A proceeding was instituted by the plaintiff-defendant in error on August 10, 1943, to condemn parcel 10, among other lands, in Manoa valley in Honolulu for park and playground purposes. There was no immediate taking of possession but on the 15th day of July, 1947, pursuant to a motion duly filed, an order issued putting plaintiff in possession.
The case came on for hearing before the circuit judge on April 5, 1948, to determine what compensation, if any, Tam See was entitled to as compensation for the taking of said parcel 10 under the proceedings theretofore instituted. At the hearing it appeared that the parcel would *Page 430 be used for road purposes as an entrance to the park; the judge held plaintiff in error, who was the owner of parcel 10 of the land sought to be condemned, was entitled to no compensation because the benefits of a public road to the adjoining lands of petitioner offset the value of the parcel taken.
On the writ of error (City and County v. Tam See, 38 Haw. 592) this court reversed the order of condemnation on the ground that the resolution of the board of supervisors authorizing the condemnation was for "park and playground purposes" and that the judgment and final order of condemnation were not based on the facts alleged in the petition and in the resolution of the board of supervisors but on the ground that the land was to be taken for a "public highway," and thus the judge in declaring the public use and purpose to be a "public road" went beyond the scope of the pleadings and the jurisdiction of the trial court. The court also stated: "* * * The petitioner could not amend the pleading to conform to the proof by alleging that the use and purpose for which the land was being condemned were for use as a public road. That would not be within the terms of the resolution of the board of supervisors authorizing condemnation. Also the judgment and final order of condemnation are based on facts proved and found but not averred."
After the case was remanded to the circuit court it appears that some negotiations were carried on between the parties. However, the matter remained practically dormant until July, 1952, when the defendant, Tam See, filed a motion for an order to show cause why she should not receive $10,047.06 by reason of the bringing of the action and the possession of said parcel by plaintiff.
In the meantime Tam See, by deed dated April 25, 1946, duly recorded on the 2d day of May, 1946, in liber 1953, pages 255-258, in the bureau of conveyances, purported *Page 431 to convey other adjacent portions of her lands to the Star Market, Limited.
In the City and County's return to the order to show cause it contended that by the said deed of Tam See to the Star Market, Limited, dated April 25, 1946, an easement was granted in favor of the grantee and that because of such easement Tam See was entitled to no compensatory damages from the date of the recording of said deed of May 2, 1946, to the abandonment of this proceeding by the filing of a new and distinct petition for the acquisition of parcel 10 as a roadway.
We held in Territory v. Ala Moana Gardens, et als., 39 Haw. 514, that an owner is entitled to compensation for land taken subject to such impediments on his ownership as he had created which, in that case, was an easement for street purposes which caused his ownership to be practically worthless.
The deed in this case to the Star Market, Limited, conveyed two parcels of land. The description of each is expressed in azimuths and distances definitely delineating the granted parcels and areas thereof. However, in one course in one parcel or lot, after setting forth the azimuth and distance, it indicates the coincident of a course as "along the southwest side of 40-foot roadway." Again, in the other lot, a similar reference is made to the northeast side of a "40-foot roadway."
On the trial the court held: "* * * Defendant, having referred to a 40-foot roadway in her deed to Star Market, Limited, and thereby having represented to Star Market, Limited, the existence of the 40-foot roadway, will not be allowed to deny to Star Market, Limited, or its grantees the existence of the 40-foot roadway or its availability for use by Star Market, Limited, or its grantees. Whether Defendant is bound by covenant or by estoppel, the result is the same. Star Market, Limited, has easements over *Page 432 Parcel 10 for roadway purposes."
We held in Re Land Title, Yamaguchi, 39 Haw. 608, that where an owner sold lots based on a land court subdivision map there was created an easement in favor of the purchasers to any roadways so laid out upon the map; that "Where lots are sold bounded by roadways whether designated as such or designated by implication with reference to a land court subdivision map, a dedication occurs to the use of the purchasers and to the public of the roadways so created."
In the present case the so-called road was not laid out by the grantor as a street; quite the contrary. The description was taken from the tax map whereon the street was delineated apparently to comply with the condemnation proceedings then pending.
