   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              27-JUN-2018
                                                              07:57 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                        DANIEL IBBETSON,
        Respondent/Plaintiff/Counter-Defendant/Appellee,

                                    vs.

                           DEAN KAIAWE,
         Petitioner/Defendant/Counterclaimant/Third-Party
                       Plaintiff/Appellant,

                                    vs.

  HAWAII CONFERENCE FOUNDATION, a Hawaii nonprofit corporation,
  and DEPARTMENT OF PUBLIC WORKS, COUNTY OF HAWAII, a municipal
   corporation, Respondents/Third-Party Defendants/Appellees.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-XX-XXXXXXX; CIV. NO. 06-1-015K)

                              JUNE 27, 2018

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

                OPINION OF THE COURT BY NAKAYAMA, J.

          In 2003, Respondent/Plaintiff/Counter-Defendant/

Appellee Daniel Ibbetson (Ibbetson) purchased a 0.722-acre parcel
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


of land from Respondent/Third-Party Defendant/Appellee Hawaii

Conference Foundation (HCF).       Two grave sites were located on the

property.    Over the next few years, Ibbetson built a single-

family residence on the property and began operating a bed and

breakfast out of the residence.

            In 2006, Ibbetson filed a complaint against

Petitioner/Defendant/Counterclaimant/Third-Party Plaintiff/

Appellant Dean Kaiawe (Kaiawe) alleging that Kaiawe trespassed

upon his property and destroyed his plants and landscaping.             He

sought, inter alia, a preliminary injunction to preclude Kaiawe

from entering his property in the future.

            Kaiawe filed a counterclaim against Ibbetson, arguing

that Ibbetson’s property had been dedicated for exclusive use as

a cemetery, and that he had the right to enter upon the property

to visit his great-grandmother’s burial site.          Kaiawe requested a

declaratory judgment clarifying whether Ibbetson validly owned

the property, to what use the property could be put, and the

nature and extent of Kaiawe’s and Ibbetson’s rights and

responsibilities with respect to the property.          He also sought to

quiet title under Hawai#i Revised Statutes (HRS) Chapter 669.

            Ibbetson filed a motion for summary judgment as to all

counts in Kaiawe’s counterclaim.         The Circuit Court of the Third

Circuit (circuit court) granted Ibbetson’s motion for summary


                                     2
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


judgment.   The Intermediate Court of Appeals (ICA) affirmed.

            On certiorari, we are presented with two questions for

review:   (1) whether the ICA erred in holding that the circuit

court correctly granted summary judgment in favor of Ibbetson on

Kaiawe’s claims that the Property had been dedicated for

exclusive use as a cemetery pursuant to common law and/or

statute; and (2) whether the ICA erred in holding that Kaiawe was

not entitled to relief under HRS Chapter 669.

            For the reasons stated below, we hold that the ICA did

not err in affirming the circuit court’s ruling granting summary

judgment in favor of Ibbetson with respect to Kaiawe’s statutory

dedication claim, and that the ICA correctly held that Kaiawe was

not entitled to relief under HRS Chapter 669.          However, we

conclude that the ICA erred in determining that the circuit court

properly granted summary judgment in favor of Ibbetson on

Kaiawe’s common law dedication claim.

            Accordingly, we affirm in part and vacate in part the

ICA’s November 30, 2017 judgment on appeal, which affirmed the

circuit court’s November 13, 2014 amended final judgment, and

remand the case to the circuit court for further proceedings

consistent with this opinion.

                             I.   BACKGROUND

            This case concerns a 0.722-acre parcel of land in the


                                     3
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


South Kona district on the island of Hawai#i (the Property).

Surveys conducted of the Property refer to it as the “Hoikeana

Cemetery.”    From the early 1900s to the 1950s, a church known as

the Hoikeana Church was located next to the Property.

            Currently, there are two grave sites located on the

Property, Grave Site A and Grave Site B.          Both grave sites are

separately enclosed by stone walls.         Grave Site A, located on the

northeastern side of the Property, encompasses an area of 4,788

square feet and contains identified burial plots.            Grave Site B,

located across from Grave Site A on the northwestern side of the

Property, encompasses an area of 2,316 square feet and contains

unidentified graves.

            The Property’s recorded chain of title began on

February 2, 1915, when Mikala Kaiawe (Mikala), in consideration

of $1, conveyed the Property to the Board of the Hawaiian

Evangelical Association (Association).          Mikala is Kaiawe’s great-

grandmother.    The deed effecting this conveyance (1915 Deed)

contains the following metes and bounds description of the

Property:
                  Commencing at the Northeast corner of this piece
            on the old government trail, a little makai[ 1] of the
            present government road, adjoining Kaohe 4, and
            running thence along the line between Kaohe 4 and



      1
            In Hawaiian, “makai” means “ocean.” See Mary Kawena Pukui &
Samuel H. Elbert, Hawaiian Dictionary at 225 (2d ed. 1986). Thus, when used
directionally, “makai” means “towards the ocean.” See id.

                                      4
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


            Kaohe 5, 200 feet in a westwardly direction to a stake
            and stone pile; thence southwardly to a stake and
            stone pile 120 feet; thence eastwardly to a stake and
            stone pile 275 feet; and thence northwardly . . . to
            point of commencement, and containing about three-
            fourths of an acre, more or less, and being described
            in R.P. Number 2358 to Huakonou.

The 1915 Deed also contains the following habendum clause:2              “To

have and to hold the said premises, with the appurtenances, so

that it may be used as a cemetery, to the said Board of the

Hawaiian Evangelical Association, its successors and assigns,

forever.”

            In 1952, the Association changed its name to Hawaiian

Evangelical Association of Congregational-Christian Churches.

Then, in 1963, Hawaiian Evangelical Association of

Congregational-Christian Churches later changed its name to

Hawaii Conference of the United Church of Christ.

            On September 2, 1983, Hawaii Conference of the United

Church of Christ, in consideration of $10, conveyed the Property

to HCF by quitclaim deed (1983 Deed).         The 1983 Deed contained

the following habendum clause:        “TO HAVE AND TO HOLD the same,

together, with the improvements thereon and all rights,

easements, privileges and appurtenances thereunto belonging or

appertaining, unto the Grantee, its successors and assigns, for



       2
            A habendum clause is defined as: “The part of an instrument, such
as a deed or will, that defines the extent of the interest being granted and
any conditions affecting the grant.” Black’s Law Dictionary 825 (10th Ed.
2014).

                                      5
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


cemetery purposes only, forever.”        The 1983 Deed was recorded

with the State of Hawai#i Bureau of Conveyances on October 11,

1983.

          In February 2003, Ibbetson and HCF executed a Deposit

Receipt Offer and Acceptance (DROA).        According to the DROA, HCF

agreed to convey Ibbetson the Property in exchange for a payment

of $50,000.

          An addendum attached to the DROA reserved rights of

access to Grave Site A and Grave Site B in favor of HCF and those

with relatives buried on those grave sites.          Under the addendum,

HCF and relatives of individuals buried in Grave Site A and Grave

Site B had a right to access the Property to visit, maintain, and

care for grave sites.     However, the addendum limited visits to

Grave Site A to daylight hours, and required individuals seeking

to visit Grave Site B to notify Ibbetson in advance of their

intent to visit, coordinate with Ibbetson on visitation

logistics, and provide verification of their relationship to the

person buried on Grave Site B.       Further, the addendum limited the

extent to which subsequent internments could take place on the

grave sites, and limited Ibbetson’s responsibilities and

liabilities regarding the maintenance and care of the grave

sites, as well as the access ways leading to and from the grave

sites.


