# Midkiff v. Castle & Cooke, Inc. > Hawaii Supreme Court · January 12, 1962 · 45 Haw. 409 URL: https://www.frixlaw.com/law-library/cases/9620519 ## Case - **Full name:** Frank E. Midkiff, Edwin P. Murray, Willson C. Moore, Atherton Richards and Samuel Wilder King, Trustees Under the Will and of the Estate of Bernice P. Bishop, Deceased v. Castle & Cooke, Inc., a Hawaii Corporation - **Court:** Hawaii Supreme Court - **Decided:** January 12, 1962 - **Citations:** 45 Haw. 409; 368 P.2d 887; 1962 Haw. LEXIS 64 - **Precedential status:** Published - **Opinion:** Dissent by Tsukiyama - **Judges:** Tsukiyama, Wirtz, Lewis, Mizuha, Tashiro, Cassidy - **Cited by:** 49 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9620519 ## Opinion text DISSENTING OPINION OP TSUKIYAMA, C. J. The deed in question, executed by the Bishop Estate on December 30, 1899, in favor of OR&L Co. is a single deed conveying a total of nine separately described parcels of land in Waialua, Oahu. An unusual feature about the deed is that the first eight parcels are covered by one habendum clause, while a separate and independent habendum clause is employed with respect to the last or ninth parcel. The lands in dispute are the seventh and eighth parcels to which the first habendum clause applies. The clause reads: “To have and to hold * * * for railway purposes.” The habendum clause applicable to the last parcel does not contain the words “for railway purposes.” In 1947, the grantee abandoned its railway and discontinued the use of the parcels aforesaid. Both parties have cited numerous cases in support of their respective contentions. It appears, and I am in accord, that in the case of a simple deed containing one habendum clause, the mere recital of a railway purpose, in the absence of other qualifying words, has been generally construed as constituting a declaration of an anticipated use of the land conveyed and not an expression of an intent to limit the estate granted to an easement or a fee simple determinable estate. Significant in the case at bar, however, is the fact that, although the lands involved were all required for the purpose of operating a railway, the deed groups the parcels conveyed into two separate portions, each with its own habendum, Instead of employing the normal technique of *424 setting forth one habendum following the description of all parcels conveyed, the grantors pursued the method of describing the last parcel separately with a second habendum differentiating it from the first by excluding the railway purpose phrase. Such circumstance inevitably elicits a query as to the true intent of the grantors in employing, if they did intend to convey an absolute fee simple title to all the parcels, the circuitous and duplicative method of conveyancing. I am not unmindful of the cliche that the time-honored parol evidence rule does apply to a document which is free from ambiguity. If the words used therein are clear, there is no occasion to permit resort to extrinsic evidence to show that something else was intended. It is my view, however, that the presence of clear and understandable words is not an exclusive criterion to determine whether a document in its entirety is free from ambiguity. Omission of significant words as well as literal expressions of abstruse or multiple meanings can and does ofttimes create an ambiguity when the document as a whole is examined. The courts have generally made a distinction between a patent ambiguity and a latent ambiguity, holding that if there is an ambiguity on the face of a grant parole evidence is inadmissible, but if the ambiguity is latent, arising from matters outside a grant, parole or extraneous evidence is admissible to explain it. Ookala Sugar Plantation Co. v. Wilson, 13 Haw. 127 . There is, however, a modern tendency toward liberality in the use of extrinsic evidence. Stoffel v. Stofel, 241 Iowa 427 , 41 N.W.2d 16 . This is particularly true in the case of what is referred to as an intermediate class of ambiguities partaking of the . nature of both patent and latent ambiguities. Such intermediate class “exists when the words are all sensible and have a settled meaning, but at the samé time consistently admit of two interpretations, according to the sub *425 ject matter in the contemplation of tlie parties.” 20 Am. Jur., Evidence, § 1158, p. 1011. See 102 A.L.R. 287 et seq. Where, as here, an obviously significant phrase is used in one habendum and excluded in another, the document itself becomes ambiguous. Although a language unambiguous in itself appears, a document read as a whole may be uncertain Avlien the language, due to the unusual method of its use, is applied to the subject matter of the document. The fact, as shown by the record, that the lands in dispute, being 26,000 feet long and 40 feet Avide, were carved out of and thus bisect a large mass of land of more than 25,000 acres OAvned by the grantors, coupled with the grantee’s covenant to make and maintain 16-foot crossings over its railway tracks to be used by the grantors and their tenants, cannot but raise a question as to Avhether the railway purpose phrase Avas intended to be a mere surplusage or a limitation upon the estate conveyed. It is a generally recognized rule, accepted in this jurisdiction, that where a doubtful meaning exists in a deed the entire instrument, and not only the individual words, phrases and clauses, is examined for the purpose of ascertaining and effectuating the intention of the grantor. Ako v. Russell, 32 Haw. 769 ; Queen’s Hospital v. Hite, 38 Haw. 494 ; Hawaiian Pineapple Co. v. Saito, 24 Haw. 787 ; Kaleialii v. Sullivan, 23 Haw. 38 , affirmed 242 Fed. 446 ; Nahaolelua v. Heen, 20 Haw. 372 . On the subject of reference to extrinsic evidence in order to resolve uncertainties in the meaning of a deed, the authorities are in harmony that “* * * in case of doubt, the court may consider not only the language, but also the circumstances surrounding the transaction and the situation of the parties.” 2 Devlin, Real Property and Deeds (3d Ed.) § 839, p. 1524. See also 26 C.J.S. Deeds, § 92, p. 850; 16 Am. Jur., Deeds, § 445, p. 687. *426 While the case authorities are divided in their respective conclusions as to the character of estate created by the so-called railway purpose clause, they all recognize the principle that in every case of doubt the ascertainable intention of the parties must prevail. Johnson v. Valdosta, M. & W. R. Co., 169 Ga. 559 , 150 S.E. 845 , a case cited by appellee, clearly summarizes the principle as follows: “The crucial test is the intention of the parties. In arriving at this intention we must look to the whole deed, and not merely upon disjointed parts of it. The recitals in the deed, the contract, the subject-matter, the object, purpose, and the nature of restrictions or limitations, and the attendant facts and circumstances of the parties at the time of making the deed are to be considered.” Just as this court found occasion in Mossman v. Hawaiian Trust Company, 45 Haw. 1, at p. 12 , 361 P.2d 374, at p. 381 , to allude to the commendability of the caution exercised by the trial court in the use of the summary judgment procedure, I am of the opinion that, except in the case where the pleadings patently fail to state a claim upon which relief can be granted or to present a genuine issue as to any material fact, a case should, in the interest of substantial justice, be permitted to go to trial and a full disclosure of the facts had, rather than be dismissed on the pleadings. The facts alleged in the amended complaint in the case at bar, coupled with the unusual form of the deed in question, raise a question as to the true intention of the parties sufficient, in my view, to warrant a full hearing on the merits. Accordingly, with due deference, I am unable to concur in the result reached by the court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9620519. Public record. Not legal advice.