HAM YOUNG v. Lee

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No . 2 3 3 9 2 .“’ ` §

IN THE INTERMEDIATE coURT oF APPEALS ;°,," §

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oF THE STATE oF _ HAWAI 1 x g
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113
CATHERINE K. HAM YOUNG, Plaintiff-Appellant/Cross-Appellee,
V. LARRY LEE, EDNA LEE, GARY LEE, PIERCE BROSNAN, KEELY
SHAYE-SMITH, et al., Defendant-Appellees/Cross-Appellants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 01-1-O140)

SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)

Plaintiff-Appellant/Cross-Appellee Catherine K. Ham
Young (Ham Young), owner of a downstreamy land parcel on the

as well as Defendants-Appellees/Cross-

Island of KauaUH
and Mrs. Larry and Edna Lee

Appellants Gary Lee (Gary Lee), Mr.

(Lees), and Mr. and Mrs. Pierce Brosnan and Keely Shaye Smith-

Brosnan (Brosnans), owners and former owners of an upstream land

appeal from the December 29,
entered by the Circuit Court of the Fifth Circuit
and the

parcel, 2006 Final Judgment (Final

Judgment),
in favor of Gary Lee, the Lees,

(Circuit Court),W
as to both counts in Ham Young's

Brosnans, and against Ham Young,

August 22, 2001 complaint (Complaint).Y The parties, to the

extent described herein, also seek relief from the following

orders entered by the Circuit Court:

l. The April 27, 2005 Order Granting in Part and

Gary Lee's Motion for Summary Judgment, (b)

Denying in Part (a)

y The terms upstream and downstream are used herein simply to
identify the direction of flowing water and not to identify the flowage as a
natural stream, as opposed to a manmade waterway.

" The Honorable George M. Masuoka presided.

9 The Final Judgment was also entered in favor of alleged unnamed

agents and/or employees of Gary Lee and the Lees, Defendants John Does l~l0,
who are not parties to this appeal.

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the Lees' Motion for Summary Judgment, and (c) Ham Young's Motion
for Partial Summary Judgment (Summary Judgment Order);

2. The August 4, 2006 First Amended Findings of Fact
and Conclusions of Law (FOFs and COLs), rendered in connection
with the Summary Judgment Order; and

3. The October l0, 2005 Order Granting Plaintiff Ham
Young's Motion to Join the Brosnans as Party Defendants (Joinder
Order).

In the proceedings below, Ham Young filed the Complaint
that, when liberally construed, seeks: (l) a declaratory
judgment that Gary Lee and the Lees, through the actions of their
authorized agent Gary Lee, violated Ham Young‘s statutory
riparian rights, common-law appurtenant rights, and/or
contractual easement rights (collectively, Water Rights) to the
free flow of water through an auwai or ditch (Ditch) by
constructing and operating one or more artificial ponds on the
Defendants' property (Ponds), as well as permanent injunctive
relief requiring the restoration of the Ditch to its original
structural condition prior to the operation of the Ponds (Count
1);F and (2) money damages for, inter alia, damage to Ham
Young's land and intentional infliction of emotional distress
(IIED), allegedly arising from the diversion of water through the
Ponds (Count 2). The Circuit Court entered summary judgment in
favor of Gary Lee and the Lees as to the requested declaratory
judgment and money damages claim, but granted a remedial order in

favor of Ham Young that is in the nature of mandatory injunctive

relief.
Ham Young raises the following points of error on
appeal:
9 No part of the Complaint is labeled as "Count l.“ However, based

on the parties' arguments and the denomination of "Count 2," we will refer to
Ham Young's allegations in support of declaratory and injunctive relief as
Count l.

