This appeal presents an issue left unaddressed by the Hawaii Supreme Court in In re Robinson, 49 Haw. 429, 421 P.2d 570 (1966). Namely, whether the government waives a reservation of mineral and mining rights when it fails to raise and protect it in a Land Court title registration case, or whether government’s mineral and mining rights are inherent servitudes that need not be reflected in a Land Court decree.
Under Hawaii’s Torrens Land Act – codified at Haw. Rev. Stat. § 501-1, et seq., – the State of Hawaii (State) guarantees indefeasible title to the rights and interests reflected in the register. Land Court registration insures that interests which are not reflected on title do not exist, and persons who are wrongfully deprived of land or their interest through registration or the act or omission of the registrar are entitled to be paid by an indemnity fund, and the State’s guarantee operates against all claims, including claims by the State itself.
In the case at bar, the State is arguing that despite the absence of a reservation of mineral and mining rights and a flowage easement in a 1938 Land Court decree confirming title to Campbell’s predecessor, Campbell’s title is now burdened by these reservations. The State argues that these reservations are “self-effectuating” and inherent in title, and need not have been asserted and preserved by the Territory when it appeared in the 1938 proceeding.
This brief addresses two issues:
First, even if in the original land grants the State of Hawaii’s predecessor did not convey mineral and mining rights, they are not “burdens and incidents which attach by law” inherent in all Hawaii land titles. A reservation of mineral and mining rights could have been raised when the Territory appeared asserted other interests in the 1938 Land Court proceeding.
Second, the State’s public trust powers do not include the right to physically invade all property with water.
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