                                     6
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


          On March 17, 2003, HCF executed a limited warranty deed

conveying the Property to Ibbetson (2003 Deed).           The 2003 Deed

included the limitations and conditions set forth in the addendum

attached to the DROA.     Moreover, an exhibit attached to the 2003

Deed stated that the Property was subject to, inter alia:

“Restrictions imposed by law regarding the sale and disposition

of said land or a place within any mausoleum or columbarium

erected thereon resulting from the use or dedication of said land

for cemetery purposes.”     The 2003 Deed was recorded with the

State of Hawai#i Board of Conveyances on March 21, 2003.

          After obtaining the requisite permits from the County

of Hawai#i Department of Public Works-Building Division, Ibbetson

constructed a three-bedroom, three-bathroom single-family

residence with an accompanying in-ground swimming pool on the

Property sometime between 2003 and 2005.

          On July 15, 2005, Ibbetson applied for a Special Permit

from the County of Hawai#i Planning Commission (Planning

Commission) to operate a two-unit bed and breakfast establishment

out of the aforementioned single-family residence.           Kaiawe was

granted standing to intervene in a contested case hearing

regarding Ibbetson’s Special Permit application.           In his written

testimony, Kaiawe averred that his great-grandmother, Mikala, was

buried in Grave Site B, and that as a relative of a person buried


                                     7
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


on the Property, he objected to Ibbetson’s construction of a

residence and operation of a bed and breakfast facility on the

Property because he believed that the Property could only be used

as a cemetery.       Following a two-day contested case hearing, the

Planning Commission approved Ibbetson’s application for a Special

Permit, subject to certain conditions.3

A.    Circuit Court Proceedings

              On January 26, 2006, Ibbetson filed a complaint against

Kaiawe in circuit court.4        Ibbetson’s complaint alleged that,

without his permission, Kaiawe entered the Property with three

other persons and damaged and removed bushes, hedges, and other

landscape materials he had planted on Grave Site B.              Ibbetson

claimed that when he asked Kaiawe to stop damaging the

landscaping and to leave the premises, Kaiawe “responded by

yelling that it didn’t make any difference because [Ibbetson’s]

house was going to be gone soon and that the land was his land

and his family’s land[.]”         Ibbetson stated that Kaiawe and the

others left about an hour later and threatened to return.

              Based on the allegations in his complaint, Ibbetson


      3
              For example, the Planning Commission’s decision required that
Ibbetson   preserve the existing cemeteries located on the Property, and
mandated   that Ibbetson “maintain the perpetual non-exclusive easement and
right of   entry over and for the visitation, maintenance, and care of the
existing   graves located within Grave Site ‘A’ and Grave Site ‘B’ identified as
Easement   ‘1’ within [his] deed to the Property.”

      4
              The Honorable Elizabeth E. Strance presided.

                                        8
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


requested a preliminary injunction enjoining Kaiawe and anyone

associated with him “from coming to the subject property, except

in accordance with the terms of the Limited Warranty Deed.”             He

also requested a temporary restraining order prohibiting Kaiawe

and his associates from entering the Property and/or destroying

his personal property thereon until a decision was rendered on

his request for a preliminary injunction, and sought money

damages for the damages that he sustained as a result of Kaiawe’s

trespass on the Property.

            In his answer to Ibbetson’s complaint, Kaiawe admitted

that he entered the Property, that he visited Grave Site A and

Grave Site B, and that “he and others cut Christmas Berry trees

growing within Grave Site B.”       He denied all of the other

allegations.

            Kaiawe’s answer also raised several affirmative

defenses.    He argued that Ibbetson lacked standing to bring suit

against him, alleging that Ibbetson did not own the Property, as

HCF did not have the authority to sell the Property to Ibbetson.

Further, he alleged that the Property was “subject to limitation

and restriction that it be used for cemetery purposes and for no

other uses,” and that he, as a descendant of a person buried on

the Property, had an unrestricted right to access the Property in

order to visit and maintain his relative’s grave sites.


                                     9
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


          Kaiawe also filed a counterclaim against Ibbetson.

His allegations in his counterclaim were the same as the

allegations in his answer to Ibbetson’s complaint.           Based upon

these allegations, Kaiawe argued that “[a] real and actual

controversy exists between [Ibbetson] and [Kaiawe] as to the

ownership and use of [the Property].”        Thus, Kaiawe requested “a

declaration of the parties’ respective rights and obligations

under [HRS] Chapter 632 . . . as to the ownership and use of [the

Property].”   And, “to the extent that title to [the Property]

must be determined,” Kaiawe sought a “determination of the

parties’ rights and interest in [the Property]” under HRS Chapter

669.

          On October 27, 2006, Kaiawe filed a third-party

complaint against HCF.     Kaiawe alleged that as a result of

Ibbetson’s lawsuit against Kaiawe, bona fide controversies

existed as to:    (1) HCF’s authority to convey the Property to

Ibbetson via the 2003 Deed; (2) the present ownership of the

Property; (3) the uses to which the Property could be put; and

(4) Kaiawe’s, Ibbetson’s, and HCF’s rights and obligations with

respect to the Property.      Therefore, Kaiawe sought a declaratory

judgment resolving these issues.

          On November 25, 2009, Ibbetson filed a motion for

summary judgment as to all counts in Kaiawe’s counterclaim.


                                    10
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Ibbetson raised two arguments in support of his motion for

summary judgment.    First, Ibbetson asserted that Kaiawe lacked

standing to enforce the 1983 Deed, which contained the language

that, according to Kaiawe, established that the Property could

only be used for cemetery purposes.        Second, he stated that “the

only basis for [Kaiawe’s] claim of title . . . under [HRS]

Chapter 669 would be that [the Property] is no longer being used

as a cemetery and therefore, it should revert to the heirs of

Mikala Kaiawe, of whom Defendant Kaiawe is one.”           Relying upon

Midkiff v. Castle & Cooke, Inc., 45 Haw. 409, 368 P.2d 887

(1962), Ibbetson argued that the habendum clause in the 1915 Deed

“can be construed at most as a covenant or a mere statement on

the part of Mikala Kaiawe” because “[t]he language used does not

indicate an intent to qualify or limit the estate granted by the

deed.”    Thus, Ibbetson asserted that inasmuch as Kaiawe lacked

standing to enforce the 1983 Deed, and the habendum clause in the

1915 Deed did not restrict the Property’s use to cemetery

purposes, he was entitled to summary judgment on all counts of

Kaiawe’s counterclaim.

            On January 7, 2010, Kaiawe filed written objections to

Ibbetson’s motion for summary judgment.         Kaiawe countered that

the habendum clause in the 1915 Deed was not a general purpose

clause.    Rather, to Kaiawe, “Mikala’s language is more specific


                                    11
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


to the parcel’s actual use and is a limitation on title.”

Kaiawe contended that the 1983 Deed “confirms and ratifies the

original limitation in Mikala’s 1915 Deed and the Board of

Hawaiian Evangelical Association’s (as renamed) commitment to

that limitation.”        Thus, Kaiawe argued, by operation of the

habendum clause in the 1915 Deed, HCF could not sell the Property

to Ibbetson, and therefore, Ibbetson “took nothing under the 1983

Deed.”