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l. The Circuit Court erred as a matter of law in the
Summary Judgment Order with respect to paragraphs l, 2 and 8,

which state:

l. The Defendants Gary Lee, Larry Lee and Edna Lee’s
(collectively "Defendants") use of the water from the auwai
to fill the ponds located on Defendants' property is not an
unreasonable use;

2. The Defendants' [sic] may take water from the
auwai to fill the ponds located on their property and return
the water to the auwai;

8. That since the majority of the water is returned
to the auwai in almost the same condition as it was taken,
the Court finds that the Plaintiff has suffered no damages;

2. Regarding the August 4, 2006 FOFs and COLs, the
Circuit Court's FOFs 2, 3, 6, and 12-19 are clearly erroneous,
and the Circuit Court's COLs l, 2, 3, and 4, are wrong as a

matter of law. The contested FOFs and COLS state:

2. The Court found that Defendants Gary Lee, Larry
Lee and Edna Lee (collectively "Defendants") use of the
water from the auwai to fill the ponds located on
Defendants' property is not an unreasonable use;

3. The Court further found that Defendants may take
water from the auwai to fill the ponds located on their
property and return the water to the auwai;

6. With respect to Plaintiff's claims for damages,
the Court found that since the majority of the water is
returned to the auwai in almost the same condition as it was
taken, the Plaintiff suffered no damages.

l2. At a status conference hearing on November 9,
2005, the Court asked the parties to seek the expert opinion
of a hydrologist concerning Plaintiff's objections.

l3. The BROSNAN Defendants retained the services of
Dr. George Yuen, and Mink & Yuen, Inc. to address the
Plaintiff's objections.

l4. The Court finds that Dr. George Yuen is a
qualified engineer in hydrology and competent to render
expert opinions regarding the first amended plans for the
Restoration [sic] of the auwai filed herein on July 5, 2006.

l5. Dr. Yuen's January 6, 2006, report was filed
herein on January l3, 2006. A Supplemental Report was filed

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herein on January l9, 2006. Two additional reports by Dr.
Yuen were filed herein on February 2l, 2006. The Court
hereby accepts and adopts Dr. Yuen's findings contained in
said reports.

16. Based on Dr. Yuen‘s reports and the entire record
herein; including the pleadings, motions, affidavits and
exhibits, the Court finds that the First Amended Proposed
Plans for Restoration of Auwai filed on July 5, 2005, are
reasonable and acceptable to the Court with the exception of
the diameter of the two intake pipes.

l7. The Court accepts Dr. Yuen's recommendation that
the intake pipes be reduced to 8". The Court is also
recommending that two intake pipes of 6" be installed
adjacent to the 8" intake pipes, with an open/close valve so
if the 8" pipes are allowing too much water to flow into the
ponds, their valves may be shut and the 6" vales [sic] may
be opened.

l8. The Court adopts Dr. Yuen's finding that 8"
inlets would provide good circulation in the pond resulting
in a turnover time of one to two days, and that such a
circulation period would be desirable. A six inch inlet
would result in a turnover time of up to four days which may
not produce satisfactory circulation, and could give rise to
clogging problems which would make maintenance more costly.

l9. The Court also notes Dr. Yuen's finding that the
capacity of the proposed auwai is much greater than that
required to carry maximum anticipated flow from Wainiha
River and demands for taro farming, and
Restoration of the auwai would not increase flows to
the taro farmers. There may be a question as to the
necessity of restoring the auwai at this time. The
owner may wish to consider the option of deferring
action until future conditions and needs justify the
restoration.
Yuen Report, page 7, filed on January l3, 2006.

CONCLUSIONS OF LAW

l. The Hawafi Supreme Court in Rodrigues v. State,
52 Haw. l56, l66, 472 P.2d 509 (l970), re-evaluated the law
of surface water in Hawafi and adopted the reasonable use
rule.

2. The reasonable use rule allows each possessor of
land to alter the flow of surface water so long as his
interference with the flow is not reasonable under the
circumstances of the particular case.

3. Defendants' ponds are a reasonable use of their
property and the flow of surface water into the ponds does
not unreasonably interfere with the flow of water to
downstream property owners and taro farmers.

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4. Since the majority of the water is returned to the
auwai in almost the same condition as it was taken,
Plaintiff has suffered no damages and she is awarded none.

The Lees raise the following points of error in their
cross-appeal:

l. This court has no appellate jurisdiction because
the Circuit Court retained jurisdiction over the restoration of
the Ditch; and

2. The Circuit Court erred in ordering restoration of

the Ditch because Ham Young suffered no damages, the defendants'

2 use of the water from the Ditch did not interfere with the flow

of water to Ham Young's property, and the elements for injunctive
relief were not met.

