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IN THE SUPREME COURT OF THE STATE OF HAWAII

---o0o---

JIJUN YIN, Petitioner/Plaintiff-Appellant,

vs.

P.I. AGUIAR, AS PERSONAL REPRESENTATIVE OF 

VIRGINIO C. AGUIAR, JR., DECEASED, KEVIN AGUIAR and AGEE, INC., 

Respondents/Defendants-Appellees.

 

SCWC-15-0000325

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-15-0000325; CIV. NO. 11-1-0331)

MARCH 9, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J. 

In this case, the Petitioner filed a complaint in the 

Circuit Court of the Third Circuit (circuit court) alleging that 

the Respondent’s cattle trespassed onto his property causing 

damage to his sweet potato crop. In granting the Respondent’s 

motion for summary judgment, the circuit court concluded that 

Electronically Filed

Supreme Court

SCWC-15-0000325

09-MAR-2020

10:49 AM
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the Petitioner’s land was neither “properly fenced” nor 

“unfenced,” and therefore Hawaii’s statutory law governing the 

trespass of livestock onto cultivated land did not apply to the 

Petitioner’s property. Further, the circuit court determined 

that a provision in the Petitioner’s lease, making the 

Petitioner fully responsible for keeping cattle out of his 

cultivated land, was not void against public policy. The 

Intermediate Court of Appeals affirmed the circuit court’s 

judgment.

Upon review of the legislative history of the statutes

that govern the trespass of livestock onto the cultivated land 

of another, we conclude that the legislature intended to hold 

owners of livestock liable for the damage caused by the trespass 

of their animals on cultivated land whether the land is properly 

fenced or not. Further, we determine that the lease provision 

in this case has the effect of absolving the Respondent of 

liability for livestock damage to Petitioner’s cultivated land

and therefore is contrary to statutory law and public policy,

and it is thus invalid. 

I. BACKGROUND 

On August 10, 2009, Paradise Homes, LLC, entered into 

an eighteen-month lease (“lease”) in which it agreed to lease 

fifty acres of land to Jijun Yin for agricultural purposes in 

the Pauka‘a area of the District of Hilo, Hawaii. Under the 
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“Rent” subsection of the lease was a provision that stated,

“Licensee is fully responsible [for] keeping cattle[] out of 

[their] crops.” Additionally, one page of the lease was an 

unsigned and undated page that stated, “Remove all cattle[]

across from my farmland. Do [n]ot raise cattle[] across from my 

[f]armland.” In February 2010, another lease between Paradise 

Homes and Yin was executed, and the provision, stating “Licensee 

is fully responsible [for] keeping cattle[] out of [their]

crops,” was included in the 2010 lease.

On August 29, 2011, Yin filed a complaint

(“complaint”) against Virginio Aguiar, Jr.,1 Kevin Aguiar, and 

Agee, Inc. (collectively “the Aguiars”), who owned and pastured 

cattle near Yin’s leased property. The complaint alleged that

in September 2009, Kevin Aguiar “released and/or caused” cattle 

owned by the Aguiars to trespass onto Yin’s leased property that 

resulted in the cattle eating some of Yin’s sweet potato crop.2 

Following this incident, the complaint contended, a meeting was 

held between Yin and Kevin Aguiar and Paradise Homes’ managing 

agent, Teresa Prekaski,

3 and an agreement was reached that the 

 

1 Virginio died during the pendency of the suit.

2 The complaint stated that Virginio was the President and Director 

of Agee, Inc., and Kevin Aguiar was an employee.

3 Paradise Homes, LLC was also the owner of the property leased by 

the Aguiars.
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Aguiars would prevent their cattle from trespassing onto the 

property possessed and farmed by Yin.

In March 2011, the complaint stated, Kevin Aguiar 

released more than 50 cattle in close proximity to Yin’s 

property, resulting in the cattle trespassing onto Yin’s 

property and destroying over 13 acres of Yin’s sweet potato 

crop. After Yin removed the cattle from his property, the 

complaint alleged, Yin noticed that Kevin Aguiar had left open 

his gate and allowed his cattle to again trespass onto Yin’s 

property. The complaint contended that the trespassing cattle 

caused more than $190,000 worth of damage, including the “loss 

of [Yin’s] over 13 acres of sweet potato crop and damage to his 

fencing.”

The complaint asserted that the Aguiars were strictly 

liable to Yin for the damage to his crops caused by the trespass 

of their cattle in accordance with statutory law. Yin also 

claimed that Kevin Aguiar knew or should have known that 

allowing the cattle outside of the fenced and gated area where 

he pastured the cattle would likely result in the cattle 

trespassing onto Yin’s property and that his crops were 

destroyed as a direct and proximate result of the Aguiars’
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“willful, wanton, deliberate, intentional and/or negligent 

conduct.”

4

The Aguiars’ answer to the complaint admitted that a 

meeting occurred in September 2009 between Kevin Aguiar, Yin, 

and Prekaski after an incident on Yin’s leased property, but the 

answer denied the essential allegations of the complaint. 

Additionally, the Aguiars raised numerous defenses, including 

failure to state a claim, comparative negligence, assumption of 

the risk, lack of notice, failure of Yin to mitigate damages, 

statute of limitations, laches, estoppel, waiver, and unclean 

hands. The Aguiars alleged that they exercised reasonable care 

at all times, and that their conduct was not a proximate cause 

of Yin’s alleged damages.

5 Thus, the Aguiars requested that the 

complaint be dismissed with prejudice.

After discovery was conducted, the Aguiars filed a 

motion for summary judgment as to all claims. In a memorandum 

accompanying the motion, the Aguiars argued that they were 

entitled to summary judgment because, as a matter of law, they 

did not owe a duty to construct a cattle fence that prevented 

the cattle from entering Yin’s land. Instead, the Aguiars 

 

4 Additionally, the complaint alleged that the Aguiars were liable 

for Yin’s severe emotional distress and that Yin was entitled to punitive 

damages.

5 The Aguiars also denied that they engaged in intentional, 

outrageous, or aggravated conduct that warranted the assessment of punitive 

damages.
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contended, Yin was solely responsible for constructing a cattle 

fence because he assumed the duty when he leased the land; the 

Aguiars noted that Yin’s lease specifically provided that “he 

‘is fully responsible [for] keeping cattle[] out of [their]

crops.’” 

The Aguiars also asserted that Hawaii Revised Statutes 

(HRS) § 142-63 did not prevent the entry of summary judgment in 

their favor because the statute did not apply to Yin’s claims as 

“it is only applicable to claims involving trespass on ‘properly 

fenced cultivated ground[.]’”

6 Yin’s property was not “properly 

fenced,” the Aguiars contended, because “the fence was poorly 

constructed and did not prevent cattle from entering his land.” 

Specifically, the Aguiars stated that Yin’s fence was only two 

and one half to three feet tall and used hog wire instead of 

barbed wire. Because the fence was under four feet tall and 

used loosely-wound hog wire, it did not satisfy the definition 

of a “lawful fence” under HRS § 142-61, the Aguiars argued.7 Nor 

 

6 HRS § 142-63 (1993) provides the following:

If any cattle, horse, mule, ass, swine, sheep, or goat, 

trespasses on any properly fenced cultivated ground, the 

owner thereof shall pay upon proof, the full amount of the 

damage or loss to the landowners, or to any person in 

possession of the land, whoever suffers the damage or loss.

7 HRS § 142-61 (1993) provides, in relevant part, the following:

(a) Every fence made of stone, posts and rails, posts and 

boards, posts and wire, or other suitable materials shall 

be a lawful fence, provided that it is not less than four 

(continued . . .)
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did HRS § 141-64 apply, contended the Aguiars, because the 

statute only applies to trespass claims on unfenced cultivated 

ground, and Yin’s property was not unfenced.8 Thus, because they 

were not liable for Yin’s alleged damages, the Aguiars 

concluded, they were entitled to summary judgment.

In his memorandum in opposition, Yin argued that the 

lease between himself and Prekaski was unenforceable because it 

was “contrary to the public good.” Yin contended that Hawaii 

law supports the principle that courts should not enforce 

contracts contrary to public policy. (Citing Inlandboatmen’s 

Union v. Sause Bros., Inc., 77 Hawaii 187, 196, 881 P.2d 1255, 

1264 (App. 1994).) Yin argued that his lease violated an 

explicit public policy established by HRS §§ 142-63 and 142-64 

that shifts the liability of livestock damage from the property 

 

(. . . continued)

feet in height, substantially built, strong and close, 

existing in good state of repair, and capable of turning 

either all stock or all stock excepting swine, attempting 

to pass through the fence.

(b) Woven wire, or what is otherwise known also as hogwire, used as a type of wire by itself or with a 

combination of barbed wire or plain wire, when supported on 

posts and properly fastened thereto and meeting the minimum 

height and stock turning requirements prescribed in 

subsection (a), shall be a lawful fence.

