provide that
          not only the landowner, but any person in possession of the
          land who suffers loss or damage would be compensated. This
          would include lessees, tenants, purchasers under an
          agreement of sale or any other person in possession of the
          land.

S. Stand. Comm. Rep. No. 823, in 1975 Senate Journal, at 1143

(emphases added).




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          These committee reports demonstrate that the

legislature viewed cultivated land as being either fenced or

unfenced and intended to “mak[e] the owner of livestock liable

for all proven damages or losses for the trespass of his

animals” in either event.      H. Stand. Comm. Rep. No. 428, at

1149.   That is, regardless of the status or quality of the

fence, “in all animal trespass cases” livestock owners became

liable for “the full cost of damages or loss to the land.”

S. Stand. Comm. Rep. No. 823, at 1143.         This simplified the

determination of damages because the trier of fact was

previously required to make fact-intensive determinations as to

whether a property was “properly fenced” based on whether the

fence was (1) “substantially built,” (2) “strong and close,”

(3) “existing in [a] good state,” and (4) “capable of turning

[away] all stock . . . attempting to pass through the fence.”

HRS § 142-61.

          Additionally, in such cases, the burden would

presumably be placed upon the crop owner to prove these

requirements, and a failure to satisfy any of the requirements

would result in a determination that the property was not

“properly fenced.”    As explained supra, this would place a crop

owner in the position of having to prove that the land

trespassed upon was “properly fenced” with a fence “capable of

turning . . . all stock . . . attempting to pass through the

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fence,” which would almost always be disproved by the fact that

the livestock was able to circumvent the fence.

           But after the 1975 amendments, a court or jury was no

longer required to make this complicated factual determination

when deciding the amount of damages to award under Chapter 142.

Instead, the 1975 amendments “simplified” the liability scheme

“in all animal trespass cases” by making a livestock owner

liable for the full amount of damages caused by the owner’s

trespassing animals on cultivated land.35         And rather than repeal

sections 142-63 and 142-64 and enact a new statute, the

legislature simply embedded the new liability scheme into the

pre-existing statutory language.

           However, the legislative intent to simplify the

determination of damages would not have been achieved unless HRS

§ 142-64 applied to all cultivated land not properly fenced.

This is because the trier of fact would still be required to

make this complicated factual determination in cases that

involved trespass onto any fenced, cultivated land to assess the

applicability of HRS § 142-63.        The amendments also would not


     35
            In 1975, the legislature also amended the statutes “to provide
that not only the landowner, but any person in possession of the land who
suffers loss or damage would be compensated.” S. Stand. Comm. Rep. No. 823,
at 1143. It is noted that, as a practical matter, tenants and lessees may
not be in a position to fence property as it may be cost prohibitive or
difficult to complete within the time frame of the lease. The tenant thus
may have little control over the fencing whereas the owner of livestock
presumably would have control over the animals.



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have accomplished the stated purpose of “making the owner of

livestock liable for all proven damages or losses for the

trespass of his animals” because a livestock owner would evade

liability in cases involving trespass onto not-properly fenced

cultivated land.

          The history of sections 142-63 and 142-64 thus

manifests an understanding by the legislature in 1975 that these

sections would make a livestock owner liable for the “full cost

of damages” to “any [] person in possession” of the cultivated

land.   And it is clear that the legislature intended to impose

liability upon livestock owners for livestock damage to any

cultivated land, regardless of the existence or condition of a

fence “in all animal trespass cases.”        H. Stand. Comm. Rep. No.

428, at 1149; S. Stand. Comm. Rep. No. 823, at 1143.            The ICA

was therefore incorrect in determining that the Aguiars were not

responsible for the damages that their livestock caused to Yin’s

crops because his leased property was neither “properly fenced”

nor “unfenced.”

 B. The Exculpatory Lease Provision Is Contrary to Statutory Law
                        and Public Policy.

          Yin argues that HRS §§ 142-63 and 142-64 demonstrate a

public policy that “any person suffering crop damage caused by

trespassing livestock is entitled to compensation.”           And because




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the lease provision exculpating the Aguiars violated these

statutes, Yin contends, the provision is void.36

            Generally, a party “who assents to a contract is bound

by it.”   Courbat v. Dahana Ranch, Inc., 111 Hawaii 254, 264, 141

P.3d 427, 437 (2006) (quoting Leong v. Kaiser Found. Hosps., 71

Haw. 240, 245, 788 P.2d 164, 168 (1990)).          Under this basic

principle, parties “are permitted to make exculpatory contracts

so long as they are knowingly and willingly made and free from

fraud.”   Id. (quoting Fujimoto v. Au, 95 Hawaii 116, 156, 19

P.3d 699, 739 (2001)).      However, exculpatory clauses “are not

favored” and, “if possible,” will be “construed not to confer

this immunity.”     Fujimoto, 95 Hawaii at 155, 19 P.3d at 738

(citing 15 Williston on Contracts § 1750A, at 144-45 (3d ed.