Gary Lee raises the following points of error in his
cross-appeal:

l. The Circuit Court erred as a matter of law when it
required Gary Lee and the Lees to restore the Ditch to the
condition that it was in prior to the construction of their
improvements to their property; and

2. The Circuit Court erred as a matter of law when it
added the Brosnans as defendants, as opposed to substituting them
for Gary Lee as the real-party-in-interest.

The Brosnans raise the following points of error in
their cross-appeal:

1. The Circuit Court erred as a matter of law when it
imposed a remedy (restoration of the Ditch) after determining
that Ham Young's Water Rights had not been violated and that the
defendants had a right to use water from the Ditch;

2. The Circuit Court erred as a matter of law when it
ordered restoration of the Ditch after the Court determined that
Ham Young neither suffered nor proved damages;

3. The Circuit Court erred as a matter of law when it

found that the Ditch was damaged or altered; and

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4. The Circuit Court erred as a matter of law when it
arbitrarily and capriciously ordered that the Ditch be restored
according to the Court's own standard (adding two 6" intake
pipes) in substitution for expert judgment.

Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve the parties' points of error as follows:

Ham Young's Appeal

1. With respect to the Summary Judgment Order, we
conclude: '

a. The Circuit Court did not err with respect to
paragraphs 1 and 2 of the Summary Judgment Order. lt is
undisputed that in 1947, in partition action McBryde Sugar
Companv, Ltd. v. Aarona, et al., Equity No. 109 (Equity No. 109),
the Circuit Court of the Fifth Circuit appointed three
commissioners (Commissioners) to divide a parcel of land known as
the Hui Lands of Wainiha (through which the Ditch ran) into
multiple, neighboring parcels.W On December 23, 1947, the
Commissioners, in connection with the Equity No. 109 partition
action, executed a Commissioners' Deed which conveyed six of
those parcels (Lots 209, 224, 231, 266, 267, and 298) to members
of the Tai Hook family as tenants-in-common (Tai Hook
Commissioners' Deed).W The conveyance of Lot 267, which is also
physically divided by the Ditch (as well as itself being adjacent

to the Wainiha River), included an express "Ditch Easement"

W It appears from the plat maps submitted by the parties that the
Hui Lands of Wainiha are part of a river delta, with the Wainiha River running
on both sides. The Ham Young Property is adjacent to the river. The Lee
Property is also located on this delta and adjacent to the river, separated
from the Ham Young Property by other parcels. The Ditch Easement runs through
the delta, apparently exiting back into the river after it runs through the
Ham Young Property.

9 Co-grantee Henry Tai Hook and wife, Annie Tai Hook, are the
parents of Ham Young, who was born in 1930.

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(Ditch Easement) running in favor of Lot 267 and against upstream
property owners. In 1979, Ham Young purchased Lot 267, which she
has retained to the present (the Ham Young Property).W

The Ditch Easement set forth in the Commissioners' Deed

provides for the free flowage of water, as follows:

Subject, however, to an easement for a trail and
subject further to the free flowage of water in all auwais,
ditches and streams in favor of all those entitled thereto
as exist on the ground and as shown on a map thereof filed
with the Final Decree of Partition in the Fifth Circuit
Court, Territory of Hawaii, in Equity Proceedings No. 109.

The Final Decree of Partition states the right conveyed

by the Ditch Easement as follows:

That upon the lower lands on which are situated all of
the allotted lands, are certain irrigation ditches which
were constructed many years ago and which have been
continuously in use for many years past in diverting a
portion of the water of said Wainiha River for the purpose
of irrigating such lower lands; that the continuation of the
right to such use of a portion of the water in said Wainiha
River will enhance the value of said allotted lands and such
water rights should be made appurtenant to said allotted
lands,

