Berman & Asbel, LLP

Mark Twain was wrong - new land is being made - but who owns it?

Mark Twain once said, "Buy land, they're not making it anymore."  In most places where people live, the land itself seems to be unchanging - at least within the span of one or a number of human lifetimes but the Earth is constantly changing.  In some places, it changes quite rapidly and land can appear or disappear right before your very eyes.

My law firm partner who has a home on the Jersey shore tells me that in some places, the construction of jetties causes sand to accumulate over time and beaches will appear where there had been water before.  So who owns this beach.  At Barnegat Light where this happened years ago, beach formed and then a pine forest naturally grew.  It is now a public park.

In Hawaii, an interesting case is going on about when new beach naturally forms above the high-water line.  Picture an indentation of water into the land that over time, naturally forms a new beach.  In Hawaii, the common law had been that if the beach expanded naturally, the adjacent private owners gained that ground and if the beach naturally eroded, they lost it.  In 2003, Hawaii enacted a new law that says that such new beach belongs to the state.  According to a recent article in the Honolulu Star-Bulletin, a class action by private owners was filed.  In the case Maunalua Bay Beach Ohana 28 et al. v. State of Hawaii, the trial judge ruled in 2006 that this law constituted a government taking of private land and that the state was required to compensate the private owners.  The State of Hawaii appealed and a ruling is pending.

Sometimes, the creation of new land is even more dramatic as is happening right now on Hawaii's Big Island where the Kilauea volcano has been erupting continuously for 25 years.  According to this San Francisco Chronicle article, the volcano has not only covered 45 square miles of the island with lava but the island has actually grown by 568 acres in that time.  So when the island of Hawaii grows, who owns the new land - the public or adjacent owners.  According to this article from the Hawaii Volcano Observatory, this newly formed land belongs to the State of Hawaii.

How this came about is described in the landmark 1977 opinion of the Hawaii Supreme Court in the case of State of Hawaii by Kobayashi v. Zimring.   The development of the law in Hawaii is made more interesting since it was once an independent kingdom.    As the Court quoted in its opinion:

It was long ago acknowledged that the people of Hawaii are the original owners of all Hawaiian land. The Constitution of 1840, promulgated by King Kamehameha III, states:

KAMEHAMEHA I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and the people in common, of whom Kamehameha I, was the head, and had the management of the landed property.

Under pressure from foreign residents who wanted to claim ownership of land, a process began in 1846 that led to private land ownership in Hawaii which the  court opinion describes.  In the Zimring case, there was a 1955 lava flow which extended land out into what had been ocean.  To get to the heart of the issue, the Zimrings claimed that their rights as owners included access to the sea and ownership of the lava extension was necessary to preserve that right.  The problem the Court had with that concept was that to give them ownership of the lava extension would have been a windfall to a private owner.  The Court ruled that such new land belongs to all the people and that the state government is the people's trustee.  The Zimrings, of course, would have free access to the sea.

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