               Kaiawe also argued that the Property was dedicated for

use as a cemetery under common law and by operation of HRS § 441-

17.5       Thus, Kaiawe asserted that because the Property had been

dedicated for exclusive use as a cemetery, Ibbetson was not

allowed to build a residence on the Property or operate a

commercial bed and breakfast facility out of said residence.                 He

maintained that as a descendant of an individual buried on the

Property, he had the right to enforce such restrictions on the

Property’s use.


       5
               HRS § 441-17 (1993) provides:

               All existing cemeteries or parts thereof which shall
               have been lawfully established, and for which a map or
               plat substantially similar to that required by section
               441-3 has been filed or recorded in the bureau of
               conveyances or in the office of the assistant
               registrar of the land court, shall be deemed to have
               been dedicated as of [July 1, 1967], to the same
               extent and with like effect as provided in this
               chapter.

(Brackets in original.)

                                        12
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


            One of the exhibits attached to Kaiawe’s objections was

an excerpt from the transcript of the hearing on Ibbetson’s

application for a Special Permit to operate a bed and breakfast

facility, at which Pastor Nancietta Ha#alilio (Pastor Ha#alilio)

testified.   Pastor Ha#alilio was affiliated with the Puka#ana

Congregational Church, a sister church to the Hoikeana Church

located across the highway from the Property.          In brief, she

testified that:    (1) she and her family maintained the cemeteries

on the Property from the 1950s through the 1980s, long after the

Hoikeana Church congregation had dissipated; (2) she and Kaiawe

had family members buried on the Property; (3) there were “quite

a few” other individuals besides her own family members and those

known to her buried in Grave Site A; (4) there was no “master

list” of who was buried on the Property; and (5) there was no

formal system according to which people were buried on the

Property.

            On January 11, 2010, Ibbetson filed a reply memorandum

in support of his motion for summary judgment.          Briefly stated,

Ibbetson argued:    (1) the Property was not statutorily dedicated

for exclusive use as a cemetery pursuant to HRS § 441-17; (2) the

Property was not dedicated for use by the public as a cemetery

under common law because “[t]he Hoikeana Cemetery was for members

of the Hoikeana Church and their families, not the general


                                    13
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


public”; and (3) the habendum clause in the 1915 Deed did not

clearly reflect Mikala’s intent that the Property should revert

back to her and her heirs if the Property was used for non-

cemetery purposes.6

            A hearing on Ibbetson’s motion for summary judgment was

held on January 15, 2010.       There, the circuit court orally

granted Ibbetson’s motion for summary judgment:
            The Court having considered [Ibbetson’s] motion for
            summary judgment as to all counts of the counterclaim
            filed February 10, 2006, the Court finds there is no
            genuine material issue of fact, and that [Ibbetson] is
            entitled to judgment as a matter of law.
                  The Court’s specifically finding that the [1915
            Deed] did not create a fee simple determinable[,] that
            [Kaiawe] does not have standing to enforce the [1983
            Deed], and that the cemetery was not a dedicated
            cemetery and, therefore, is not subject to the
            restrictions set forth in [HRS] Chapter 441.

            On April 14, 2010, the circuit court entered a written

order granting Ibbetson’s motion for summary judgment.               Therein,

the circuit court ruled that:
            The Court being satisfied that it has jurisdiction
            over all parties and of the subject matter of this
            case, and all of the files and records in this action,
            and good cause appearing therefore, hereby finds and
            concludes as a matter of law that: (1) Defendant
            Kaiawe has no standing to enforce the September 2,
            1983, Deed from the Hawaii Conference of the United
            Church of Christ to the Hawaii Conference Foundation;
            (2) that neither the February 2, 1915, deed from
            Mikala Kaiawe to the Hawaiian Evangelical Association
            or the September 2, 1983, Deed from the Hawaii
            Conference of the United Church of Christ to the


      6
            HCF also filed a statement of position on Ibbetson’s motion for
summary judgment on January 14, 2010. HCF echoed Ibbetson’s position that
Kaiawe lacked standing to enforce the 1983 Deed, and that the language in the
habendum clause of the 1915 Deed was “merely precatory and evidences only a
suggested permissible, not mandatory, use of [the Property].”

                                     14
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


            Hawaii Conference Foundation contain language limiting
            the conveyance in such a manner that the deeds could
            be construed as conveying anything other than a fee
            simple interest in the subject property to the
            Grantee(s); and (3) the property conveyed to Plaintiff
            Ibbetson by that Limited Warranty Deed dated March 17,
            2003, was never dedicated as a public cemetery.

            On September 19, 2012, Ibbetson, Kaiawe, and HCF filed

a stipulation for entry of final judgment.          In their stipulation,

the parties stated that the circuit court’s order granting

Ibbetson’s motion for summary judgment operated as the “law of

the case” and determined the other issues raised in the case.

Specifically, the parties stated that the circuit court’s order

resolved:    (1) the 2003 Deed’s legal effect; (2) the legal

ownership of the Property; (3) HCF’s legal authority to deliver

the 2003 Deed; and (4) the permitted uses to which the Property

may be put.

            Accordingly, the parties stipulated that with respect

to the complaint and counterclaim, judgment should be entered in

favor of Ibbetson.      The parties stipulated that Ibbetson should

be declared the owner of the Property, subject to the

restrictions, easements, limitations, and conditions described in

the 2003 Deed and subject to his bed and breakfast permit;

consequently, Ibbetson would allow Kaiawe to visit Grave Site B

in the manner provided in the 2003 Deed.          The parties also

stipulated that the third-party complaint against HCF would be

dismissed.

                                     15
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


          The circuit court entered its final judgment on

November 5, 2012.    The final judgment entered judgment in favor

of Ibbetson and against Kaiawe on the complaint and counterclaim.

Furthermore, the final judgment declared that Ibbetson was the

owner of the Property, subject to the restrictions, easements,

limitations, and conditions described in the 2003 Deed and

subject to the permit allowing him to operate a bed and breakfast

out of his residence, and that Kaiawe had the right to visit

Grave Site B in accordance with the terms set forth in the

parties’ stipulation.     Additionally, the final judgment entered

judgment in favor of HCF on the third-party complaint; the third-

party complaint was then dismissed.

          Kaiawe filed a notice of appeal on December 5, 2012.

However, on May 8, 2013, the ICA dismissed Kaiawe’s appeal for

lack of appellate jurisdiction based upon its determination that

the circuit court’s final judgment was not final and appealable.

          The circuit court entered an amended final judgment on

November 13, 2014.    The amended final judgment entered judgment

in favor of Ibbetson and against Kaiawe on all counts of the

complaint and counterclaim, and resolved the trespass claim in

the complaint by providing as follows:         “Kaiawe will not enter

the area described as Grave Site B except in compliance with the

restrictions, easements, limitations and conditions described in


                                    16
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


the [2003 Deed], nor will he deface or destroy any real or

personal property on the site at the time of the entry or

visitation.”     The amended final judgment also entered judgment in

favor of HCF on the third-party complaint; the third-party

complaint was then dismissed with prejudice.

B.    ICA Proceedings

            On appeal, Kaiawe asserted, inter alia,7 that the

circuit court erred in ruling that there was no genuine issue of

material fact as to whether the Property had been dedicated for

public use as a cemetery.        He raised two arguments in support of

his position that the record reflected that the Property had been

dedicated for use by the public as a cemetery.