1972)).   Exculpatory provisions are disfavored because “they

tend to allow conduct below the acceptable standard of care.”

Id. at 155, 19 P.3d at 738 (quoting Yauger v. Skiing Enters.,

Inc., 557 N.W.2d 60, 62 (Wisc. 1996)); see also Laeroc Waikiki

Parkside, LLC v. K.S.K. (Oahu) Ltd. P’ship, 115 Hawaii 201, 224,

166 P.3d 961, 984 (2007) (“[T]he law of torts imposes standards

of conduct for the protection of others against unreasonable
     36
            The ICA does not appear to have addressed whether the exculpatory
lease provision violated a public policy established by HRS § 142-63 or HRS
§ 142-64 because it found that neither statute applied. Because we find that
the statutes impose liability on a livestock owner for trespass damage to
cultivated land, we consider whether the circuit court erred in concluding
that the lease provision was not void against public policy.



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risk of harm and one cannot exempt himself from such liability

for harm that is caused either intentionally or recklessly.”

(internal quotation marks and alterations omitted)).

           When evaluating the validity of such clauses, we

“examine[] whether [they] violate public policy.”           Fujimoto, 95

Hawaii at 156, 19 P.3d at 739; see also 15 Grace McLane Giesel,

Corbin on Contracts § 79.1, at 1 (2003) (“The law has a long

history of recognizing the general rule that certain contracts,

though properly entered into in all other respects, will not be

enforced . . . if found to be contrary to public policy.”).

Public policy, generally, is a “principle of law which declares

that no one may lawfully do that which has a tendency to be

injurious to the public welfare.”        McClure Eng’g Assocs., Inc.

v. Reuben H. Donnelley Corp., 447 N.E.2d 400, 402 (Ill. 1983).

Public policy may therefore derive from numerous sources

including constitutional provisions, statutory provisions, or

the common law.    2 Barry A. Lindahl, Modern Tort Law: Liability

and Litigation § 21:5, at 481 (2d ed. 2019); Giesel, supra,

§ 79.2, at 5.   This court has specifically identified three

situations when an exculpatory provision is void as against

public policy: (1) if the provision is “violative of a statute,”

(2) if it is “contrary to a substantial public interest,” or (3)

if the provision was “gained through inequality of bargaining

power.”   Fujimoto, 95 Hawaii at 156, 19 P.3d at 739 (citing

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Andrews v. Fitzgerald, 823 F.Supp. 356, 378 (M.D.N.C. 1993));

see also Inlandboatmen’s Union v. Sause Bros., Inc., 77 Hawaii

187, 194, 881 P.2d 1255, 1262 (App. 1994) (“[A] court may refuse

to enforce contracts that violate law or public policy.”).

           In Bowers v. Alamo Rent-A-Car, Inc., we addressed an

“escape clause,” which is akin to an exculpatory clause, that

attempted to alter the liability scheme established by a

statute.   88 Hawaii 274, 275, 965 P.2d 1274, 1275 (1998).           In

that case, the renter of a motor vehicle had a car insurance

policy with State Farm Mutual Automobile Insurance Company that

provided that if the renter drove a car that the renter did not

own that “ha[d] other vehicle liability coverage on it,” then

the State Farm policy would constitute excess coverage.            Id.

The renter rented a car from Alamo Rent-a-car, Inc., and the

rental agreement stated that “[i]f there is no other valid and

collectible insurance, whether primary, excess, or contingent,

available to the renter . . . then Alamo’s vehicle liability

policy shall pay damages not to exceed minimum limits required

by applicable law.”     Id.   In essence, the rental provision

attempted to shift the responsibility to provide liability

insurance from Alamo to State Farm.        Id. at 278, 965 P.2d at

1278.   After being involved in an automobile accident with the

rental car, the renter brought an indemnification suit against



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Alamo, and Alamo denied that it had a duty to insure the renter.

Id. at 275, 965 P.2d at 1275.

          At the time that the litigation commenced, a Hawaii

statute provided that “[e]very owner of a motor vehicle used or

operated at any time upon any public street, road, or highway of

this State shall obtain a no-fault policy upon such

vehicle . . . and shall maintain the no-fault policy at all

times for the entire motor vehicle registration period.”             Id. at

277, 965 P.2d at 1277 (quoting HRS § 431:10C-104(b) (1993)).               We

explained that the statute placed “the primary obligation to

provide minimum coverage for the owned vehicle” on “the owner of

[the] vehicle,” which was Alamo.         Id.   For Alamo to escape

liability, this court stated, the escape clause would have to be

construed as “providing no vehicle liability coverage” because

the basis of minimum coverage would be the State Farm policy’s

excess coverage provision.      Id. at 277-78, 965 P.2d at 1277-78.