8 HRS § 142-64 (1993) provides that “[i]f any of the animals 

mentioned in section 142-63 trespasses on any unfenced cultivated ground, the 

owner thereof shall pay upon proof, the full amount of the damage or loss to 

the landowner or to any person in possession of the land, whoever suffers the 

damage or loss.”
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owner to the livestock owner. Thus, cattle owners hold the 

burden to prevent their cattle from doing damage to adjacent 

farmland and are liable for the damage caused by their cattle, 

Yin concluded. 

In reply, the Aguiars maintained that they were 

entitled to summary judgment because Yin did not raise any 

genuine dispute of material fact and his argument that his lease 

violated public policy was unsupported by the facts. 

Specifically, the Aguiars contended that neither the statutes 

nor public policy prevented Prekaski from requiring Yin to build 

a fence to protect his property because HRS §§ 142-63 and 142-64 

do not prohibit landlords from requiring their tenants to 

construct fencing as part of lease agreements.

The circuit court granted the Aguiars’ motion and

concluded that they met their burden of producing evidence that 

HRS §§ 142-63 and 142-64 did not apply because Yin’s property 

was not “properly fenced” so as to prevent cattle from entering.9 

And HRS § 142-64 did not apply, the court stated, because the 

land was not “unfenced.” Further, the court concluded that the 

lease provision at issue was not void against public policy 

under the standards described in Inlandboatmen’s Union because 

the provision only shifts the duty to fence from the rancher to 

 

9 The Honorable Greg K. Nakamura presided.
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the farmer by a contract on lands leased to them by a common 

lessor.

10 

The court’s order granting summary judgment as to all 

claims was filed on March 27, 2015, and its order granting in 

part and denying part the Aguiars’ motion for fees and costs was 

granted on June 9, 2015. The court issued its judgment on 

July 1, 2015, incorporating the rulings on these orders. Yin

filed a timely notice of appeal from the judgment.

II. ICA PROCEEDINGS

On appeal, Yin argued that the circuit court erred in 

granting summary judgment in favor of the Aguiars based on the 

court’s erroneous interpretation of HRS §§ 142-63 and 142-64 and 

its conclusion that he had a contractual obligation to protect 

his crops from damage by trespassing cattle that precluded any 

liability on the part of the Aguiars. Yin contended that HRS 

§§ 142-63 and 142-64 taken together, impose liability for 

livestock damage to cultivated land, whether the land is legally 

fenced or not. This is bolstered by the statutes’ legislative 

history, Yin explained, as the statutes were amended to their 

 

10 The circuit court also concluded that the Aguiars satisfied their 

burden to produce evidence that they are third-party beneficiaries of the 

provision of Yin’s lease that provides that Yin “is fully responsible [for]

keeping cattle[] out of [their] crops” because the Aguiars produced evidence 

that they “bargained with Ms. Prekaski for the . . . provision.” 

Additionally, the court found that the Aguiars met their burden of producing 

evidence that it was reasonable for them to rely upon Yin’s lease in 

continuing to maintain cattle on Ms. Prekaski’s land and that they had the 

power to impose the duty set forth in the lease provision at issue upon Yin.
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present forms in 1975 with the intent to simplify determination 

of damages in animal trespass cases. Rather than combining the 

two statutes, the 1975 amendment was grafted onto the preexisting statutes that divided liability according to whether or 

not the land was fenced, Yin argued. As to the lease, Yin 

argued that evidence of the contract between Prekaski and Yin 

was not sufficient to summarily render the statutes’ public 

policy inapplicable to this case. 

The Aguiars responded that they were not liable for 

any damage to Yin’s crops because Yin bore the duty to build a 

fence by the inclusion of a provision in his lease making him 

responsible for damage caused by cattle to his crops. 

Additionally, the Aguiars argued that HRS §§ 142-63 and 142-64 

did not prevent the enforcement of the lease or relieve Yin of 

his duty under the lease because the statutes were irrelevant as 

they did not provide that cattle owners must construct fencing 

on properties where cattle are kept. And regarding the lease 

itself, the Aguiars contended that Yin failed to identify a 

specific policy or statute that prevented the lease from 

requiring him to construct fencing and failed to explain why his 

lease is different from other contracts through which a party 

assumes duties as part of the contract. Nor did HRS §§ 142-63 

and 142-64 apply because they do not address liability when a 
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fence is neither properly fenced nor unfenced, the Aguiars 

argued.11 

In its summary disposition order, the Intermediate 

Court of Appeals (ICA) first stated that Yin’s opening brief 

made new arguments concerning the interpretation, legislative 

intent, and legislative history of HRS §§ 142-61, 142-63, and 

142-64 that had not been made before the circuit court.12 The 

ICA explained that it would not address such arguments, and it 

would only consider the plain meaning and application of the 

statutes. The ICA found that the plain and unambiguous meaning 

of those statutes demonstrated that neither HRS § 142-63 nor HRS 

§ 142-64 applied because Yin’s property was neither unfenced nor 

properly fenced. And because Yin affirmatively accepted the 

duty to keep the cows off his property, the ICA concluded, the 

Aguiars were not liable for the damage caused by their cattle.13

 

11 Yin also challenged the circuit court’s order granting in part 

and denying in part the Aguiars’ motion for fees and costs, arguing inter 

alia that Yin’s success on appeal would obviate the prevailing party basis 

for the award under Hawaii Arbitration Rules (HAR) Rule 25. 

12 The ICA’s summary disposition order can be found at Yin v. 

Aguiar, No. CAAP-15-0000325, 2019 WL 948460 (App. Feb. 27, 2019). 

13 The ICA also concluded that the Aguiars met their burden of 

producing evidence that the purpose of the lease provision was to benefit 

them in that Yin had the duty to fence his property to prevent cattle from 

entering, it was reasonable for the Aguiars to rely on the lease provision in 

continuing to maintain cattle on the land, and the Aguiars met their burden 

of producing evidence that they were intended beneficiaries of the lease. 

The ICA did not expressly rule on Yin’s argument that the lease violated a 

public policy established by HRS §§ 142-63 and 142-64. The ICA affirmed the 

circuit court’s award of fees and costs. 
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III. STANDARDS OF REVIEW

A. Summary Judgment

We review a circuit court’s grant or denial of summary 

judgment de novo. Querubin v. Thronas, 107 Hawaii 48, 56, 109 

P.3d 689, 697 (2005) (citing Hawaii Cmty. Fed. Credit Union v. 

Keka, 94 Hawaii 213, 221, 11 P.3d 1, 9 (2000)).

B. Statutory Interpretation

“The interpretation of a statute is a question of law 

reviewable de novo.” Peer News LLC v. City & Cty. of Honolulu, 

138 Hawaii 53, 60, 376 P.3d 1, 8 (2016).

IV. DISCUSSION

A. Livestock Owners Are Liable for Damages Caused by Their 

Livestock Trespassing onto Cultivated Land. 

In its decision, the ICA only considered “the plain 

meaning and application of HRS §§ 142-61, 142-63, and 142-64,” 

and it did not examine the legislative history of HRS §§ 142-63 

or 142-64 because it concluded that the statutes were 

unambiguous and Yin failed to raise such arguments before the 

circuit court. 

HRS §§ 142-63 and 142-64 provide as follows:

§142-63 Trespass on fenced cultivated land. If any cattle, 

horse, mule, ass, swine, sheep, or goat, trespasses on any

properly fenced cultivated ground, the owner thereof shall 

pay upon proof, the full amount of the damage or loss to 

the landowners, or to any person in possession of the land, 

whoever suffers the damage or loss.

§142-64 On unfenced cultivated land. If any of the animals 

mentioned in section 142-63 trespasses on any unfenced 
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cultivated ground, the owner thereof shall pay upon proof, 

the full amount of the damage or loss to the landowner or 

to any person in possession of the land, whoever suffers 

the damage or loss.

Yin maintains that the ICA erred because its 

interpretation of HRS §§ 142-63 and 142-64 created an 

unreasonable loophole in the statutes by holding that his land 

was neither “unfenced” nor “properly fenced.” Yin asserts that 

the statutes impose liability on owners of livestock for all 

damages caused to crops when the livestock trespasses on another 

person’s land. 

We first consider whether the ICA erred in concluding 

that the statutes were unambiguous and then review whether the 

ICA erred in determining that neither HRS §§ 142-63 nor 142-64 

were applicable in this case. 

1. There Exists Ambiguity as to a Livestock Owner’s Liability 

When a Fence Does Not Satisfy the Qualifications of a “Lawful 

Fence.”