On or about October 7, 1948, the Commissioners entered
into an exchange deed with Nancy Puulei (Puulei) which
transferred various property interests between Puulei and the
Commissioners (Puu1ei Exchange Deed). The Puulei Exchange Deed
subjected Puulei's parcel, which is located upstream but not
adjacent to the Ham Young Property, to "all existing easements
for auwais, ditches and rights of way in favor of all those
entitled thereto." After a series of conveyances in the 1970's
and 1980's, on or about October 13, 1989, Gary Lee purchased the
Puulei parcel, which, like the Ham Young Property, is physically
divided by the Ditch. Thereafter, on or about May 27, 1992, Gary
Lee sold the parcel to the Lees (the Lee Property).

y The May 29, 1979 Commissioners' Deed, which was recorded on August
l3, 1979, conveyed Lot 267 to Ham Young, along with all "rights, easements,
privileges and appurtenances thereunto appertaining or belonging or held and
enjoyed in connection therewith[.]"

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Ham Young has not argued that the use of the water from
the Ditch to fill the Ponds is unreasonable because circulating
the Ponds changes the volume, flow, temperature, turbidity, or
other physical characteristic of the water. Ham Young has not
argued that the defendants have no right to use water from the
Ditch in connection with the Lee Property. Instead, on this
point, Ham Young argues the use of the water in conjunction with
ornamental Ponds is per se unreasonable, regardless of whether it
affects the quality, quantity, or other physical characteristics
of the water. Put another way, Ham Young argues that she has a
right for the water not to pass through the Ponds on the Lee
Property, regardless of whether her use of the water is affected.

We conclude, however, that the Circuit Court correctly
determined that the Ditch Easement does not include the right to
prevent water from circulating through the Ponds. Similarly, we

conclude that Ham Young does not have statutory "riparian rights"

1 to the undiverted flow of water through the Ditch.W See, e.g.,

McBrvde Suqar Co., Ltd. v. Robinson, 54 Haw. 174, 191-93, 504
P.2d 1330, 1341-42 (1973) (McBryde I) (in examining Revised Laws
of Hawaii (RLH) § 577, prior version of Hawaii Revised Statutes
(HRS) § 7-1, holding that "the right to 'drinking water and
running water' in artificial watercourses constructed by
individuals for their own use is excepted by the statute, the
term 'running water' must mean water flowing in natural water
courses, such as streams and rivers."). We also conclude that
Ham Young failed to proffer any evidence that her rights in the
water flowing through the Ditch constituted common law
appurtenant rights, as there is no evidence in the record that a

right to water flowing through the Ditch existed at the time of

W As the Ham Young Property appears to be bordered on at least one
side by the Wainiha River, Ham Young presumably has riparian rights to the
continued flow of the water through that natural water course. However, there
is no allegation in this case that the defendants have interfered with such

rights,

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the Mahele. See, e.q., Reppun v. Board of Water SuDDlV, 65 Haw.
531j 551, 656 P.2d 57, 71 (1982) ("appurtenant water rights are
rights to the use of water utilized by parcels of land at the
time of their original conversion into fee simple land").

b. The Circuit Court erred, in part, with
respect to paragraph 8 of the Summary Judgment Order, which
states that "since the majority of the water is returned to the
auwai in almost the same condition as it was taken, the Court
finds that the Plaintiff has suffered no damages[ ]"

The Circuit Court's ruling is based largely on the
report of defense expert S.K. Djou (Djou), who assessed the Ditch
water entering and leaving the Lee Property. Djou's report, the
substance of which was not materially challenged with conflicting
evidence, was based on a field study conducted on or about
January 29, 2003.W Ham Young did not present any evidence
controverting Djou's report regarding the water flowing through
the Ditch at the time of his study. However, in her September

22, 2003 affidavit, Ham Young states, inter alia:

15. Your Affiant had approximate revenues from the
sale of taro during the years 1997 through 2000 as follows:

Year Revenue

l997 $2,500.00
1998 3,750.00
1999 2,050.00
2000 600.00

27. Beginning in late 1999, and through 2000

virtually no water flowed through the auwai/ditch easement.
The natural flow of water to my property was blocked by Lee,
during which time, Lee enlarged and deepened the artificial
ponds on the property, built a rock waterfall in the
approximate location where the auwai/ditch easement enters

W Although not raised as a point of error, at page 30 of her opening
brief, Ham Young argues that the Circuit Court erred in refusing to strike
Djou's expert report and affidavit testimony. HRAP Rule 28(b)(4) provides:
"Points not presented in accordance with this section will be disregarded,
except that the appellate court, at its option, may notice a plain error not
presented." Here, the Circuit Court's decision to permit Djou's affidavit and
testimony was clearly within the discretion of the Circuit Court,
notwithstanding the defendants' noncompliance with certain deadlines. §§§,
e.g., State v. Fukagawa, 100 Hawafi 498, 503, 60 P.3d 899, 904 (2002).