            First, Kaiawe contended that the record supported that

the Property had been dedicated for public use as a cemetery



      7
             Kaiawe also contended that the circuit court “erred when it
concluded that the Defendant-Appellant Kaiawe lacked standing” to enforce the
1983 Deed. Kaiawe argued that the circuit court “misinterpreted the
significance of the 1983 Deed” to the extent that, in his view, the 1983 Deed
“reflected the Association’s confirmation (admission) of its past dedication
of [the Property] to a cemetery use, its desire to continue that use into the
future and its successor’s ([HCF]) covenant to do so.”
       The ICA observed that “Kaiawe does not assert, argue, or otherwise
support a claim that he has standing to enforce the alleged restrictions of
the 1983 Deed per se.” Rather, the ICA noted that Kaiawe “submitt[ed] that
the Circuit Court misinterpreted the significance of the 1983 Deed,” as he
“introduced the 1983 Deed as evidence of the prior dedication of the
[Property],” not as a means of divesting Ibbetson of title to the Property.
Thus, because it “ha[d] no basis to do otherwise,” the ICA held “that the
Circuit Court did not err in concluding that Kaiawe has no standing to enforce
the 1983 Deed.”
       On certiorari, Kaiawe does not challenge the ICA’s holding on this
point.    Ibbetson’s response does not raise the issue. Thus, we do not
address it. See Hawai#i Rules of Appellate Procedure (HRAP) Rule 40.1(d).

                                      17
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


under common law.    Relying upon Smith v. Wilder, 6 Haw. 228 (Haw.

Kingdom 1879), and Barker v. Hazel-Fain Oil Co., 219 S.W. 874

(Tex. Civ. App. 1920), Kaiawe argued that the habendum clause in

the 1915 Deed evinced Mikala’s intent to dedicate the Property

for public use as a cemetery, and that the public’s subsequent

use of the Property in that manner effected the common law

dedication.    Kaiawe asserted that the habendum clause in the

1983 Deed further illustrated Mikala’s intent to dedicate the

Property for use by the public as a cemetery, as the clause

reflected the Association’s understanding that the Property had

been dedicated to a cemetery use, and that it wanted its

successor to honor the dedication in the future.

          Second, Kaiawe argued that the record supported that

the Property had been dedicated to cemetery use by statute.             He

asserted that the requirements for statutory dedication under HRS

§ 441-17 were met in this case because the metes and bounds

description of the Property attached to the 1915 Deed was

“‘substantially similar’ to the survey map referred to in” HRS §§

441-17 and 441-3.    (Quoting HRS § 441-17.)       As a consequence of

being statutorily dedicated as a cemetery under HRS § 441-17,

Kaiawe reasoned that the Property must be used “‘exclusively’ for




                                    18
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


cemetery purposes” pursuant to HRS § 441-6.8

          Ibbetson countered that the record did not establish

“that there has been any common-law dedication for the public to

be buried on the Property.”      Citing Hill v. Towson Realty, 157

A.2d 796 (Md. 1960), Ibbetson contended that the habendum clause

in the 1915 Deed did not evince Mikala’s intent to dedicate the

Property for public use as a cemetery.         In particular, he

reasoned that while the clause stated that Mikala conveyed the

Property “so that it may be used as a cemetery,” the clause did

not clearly suggest that the Property was to be used by the

public as a cemetery.

          Moreover, Ibbetson appeared to argue that the metes and

bounds description attached to the 1915 Deed did not satisfy the

requirements set forth in HRS § 441-17 because the description

was not a “map or plat showing the sections, blocks, plots,

avenues, walks, or other subdivisions, with descriptive names,

initials, or numbers that uniquely identify each plot.”            (Citing

HRS §§ 441-17 and 441-3.)

     8
          HRS § 441-6 (1993) states:

          Upon the recording or filing of a map or plat and
          certificate of dedication pursuant to sections 441-2
          and 441-3, the dedication is complete with respect to
          all property or parts thereof which are described or
          depicted in or on both the certificate of dedication
          and map or plat for all purposes and thereafter the
          property shall be occupied and used exclusively for
          cemetery purposes.


                                    19
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           On October 31, 2017, the ICA issued a memorandum

opinion, in which a majority of the court affirmed the circuit

court’s amended final judgment.       Briefly stated, the ICA majority

held that:   (1) Kaiawe was not entitled to relief by way of a

quiet title action under HRS Chapter 669; (2) the circuit court

correctly granted summary judgment in favor of Ibbetson on

Kaiawe’s common law dedication claim; and (3) the circuit court

correctly granted summary judgment in favor of Ibbetson on

Kaiawe’s statutory dedication claim.

           The ICA majority first addressed whether the circuit

court erred in ruling against Kaiawe on his quiet title claim

under HRS Chapter 669.     The ICA majority observed that HRS § 669-

1(a), read alongside Hawai#i case law, established that a quiet

title plaintiff must prove that he or she has title to the

disputed land.    The ICA majority then noted that “Kaiawe has not

raised an adverse possession claim, and has not pled or provided

any evidence of superior title,” that the 1915 Deed did not

“contain any reservation of interest or right of reversion” in

favor of Kaiawe, and that “Ibbetson submitted evidence of

unbroken title from Mikala Kaiawe to the Association to HCF to

him.”   Based on the foregoing, the ICA majority held that the

circuit court did not err when it granted summary judgment in

favor of Ibbetson on Kaiawe’s quiet title claim.


                                    20
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


          Next, the ICA majority analyzed whether the circuit

court erred in granting summary judgment in favor of Ibbetson on

Kaiawe’s claim for declaratory relief, inasmuch as the circuit

court ruled that there was no genuine issue of material fact as

to whether the Property had been dedicated to use by the public

as a cemetery.

          The ICA majority rejected Kaiawe’s argument that the

record supported that the Property had been dedicated for public

use as a cemetery pursuant to common law for several reasons.

The ICA majority ruled that Smith “simply does not support the

proposition that the dedicated use of part of a parcel as a

cemetery or burial grounds evidences an implied dedication of the

entirety of the property for use only as a cemetery.”            The ICA

majority also reasoned that Barker did not support Kaiawe’s claim

because the habendum clause in the 1915 Deed did not “purport to

dedicate the land as a public cemetery,” and because “there is no

evidence that [the Property] was open for burials of the public

at large[.]”

          Applying this court’s decision in Midkiff to the facts

in this case, the ICA majority held that the habendum clauses in

the 1915 Deed and the 1983 Deed did not support that the Property

had been dedicated for public use as a cemetery.           The ICA

majority ruled that the habendum clauses in the 1915 Deed and


                                    21
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


1983 Deed were mere expressions of the anticipated use of the

Property, which did not indicate an intent “that less than a fee

simple estate was being transferred.”        Therefore, because Kaiawe

did not “provide authority for the proposition that a deed’s

expression of anticipated use should be otherwise viewed as

creating a common law servitude on the deeded property that is

inconsistent with the estate that was conveyed by the deed,” the

ICA majority held that the habendum clauses in the 1915 Deed and

1983 Deed did not evince that the Property had been dedicated for

exclusive use as a cemetery by the public.

          Furthermore, the ICA majority held that Pastor

Ha#alilio’s testimony did not create a genuine issue of material

fact as to whether the Property had been dedicated for public use

as a cemetery.    The ICA majority determined that although her

testimony confirmed that individuals were buried in both grave

sites, her statements did not “otherwise support Kaiawe’s claim

of public dedication.”