It is well established that “implicit in the task of 

statutory construction is [an appellate court’s] foremost 

obligation to ascertain and give effect to the intention of the 

legislature.” Louie v. Hawaii Gov’t Emps. Ass’n, 133 Hawaii 

385, 400, 328 P.3d 394, 409 (2014) (quoting State v. Wheeler, 

121 Hawaii 383, 390, 219 P.3d 1170, 1177 (2009)). “When there 

is doubt . . . or uncertainty of an expression used in a 

statute, an ambiguity exists.” Farmer v. Admin. Dir., 94 Hawaii
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232, 236, 11 P.3d 457, 461 (2000) (quoting Konno v. Cty. of 

Hawaii, 85 Hawaii 61, 71, 937 P.2d 397, 407 (1997)); see also

State v. DeMello, 136 Hawaii 193, 206, 361 P.3d 420, 433 (2015) 

(Pollack, J., dissenting) (“Assigning the statute’s ambiguous 

language a ‘plain meaning’ without reference to the legislative 

history . . . would not only be an abuse of the plain meaning 

doctrine, but it would also be contrary to this court’s duty to 

‘ascertain and give effect to the intention of the 

legislature.’” (quoting State v. McKnight, 131 Hawaii 379, 388, 

319 P.3d 298, 307 (2013))). 

Under the Hawaii Revised Statutes, the owner of “any 

cattle” that “trespasses on any properly fenced cultivated 

ground, . . . shall pay upon proof, the full amount of the 

damage or loss to the landowners.” HRS § 142-63 (emphasis 

added).14 Although HRS Chapter 142 does not provide a definition 

for “properly fenced,” it defines “lawful fence” as a “fence 

made of stone, posts and rails, posts and boards, posts and 

wire, or other suitable materials . . . provided that it is not 

less than four feet in height, substantially built, strong and 

close, existing in good state of repair, and capable of turning 

either all stock or all stock excepting swine, attempting to 

 

14 HRS §§ 142-63 and 142-64 apply to “any cattle, horse, mule, ass, 

swine, sheep, or goat.” For readability, this opinion refers to these 

animals collectively as “cattle” or “livestock.” 
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pass through the fence.”

15 HRS § 142-61(a). If the fence is 

made of “[w]oven wire,” otherwise known as “hog-wire,” then it 

must be “supported on posts and properly fastened thereto and 

meet[] the minimum height and stock turning requirements 

prescribed in subsection (a)” in order to constitute a “lawful 

fence.” HRS § 142-61(b). 

The Hawaii Revised Statutes unequivocally impose 

liability on the owners of livestock in situations when their 

animals damage a crop owner’s “properly fenced” cultivated land. 

To constitute “properly fenced,” the fence must be (1) at least 

four feet in height, (2) “substantially built,” (3) “strong and 

close,” (4) “existing in [a] good state,” and (5) “capable of 

turning [away] all stock . . . attempting to pass through the 

fence.” HRS § 142-61. A failure by the crop owner to satisfy 

any of these requirements would result in a determination that 

the property was not “properly fenced.” But proving all four of 

these elements results in circular reasoning because a property 

that is otherwise “properly fenced” would not allow livestock to 

gain entry as the definition requires that the fence be capable 

of “turning [away] all stock.” That is, the trespass itself 

would arguably relieve the livestock owner from liability 

 

15 Based on our discussion of the legislative history of the 

livestock statutes, see infra, we deduce that “lawful fence” is intended to 

be used to define “properly fenced.” 
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because a “proper[] fence[]” would have been able to turn away 

the animal.16 

Thus, while HRS § 142-63 clearly holds livestock 

owners liable when “any cattle . . . trespass[] on any properly 

fenced cultivated ground,” HRS § 142-61 seemingly renders this 

provision a virtual nullity absent intentional damage to an 

otherwise “proper[] fence[].” This incongruity creates 

ambiguity in the application of the plain text of these statutes 

and specifically as to a livestock owner’s liability when a 

fence does not satisfy the qualifications of a “lawful fence” 

under HRS § 142-61 because, under the interpretation given by 

the circuit court, such a fence would also render liability 

under HRS § 142-64 inapplicable. The ICA therefore erred in 

concluding that the statutes were unambiguous.17

 

16 Indeed, the Aguiars argued in their Answering Brief that, inter 

alia, “[t]he inadequacy of [Yin]’s fence is established by evidence that 

cattle walked through or over [his] fence.” 

17 To the extent that the ICA did not consider the legislative 

history or intent of the statutes because Yin did not raise the issues before 

the trial court, we have previously held that appellate courts may “resolve[] 

a properly preserved issue by answering a threshold or dispositive question 

of law, even though the argument is not advanced by the parties.” Cox v. 

Cox, 138 Hawaii 476, 488, 382 P.3d 288, 300 (2016) (citing Waldecker v. 

O’Scanlon, 137 Hawaii 460, [466-67], 375 P.3d 239, 245–46 (2016); Akamine & 

Sons, Ltd. v. Hawaii Nat’l Bank, 54 Haw. 107, 114–15, 503 P.2d 424, 429 

(1972)). Because Yin properly preserved the argument that HRS §§ 142-63 and 

142-64 provide that livestock owners are liable for the damages caused by the 

trespass of their animals, the ICA had the duty to give effect to the 

intention of the legislature in applying these statutes.
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2. The Legislature Intended To Impose Liability on Livestock

Owners for All Proven Damages to Cultivated Land.

When we interpret ambiguous statutes, “[t]he meaning 

of the ambiguous words may be sought by examining the context[] 

with which the ambiguous words, phrases, and sentences” were 

enacted. State v. Brantley, 99 Hawaii 463, 464, 56 P.3d 1252, 

1253 (2002) (first alteration in original). We may also “resort 

to extrinsic aids in determining legislative intent” such as 

legislative history. Id. at 464-65, 56 P.3d at 1253-54.

This case involves the interpretation of HRS §§ 142-63 

and 142-64, which were last amended in 1975. Specifically, we 

are required to determine the meanings of the terms “properly 

fenced” and “unfenced” as used in these provisions. The terms 

first appeared in the statutes addressing the trespassing of

livestock (“livestock statutes”) in 1888, but the livestock 

statutes had protected trespass onto cultivated land as early as 

1841. We therefore begin our review of the legislative history 

of HRS §§ 142-63 and 142-64 by considering the evolution of the 

early laws regarding livestock trespass and the amendments made 

in 1888 and 1975. 

a. Early Laws Regarding Livestock Trespass

The first statute regarding trespassing livestock was 

enacted in 1841 as part of the Laws of the Hawaiian Kingdom

(“1841 Act”). Translation of the Constitution and Laws of the 
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Hawaiian Islands, Established in the Reign of Kamehameha III, 

Ch. XIV, at 58 (1842) [hereinafter Laws of 1842]. When the 1841

Act was enacted, King Kamehameha III explained that “there [was]

at the present time a considerable number of people who [were]

greatly annoyed by having their cattle held in confinement 

without cause” and that “farmers [were] greatly annoyed, by 

having their vegetables destroyed” by unconfined cattle. Id. 

To resolve this problem, King Kamehameha III made it “illegal 

for beasts to [roam] at large, unless the cultivated grounds 

[were] enclosed by a fence.” Id. If the “cultivated ground” 

was surrounded by a fence, then animals were allowed to roam, 

but “if any animal [was] really mischievous and br[oke] away the 

fence or jump[ed] over it, then the owner of the animal [was 

required to] pay according to the amount of food destroyed and 

the loss sustained.” Id. The 1841 Act distinguished that 

situation from one in which a fence “bec[a]me rotten” or “f[e]ll 

down” and exposed the cultivated land. Id. In such cases, the 

owner of “the animal not being [at] fault and not being of a 

mischievous character shall pay no fine.” Id. However, “if it 

was generally known that the fence was poor and out of repair, 

and on that account most of the people confined their animals,” 

the animal owner was liable for “all damages done by his 

animals.” Id. at 58-59. 
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In 1846, “in consideration of the numerous petitions 

presented” to “[t]he Nobles and Representatives of the Hawaiian 

Islands,” a law entitled “Joint Resolutions Respecting Estrays” 

was enacted (“1846 Act”), increasing statutory protection to the 

owners of cultivated land. 2 Statute Laws of His Majesty 

Kamehameha III, at 72 (1847) [hereinafter 1847 Stat. Laws]. 

Under the 1846 Act, “if any kine,[

18] horse, mare, mule or ass 

commit[ed] any trespass on any cultivated ground,” the livestock 

owner was liable to the cultivated landowner for “the sum of 

five dollars for the trespass of each animal” and “the full 

amount of” the damage to the production of land. Id. § 1, at 

72. The 1846 Act also included a provision that made livestock 

owners liable for the trespass of their animals onto 

uncultivated land.