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the Lee property, and cut the walls of the auwai/ditch
easement by approximately three to four feet. .

28. As a result of the flow of water being blocked
to my property in late 1999 and through 2000, the taro l had
planted in my loH did not survive, and the entire crop was
lost, including the huli necessary to replant my loHH At
that time, your Affiant was selling taro to Hanalei Poi
Company for forty two dollars ($42.00) per bag.

Viewing the evidence and the inferences therefrom in
the light most favorable to the nonmoving party, which we must
do, we conclude that the Circuit Court erred, in part, in
granting summary judgment in favor of Gary Lee and the Lees on
all damages claims. See, e.g., Kamaka v. Goodsill Anderson Quinn
& Stifel, 117 HaWafi 92, l04, 176 P.3d 9l, 103 (2008). Ham
Young has raised a genuine issue of material fact regarding her
claim against Gary Lee and the Lees that the alleged blockage of
the water passing through the Lee Property "in late 1999 and
through 2000" caused losses to her taro crop during that period.
Ham Young's other bare allegations of causation and damages,
whether to her land, her crops, or as a result of alleged
intentional infliction of emotional distress, are insufficient to
withstand summary judgment. See, e.g., GECC Fin. CorD~ v.
Jaffarian, 79 HawaiH 516, 525, 904 P.2d 530, 539 (App.),
affirmed, 80 Haw. 118, 905 P.2d 624 (l995); Ocwen Fed. Bank v.
Russeil, 99 Hawai‘i 173, 132-33, 53 P.3d 312, 321-22 (App.
2002).@/

W/ Affidavits from Ham Young and Sean Hickey assert that there is no

.longer a consistent flow of water to Ham Young's property, apparently even

after the alleged “blockage" was alleviated, purportedly due to the Ponds on
the Lee Property. However, the Djou Report states, inter alias "The pond is
a landscaping feature. lt is a temporary reservoir serving to balance the
inflow and the outflow of the auwai system. lt also serves as a sediment trap
to reduce turbidity. Any water lost between the inlet and outlet would
primarily be due to natural evaporation and percolation, which is not
significant. There is no water consuming activity on the property." ln
support of summary judgment, the defendants brought forward this evidence that
the diversion of water through the Ponds did not cause a loss of water flowing
through the Ditch on the Lee Property. lt appears that there are at least
three other properties between the Lee Property and the Ham Young Property.
ln response to the summary judgment motions, Ham Young did not present any
(continued...)

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Accordingly, we conclude that the Circuit Court erred
in entering summary judgment against Ham Young with respect to
the alleged damages to her taro crop in late 1999 and through
2000. We conclude that the Circuit Court did not otherwise err
with respect to paragraph 8 of the Summary Judgment Order.

1. With respect to the Findings of Fact and
Conclusions of Law, we concludes

a. The Circuit Court did not err with respect to
FOFs 2 and 3, for the same reasons as set forth above regarding
Summary Judgment Order paragraphs 1 and 2. The Circuit Court
erred in part with respect to FOF 6, for the same reasons and to
the same extent as set forth above regarding Summary Judgment
Order paragraph 8.

b. Ham Young has failed to support her assertion
that FOF 12 is clearly erroneous.

4 c. Ham Young has made no argument regarding FOFs
l3, 16, 17 and l8. Therefore, these points of error are deemed
waived. §§§ HRAP 28(b)(7).

d. Ham Young fails to make any discernable
argument regarding FOFs 14, 15, 19, and 20. Accordingly, she has
not met her burden of demonstrating that they are clearly
erroneous. §§§ HRAP Rule 28(b)(7) ("[T]he appellant shall file
an opening brief, containing the following sections . . . . (7)
The argument, containing the contentions of the appellant on the
points presented and the reasons therefor, with citations to the
authorities, statutes and parts of the record relied on.