          Therefore, the ICA majority held that the circuit court

did not err in granting summary judgment against Kaiawe on his

common law dedication claim.

          The ICA majority also concluded that Kaiawe’s argument

premised upon statutory dedication was without merit.            The ICA

majority ruled that “[t]he metes and bounds description in the


                                    22
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


1915 Deed merely outlines the boundaries of the Property” and did

not meet the requirements delineated in HRS § 441-17.

Accordingly, the ICA majority held that the Property “was not

deemed dedicated as a cemetery pursuant to HRS § 441-17.”

          Judge Lisa M. Ginoza filed a separate concurring and

dissenting opinion.     While she agreed with the majority that

Kaiawe was not entitled to relief under HRS Chapter 669, and that

the circuit court correctly granted summary judgment in favor of

Ibbetson on Kaiawe’s statutory dedication claim, Judge Ginoza

dissented to the extent that she believed that there was a

genuine issue of material fact as to whether the Property had

been dedicated for public use as a cemetery under common law.

            Judge Ginoza acknowledged that the 1915 Deed and 1983

Deed did not contain express language suggesting that the

Property was to be used by the public as a cemetery.            However,

she also observed neither deed restricted the cemetery to the

exclusive use of church members, and that “Mikala’s intent can be

implied from the public’s use of the cemetery.”           And, Judge

Ginoza highlighted that Pastor Ha#alilio’s testimony suggested

that “individuals beyond members of the church situated on or

next to the Property were buried in the cemetery.”           Judge Ginoza

posited that nothing in the record supported that “the cemetery

was intended and used only for members of the Hoikeana Church.”


                                    23
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Based on the foregoing, Judge Ginoza concluded:             “Viewing the

evidence in the record in a light most favorable to Kaiawe as the

non-movant, as is required under the summary judgment standard,

there is a genuine issue of material fact whether the cemetery

was intended and utilized as a public cemetery.”

            The judgment on appeal was entered on November 30,

2017.

                         II.   STANDARDS OF REVIEW

A.    Motion for Summary Judgment

            “On appeal, the grant or denial of summary judgment is

reviewed de novo.”      Nuuanu Valley Ass’n v. City & Cty. of

Honolulu, 119 Hawai#i 90, 96, 194 P.3d 531, 537 (2008).              It is

well-established that:
                  [S]ummary judgment is appropriate if the
            pleadings, depositions, answers to interrogatories,
            and admissions on file, together with the affidavits,
            if any, show that there is no genuine issue as to any
            material fact and that the moving party is entitled to
            judgment as a matter of law. A fact is material if
            proof of that fact would have the effect of
            establishing or refuting one of the essential elements
            of a cause of action or defense asserted by the
            parties. The evidence must be viewed in the light
            most favorable to the non-moving party. In other
            words, we must view all of the evidence and inferences
            drawn therefrom in the light most favorable to the
            party opposing the motion.

Id. (brackets in original) (quoting Kahale v. City & Cty. of

Honolulu, 104 Hawai#i 341, 344, 90 P.3d 233, 236 (2004)).              And,
            where the non-movant bears the burden of proof at
            trial, a movant may demonstrate that there is no
            genuine issue of material fact by either: (1)
            presenting evidence negating an element of the non-

                                      24
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


            movant’s claim, or (2) demonstrating that the non-
            movant will be unable to carry his or her burden of
            proof at trial.

Ralston v. Yim, 129 Hawai#i 46, 57, 292 P.3d 1276, 1287 (2013).

                              III.   DISCUSSION

            We construe Kaiawe’s application for writ of certiorari

to present two questions for review:          (1) whether the ICA erred

in holding that the circuit court correctly granted summary

judgment in favor of Ibbetson on Kaiawe’s claims that the

Property had been dedicated for exclusive cemetery use pursuant

to common law and/or statute; and (2) whether the ICA erred in

holding that Kaiawe was not entitled to relief pursuant to a

quiet title action under HRS Chapter 669.9

A.    Dedication

            “Dedication” is defined as “[t]he donation of land or

creation of an easement for public use.”           Black’s Law Dictionary

500 (10th ed. 2014).       It is well-settled that there are two

primary means by which land may be dedicated for public use:
            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. Common law dedication is accomplished
            either expressly, as by deed, or impliedly, as by acts



      9
            Kaiawe’s application for writ of certiorari does not comply with
the requirements of HRAP Rule 40.1(d) insofar as it is twenty-three pages
long. HRAP Rule 40.1(d) (providing that “[t]he application shall not exceed
12 pages”). Nonetheless, in light of this court’s long-standing policy of
affording litigants the opportunity to have their cases heard on the merits
where possible, we address the questions presented in Kaiawe’s application on
the merits. Marvin v. Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88, 94 (2012).

                                      25
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


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

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

421, 724 P.2d 118, 123 (1986) (citations omitted).

          Kaiawe maintains that the circuit court erred in

concluding that there was no genuine issue of material fact as to

whether the Property had been dedicated for public use as a

cemetery under common law and by operation of statute.             We

address each argument in turn.

     1.   Common Law Dedication

          “The common law has historically provided for the

dedication of private property for public use.”           Gold Coast

Neighborhood Ass’n v. State, 140 Hawai#i 437, 450, 403 P.3d 214,

227 (2017).   “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.’”    Id. (quoting Maui Ranch, 6 Haw. App. at 421,

724 P.2d at 123).

          In this case, Kaiawe does not seem to argue that the

Property was dedicated to public use expressly.           Rather, Kaiawe

appears to rely upon a theory of implied dedication.            With

respect to implied dedication, this court has explained:
                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


                                    26
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


          land for a long period may be held to have made an
          offer of implied dedication. The rationale behind
          this theory is that the owner is estopped to deny
          permanent public access where he has admitted the
          public to use the land over a long time. There must
          be an offer and acceptance of dedication. When there
          is no express offer, the offer may be implied under
          the circumstances and 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.

In re Banning, 73 Haw. 297, 304-05, 832 P.2d 724, 728-29 (1992)

(internal quotation marks and citations omitted).

          Furthermore, it is generally recognized that land can

be impliedly dedicated for public use as a cemetery:
          Land may be dedicated to the public for cemetery
          purposes. In the absence of a statute, no particular
          form or ceremony is required to accomplish such a
          dedication. The intention of the owner of the land to
          dedicate it for a public cemetery, together with the
          acceptance and use of the same by the public, or the
          consent and acquiescence of the owner in the long-
          continued use of his or her lands for such purpose,
          are sufficient. . . . While acceptance by the public
          is necessary to complete the dedication, such
          acceptance may be implied from acts and from the use
          of the land[.]

14 Am. Jur. 2d Cemeteries § 17 (2018) (footnotes omitted).

          Kaiawe seems to argue that the ICA gravely erred in

concluding that the circuit court correctly granted summary

judgment in favor of Ibbetson on his common law dedication claim

for two reasons.    First, Kaiawe appears to argue that the ICA

misapplied Midkiff to the facts in this case, and therefore

erroneously concluded that the habendum clauses in the 1915 Deed

and 1983 Deed could not, by any means, constitute evidence of

                                    27
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Mikala’s intent to dedicate the Property for public use as a

cemetery.    Second, Kaiawe appears to argue that the evidence in

the record indicates that there is a genuine issue of material

fact as to whether the Property was used by the public as a

cemetery for a prolonged period of time.         We conclude that both

of his arguments are meritorious.

            a.   Midkiff is distinguishable and inapposite.

