Saturday, January 19, 2008

Purpresture in Hawaii

Thanks to the extraordinary Carl Christensen for calling to my attention what I did not know, but should have:  Hawaii v. Kerr, 16 Haw. 363 (1905), a case about purpresture.  Looks like purpresture may be a piece of aloha jurisprudence.  In this case, a structure encroached on a public beach.  The syllabus to the case states:

The defendant whose lot, as shown by its land commission award, is bounded “along the sea” constructed a concrete wall on the shore in front of his lot between high and low water, a corner of the wall projecting a few feet beyond low water, and was filling the space enclosed by the wall with coral and sand so as to raise the surface above the low water line, with the intention of making a house lot for a seaside residence. Held: Following Gay v. Halstead, 7 Haw. 587 (1889), that the defendant's land extended to and along the line of high water.

The defendant's concrete wall is a purpresture, encroaching upon public territory and rights in the shore. A bill for injunction requiring the removal of the obstruction caused by the wall and enjoining its renewal can be maintained by the Territory under the provisions of section 91 of the Organic Act, giving it the possession, control, maintenance and care of all public property ceded to the United States by the Republic of Hawaii. The bill sufficiently avers irreparable damage.

Time to dust off this doctrine and put it up there alongside spite fences and cemetery access--and, of course, implied trust beneficiaries, as doctrines that protect community rights in property.

Carl writes:

For a look at a modern purpresture case (though it doesn't use the word), also in the beach context, look at Diamond v. State of Hawaii, Board of Land and Natural Resources, 145 P.3d 704 (Hawaii 2006).  Here the unauthorized purpresture is in the form of vegetation artificially induced to grow out onto a publicly owned sandy beach by a shoreline landowner who hopes to gain a more favorable shoreline setback line based on the new vegetation.
In fact, this doctrine is surprisingly vibrant.  Carl continues:

A WestLaw search in the Allstates database on "Purpresture & beach" yields 93 hits, among them Trepanier v. County of Volusia, 965 So.2d 276 (Fla. App. 2007), Lowcountry Open Land Trust v. State, 552 SE.2d 778 (S./C. App. 2001), and Scott v. City of Del Mar, 68 Cal. Rptr. 2d 317 (Cal. App. 1997). 

It seems, one might conclude, that the dern' things pop up all over the place.

Al Brophy
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I write about the common law doctrine of purpresture on pp. 33-4 of my book Pollution and Property (CUP 2002). It's a potentially very useful doctrine for preventing private incursions on public property, but US courts have tended to apply it narrowly.



Posted by: dan cole | Jan 19, 2008 1:21:56 PM

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