Points not argued may be deemed waived."); Hawaii VenturesL LLC

v. otaka Inc., 114 Hawai‘i 438, 473, 164 P.3d 696, 736 (2007)

("[A]n appellate court is not obliged to address matters for

W/ ( . . .continued)
countervailing evidence that the use of the water on the Lee Property caused
the alleged reduction of water flow to her property. Accordingly, the bare
allegation that the diversion of the water through the Ponds caused Ham Young
to suffer damages is insufficient to withstand summary judgment.

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which the appellant has failed to present discernible
arguments.")

e. With respect to contested COLs 1 and 2, we
first note that Rodrigues v. State, 52 Haw. 156, 472 P.2d 509
(1970), adopted the reasonable use rule regarding the disposal of
surface water, which pertains to a possessor of land's right to
alter the flow of surface waters, generally in the context of
excess surface waters that occur during heavy rains or flooding.
The issues in this case do not pertain to surface waters; rather
they pertain to waters flowing from a river through a man-made
Ditch. we conclude that COLs 1 and 2 are a correct statement of
the law of surface waters in Hawafi under Rodrigues. §ee
Rodrigues, 52 Haw. at 163-65, 472 P.2d at 515-l7.¥/ Although not
directly applicable, the Circuit Court apparently applied the
reasonable use rule adopted for surface waters, by analogy, to
the circumstances of this case. The Circuit Court did not err,
as a matter of law, in applying a reasonable use analysis to an
upstream landowner's use of water flowing through a manmade Ditch
to a downstream landowner.

f. With respect to contested COLs 3 and 4, we
conclude that the Circuit Court erred in part, for the same
reasons and to the same extent as set forth above regarding
Summary Judgment Order paragraph 8 and FOF 6.

The Lees' appeal

1. We reject the Lees' argument that this court has
no appellate jurisdiction because the Circuit Court retained
jurisdiction over the restoration of the Ditch. Here, the Final

Judgment was entered on December 29, 2006, and it stated:

Pursuant to Rule 58, Hawaii Rules of Civil Procedure,
FlNAL JUDGMENT in favor of the Defendants and against the
Plaintiff upon Counts l and ll is hereby entered in the
above entitled action consistent with the Amended Findings

B/ The Circuit Court mistakenly cited to page 166 of Volume 52 of the
Hawaiian Reports. We consider this to be an oversight or typo, rather than
error.

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of Fact and Conclusions of Law filed herein on August 7
[sic], 2006.

Consistent with HRCP Rule 58,lW and the rule in Jenkins v. Cades
Schutte Fleminq & Wright, 76 Haw. 115, ll9, 869 P.2d 1334, 1338
(1994), the Final Judgment, on its face, finalized the previous
orders of the Circuit Court because it disposed of all claims,
identified the claims for which the judgment was entered, and it
specified the parties for and against whom the judgment was
entered. The Final Judgment left nothing further to be
adjudicated. See, e.g., Casumpanq v. lLWU, Local 142, 91 HawaiU_
425, 426, 984 P.2d 1251, 1252 (1999). The Circuit Court's
retainment of jurisdiction over the restoration of the Ditch was
merely an undertaking to supervise enforcement of the judgment or
more specifically, the mandatory injunction. See TSA lnt'l Ltd.
V. ShimiZu COrp., 92 HaWaiT.243, 265, 990 P.2d 7l3, 735 (l999)
(citations omitted) ("For example, because the mere filing of a
notice of appeal does not affect the validity of a judgment, the
circuit court retains jurisdiction to enforce the judgment.")