            Relying on Midkiff, the ICA majority held that the

habendum clauses in the 1915 Deed and 1983 Deed could not

constitute evidence of Mikala’s intent to dedicate the Property

for public use as a cemetery.       However, the facts in Midkiff are

distinguishable from those in the present case.           Therefore, we

hold that Midkiff does not apply and the ICA majority’s analysis

is flawed insofar as it is premised thereon.

            In Midkiff, the plaintiffs conveyed a parcel of land to

Oahu Railway and Land Company (OR&L) by a deed executed in 1899.

45 Haw. at 410, 368 P.2d at 889.         The deed contained a habendum

clause, which stated:     “To have and to hold . . . unto the said

party of the second part its heirs successors and assigns forever

for railway purposes.”     Id. at 411, 368 P.2d at 889.         OR&L used

the parcel for railway purposes until sometime in 1947.            Id.      The

defendant was the successor in interest to OR&L’s interest with

respect to the parcel of land.       Id. at 410, 368 P.2d at 889.


                                    28
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           Upon learning that OR&L ceased using the parcel for

railway purposes, the plaintiffs filed a complaint, arguing that

by operation of the habendum clause in the deed, OR&L either

received “an easement for a railroad” or “an estate in fee simple

determinable . . . both of which terminated” when the parcel

“ceased to be used for railway purposes.”         Id. at 412, 368 P.2d

at 890.    Therefore, the plaintiffs requested, inter alia, “to be

declared the owners in fee simple” of the land.           Id.   The

defendants countered that the deed unambiguously reflected that

the grantors intended to convey an estate in fee simple absolute.

Id. at 413, 368 P.3d at 890.

           This court acknowledged that generally, habendum

clauses cannot, by themselves, “operate to qualify or limit the

estate granted by the deed, or, in other words, . . . operate to

reduce what would otherwise be an estate in fee simple to an

easement or an estate in fee simple determinable or other limited

estate.”   Id. at 415, 368 P.2d at 891.        The Midkiff court

further explained:
                 The principal reason given for this general rule
           is that the purpose clause is a mere expression or
           declaration or recital of the anticipated use by the
           grantee of the land and that such an expression or
           declaration or recital does not indicate an intent to
           qualify or limit the estate granted by the deed. In
           many of the decisions an additional reason for the
           rule is given that a grantor desiring to grant an
           easement or to convey a determinable fee or other
           limited estate can readily use appropriate language
           for that purpose.



                                    29
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Id. at 416, 368 P.2d at 891-92 (citations omitted).           Applying

this rule to the facts before it, this court concluded that the

habendum clause “did not operate to qualify or limit the estate

conveyed thereby and the OR&L obtained by the deed a fee simple

title” to the parcel of land.       Id. at 416, 368 P.2d at 892.

           Here, in contrast with Midkiff, Kaiawe does not argue

that the habendum clauses in the 1915 Deed or the 1983 Deed

operated to limit the nature of the estate conveyed in either

deed.   In other words, Kaiawe does not contend that, by operation

of either or both of these habendum clauses, the Association or

HCF owned an estate in fee simple determinable, rather than in

fee simple absolute.     Additionally, unlike the plaintiffs in

Midkiff, Kaiawe does not argue that because the Property is not

solely being used as a cemetery, the Property should revert back

to him as Mikala’s heir.      Rather, Kaiawe seeks to use the

habendum clauses in these deeds to serve a completely different

purpose:   as evidence of Mikala’s intent to dedicate the Property

for public use as a cemetery.

           Consequently, to the extent that Kaiawe seeks to use

the habendum clauses in a different context and to accomplish a

different purpose compared to the plaintiffs in Midkiff, Midkiff




                                    30
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


is distinguishable and inapposite.10        Thus, we hold that the ICA

erred in relying upon Midkiff to conclude that the habendum

clauses in the 1915 Deed and 1983 Deed could not, by any means,

evince Mikala’s intent to dedicate the Property for public use.

            Having determined that the 1915 Deed and 1983 Deed

could bear upon whether Mikala intended to dedicate the Property

for public use, we now review the record de novo to ascertain

whether the circuit court correctly granted summary judgment in

favor of Ibbetson on Kaiawe’s common law dedication claim.

            b.    The circuit court erred in granting summary
                  judgment in favor of Ibbetson on Kaiawe’s common
                  law dedication claim.

            Ibbetson and Kaiawe dispute whether the following

evidence illustrates that there are genuine issues of material

fact as to whether Mikala intended to dedicate the Property to

public use as a cemetery, and whether the public accepted the

Property for such use:      (1) the habendum clauses in the 1915 Deed

and the 1983 Deed; and (2) Pastor Ha#alilio’s testimony about the



      10
            Assuming arguendo that the Property has been dedicated for public
use, the effect of such dedication does not accomplish that which Midkiff
prohibits (i.e., an effective reduction of the estate from a fee simple
absolute to a fee simple determinable by operation of a habendum clause). See
Gold Coast, 140 Hawai#i at 450, 403 P.3d at 227 (“A common law dedication does
not operate as a grant but as an equitable estoppel[.]” (quoting 23 Am. Jur.
2d Dedication § 54 (2013)). In fact, Ibbetson concedes this point in his
response to Kaiawe’s application when he states: “A hypothetical public right
to use a property as a cemetery, because of an implied dedication, could
arguably be considered a restriction in use by the legal owner to the extent
that the owner’s uses conflict with the public’s, but that does not create a
legal title right in favor of [Kaiawe].”

                                     31
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Property’s use as a cemetery.

            In our view, the habendum clauses in the 1915 Deed and

1983 Deed are ambiguous at most, and do not clearly evince

whether Mikala intended to dedicate the Property as a public or

private cemetery.    However, we believe that Pastor Ha#alilio’s

testimony, viewed in the light most favorable to Kaiawe, suggests

that the Property may have been used by the public as a cemetery

for several decades.     Accordingly, we hold that the ICA erred in

concluding that Ibbetson was entitled to summary judgment on

Kaiawe’s common law dedication claim.

            The habendum clause in the 1915 Deed reads as follows:

“To have and to hold the said premises, with the appurtenances,

so that it may be used as a cemetery, to the said Board of the

Hawaiian Evangelical Association, it successors and assigns,

forever.”   (Emphasis added.)      Similarly, the habendum clause in

the 1983 Deed states:     “TO HAVE AND TO HOLD the same, together

with the improvements thereon and all rights, easements,

privileges and appurtenances thereunto belonging or appertaining,

unto the Grantee, its successors and assigns, for cemetery

purposes only, forever.”      (Emphasis added.)

            In our view, these habendum clauses do not suggest one

way or the other whether Mikala intended for the Property to be

used by the public as a cemetery, or intended to restrict the


                                    32
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Property’s use to only certain individuals, such as members of

the Hoikeana Church congregation.        The habendum clause in the

1915 Deed does not explicitly state that the Property was to be

used by the public as a cemetery.        Cf. Barker, 219 S.W. at 875-76

(concluding that a piece of property had been dedicated for

public use where the habendum clause provided that a property was

being conveyed “for the use and benefit of said church, as a

public cemetery,” and the public actually used the property as

such).   By the same token, however, the habendum clause in the

1915 Deed also does not contain any restrictive language

indicating that the cemetery was to be available for use only by

certain persons, as opposed to the general public, or that only

individuals who were members of the Hoikeana Church could be

buried on the Property.     Similarly, the habendum clause in the

1983 Deed neither specifies that the Property must be available

for public use as a cemetery, nor restricts the Property’s use

for the burials of only certain individuals.          Accordingly, these

habendum clauses are ambiguous at most as to whether Mikala

intended to dedicate the Property for public use, and do not

support one way or the other whether Ibbetson was entitled to

summary judgment on Kaiawe’s common law dedication claim.