19 Id. § 2, at 72. The 1846 Act thus 

increased statutory protection to landowners by making the 

livestock owner liable for trespass onto cultivated and 

uncultivated land regardless of the existence or condition of a 

fence. See id.

 

18 “Kine” is an archaic plural of “cow.” Kine, Webster’s Unabridged 

Dictionary (2d. ed. 2001).

19 Section 2 of the 1846 Act provided as follows: 

That if any animal or animals of any person commit any 

trespass on any uncultivated ground, the owner of the 

animal or animals shall forfeit and pay to the owner of the 

ground, four times the amount of damage done, or of value 

destroyed. 

1847 Stat. Laws § 2, at 72.
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A decade later, a new law “Relating to Estrays and 

Pounds” was passed (“1856 Act”). Laws of His Majesty Kamehameha 

IV, 1856 Sess. Laws, at 49 [hereinafter 1856 Sess. Laws]. 

Section 5 of the 1856 Act provided that if any livestock “commit 

a tres[]pass on any cultivated ground, the owner of said animal 

or animals shall forfeit and pay to the owner of the ground the 

sum of fifty cents for the trespass of each animal” plus “full 

amount” of any damage to the “productions of the land.”20 Id. § 

5, at 50. Like the previous iteration of the law, the 1856 Act 

required an owner of livestock to pay a set amount per head for 

the trespass of the owner’s animals onto “any uncultivated 

ground.”21 Id. § 6, at 50. In addition, the 1856 Act contained 

 

20 Section 5 of the 1856 Act provided in part as follows: 

If any horse, mule, ass, hog, or neat cattle, commit a 

tres[]pass on any cultivated ground, the owner of said 

animal or animals shall forfeit and pay to the owner of the 

ground the sum of fifty cents for the trespass of each 

animal, excepting sheep and goats, which shall be six 

cents; and if any productions of the land be destroyed or 

other damage done by the animal or animals, the owner 

thereof shall further pay to the loser the full amount of 

such damage or loss[.] 

1856 Sess. Laws § 5, at 50. 

21 Section 6 of the 1856 Act provided in part as follows: 

If any of the animals enumerated in the last preceeding 

section commit a trespass on any uncultivated ground, the 

owner of such animal or animals shall forfeit and pay to 

the owner of the ground twelve and a half cents for the 

trespass of each animal, excepting sheep and goats, for 

which he shall pay six cents per head, and if any damage be 

done by the animal or animals, the owner thereof shall pay 

to the loser the full amount of such damage[.]

1856 Sess. Laws § 6, at 50. 
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a provision that increased the penalties listed in sections 5 

and 6 when the trespass occurred onto “land enclosed by a lawful 

fence”:

The owner of any horse, mule, ass, neat cattle, swine, 

sheep or goat trespassing upon land enclosed by a lawful 

fence, shall forfeit and pay to the owner of such land, if 

cultivated, twice the penalty prescribed in section fifth; 

and if the land is uncultivated, . . . twice the penalty 

prescribed in section sixth, and shall also in each case 

pay the full amount of damage done by such animal or 

animals. 

Id. § 8, at 51 (emphases added). 

The 1856 Act also provided the criteria a barrier 

needed to meet to qualify for additional penalties as a “lawful 

fence” under section 9 of the 1856 Act.22 Id. § 9, at 51. 

Accordingly, trespass onto any cultivated or uncultivated land 

that was enclosed with anything less than a lawful fence would 

be compensable only under sections 5 or 6. In addition, the

1856 Act increased protections to landowners by broadening the 

category of animals for which a livestock owner was liable to 

include “hog,” “swine,” “sheep” and “goats.” See id. §§ 5, 6, 

 

22 The 1856 defined a “lawful fence” as follows:

Every enclosure shall be deemed a lawful fence which is 

four feet high, if made of stone, and if made of wood, iron 

wire, or an artificial pali, five feet high; if made upon 

an embankment of a ditch three feet deep, or upon an 

artificial or natural pali three feet high, then the fence 

must be two feet high said fence to be substantial, 

reasonably strong and close, made to turn stock. If the 

fence be a ditch only, then it shall be nine feet wide at 

the top and four feet deep, and if a hedge, five feet high, 

thigh and high to turn stock. 

1856 Sess. Laws § 9, at 51. 
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8, at 50-51. The 1856 Act thus created a liability scheme that 

held a livestock owner liable for the trespass of the owner’s 

animals onto any land, cultivated or uncultivated, and the 

existence of a lawful fence only determined the additional 

damages that would be awarded. 

In 1859, these provisions were compiled and codified 

into Hawaii’s first civil code (“1859 Civil Code”) as sections 

239, 240, 242, and 243. See The Civil Code of the Hawaiian 

Islands §§ 239, 240, 242, 243, at 54-55 (1859) [hereinafter 1859 

Civ. Code]. The provisions in the 1859 Civil Code were largely 

the same as the 1856 Act, with the exception of section 243, 

which amended the definition of a “lawful fence.”23 See 1859 

Civ. Code § 243, at 54. These provisions were also compiled 

into the civil code in 1884 and were unchanged except for minor 

stylistic changes in section 239 (trespass onto cultivated land)

 

23 The 1859 Civil Code defined “lawful fence” as follows: 

Every fence shall be deemed a lawful fence which is five 

feet high, if made of stone; or which is five feet high, if 

a hedge, or if made of wood, iron wire, or an artificial 

pali; or which is two feet high, if made upon an embankment 

of a ditch three feet deep, and at least two feet wide at 

the bottom, or upon an artificial or natural pali, three 

feet high. If the fence be a ditch only, then it shall be 

nine feet wide at the top, and four feet deep. Every fence 

to be a lawful fence, shall be substantially built, and 

reasonably strong and close to turn stock. 

1859 Civ. Code § 243, at 55. 
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and an addition in section 240.

24 Compare id. §§ 239-243, at 54-

55 with Compiled Laws of the Hawaiian Kingdom §§ 239-243, at 55-

57 (1884) [hereinafter 1884 Civ. Code].

Thus, the evolution of the early statutes addressed 

the concerns of farmers who were “greatly annoyed, by having 

their vegetables destroyed” by unconfined livestock, Laws of 

1842, at 58, and indicated the framers’ intent to impose 

liability on livestock owners for the trespass of their animals 

onto all cultivated land and to provide increased protection to 

cultivated land enclosed with a lawful fence. 

We next consider whether amendments made to the 

livestock statutes in 1888 introducing the terms “properly 

fenced” and “unfenced” were intended to exclude certain 

cultivated land from statutory protection. 

b. 1888 Amendments

Beginning in 1846, the livestock statutes provided

statutory protection to all cultivated land, and they afforded

an even greater level of protection in 1856 to lawfully fenced,

cultivated land by increasing the amount of statutory damages a 

crop owner received for the physical trespass. 1847 Stat. Laws

§§ 1-2, at 72; 1856 Sess. Laws §§ 5-8, at 50-51; 1859 Civ. Code

§§ 239-243, at 54-55; 1884 Civ. Code §§ 239-243, at 55-57. 

 

24 Section 240 of the Civil Code was amended in 1864 by adding a 

paragraph that empowered the “Governor of Oahu” to impound livestock grazing 

on certain public roads and environs. 1884 Civ. Code § 240, at 56. 
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These statutes thus placed liability on livestock owners for

trespass of their animals onto any cultivated land. See Laws of 

1842, at 58-59; 1847 Stat. Laws §§ 1-2, at 58-59; 1856 Sess.

Laws §§ 5-8, at 50-51; 1859 Civ. Code §§ 239-243, at 54-55; 1884 

Civ. Code §§ 239-243, at 55-57. 

In 1888, a statute amending and consolidating the law 

relating to “Pounds, Estrays, Brands and Marks” was enacted

(“1888 Act”). Laws of His Majesty Kalakaua I, 1888 Sess. Laws

Act 35, at 74 [hereinafter 1888 Sess. Laws]. An original draft 

of the 1888 Act (“Bill No. 27”) indicates that the drafters of 

the bill intended to continue providing statutory protection to 

all cultivated land by setting forth a livestock owner’s 

liability for trespass onto cultivated land into a single 

provision.25 This consolidated provision functionally 

incorporated the increased penalties from the prior law and

substituted the phrase “enclosed by a lawful fence” with 

“properly fenced.” The provision in the original draft of Bill 

No. 27 read as follows: 

Sec. IX: If any cattle horse, mule, ass, hog, sheep or 

goat shall trespass on any cultivated ground, the same 

being properly fenced, and shall destroy or injure the 

growing crop, or shall break the fence, or commit other 

waste or damage, the owner thereof shall pay to the

landowner the full amount of such damage or loss. But if 

 

25 Prior to 1888, the civil code contained one provision addressing 

trespass onto any cultivated land (§ 239) and one provision addressing 

trespass onto any uncultivated land (§ 240). 1884 Civ. Code §§ 239, 240, at 

55-56. A third provision doubled the penalties in sections 239 and 240 when 

the land was “enclosed by a lawful fence.” Id. § 242, at 57. 
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the trespass shall be committed on cultivated ground which 

is not enclosed by a legal fence, the owner of the animal 

or animals shall pay to the owner of the land the sum of 

two dollars for each animal trespassing, excepting sheep 

and goats for which he shall pay twenty-five cents each; 

provided however, that if in any particular case this 

provision shall have an onerous or unjust bearing, owing to 

the large number of animals trespassing, the Judge shall 

have power to diminish the forfeiture. 