2. The Lees, like the other defendants-appellees-
cross-appellants, contend that the Circuit Court abused its
discretion in ordering, in both the Summary Judgment Order and
the FOFs and COLS, that "to the extent reasonably possible, the
defendants will have to return the [Ditch] to the state it was in
prior to any changes being made to it." Although the Circuit
Court's orders do not mention injunctive relief, cite any
findings in support of such relief, engage in any analysis of
likelihood of prevailing on the merits, showings of irreparable
harm, or expressions of public interest, we agree with the
parties' characterization of this remedial order as injunctive in
nature. The Circuit Court, in essence, granted a mandatory

injunction in favor of Ham Young and against the defendants.

33/ HRCP Rule 58 requires that " [e]very judgment shall be set forth on
a separate document."

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A mandatory injunction compels one to perform an
affirmative act in order to do or undo a previous act. Wahba,
LLC 'v'. USRP §DOH), LLC, 106 Hawai‘i 466, 472, 106 P.3d l109, 1115
(2005). The purpose of an injunction, in general, is to "protect
property or other rights from irreparable injury by prohibiting
or commanding certain acts." Morgan v. Planninq Dept., County of
Kauai, 104 Hawafi 173, 188, 86 P.3d 982, 997 (2004) (citations
omitted). Most injunctions are "prohibitory," meaning that "the
matter complained of is a consequence of present conduct and the
injunction simply orders a defendant to refrain from engaging in
the designated acts." Wahba, 106 Hawafi at 472, 106 P.3d at
1115 (citation omitted). A mandatory injunction is
distinguishable from a prohibitory injunction in that a
"mandatory injunction commands performance of certain acts
whereas a prohibitory injunction prohibits the performance of
certain acts." Legal Aid Soc'v of Haw. v. Legal Serv. Corp., 961
F. Supp. 1402, 1408 n.3 (D. Haw. 1997).

The Hawafi Supreme Court has cautioned that
"[m]andatory preliminary relief which goes well beyond the status
quo is particularly disfavored, and should not be issued unless
the facts and law clearly favor the moving party.” Wahba, 106
Hawaifi at 472, 106 P.3d at 1115 (citations and internal
quotation marks omitted). That court further stated that "[t]he
severity of a mandatory injunction makes it a disfavored option
which courts should deny unless the facts and law clearly favor
the injured party.” lQ; (citations and internal quotation marks
omitted).

ln this case, the Circuit Court denied that Ham Young
was entitled to relief on the merits and, with the possible
exception of certain damages to Ham Young's taro crop during the
late 1999 through 2000 period, we agree. The Circuit Court made
no finding or conclusion that Ham Young had any rights in the Lee

Property other than to the free flow of water through the Ditch.

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Thus, it is not likely that Ham Young will prevail on the merits
of her claim of a right to restoration of the Ditch to its
original structure. Similarly, there was no showing or finding
of irreparable harm. Although there apparently were alterations
made to the Ditch, the materially uncontroverted evidence
demonstrated that the flow of water was restored by the time of
Djou's field study. To the extent that there is merit to Ham
Young's public policy argument that she should be entitled to
cultivate taro, and thereby exercise traditional practices using
water from the Ditch as it enters her land, this argument does
not lead to the conclusion that the defendants must necessarily
be barred from using the water from the Ditch for the Ponds or
that the Ditch must be maintained in a particular configuration
on the Lee Property. As discussed above, the Ditch Easement in
this case provides Ham Young with a right to the free flowage of
water through the Ditch. The cases cited by Ham Young concern
other rights and are factually distinguishable.Y/

Accordingly, we conclude that there was no factual or
legal basis for the mandatory injunctive relief ordered in this
case and the Circuit Court, therefore, abused its discretion when
it ordered the defendants, to the extent reasonably possible, to
return the Ditch to the state it was in prior to any changes
being made to it.Y/

Gary Lee's appeal

1. Gary Lee's first point of error is the same as the

Lees' second point of error. As set forth above, we conclude

that there was no factual or legal basis for the mandatory

E/ For example, in Medeiros v. Koloa Sugar Co., 29 Haw. 43 (1926),
the easement consisted of a right-of-way for a ditch, a line was drawn through
the words "a flume or" in the original easement document, and therefore the
court held that only a ditch, not a flume, was permitted by the easement.

-l-‘i/ We caution, however, that modifications to the Ditch on the Lee
Property that demonstrably and unreasonably interfere with the free flow of
water to the Ham Young Property could provide the basis for a mandatory
injunction.