           By contrast, Pastor Ha#alilio’s testimony, when viewed

in the light most favorable to Kaiawe as the non-moving party,


                                    33
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


indicates that there is a genuine issue of material fact as to

whether the Property was used by the public as a cemetery over

the course of several decades.       Because “the duration and type of

public use [of a property] 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,” In re Banning, 73 Haw.

at 305, 832 P.2d at 729, Pastor Ha#alilio’s testimony illustrates

that a genuine issue of material fact exists as to whether the

Property was dedicated for public use as a cemetery.

          Pastor Ha#alilio testified that she and her family

continued to maintain the cemeteries on the Property from the

1950s through the 1980s, long after the congregation at the

Hoikeana Church had dissipated.       She also testified that, as far

as she knew, she had family members buried in Grave Site A, and

Kaiawe’s relatives were buried in Grave Site B.

          Pastor Ha#alilio further testified that there were

“quite a few” other individuals buried in Grave Site A besides

her own family members and “those known to [her].”           Upon being

asked whether she had been in contact with the descendants of the

non-relative individuals who were buried upon the Property,

Pastor Ha#alilio responded:
          Okay, I need to have you understand that there was
          never such thing as a master list back then. When
          people died they were buried in the back yard or the
          front yard or wherever. And it just so happened that


                                    34
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


          this church that’s across of the highway did have this
          piece of property graciously given over to the church
          for burial purposes. There was no master list as to
          who was really buried there. It’s just by knowledge
          passed down from generation to generation that so and
          so is over here and so and so is over there. And
          that’s how it is with my in-laws, my immediate family.
          But there’s also family members that have been taking
          care of their portions, their family portions, that’s
          not here in Kona. Some are from Kau and Dean Kaiawe’s
          ohana were all scattered all over but as often as we
          are able we try to maintain those particular plots.
          But it’s not necessary that because my family is
          buried in [Grave Site] A that I would know who’s
          buried in [Grave Site] B. Many of those plots were
          not marked or identified by name.

(Emphases added.)    She further testified that descendants of

individuals who were unrelated to her visited the Property in

order to maintain their ancestors’ grave sites throughout the

years, though she was not completely aware of who all these

individuals were.

          The foregoing excerpts of Pastor Ha#alilio’s testimony

support that:   (1) in addition to her relatives and Kaiawe’s

ancestors, numerous other individuals were buried upon the

Property; (2) there was no formal system according to which

individuals were buried upon the Property, and no concrete record

of who was buried where; (3) the descendants of the individuals

who are currently buried upon the Property are now spread across

the island of Hawai#i and other islands; and (4) these

descendants, along with members of the Puka#ana Congregational

Church, continued to return to the Property to maintain their

ancestors’ grave sites throughout the years.          Viewed in the light

                                    35
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


most favorable to Kaiawe, these facts support the inference that

members of the public who lived in the community near the

Property, not just those who were affiliated with the Hoikeana

Church, may have been buried on the Property.

          Ibbetson maintains that the Property “had been used as

a private cemetery . . . for the benefit of certain families

affiliated with the no-longer existing Hoikeana Church.”            In

support of this position, Ibbetson cites to Pastor Ha#alilio’s

statement that “the cemetery is not a public cemetery.”            He also

emphasizes that Pastor Ha#alilio stated that the Property was

“given over to the church for burial purposes.”           To Ibbetson,

these facts definitively show that the Property was not used by

the public as a cemetery.

          We disagree for two reasons.         First, Pastor Ha#alilio

did not suggest that the Property was not used by the public when

she stated that the Property was “not a public cemetery,” as

Ibbetson suggests.    Her statement, in context, is as follows:
          [M]any of [my family members] are not aware that the
          cemetery is not a public cemetery, it sits on a
          private parcel that has been sold and is resided upon.
          So when they did come over [to maintain the grave
          sites] they were a little bit awkward, the situations
          that resolved as soon as I was able to, as far as the
          maintenance and use and access to the cemetery.

(Emphasis added.)    In other words, when she said that the

Property was “not a public cemetery,” Pastor Ha#alilio was not

commenting on whether only certain individuals could be buried

                                    36
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


there.   Rather, she simply noted that Grave Site A was located on

privately-owned property.      Therefore, Ibbetson’s argument fails

to the extent that he misconstrues the record.

          Second, although Pastor Ha#alilio testified that the

Property was “graciously given over to the church for burial

purposes,” this statement only bears upon who owned the Property

at the time of its initial conveyance.         This statement does not

shed light upon whether members of the public had buried their

relatives on the Property, or whether only those who were

affiliated with the Hoikeana Church were allowed to use the

Property for burial purposes.       Thus, Ibbetson’s argument in

reliance on this portion of the record is meritless.

          To conclude, Pastor Ha#alilio’s testimony indicates

that there is a genuine issue of material fact as to whether the

Property was used by the public as a cemetery for a prolonged

period of time, and therefore, whether the Property was dedicated

for public use under common law.         See In re Banning, 73 Haw. at

304-05, 832 P.2d at 729-30.      Ibbetson’s arguments to the contrary

misconstrue the record.     Further, the record is devoid of other

evidence showing that the Property was exclusively used by

Hoikeana Church members, rather than the public.           Accordingly,

the circuit court erred in granting summary judgment in favor of

Ibbetson on Kaiawe’s common law dedication claim, and the ICA


                                    37
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


erred in affirming the circuit court’s ruling on this point.

       2.   Statutory Dedication

            “Statutory dedication occurs when the statutory

provisions are complied with.”        Maui Ranch, 6 Haw. App. at 421,

724 P.2d at 123.     HRS § 441-17 defines when pre-existing

cemeteries may be deemed dedicated for exclusive use as a

cemetery.    HRS § 441-17 (1993) states:
            All existing cemeteries or parts thereof which shall
            have been lawfully established, and for which a map or
            plat substantially similar to that required by section
            441-3 has been filed or recorded in the bureau of
            conveyances or in the office of the assistant
            registrar of the land court, shall be deemed to have
            been dedicated as of [July 1, 1967], to the same
            extent and with like effect as provided in this
            chapter.

(Brackets in original.)       Put differently, HRS § 441-17

establishes two requirements that must be met in order for a pre-

existing cemetery to be deemed statutorily dedicated for cemetery

use.    First, the cemetery must have been lawfully established.

HRS § 441-17.     Second, “a map or plat substantially similar to

that required by [HRS §] 441-3” must be filed or recorded with

the appropriate authorities.        HRS § 441-17.

            Based upon the statute’s plain language, HRS § 441-17

refers to HRS § 441-3 as a guidepost, which informs the second

requirement for statutory dedication of a pre-existing cemetery.