An Act to Amend and Consolidate the Law Relating to Pounds, 

Estrays, Brands and Marks, Bill No. 27 § 9, at 5-6, in 1888 

Bills & Laws, #1-77, Box 89 (manuscript) (emphases added) 

[hereinafter Bill No. 27] (on file with the Hawaii State 

Archives). 

Bill No. 27 specified only two types of cultivated 

land: “properly fenced” cultivated land, and cultivated land 

“not enclosed by a legal fence.” This categorization is made 

clear by the sentence beginning with “But if” in Bill No. 27

that distinguished between trespass onto “properly fenced” 

cultivated land and trespass onto “cultivated” land that was 

“not enclosed by a legal fence.” The term “properly fenced” 

thus referred to land that was “enclosed by a legal fence.” 

This original version of the bill draft, which is

preserved in the Hawaii State Archives, has a handwritten 

notation in the bill’s margin next to the sentence beginning 

with “But if.” The notation states “Sec 10,” indicating that 

this portion of the provision was to be placed into its own 

section. Bill No. 27 § 9, at 5. When this division was 
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26

incorporated in section 10 in a subsequent draft, a wording 

change was made:

“cultivated ground which is not enclosed by a legal fence,”

was rephrased as

“any unfenced cultivated ground.” 

Sections 9 and 10 accordingly appear as follows in the 1888 Act:

SECTION 9. If any cattle, horse, mule, ass, swine, sheep 

or goat, shall trespass on any properly fenced, cultivated 

ground, the owner thereof shall pay to the owner of such 

land the full amount of the damage or loss occasioned by 

such estray to such land-owner, and the sum of fifty cents 

for each animal trespassing, excepting sheep and goats, for 

which he shall pay ten cents each[.]

SECTION 10. If any animals mentioned in Section 9 of this 

Act shall trespass upon any unfenced, cultivated ground, 

the owner thereof shall pay to the owner of such land the 

sum of twenty-five cents for each animal trespassing, 

excepting for sheep and goats, for which he shall pay ten 

cents each. The owner of such lands shall not be entitled 

to claim any damages for such trespass other than said sum 

of twenty-five cents[.]

1888 Sess. Laws §§ 9, 10, at 77-78 (emphases added).

26

While it would appear that the change in wording that 

occurred when section 9 was divided into two sections was 

intended to be stylistic only,27 the literal wording of section 

 

26 There are three undated drafts in the file containing the drafts 

of Bill No. 27. The first is a manuscript and appears to be the original 

bill draft introduced in the 1888 session. The other two drafts include the 

division of section 9 into sections 9 and 10 as discussed. File No. 222-89-

2, in 1888 Bills & Laws, #1-77, Box 89 (on file with the Hawaii State 

Archives).

27 This is evident, for example, from the similarity of section 10’s 

language to section 11 of the 1888 Act. 

SECTION 10. If any animals mentioned in Section 9 of this 

Act shall trespass upon any unfenced, cultivated ground, 

the owner thereof shall pay to the owner of such land 

. . . .

(continued . . .)
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27

10 could be read in isolation to mean “no fence” rather than

land “not enclosed by a legal fence.” This reading of section 

10 would exclude all cultivated land with a fence that did not 

meet the requirements of a legal fence (“not-properly fenced”)

from any statutory protection against trespassing livestock, in 

stark contrast to the purpose and text of the original draft of 

Bill No. 27 and its subsequent singularly stated objective to

recodify section 9 into two sections. The significant effect of 

abruptly excluding not-properly fenced, cultivated land from all

statutory protection against trespassing livestock raises the 

question of whether the drafters’ use of the term “unfenced” was 

intended to depart from the liability scheme that had 

historically been a part of the livestock statutes. 

It is well established that statutes in pari materia

should be construed together. Wells Fargo Bank, N.A. v. Omiya,

142 Hawaii 439, 450, 420 P.3d 370, 381 (2018) (quoting State v. 

Kamanao, 118 Hawaii 210, 218, 188 P.3d 724, 732 (2008)). In 

construing each individual part of a statute, the court must 

consider the statute as a whole to ensure that all parts produce 

 

(. . . continued)

SECTION 11. If any of the animals mentioned in Section 9 

of this Act shall trespass on any uncultivated land the 

owner of such animals or animals shall pay to the owner of 

the land . . . .

1888 Sess. Laws §§ 10, 11, at 77-78 (emphases added). 
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a sensible and harmonious whole. Kauai Springs, Inc. v. 

Planning Comm’n of Cty. of Kauai, 133 Hawaii 141, 163, 324 P.3d 

951, 973 (2014); State v. Davis, 63 Haw. 191, 196, 624 P.2d 376, 

380 (1981).

Under the 1888 Act, a livestock owner whose cattle 

trespassed on “any unfenced, cultivated” land or on “any 

uncultivated” land was required to pay to the owner of the land 

the sum of twenty-five cents per trespassing animal. 1888 Sess. 

Laws §§ 10, 11, at 77-78.28 If section 10 only applied to 

cultivated land that was wholly unfenced, then the statute would 

protect not-properly fenced, uncultivated land to a greater 

degree than not-properly fenced, cultivated land. This is 

because the owner of not-properly fenced, uncultivated land

could recover a set sum for the trespass of each animal under 

section 11 of the 1888 Act, while the owner of not-properly 

fenced, cultivated land could not recover under section 10. 

Stated differently, a livestock owner would only be required to 

pay the statutory amount for trespass to a crop owner of not-

 

28 Section 11 of the 1888 Act provides as follows: 

SECTION 11. If any of the animals mentioned in Section 9 

of this Act shall trespass on any uncultivated land the 

owner of such animal or animals shall pay to the owner of 

the land the sum of twenty-five cents for the trespass of 

each animal, excepting for sheep and goats, for which he 

shall pay ten cents each, and if any damage be done by the 

animal or animals, the owner thereof shall further pay to 

the land-owner the full amount of such damage.

1888 Sess. Laws § 11, at 78 (emphasis added).
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properly fenced land when the crop owner was not growing crops. 

In effect, the statute as a whole would penalize a land owner 

for cultivating the land by depriving the crop owner of an 

ability to recover the set statutory amount for a trespassing 

animal. 

Similarly, an owner of cultivated land who sought to 

protect crops with a fence that inadvertently did not fully meet 

the requirements of a lawful fence could not recover the 

statutory amount. In contrast, an owner of cultivated land who 

made no attempt to protect crops with a fence could recover a 

set sum for the trespass of each animal under section 10. The 

statute would consequently have the effect of penalizing the 

crop owner who unsuccessfully attempted to qualify for the 

increased protection offered by section 9 of the statute,

compared to crop owners who did not take steps to protect their 

crops. Thus, reading section 10 to apply only to wholly 

unfenced, cultivated land produces an inharmonious reading of 

the 1888 Act as a whole. See Kauai Springs, Inc., 133 Hawaii at 

163, 324 P.3d at 973.

Additionally, principles of statutory interpretation 

instruct that a statute must be read to give effect to all the 

sentences, clauses, and words in the statute. Adams v. CDM 

Media USA, Inc., 135 Hawaii 1, 18, 346 P.3d 70, 87 (2015). 
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Under the 1888 Act, before a person could impound

trespassing animals, the person was required to provide a 

statement that included the amount of damages and expenses 

claimed. 1888 Sess. Laws § 4, at 75.29 These expenses included 

the actual expenses incurred in capturing and conveying the 

trespassing animal to the pound in all cases and were required 

to “be added to the forfeits and damages specified in [sections 

9, 10, and 11].” Id. § 13, at 78 (emphasis added).30 If section 

10 applied only to wholly unfenced, cultivated land, this 

portion of section 13 would be superfluous when trespass 

occurred onto not-properly fenced, cultivated land, a result 

that would be in conflict with giving effect to all clauses in a 

 

29 Section 4 of the 1888 Act provided as follows:

SECTION 4. No Pound Master shall receive estrays until the 

person wishing to impound the same, shall have signed his 

name to a statement setting forth the number and species of 

estrays, locality trespassed upon, name of owner or owners 

of such estrays, if known, together with the date on which 

they were taken and the amount of damages and expenses 

claimed. . . .