Because the statute mandated that “[t]he owner of the automobile

[was] responsible for providing coverage,” the Bowers court held

that the escape clause violated public policy by “contractually

shifting responsibility [for providing liability coverage] to

the [renter]’s insurance company.”         Id. at 279, 965 P.2d at

1279.

          For more than 175 years, Hawaii law has held livestock

owners liable under specified circumstances for the damages

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caused by their trespassing livestock, with the law in Hawaii

providing greater statutory protections to cultivated land as

time passed.    See supra Part IV.A.2.      These protections were

broadened in 1975 when the legislature “modif[ied]” the

liability imposed by HRS Chapter 142 to “[r]equire the livestock

owner to bear the full cost of damages or loss to the land

owner” or “any person in possession of the land,” which was

“more in line with present conditions.”         S. Stand. Comm. Rep.

No. 823, at 1143.    This established history of imposing

liability on the livestock owners for their trespassing animals

and providing greater statutory protections to cultivated land

demonstrates a public policy in HRS Chapter 142 for holding

livestock owners responsible for damages caused by their

livestock.

          Here, the exculpatory provision in Yin’s lease stated

that he was “fully responsible” for “keeping cattle[] out of

[his] crops.”   On its face, this provision broadly exculpates

the Aguiars from all damage to Yin’s land that resulted from

their trespassing cattle.      Even if Yin’s property was

“unfenced,” this clause would exculpate the Aguiars.            The same

would be true if Yin’s property was “properly fenced.”            Similar

to the escape clause in Bowers, the exculpatory clause in Yin’s

lease has the effect of exculpating a party from liability that

is statutorily bound to pay damages.        This directly contradicts

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HRS §§ 142-63 and 142-64, which, as explained, provide that

livestock owners are liable for the damage caused by their

trespassing animals onto cultivated land regardless of whether a

property is “properly fenced” or “unfenced.”           Not only is this

liability codified in Hawaii’s statutes, but it is also a basic

principle of common law.37      Because the exculpatory clause is

violative of Hawaii’s statutory law, it violates public policy.

Fujimoto, 95 Hawaii at 156, 158, 19 P.3d at 739, 741 (holding

that “the statute must take precedence over the terms of the

contract” where an exculpatory clause was in direct conflict

with a statute).     Thus, the clause is unenforceable and does not

exculpate the Aguiars from liability arising from the damage to

Yin’s sweet potatoes caused by their cattle.           The circuit court

accordingly erred in concluding that the exculpatory lease

provision did not violate public policy, and the ICA also erred




     37
            Under both the English and American common law, the owner of
cattle or livestock was liable for the damage done by trespassing animals.
See Studwell v. Ritch, 14 Conn. 292, 292 (1841) (stating that under English
common law it was “the duty of the owner of cattle to restrain them” and the
owner was “generally liable in damages” for trespass upon the land of another
person); 7 Stuart M. Speiser et al., Am. Law of Torts § 21:33 (2018)
(“Generally, a possessor of livestock . . . is strictly liable for damages
resulting from the animal’s trespasses.”); 4 Barry A. Lindahl, Modern Tort
Law: Liability and Litigation § 36:14 (2d ed. 2018) (“Liability for damage
caused by trespassing animals is absolute.”). Pursuant to HRS § 1-1 (2009),
“The common law of England, as ascertained by English and American decisions,
is declared to be the common law of the State of Hawaii . . ., except as
otherwise expressly provided by” federal or State law.


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in concluding that it was Yin’s duty to “keep the cows off his

property.”38

                               V. CONCLUSION

           Based on the foregoing, we vacate the ICA’s Judgment

on Appeal and the circuit court’s March 27, 2015 Order Granting

Defendants Virginio Aguiar, Kevin Aguiar, and Agee, Inc.’s

Motion for Summary Judgment As to All Claims Filed December 24,

2014 and its July 1, 2015 Judgment in Favor of Defendants

Virginio Aguiar, Kevin Aguiar and Agee, Inc. and Against

Plaintiff Jijun Yin.39      This case is remanded to the circuit

court for proceedings consistent with this opinion.


Gary C. Zamber                            /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Sidney K. Ayabe
Gary S. Miyamoto                          /s/ Sabrina S. McKenna
for respondents
                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




     38
            As noted, infra note 13, the ICA held that the Aguiars met their
burden of producing evidence that they were intended beneficiaries of the
lease. We need not address this aspect of the ICA’s ruling as the
exculpatory provision violated public policy, regardless of whether the
Aguiars were its intended beneficiaries.
     39
            Based on our disposition herein, the circuit court’s June 9, 2015
Order Granting in Part and Denying in Part Defendants Virginio Aguiar, Jr.,
Kevin Aguiar, and Agee, Inc.’s Motion for an Award of Attorneys’ Fees and the
Taxation of Costs Filed March 27, 2015, is also vacated as the Aguiars’
status as a prevailing party under HAR Rule 25 relies upon the circuit
court’s grant of summary judgment.



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