Wednesday, August 22, 2012
Who Owns Land Created by a Volcanic Eruption?
During my just-completed trip to Hawaii, I spent some time in the wonderful Hawaii Volcanoes National Park. The volcanic eruptions in the park continue to add new land to Hawaii’s youngest and largest island. In fact, over 500 acres of new land have been added since 1983 alone.
This led me to wonder who owned this new land. It turns out that the US Geological Survey’s Hawaiian Volcano Observatory provided a helpful answer to this question a while back. The Hawaii Supreme Court, in the 1977 case State by Kobayashi v. Zimring, 566 P.2d 725, decided the issue. Granted this is not an issue of broad relevance, but I found their resolution of the question interesting.
In Zimring, the State of Hawaii sought to quiet title over 7.9 acres of new land added after a 1955 eruption extended the shoreline. This new land, which was termed a “lava extension,” was adjacent to land purchased by the Zimrings in 1960, after the eruption. The lava flowed over the purchased land and into the ocean, forming the new 7.9 acres of land. After purchasing the adjacent land the Zimrings entered onto the new land, bulldozing it and planting trees. The State even assessed the land and collected taxes from the Zimrings on it. Nonetheless, the court found in favor of the State of Hawaii and in doing so distinguished lava flows from the common law doctrine regarding accretion of land.
The court first reviewed the history of Hawaiian law regarding private property ownership, concluding that it made clear that “land in its original state is public land and if not awarded or granted, such land remains in the public domain.” It then considered whether there was a relevant doctrine from the common law or traditional Hawaiian usage that applied in the case. It concluded that there were too few similar lava flows over private land to have established a usage.
It then considered the common law, first declaring that “[n]o court sitting at common law has had occasion to deal with the question of lava extensions.” The court distinguished the common law regarding accretion, the gradual increase of land through the deposit of soil. Under the common law, owners of contiguous land take title to land formed by accretion. In contrast, the court declared, “in cases where there have been rapid, easily perceived and sometimes violent shifts of land (avulsion) incident to floods, storms or channel breakthroughs, preexisting legal boundaries are retained notwithstanding the fact that former riparian owners may have lost their access to the water.” Similarly, it noted that under California law if an accretion is caused by artificial means, the newly created land does not belong to the upland property owner. The court concluded that “[r]ather than allowing only a few of the many lava victims the windfall of lava extensions, this court believes that equity and sound public policy demand that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee.”
It can be expected that the Loihi Seamount, which is being formed by volcanoes southeast of the Big Island, will similarly fall under control of the state when and if it emerges some thousands of years into the future.
Loihi is a rather special case in this small class of special cases. Loihi is located more than 20 miles southeast of the Island of Hawaii, and it is not at all clear that its location puts it within the jurisdiction of the State of Hawaii as defined in Section 2 of the Hawaii Admission Act of 1959, which defines the then-new state as follows:
"The State of Hawaii shall consist of all of the islands, together with their appurtenant reefs and territorial waters, included in the Territory of Hawaii on the date of enactment of this Act, except the atoll known as Palmyra Isand, together with its appurtenant reefs and territorial waters, but said State shall not be deemed to include the Midway Islands, Johnston Island, Sand Island (off-shore from Johnston Island), or Kingman Reef, together with their appurtenant reefs and territorial waters."
The issue of the State's boundaries was a matter of some debate in Congress, as Hawaii had annexed Palmyra (well to the south of the main Hawaiian Islands) prior to its own annexation by the U.S. in 1898. Indeed, ownership of Palmyra was contested after World War II, and members of the Fullard-Leo family defeated a claim by the U.S. government based in part on the U.S. Supreme Court's application of Hawaii property law. A similar case was recently decided by the Ninth Circuit in a case involving an unsuccessful claim for ownership of Kingman Reef. For various reasons, Congress insisted that Hawaii give up its claim to Palmyra, so no one can argue that the lanuage in the Admission Act wasn't carefully considered. But nobody was thinking about Loihi back in 1959.
Posted by: Carl C. Christensen | Aug 28, 2012 11:28:59 PM