1888 Sess. Laws § 4, at 75.

30 Section 13 of the 1888 Act provided as follows:

SECTION 13. In all cases where animals are taken up for 

trespass, the actual expenses incurred, or a fair allowance 

for the labor required in catching, driving and conveying 

such animals to the pound, and of giving notice to the 

owner of the same, shall be added to the forfeits and 

damages specified in the preceding sections. Provided 

however, that the charge for such catching, driving and 

conveying to the pound shall not exceed one dollar per 

head.

1888 Sess. Laws § 13, at 78 (emphases added). 
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statute. See Coon v. City & Cty. of Honolulu, 98 Hawaii 233, 

250, 47 P.3d 348, 365 (2002) (rules of statutory construction 

require rejection of an interpretation that renders any part of 

the statutory language a nullity). Similarly, section 14 

applies when “any animals are taken up for trespass” without 

limitation as to whether the land is cultivated or 

uncultivated.31 The section provides that livestock owners shall 

be notified, if known, of “the amount of damage and trespass 

fees claimed” when any trespassing animals are caught. 1888 

Sess. Laws § 14, at 789. If the “legal charges” (set forth in 

sections 9, 10, and 11 of the 1888 Act) were not paid, the land 

owner could impound the animals. Id. Again, if section 10 did 

not apply to not-properly fenced, cultivated land, the “legal 

charges” and impoundment clauses would be nullities despite 

section 14 ostensibly applying “[w]hen any animal or animals are 

taken up for trespass.” See Miyagawa v. Ferreira, 10 Haw. 23, 

23 (Haw. Rep. 1895) (making no distinction as to whether the 

 

31 Section 14 of the 1888 Act provides as follows:

SECTION 14. When any animal or animals are taken up for 

trespass, the owner, if known, shall be immediately 

notified, if reasonably practicable, of such fact, and of 

the amount of damage and trespass fees claimed, and if he 

shall refuse or fail to pay the legal charges, or in case 

the owner be unknown, then the animal or animals shall be 

impounded forthwith.

1888 Sess. Laws § 14, at 79 (emphasis added).
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trespassed land was fenced or not in recognizing that a “person 

whose land has been trespassed on and crops damaged” has a 

remedy under section 14 of the “impounding law” of 1888). 

Reading “unfenced” to include all cultivated land not included 

in section 9 gives full effect to all parts of sections 13 and 

14 in the 1888 Act. 

We have also frequently stated that statutes should be 

interpreted according to the intent, meaning, and purpose of the 

overall statutory scheme and not in a manner that would lead to 

absurd and unjust results. Allstate Ins. Co. v. Hirose, 77 

Hawaii 362, 371, 884 P.2d 1138, 1147 (1994); see also Kim v. 

Contractors License Bd., 86 Hawaii 264, 269-70, 965 P.2d 806, 

811-12 (1998); Richardson v. City & Cty. of Honolulu, 76 Hawaii

46, 60, 868 P.2d 1193, 1207 (1994). When a literal 

interpretation of a statute would lead to absurd or unjust 

results, the court may depart from its plain reading. Franks v. 

City & Cty. of Honolulu, 74 Haw. 328, 341, 843 P.2d 668, 674 

(1993). 

Beginning in 1856, the definition of “lawful fence” in 

the livestock statutes functioned to distinguish between 

cultivated land “enclosed by a lawful fence” and all other 

cultivated land in order to determine the amount of statutory 

damages a livestock owner was required to “forfeit and pay” to 
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the aggrieved land owner. See 1856 Sess. Laws §§ 8, 9, at 51. 

The original draft of Bill No. 27 did not change the function of 

the “lawful fence” provision, and like the prior law, the 1888 

Act envisioned only two types of cultivated land: cultivated 

land enclosed by a lawful fence and all other cultivated land.

Assuming arguendo that “unfenced” meant “no fence,” 

the 1888 Act would have, for the first time, created three 

categories of fences: lawful fences, no fences, and everything 

else in between (e.g., partial fences, not-properly built 

fences). But dividing fences into three groups would result in 

irrational and illogical consequences to crop owners in light of 

the definition of lawful fence. 

First, to be properly fenced, fenced land must be 

capable of preventing the trespass of livestock. 

SECTION 15. Every fence shall be deemed a lawful fence 

which shall be . . . substantially built, strong and close, 

to turn all stock excepting swine, and in good repair. The 

sea, rivers, ponds and natural perpendicular bluffs, 

whenever impassable, shall be legal fences.

1888 Sess. Laws § 15, at 79 (emphasis added). To satisfy this

requirement, land would have to be enclosed by a fence or have 

an impassable barrier on all four sides. Any crop owner whose 

unfenced property was bordered by a neighbor’s fenced property 

on less than all sides would thereby have partially fenced

property, and such land would be excluded from statutory

protection under the 1888 Act if “unfenced” meant “no fence” 
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because the land would neither be “properly fenced” or 

“unfenced.” This would force the crop owner to completely 

enclose their property with a proper fence or to persuade the 

neighbor to dismantle the fence in order to receive the 

statute’s protection. This situation would be further 

complicated if the fence on the adjoining property was 

improperly built or fell into disrepair because a crop owner 

would be required to have the fence fixed to obtain statutory 

protection from trespassing livestock.

Similarly, because the definition of lawful fence 

included “impassable” rivers, ponds, and bluffs, any cultivated 

land with such a natural barrier would result in the property 

being partially fenced unless the barrier completely enclosed 

the property. In such a situation, the cultivated land would 

not be considered to have “no fence,” and the landowner would 

not be entitled to compensation when livestock trespass occurred 

unless the remainder of the property was properly fenced. A 

crop owner with an impassable barrier on the property would 

therefore be required to undertake the time and expense to 

properly enclose the land with a lawful fence or lose protection 

under the statute. The 1888 Act would thus shift responsibility 

for preventing a trespass from livestock owners to crop owners 

when circumstances beyond the crop owner’s control rendered 

their property not properly fenced. 
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Finally, in order to receive protection under the 1888 

Act, the owner of fenced cultivated land would be required to 

show that the fence was (1) made of “suitable materials,” 

(2) not less than 41⁄2 feet in height, (3) “substantially built,” 

(4) “strong and close, to turn all stock,” and (5) in good 

repair. 1888 Sess. Laws § 15, at 79. However, a landowner 

would encounter extreme difficulty (absent intentional damage to 

the fence) in proving a fence was “substantially built, strong 

and close, to turn all stock” in light of the fact that the 

claim for damages would have had to result from a trespass. If 

section 10 provided statutory protection only to cultivated land 

with no fencing, a landowner would risk losing all protection 

under the statute by choosing to erect a fence. This would have 

the absurd effect of disincentivizing fencing on cultivated land 

because a landowner with no fence could always recover for 

trespass under section 10, but the owner of fenced cultivated 

land would always have to prove the land was “properly fenced” 

pursuant to section 9. 

Interpreting “unfenced” to mean “no fence” thus leads 

to unjust and absurd results.

32 Rather, it is apparent that the

 

32 It is unsurprising that the legislative history for the 1888 law 

provides no report or explanation for the change of wording in section 10, 

particularly one indicating an intent to depart from the established 

liability scheme. See File No. 222-89-2, in 1888 Bills & Laws, #1-77, Box 89 

(on file with the Hawaii State Archives). 
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1888 Act’s drafters intended sections 9 and 10 to be construed 

together such that livestock owners would continue to be liable

for trespass onto all cultivated land as the prior livestock 

laws had provided. Reading “unfenced” to include all land not 

enclosed by a lawful fence also maintains the appropriate 

function of the “lawful fence” provision and is consistent with 

the intent, meaning, and purpose of the overall statutory scheme 

as evidenced by the legislative history of the prior livestock 

statutes.

Accordingly, review of the previous legislative 

history of the livestock statutes and the application of 

principles of statutory construction plainly manifest that the 

phrase “any unfenced, cultivated land” was not intended to 

exclude all cultivated property not enclosed by a lawful fence

from statutory protection against trespassing livestock.

33 The 

word “unfenced” in section 10 of the 1888 Act must therefore be 

read as including cultivated land not enclosed by a lawful 

fence. 

 

33 Sections 9 and 10 were recodified into the territorial laws of 

Hawaii in 1907, and incorporated into the Revised Laws in 1925, 1935, 1945, 

and 1955. Laws of the Territory of Hawaii, 1907 Sess. Laws Act 125, §§ 12, 

13 at 290-91; Revised Laws of Hawaii (RLH) §§ 700, 701 (1925); RLH §§ 278, 

279 (1935); RLH §§ 1084, 1085 (1945); RLH §§ 20-62, 20-63 (1955). 
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c. 1975 Amendments

The provisions in the 1888 Act addressing trespass 

onto cultivated land remained substantively unchanged until 

1975. In 1975, HRS §§ 142-63 and 142-64 were amended to their 

current form, which permit landowners to recover “the full 

amount of the damage or loss” from trespassing livestock 

regardless of whether the property is “fenced” or “unfenced.”