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injunctive relief ordered in this case and the Circuit Court,
therefore, abused its discretion when it ordered the defendants,
to the extent reasonably possible, to return the Ditch to the
state it was in prior to any changes being made to it.
2. ln support of his argument regarding the

substitution of parties, Gary Lee points out that the Brosnans

agreed to undertake the restoration of the Ditch.§/ However, it

does not appear that the Brosnans otherwise assumed liability for

the acts performed by Gary Lee and the Lees, Gary Lee's and the
Lees' potential liability for the alleged damages suffered by Ham
Young was not extinguished by the transfer of title from the Lees
to the Brosnans. Therefore, we conclude that the Circuit Court
did not err when it added the Brosnans as defendants, as opposed
to substituting them for Gary Lee as a real-party-in-interest,
The Brosnans' appeal

l. The Brosnans' first and second points of error are
substantially the same as the Lees' second point of error and
Gary Lee's first point of error. As set forth above, we conclude
that there was no factual or legal basis for the mandatory
injunctive relief ordered in this case and the Circuit Court,
therefore, abused its discretion when it ordered the defendants,
to the extent reasonably possible, to return the Ditch to the
state it was in prior to any changes being made to it.

2. The Brosnans' third point of error misstates the
Circuit Court's ruling. The Circuit Court did not find that the
Ditch was damaged or altered; rather, the Circuit Court stated
that "from the Plaintiff's point of view the [Ditch] was
"damaged" and from the Defendants' point of view the [Ditch] was

"altered[.]" We conclude that the Circuit Court correctly

l§/ ln Haole v. State, the Hawai‘i supreme Court recognized that
"private parties may contract to indemnify the indemnitee for the indemnitee's
own negligence but there must be a 'clear and unequivocal' assumption of
liability by one party for the other party‘s negligence." 111 Hawai‘i l44,
151, 140 P.3d 377, 384 (2006) (citations omitted).

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characterized the parties' views and, accordingly, did not commit
reversible error.

3. The Brosnans' final point of error is
substantively addressed by our conclusion that there was not
factual or legal basis for the mandatory injunctive relief
ordered in this case and that the Circuit Court, thereforeh
abused its discretion when it ordered the defendants, to the
extent reasonably possible, to return the Ditch to the state it
was in prior to any changes being made to it. Therefore, we need
not address the Brosnans' specific argument that the Circuit
Court arbitrarily required two additional six-inch intake pipes
in conjunction with the mandatory injunctive relief.

For the forgoing reasons, we vacate the Circuit Court's
December 29, 2006 Final Judgment to the extent that the Circuit
Court entered mandatory injunctive relief in favor of Ham Young
and against Gary Lee, the Lees, and the Brosnans, we remand this
case for further proceedings on Ham Young's claim that Gary Lee
and the Lees caused her to suffer damages to her taro crop in
late 1999 and through 2000, and we affirm in all other respects.

DATED: Honolulu, HawaiHq April 15, 2010.

on the briefs=

Harold Bronstein Presiding Judge
for Plaintiff-Appellant/
Cross-Appellee

Ann H. Aratani

(Ayabe, Chong, Nishimoto,
Sia & Nakamura)

for Defendants-Appellees/

Cross-Appellants

LARRY LEE and EDNA LEE

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Dean E. Ochiai

Brenda E. Morris

Randall Y. Kaya

Adrian Y. Chang

(Law Offices of Dean E. Ochiai)
for Defendant-Appellee/
Cross-Appellant GARY LEE

Paul Alston
Wil1iam M. Tam
Shannon M.l. Lau
(Alston Hunt Floyd & lng)
and
Max Graham
(Belles Graham Proudfoot
& Wilson)
for Defendants-Appellees/
Cross-Appellants PlERCE BROSNAN
and KEELY SHAYE-SMlTH

NO. 28392; CATHERINE K. HAM YOUNG VS. LARRY LEE, EDNA LEE, GARY LEE, PIERCE
BROSNAN, KEELY SHAYE-SMITH, et al.

Summary Di sposi tion Order

M