"The rule that a conveyance of land as bounded on a way carries with it an easement in the way is predicated on an inference as to the parties' intention and will not be applied where the circumstances indicate that the inference is not justified." (28 C.J.S., Easements, § 40, pp. 705, 706.)
"Whether the * * * parcel (now constituting lots number 39, number 40, number 41, and number 42 as subdivided) was in factintended as a `roadway,' * * * is determinative of the question. * * *" (Emphasis added.) (Re Land Title, Yamaguchi,supra, pp. 610, 611.)
"* * * Merely bounding premises by a public highway for purposes of description, and where it is referred to as any fixed mark or monument might be, is very different from selling by reference to a map or plat on which the grantor has laid out streets and made a dedication and exposed himself to the equities of an estoppel * * *." (King et al. v. Mayor, Etc., of N.Y. etal., 102 N.Y. 171, 175, 6 N.E. 395.)
The easement may exist because of the intent of the *Page 433 parties or by way of estoppel. In the present case clearly it was not the intent of the grantor or the grantee that the grantor convey a right of way as set forth in the condemnation proceedings. The boundaries are delineated and the roadway is apparently set out for descriptive purposes only, which is a very different situation from selling by reference to a map or plat on which the grantor has laid out streets and made a dedication and exposed himself to the equities of an estoppel.
The circumstances of the case, as well as the particular language used, may be referred to for the purpose of showing that there was no intention in bounding the land on a non-existent street or way to give an easement in the land retained. In the present case not only did the purchaser know of the pending condemnation proceeding but the grantor attempted to induce the purchaser to buy the lot constituting the so-called road. This the grantee refused to do on the ground that he did not wish to buy a law suit particularly as, according to the grantee's statement, the City and County was very parsimonious in paying for lands condemned for road purposes. There can be no estoppel by representation as the purchaser had been expressly told that lot 10 was not a street but merely a parcel under condemnation proceedings by the City and County of Honolulu for a street.
"* * * So far as estoppel by representation is concerned, the fact that the conveyance bounds the land by a street is immaterial if the purchaser has been expressly told, or has reason to believe, that no such street exists." (Tiffany, RealProperty, 3d ed., vol. 3, § 799, p. 309.) This description of land conveyed (as bounded on an unopened street) may be some evidence of an intent to dedicate the land. Though an owner may testify as to his actual intent, his testimony will be considered in connection with all the other facts and circumstances and such testimony *Page 434 would not prevail against unequivocal action or conduct on his part inconsistent with such intent upon which the public has the right to rely. (Jones, Easements, § 233, p. 194; § 427, p. 339; § 432, p. 344.)
However, there are authorities that a conveyance purporting to bound land by a street creates an easement in the grantee without reference to whether the grantee had been induced to believe a street actually existed. This goes on the theory that such conveyance bounding land on a nonexisting street is "presumed to be intended" to vest in the grantee an easement of passage and of light and air similar to those which he would have acquired had the street actually existed. (Whether this presumption is rebuttable is seldom discussed but these decisions seem to go on the ground that an estoppel is created or a covenant is implied.) (Tiffany, Real Property, 3d ed., vol. 3, § 799, p. 309.)
The fact that the only parties to the instrument or those in privy thereto can invoke an estoppel arising out of the deed or a covenant therein need not be discussed as there appears neither estoppel nor covenant nor intent of the parties to dedicate or convey a roadway. (19 Am. Jur., Estoppel, § 6, pp. 603, 604.)
The trial court, in fixing the amount of the compensation to which Tam See was entitled at the date of the recording on May 2, 1946, of her deed, also committed error in not allowing interest from the date of the taking. The rule of just compensation requires that the payment be made simultaneously with the taking of the property. If this cannot be done, just compensation requires interest on such damages from the taking to the time the actual payment is made. After the owner ceases to have the use of the land, he is entitled to its value; if payment is delayed, just compensation requires that he be paid the value *Page 435 of the use of the money withheld from him, that is, interest at the legal rate.
Judgment reversed.