34 

See 1975 Haw. Sess. Laws Act 40, § 1 at 69. These amendments 

effectively eliminated any distinction between fenced and 

unfenced cultivated land, thereby treating trespass onto all 

cultivated land the same. Further, the intended purpose of 

these amendments indicates an understanding by the legislature 

that not-properly fenced, cultivated land would be covered under 

the statutory scheme. The purpose of the amendments was 

explained by both a House and Senate report. The House Report 

provided the following:

 

34 As stated, HRS §§ 142-63 and 142-64 provide as follows:

§142-63 Trespass on fenced cultivated land. If any cattle, 

horse, mule, ass, swine, sheep, or goat, trespasses on any

properly fenced cultivated ground, the owner thereof shall 

pay upon proof, the full amount of the damage or loss to 

the landowners, or to any person in possession of the land, 

whoever suffers the damage or loss.

§142-64 On unfenced cultivated land. If any of the animals 

mentioned in section 142-63 trespasses on any unfenced 

cultivated ground, the owner thereof shall pay upon proof, 

the full amount of the damage or loss to the landowner or 

to any person in possession of the land, whoever suffers 

the damage or loss.
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The purpose of this bill is to modify the liability 

of livestock owners for trespass of their animals upon 

land.

The bill would amend the present law by making the 

owner of livestock liable for all proven damages or losses 

for the trespass of his animals.

Presently, the land owner can recover for property 

damage only if the land is fenced. He is also entitled to 

a specific monetary amount for each head of trespassing 

livestock, at the discretion of the court.

Owners of unfenced cultivated land can recover only a 

specific monetary amount for each head of trespassing 

livestock, also at the discretion of the court.

This bill would simplify the determination of damages 

in all animal trespass cases.

H. Stand. Comm. Rep. No. 428, in 1975 House Journal, at 1149

(emphasis added). Similarly, the Senate Report explained the 

following purpose of the Act:

The purpose of this bill is to modify the liability 

of livestock owners for trespass of their animals upon 

fenced or unfenced cultivated land as well as fenced 

uncultivated land. Also, the bill simplifies the 

determination of damages in all animal trespass cases.

The deletion of material concerning penalties “per 

head[,”] with varying amounts depending on what kind of 

animal trespassed, is appropriate. The present law 

originated in a predominantly agricultural era and as such, 

has little justification today on a “per head” basis. 

Requiring the livestock owner to bear the full cost of 

damages or loss to the land owner, upon proof of such, is 

more in line with present conditions.

Your Committee has amended the bill to provide that 

not only the landowner, but any person in possession of the 

land who suffers loss or damage would be compensated. This 

would include lessees, tenants, purchasers under an 

agreement of sale or any other person in possession of the 

land.

S. Stand. Comm. Rep. No. 823, in 1975 Senate Journal, at 1143

(emphases added). 
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These committee reports demonstrate that the

legislature viewed cultivated land as being either fenced or 

unfenced and intended to “mak[e] the owner of livestock liable 

for all proven damages or losses for the trespass of his 

animals” in either event. H. Stand. Comm. Rep. No. 428, at 

1149. That is, regardless of the status or quality of the 

fence, “in all animal trespass cases” livestock owners became 

liable for “the full cost of damages or loss to the land.” 

S. Stand. Comm. Rep. No. 823, at 1143. This simplified the 

determination of damages because the trier of fact was 

previously required to make fact-intensive determinations as to

whether a property was “properly fenced” based on whether the 

fence was (1) “substantially built,” (2) “strong and close,” 

(3) “existing in [a] good state,” and (4) “capable of turning 

[away] all stock . . . attempting to pass through the fence.” 

HRS § 142-61.

Additionally, in such cases, the burden would 

presumably be placed upon the crop owner to prove these

requirements, and a failure to satisfy any of the requirements 

would result in a determination that the property was not 

“properly fenced.” As explained supra, this would place a crop 

owner in the position of having to prove that the land 

trespassed upon was “properly fenced” with a fence “capable of 

turning . . . all stock . . . attempting to pass through the 
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fence,” which would almost always be disproved by the fact that 

the livestock was able to circumvent the fence.

But after the 1975 amendments, a court or jury was no 

longer required to make this complicated factual determination 

when deciding the amount of damages to award under Chapter 142. 

Instead, the 1975 amendments “simplified” the liability scheme 

“in all animal trespass cases” by making a livestock owner 

liable for the full amount of damages caused by the owner’s 

trespassing animals on cultivated land.

35 And rather than repeal 

sections 142-63 and 142-64 and enact a new statute, the 

legislature simply embedded the new liability scheme into the 

pre-existing statutory language. 

However, the legislative intent to simplify the 

determination of damages would not have been achieved unless HRS 

§ 142-64 applied to all cultivated land not properly fenced. 

This is because the trier of fact would still be required to 

make this complicated factual determination in cases that 

involved trespass onto any fenced, cultivated land to assess the 

applicability of HRS § 142-63. The amendments also would not 

 

35 In 1975, the legislature also amended the statutes “to provide 

that not only the landowner, but any person in possession of the land who 

suffers loss or damage would be compensated.” S. Stand. Comm. Rep. No. 823, 

at 1143. It is noted that, as a practical matter, tenants and lessees may 

not be in a position to fence property as it may be cost prohibitive or 

difficult to complete within the time frame of the lease. The tenant thus 

may have little control over the fencing whereas the owner of livestock 

presumably would have control over the animals.
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have accomplished the stated purpose of “making the owner of 

livestock liable for all proven damages or losses for the 

trespass of his animals” because a livestock owner would evade 

liability in cases involving trespass onto not-properly fenced

cultivated land. 

The history of sections 142-63 and 142-64 thus 

manifests an understanding by the legislature in 1975 that these 

sections would make a livestock owner liable for the “full cost 

of damages” to “any [] person in possession” of the cultivated 

land. And it is clear that the legislature intended to impose

liability upon livestock owners for livestock damage to any 

cultivated land, regardless of the existence or condition of a 

fence “in all animal trespass cases.” H. Stand. Comm. Rep. No. 

428, at 1149; S. Stand. Comm. Rep. No. 823, at 1143. The ICA 

was therefore incorrect in determining that the Aguiars were not 

responsible for the damages that their livestock caused to Yin’s 

crops because his leased property was neither “properly fenced”

nor “unfenced.”

B. The Exculpatory Lease Provision Is Contrary to Statutory Law

and Public Policy.

Yin argues that HRS §§ 142-63 and 142-64 demonstrate a 

public policy that “any person suffering crop damage caused by 

trespassing livestock is entitled to compensation.” And because 
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the lease provision exculpating the Aguiars violated these 

statutes, Yin contends, the provision is void.36

Generally, a party “who assents to a contract is bound 

by it.” Courbat v. Dahana Ranch, Inc., 111 Hawaii 254, 264, 141 

P.3d 427, 437 (2006) (quoting Leong v. Kaiser Found. Hosps., 71 

Haw. 240, 245, 788 P.2d 164, 168 (1990)). Under this basic 

principle, parties “are permitted to make exculpatory contracts 

so long as they are knowingly and willingly made and free from 

fraud.” Id. (quoting Fujimoto v. Au, 95 Hawaii 116, 156, 19 

P.3d 699, 739 (2001)). However, exculpatory clauses “are not 

favored” and, “if possible,” will be “construed not to confer 

this immunity.” Fujimoto, 95 Hawaii at 155, 19 P.3d at 738

(citing 15 Williston on Contracts § 1750A, at 144-45 (3d ed. 

1972)). Exculpatory provisions are disfavored because “they 

tend to allow conduct below the acceptable standard of care.” 

Id. at 155, 19 P.3d at 738 (quoting Yauger v. Skiing Enters., 

Inc., 557 N.W.2d 60, 62 (Wisc. 1996)); see also Laeroc Waikiki 

Parkside, LLC v. K.S.K. (Oahu) Ltd. P’ship, 115 Hawaii 201, 224, 

166 P.3d 961, 984 (2007) (“[T]he law of torts imposes standards 

of conduct for the protection of others against unreasonable 

 

36 The ICA does not appear to have addressed whether the exculpatory 

lease provision violated a public policy established by HRS § 142-63 or HRS 

§ 142-64 because it found that neither statute applied. Because we find that 

the statutes impose liability on a livestock owner for trespass damage to 

cultivated land, we consider whether the circuit court erred in concluding 

that the lease provision was not void against public policy. 
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risk of harm and one cannot exempt himself from such liability 

for harm that is caused either intentionally or recklessly.” 