On this point, HRS § 441-3 (1993) provides in pertinent part:
            (a) The cemetery authority from time to time as any of


                                     38
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


            the property described in the certificate of
            dedication, or any part or section thereof, is offered
            for sale, transfer, or disposition in the form of
            plots, crypts, or niches, shall also:

                  (1) In the case of land, survey and subdivide
                  [the cemetery property] into sections, blocks,
                  plots, avenues, walks, or other subdivisions;
                  make a good and substantial map or plat showing
                  the sections, blocks, plots, avenues, walks, or
                  other subdivisions with descriptive names,
                  initials, or numbers[.]

(Emphasis added.)

            Thus, reading HRS § 441-17 alongside HRS § 441-3, it

appears that in order for a pre-existing cemetery to be deemed

statutorily dedicated for cemetery use under HRS § 441-17:               (1)

the cemetery must have been established lawfully; and (2) a map

or plat “substantially similar” to a “map or plat showing the

sections, blocks, plots, avenues, walks, or other subdivisions

with descriptive names, initials, or numbers” must be filed or

recorded with the appropriate authority.           HRS §§ 441-17 and 441-

3.   Here, the parties do not dispute that the cemeteries on the

Property were established lawfully, such that the first

requirement was met.       Their dispute lies in whether the record

supports that HRS § 441-17’s second requirement was met.

            Though Kaiawe appears to acknowledge that the metes and

bounds description from the 1915 Deed “only describes [the

Property’s] perimeter,” he maintains that the metes and bounds

description is “substantially similar” to the types of maps or

plats that are required under HRS § 441-3.           Thus, he appears to

                                      39
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


argue that because the metes and bounds description satisfies the

second requirement in HRS § 441-17, the circuit court erred in

granting summary judgment in favor of Ibbetson on his statutory

dedication claim.

          The 1915 Deed’s metes and bounds description states:
                Commencing at the Northeast corner of this piece
          on the old government trail, a little makai of the
          present government road, adjoining Kaohe 4, and
          running thence along the line between Kaohe 4 and
          Kaohe 5, 200 feet in a westwardly direction to a stake
          and stone pile; thence southwardly to a stake and
          stone pile 120 feet; thence eastwardly to a stake and
          stone pile 275 feet; and thence northwardly . . . to
          point of commencement, and containing about three-
          fourths of an acre, more or less, and being described
          in R.P. Number 2358 to Huakonou.

          The metes and bounds description does not satisfy the

second requirement for statutory dedication under HRS § 441-17

for two reasons.    First, the metes and bounds description itself

is neither a map nor a plat.       Second, the metes and bound

description merely outlines the Property’s outer perimeter.             The

metes and bounds description does not show or otherwise describe

“the sections, plots, avenues, walks, or other subdivisions with

descriptive names, initials, or numbers” within either of the

cemeteries located on the Property.        Thus, inasmuch as the metes

and bounds description is not a map or plat and only describes

the Property’s outer boundaries, the description is not, in our

view, a map or plat that is “substantially similar” to that which

is required under HRS § 441-3.       Furthermore, the record does not


                                    40
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



contain any other type of map or plat that would appear to

satisfy the second requirement of HRS § 441-17.             Therefore, we

conclude that, as a matter of law, Kaiawe has not established

that the second requirement in HRS § 441-17 was met in this case.

Accordingly, we agree with the ICA that the circuit court

correctly granted summary judgment in favor of Ibbetson on

Kaiawe’s statutory dedication claim.

B.    Entitlement to Relief Under HRS Chapter 669

            On his second question on certiorari, Kaiawe contends

that he is entitled to bring a quiet title action under HRS

Chapter 669.     Without citation to legal authority, Kaiawe argues

that the ICA erred in holding that HRS Chapter 669 “is limited to

deciding the legal ownership of land by ‘paper title’ or adverse

possession only[.]”       Rather, Kaiawe argues that he need not

demonstrate that he had competing title to the Property, and that

he could utilize HRS Chapter 669 to “establish[] a servitude on

land.”

            Kaiawe’s interpretation of HRS Chapter 669 is not

supported by legal authority.         HRS § 669-1(a) provides that an

individual can bring an action to quiet title when he or she has

a competing legally cognizable interest in a piece of property.

Specifically, HRS § 669-1(a) (1993) states:            “Action may be

brought by any person against another person who claims, or who

                                      41
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



may claim adversely to the plaintiff, an estate or interest in

real property, for the purpose of determining the adverse claim.”

This court has propounded clear principles as to a plaintiff’s

burden in pursuing a quiet title action:
                In an action to quiet title, the burden is on
          the plaintiff to prove title in and to the land in
          dispute, and, absent such proof, it is unnecessary for
          the defendant to make any showing. The plaintiff has
          the burden to prove either that he has paper title to
          the property or that he holds title by adverse
          possession. While it is not necessary for the
          plaintiff to have perfect title to establish a prima
          facie case, he must at least prove that he has a
          substantial interest in the property and that his
          title is superior to that of the defendants.

Maui Land & Pineapple Co. v. Infiesto, 76 Hawai#i 402, 407-08,

879 P.2d 507, 512-13 (1994) (citations omitted); Ka#upulehu Land

LLC v. Heirs and Assigns of Pahukula, 136 Hawai#i 123, 137-38,

358 P.3d 692, 706-07 (2015) (applying the principles articulated

in Maui Land & Pineapple Co. to a quiet title action brought

pursuant to HRS Chapter 669).       Put differently, Hawai#i case law

explicitly provides that a plaintiff seeking relief under HRS

Chapter 669 must demonstrate that he or she has title to the

land, either via paper title or adverse possession, and that he

or she has superior title compared to the defendant.            See id.

Kaiawe’s argument is inconsistent with these well-established

principles, and accordingly, is without merit.

          Applying the foregoing principles in this case, here,

Kaiawe does not contend that he has competing title to the

                                    42
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



Property by way of paper title, or by virtue of adverse

possession.   The record does not contain any evidence indicating

that Kaiawe had an interest in title to the Property superior to

Ibbetson’s title.    On the contrary, the evidence in the record

illustrates an unbroken chain of title, whereby Mikala conveyed

the Property to the Association, who conveyed the Property to

HCF, who transferred the Property to Ibbetson.          Thus, because

Kaiawe has not shown that he has title in the Property, and that

his title is superior to Ibbetson’s, the ICA correctly held that

Kaiawe was not entitled to relief under HRS Chapter 669.

                            IV.    CONCLUSION

          For the reasons stated above, the ICA correctly

affirmed the circuit court’s grant of summary judgment on

Kaiawe’s statutory dedication claim, and correctly determined

that Kaiawe was not entitled to relief under HRS Chapter 669.

However, the ICA erred in holding that the circuit court

correctly granted summary judgment in favor of Ibbetson on

Kaiawe’s common law dedication claim.

          Therefore, we affirm in part and vacate in part the

ICA’s November 30, 2017 judgment on appeal, which affirmed the

circuit court’s November 13, 2014 amended final judgment, and




                                    43
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



remand the case to the circuit court for further proceedings

consistent with this opinion.

Michael J. Matsukawa for              /s/ Mark E. Recktenwald
petitioner Dean Kaiawe
                                      /s/ Paula A. Nakayama
Derek R. Kobayashi and
Matthew A. Hemme for                  /s/ Sabrina S. McKenna
respondent Hawaii Conference
Foundation                            /s/ Richard W. Pollack

Dennis A. Krueger,                    /s/ Michael D. Wilson
Wayne Nasser and James K.
Mee for respondent Daniel
Ibbetson




                                    44
