Real Estate & Property Law

Final Brief In Torrens Title And Public Trust Appeal

By Robert Thomas (inversecondemnation.com)

The State of Hawaii has filed a brief responding to the amicus brief we filed in June in In re Trustees Under the Will of the Estate of James Campbell, No. 30006, an appeal now under review by the Hawaii Intermediate Court of Appeals. The issues in the case include the nature of "Torrens" title and the scope of the "public trust" in water resources.

Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it "Land Court," a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register. In Campbell, the State of Hawaii claims that title to property on Oahu's north shore which was registered and confirmed to the Campbell Estate by the Land Court in 1938, is subject to the State's ownership of "all mineral and metallic mines of every kind or description on the property, including geothermal rights," and is subject to a flowage easement in favor of the State by virtue of the State's duties as trustee of the public trust in water resources.

The case arose when the Campbell Estate submitted a petition to the Land Court in 2009 to consolidate and subdivide its land, and the State appeared and asserted its claims. The State argued that despite the 1938 Land Court registration of the land, Campbell's title never included mineral and mining rights the State reserved to itself, even though the State's predecessor (the Territory of Hawaii) appeared in the 1938 proceedings and asserted other claims, and Campbell's title was confirmed to be free of all unregistered interests, including the Territory's. The Land Court disagreed, and held that the State's claim of mineral rights was extinguished by the court's 1938 judgment (decree), and that Campbell's title was free of a flowage easement. The State appealed to the Intermediate Court of Appeals. 

The other briefs in the case (ours included) are here:

• State of Hawaii's opening brief

• Campell Estate's answering brief

• Pacific Legal Foundation's amicus brief

• State of Hawaii's brief replying to PLF amicus

The ICA has not set a date for oral argument or a decision.

Full post as published by inversecondemnation on July 07, 2010 (boomark / email).