(internal quotation marks and alterations omitted)).

When evaluating the validity of such clauses, we 

“examine[] whether [they] violate public policy.” Fujimoto, 95 

Hawaii at 156, 19 P.3d at 739; see also 15 Grace McLane Giesel, 

Corbin on Contracts § 79.1, at 1 (2003) (“The law has a long 

history of recognizing the general rule that certain contracts, 

though properly entered into in all other respects, will not be 

enforced . . . if found to be contrary to public policy.”). 

Public policy, generally, is a “principle of law which declares 

that no one may lawfully do that which has a tendency to be 

injurious to the public welfare.” McClure Eng’g Assocs., Inc. 

v. Reuben H. Donnelley Corp., 447 N.E.2d 400, 402 (Ill. 1983). 

Public policy may therefore derive from numerous sources 

including constitutional provisions, statutory provisions, or 

the common law. 2 Barry A. Lindahl, Modern Tort Law: Liability 

and Litigation § 21:5, at 481 (2d ed. 2019); Giesel, supra,

§ 79.2, at 5. This court has specifically identified three 

situations when an exculpatory provision is void as against 

public policy: (1) if the provision is “violative of a statute,” 

(2) if it is “contrary to a substantial public interest,” or (3) 

if the provision was “gained through inequality of bargaining 

power.” Fujimoto, 95 Hawaii at 156, 19 P.3d at 739 (citing 
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Andrews v. Fitzgerald, 823 F.Supp. 356, 378 (M.D.N.C. 1993)); 

see also Inlandboatmen’s Union v. Sause Bros., Inc., 77 Hawaii 

187, 194, 881 P.2d 1255, 1262 (App. 1994) (“[A] court may refuse 

to enforce contracts that violate law or public policy.”). 

In Bowers v. Alamo Rent-A-Car, Inc., we addressed an 

“escape clause,” which is akin to an exculpatory clause, that 

attempted to alter the liability scheme established by a 

statute. 88 Hawaii 274, 275, 965 P.2d 1274, 1275 (1998). In 

that case, the renter of a motor vehicle had a car insurance 

policy with State Farm Mutual Automobile Insurance Company that 

provided that if the renter drove a car that the renter did not 

own that “ha[d] other vehicle liability coverage on it,” then 

the State Farm policy would constitute excess coverage. Id. 

The renter rented a car from Alamo Rent-a-car, Inc., and the 

rental agreement stated that “[i]f there is no other valid and 

collectible insurance, whether primary, excess, or contingent, 

available to the renter . . . then Alamo’s vehicle liability 

policy shall pay damages not to exceed minimum limits required 

by applicable law.” Id. In essence, the rental provision 

attempted to shift the responsibility to provide liability 

insurance from Alamo to State Farm. Id. at 278, 965 P.2d at 

1278. After being involved in an automobile accident with the 

rental car, the renter brought an indemnification suit against 
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Alamo, and Alamo denied that it had a duty to insure the renter. 

Id. at 275, 965 P.2d at 1275.

At the time that the litigation commenced, a Hawaii 

statute provided that “[e]very owner of a motor vehicle used or 

operated at any time upon any public street, road, or highway of 

this State shall obtain a no-fault policy upon such 

vehicle . . . and shall maintain the no-fault policy at all 

times for the entire motor vehicle registration period.” Id. at 

277, 965 P.2d at 1277 (quoting HRS § 431:10C-104(b) (1993)). We 

explained that the statute placed “the primary obligation to 

provide minimum coverage for the owned vehicle” on “the owner of 

[the] vehicle,” which was Alamo. Id. For Alamo to escape 

liability, this court stated, the escape clause would have to be 

construed as “providing no vehicle liability coverage” because 

the basis of minimum coverage would be the State Farm policy’s 

excess coverage provision. Id. at 277-78, 965 P.2d at 1277-78. 

Because the statute mandated that “[t]he owner of the automobile 

[was] responsible for providing coverage,” the Bowers court held 

that the escape clause violated public policy by “contractually 

shifting responsibility [for providing liability coverage] to 

the [renter]’s insurance company.” Id. at 279, 965 P.2d at 

1279.

For more than 175 years, Hawaii law has held livestock 

owners liable under specified circumstances for the damages 
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46

caused by their trespassing livestock, with the law in Hawaii

providing greater statutory protections to cultivated land as 

time passed. See supra Part IV.A.2. These protections were 

broadened in 1975 when the legislature “modif[ied]” the 

liability imposed by HRS Chapter 142 to “[r]equire the livestock 

owner to bear the full cost of damages or loss to the land 

owner” or “any person in possession of the land,” which was

“more in line with present conditions.” S. Stand. Comm. Rep. 

No. 823, at 1143. This established history of imposing 

liability on the livestock owners for their trespassing animals 

and providing greater statutory protections to cultivated land 

demonstrates a public policy in HRS Chapter 142 for holding 

livestock owners responsible for damages caused by their 

livestock. 

Here, the exculpatory provision in Yin’s lease stated 

that he was “fully responsible” for “keeping cattle[] out of 

[his] crops.” On its face, this provision broadly exculpates

the Aguiars from all damage to Yin’s land that resulted from 

their trespassing cattle. Even if Yin’s property was 

“unfenced,” this clause would exculpate the Aguiars. The same 

would be true if Yin’s property was “properly fenced.” Similar 

to the escape clause in Bowers, the exculpatory clause in Yin’s 

lease has the effect of exculpating a party from liability that 

is statutorily bound to pay damages. This directly contradicts 
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HRS §§ 142-63 and 142-64, which, as explained, provide that 

livestock owners are liable for the damage caused by their

trespassing animals onto cultivated land regardless of whether a 

property is “properly fenced” or “unfenced.” Not only is this 

liability codified in Hawaii’s statutes, but it is also a basic 

principle of common law.37 Because the exculpatory clause is 

violative of Hawaii’s statutory law, it violates public policy. 

Fujimoto, 95 Hawaii at 156, 158, 19 P.3d at 739, 741 (holding 

that “the statute must take precedence over the terms of the

contract” where an exculpatory clause was in direct conflict 

with a statute). Thus, the clause is unenforceable and does not 

exculpate the Aguiars from liability arising from the damage to

Yin’s sweet potatoes caused by their cattle. The circuit court 

accordingly erred in concluding that the exculpatory lease 

provision did not violate public policy, and the ICA also erred

 

37 Under both the English and American common law, the owner of 

cattle or livestock was liable for the damage done by trespassing animals. 

See Studwell v. Ritch, 14 Conn. 292, 292 (1841) (stating that under English 

common law it was “the duty of the owner of cattle to restrain them” and the 

owner was “generally liable in damages” for trespass upon the land of another 

person); 7 Stuart M. Speiser et al., Am. Law of Torts § 21:33 (2018) 

(“Generally, a possessor of livestock . . . is strictly liable for damages 

resulting from the animal’s trespasses.”); 4 Barry A. Lindahl, Modern Tort 

Law: Liability and Litigation § 36:14 (2d ed. 2018) (“Liability for damage 

caused by trespassing animals is absolute.”). Pursuant to HRS § 1-1 (2009), 

“The common law of England, as ascertained by English and American decisions, 

is declared to be the common law of the State of Hawaii . . ., except as 

otherwise expressly provided by” federal or State law. 
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in concluding that it was Yin’s duty to “keep the cows off his 

property.”38

V. CONCLUSION

Based on the foregoing, we vacate the ICA’s Judgment 

on Appeal and the circuit court’s March 27, 2015 Order Granting 

Defendants Virginio Aguiar, Kevin Aguiar, and Agee, Inc.’s 

Motion for Summary Judgment As to All Claims Filed December 24, 

2014 and its July 1, 2015 Judgment in Favor of Defendants 

Virginio Aguiar, Kevin Aguiar and Agee, Inc. and Against 

Plaintiff Jijun Yin.

39 This case is remanded to the circuit 

court for proceedings consistent with this opinion.

 

38 As noted, infra note 13, the ICA held that the Aguiars met their 

burden of producing evidence that they were intended beneficiaries of the 

lease. We need not address this aspect of the ICA’s ruling as the 

exculpatory provision violated public policy, regardless of whether the 

Aguiars were its intended beneficiaries. 

39 Based on our disposition herein, the circuit court’s June 9, 2015 

Order Granting in Part and Denying in Part Defendants Virginio Aguiar, Jr., 

Kevin Aguiar, and Agee, Inc.’s Motion for an Award of Attorneys’ Fees and the 

Taxation of Costs Filed March 27, 2015, is also vacated as the Aguiars’ 

status as a prevailing party under HAR Rule 25 relies upon the circuit 

court’s grant of summary judgment. 

Gary C. Zamber

for petitioner

Sidney K. Ayabe

Gary S. Miyamoto

for respondents

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson