In Hawaii, a large portion of all beaches are owned by the public. In the 1968 decision, In re Ashford, the Hawaii Supreme Court held that the boundary between privately-owned upland property and the publicly owned beach was the vegetation line. In most other jurisdictions the line delineating private and public property is the mean high tide line. The vegetation line usually occurs further upland than the mean high tide line. Members of the public are therefore able to use a significantly greater portion of the coastal zone in Hawaii than in most other jurisdictions. Swelling populations and the tourism industry have increased the need for access to Hawaii's state-owned beaches. Property owners of land abutting the vegetation line have previously attempted to meet the public's need for access to the shoreline recreation areas by allowing members of the public to cross over their land. A recent Hawaii Supreme Court decision, In re Banning, further bolsters the ability of the public to enjoy the Hawaiian coastal zone by encouraging landowners to continue this practice. The Banning court held that if the public's use of an accreted parcel fronting shoreline property was both open and continuous, that use did not raise a conclusive presumption that the littoral owner had implicitly dedicated the land to the public. The court's rejection of an easement in favor of the public in this particular accreted parcel will actually promote beach access. A private land owner in the future will continue to allow the public to use her property to access the beach without fear of losing her property rights through the doctrine of implied dedication. The Supreme Court of Hawaii held correctly in Banning, because there is a strong public policy favoring open beaches within the State. This Note analyzes the doctrine of implied dedication and accretion in Hawaii. It then discusses the Banning court's ruling on whether a landowner is presumed to have dedicated her property to the public if she allows open and continuous use for the prescriptive period. The Note discusses California's contrasting approach to the doctrine of implied dedication. It concludes that the Hawaii court made a prudent decision, in line with at least eight other jurisdictions, that will promote public access to one of Hawaii's greatest natural resources, its beaches.
Catherine E. Decker,
In Re Banning: The Hawaii Supreme Court Keeps Hawaiian Beaches Accessible,
Ocean & Coastal L.J.
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol1/iss1/5