Insert disclaimer here. I am not a lawyer nor am I giving legal advice. This post, as is the case for all my posts, is my personal opinion and does not necessarily reflect the official position of my employer or anyone else. YMMV.
Many believe that to own property, and to be secure on said property, is basic to our way of life. But there is a difference between private property and public property. The latter is intended for the use of all, not just one land owner. But sometimes, the dividing line between abutting properties is in dispute.
For example, Hawaii shorelines are public property. Hence, all citizens may stroll the beachs and swim in the ocean beyond. But where does the shoreline end and private property begin?
Under Hawaii Revised Statutes 205A-1(2001) Definitions, shoreline "means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves."
Over the years, land owners began to plant and artificially irrigate vegetation along the shoreline. In some cases, it appeared the plants were cultivated with the intent of extending the private owners claim to additional property. In other words, the private owners were trying to expand their property by taking what was public property. But regardless of the intent, the plants spread and thus, according to the understanding of some, changed the shoreline property lines.
This interpretation seemed to have been adopted by some land surveyors who would choose between the edge of vegetation or upper limit of debris left by the wash of waves based on which was more "stable." In time, the vegetation line, rather than the wash of the waves, became the de facto standard for many.
As a practical matter, stability is usually a good thing. But in this case, the statute appears silent as to requiring stability. In fact, an alternative interpretation of the statute could be that stability was not the most important factor to consider. Rather, the statute seems to embody an intent to keep public lands as expansive as possible, even if it may vary from time to time due to variables such as wave action.
Secondly, and perhaps more importantly, the statute refers to the "upper reaches of the wash of the waves" as the defining criteria. Although it goes on to give guidance as to two ways to help determine the line, the plain meaning of the words and therefore the controlling factor still appears to be the upper wash of the waves.
On Tuesday, the Hawaii Supreme Court ruled on a just such a dispute over where the shoreline ends and private property begins. In general, the court finds that the legislature's intent and "public policy...favors extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible." Hence, in choosing between the vegetation line or the debris line, the one that favors as much shoreline as is reasonably possible is the deciding issue, not which is more stable. In addition, the court specifically rejected "attempts by landowners to evade this policy by artificial extensions of the vegetation lines on their properties."
Aloha!
