***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

IN THE SUPREME COURT OF THE STATE OF HAWAI  I

--- o0o

--- JIJUN YIN, Petitioner/Plaintiff

- Appellant,

v s . 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 t respassed 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***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

2 the Petitioner’s land was neither “properly fenced” n or “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 la nd of another , we conclude t hat 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, w e 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 ( “ l ease ” ) in which it agreed to lease fifty acres of land to J ij un Yin for agricultural purposes in
the P a uka ‘ a area of the District of Hilo, Hawai  i
. Under the***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

3 “Rent” subsection of the l ease was a provision that stated , “Licensee is fully responsible [for] keeping cattle [] out of [their] crops.” Additionally, one page of the l ease 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 .” I n February 201 0 , another lease between Paradise Homes and Yin was executed , and the provision , stating “ L icensee is fully responsible [for] keeping cattle [] out of [their]
crops , ” was included in the 201 0 lease.

On August 29, 2011, Yin filed a complaint ( “ c omplaint ” ) against Virginio Aguiar, Jr., 1 Kevin Aguiar, and Agee, Inc. (collectively “ the Aguiars ”) , who owned and pastured

ca ttle near Yin’s leased property. The c omplaint 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 c omplaint contended , a meeting was held between Yin and K evin 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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

4 Aguiars would prevent their cattle from trespassing onto the property possessed and farmed by Yin.

In March 2011, the c omplaint stated, Kevin Aguiar released more than 50 cattle in close proximity to Yin’s property , result ing in the cattle trespassing onto Yin’s property and destroying over 13 acres of Yin’s sweet potato
crop. After Yin re move d the cattle from his property , the

c omplaint alleged , Yin noticed that Kevin Aguiar had left open his gate and allowed his cattle to again trespass onto Yin’s property . The c omplaint contend ed that the trespassing cattle caused more than $190,000 worth of damage , including the “loss of [Yin’s] over 13 acres of s weet potato crop and damage to his fencing.”
T he c omplaint assert ed that the Aguiars were strictly liable to Yin for the damage to his crops caused by th e trespass of their cattle i n a ccordance 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 Agu iars ’***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

5 “willful, wanton, deliberate, intentional and/or negligent
conduct
. ” 4 The Aguiars ’ a nswer 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 c omplaint
. Additionally, t he 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,
stat ute of limitations, laches, estoppel, waiver, and unclean hands. T he Aguiars alleged that the y exercised reasonable care at all times, and that the ir conduct was not a proximate cause of Yin’s alleged damages
. 5 T hus, t he Aguiar s requested that the

c ompla int be dismissed with prejudice.

After discovery was conducted , the Aguiar s filed a

m otion for s ummary j udgment as to a ll c laims. In a memorandum accompanying the motion, the Aguiar s 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 Aguiar s

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 t hat warranted the assessment of punitive damages.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

6 contended, Yin was solely responsible for constru cting a cattle fence because he assumed t he duty when he leased the land; the Aguiar s noted that Yin’s lease specifically provided that “ he

‘ is fully responsible [ for ] keeping cattle [] out of [their]
crops. ’ ” The Aguiars also asserted that Hawa i  i Re vised Statutes (HRS) § 142

- 63 did not prevent the entry of summary jud gment 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 wir e 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 § 14 2

- 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 a mount 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 board s, posts and wire, or other suitable materials shall be a lawful fence, provided that it is not less than four ( continued . . .)***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

7 did HRS § 141

- 64 apply, contended the Aguiars, because the statute only applie s 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 m emorandum in o pposition, 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 pub lic policy. ( C iting 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 shift s the liability of lives tock 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 exc epting swine, attempting to pass through the fence. (b) Woven wire, or what is otherwise known also as hog

wire, 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.”***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

8 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 m aintained 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 wa s 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 d o not prohibit landlords from requiring their tenants to construct fencing as part of le ase agreements.

The circuit court granted the Aguiars’ motion and conclud ed 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 enterin g. 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 th e provision only shift s the duty to fence from the rancher to

9 The Honorable Greg K. Nakamura presided.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

9 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 j udgment on July 1, 2015 , incorporating the ruling s on these orders. Yin filed a timely n otice of a ppeal from the judgment
. I I . 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 t o 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 legall y 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. Prekask i’s land and that they had the power to impose the duty set forth in the lease provision at issue upon Yin.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

10 present forms in 1975 with the intent to simplify determination of damages in animal trespass cases. Rather than combining the
t wo statutes, the 1975 amendment was grafted onto the pre

existing statutes that divided liability according to whether or not the land was fenced, Yin argued. As to the l ease, Yin argued that evidence of the contract between Prekaski and Yin was not suffi cient 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 l ease or relieve Yin of his duty under the l ease because the statutes were irrelevant as they d id not provide that cattle owners must construct fencing on properties where cattle are kept. And regarding the l ease itself, the Aguiars contended that Yin failed to identify a specific policy or statute that prevented the l ease from requiring him to con struct fencing and failed to explain why his
l ease 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***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

11 fence is neither properl y 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 an d 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 tha t 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 A guiars 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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

12 III . STANDARD S 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).
I V. DISCUSSION
A. Livestock Owners Are Liable f or Damage s Caused b y Their

Livestock Trespassing on t o Cultivated Land
. I n its decision , the ICA only considered “the plain meaning and application of HRS §§ 142

- 61, 1 42

- 63, and 142

- 64 , ” and it did not examine the legislative history of HRS §§ 1 42

- 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 f ollows:
§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 landowner s, 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***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

13 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 lives tock 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 1 4 2

- 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)) . “ Whe n there
is doubt
. . . or uncertainty of an expression used in a statute, an ambiguity exists. ” Farmer v. Admin. Dir. , 94 Hawai  i***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

14 232, 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. De M ello , 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 doc trine, 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 o f “ any cattle ” that “ trespasses on any properly fenced cultivated ground , . . . shall pay upon proof, the full amount of the d amage 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 appl y to “any cattle, horse, mule, ass, swine, sheep, or goat.” For readability, this opinion re fers to these animals collectively as “cattle” or “livestock.”***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

15 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 prope rly fastened thereto and meet[] the minimum height and stock turning requiremen ts prescribed in subsection (a)” in order to constitute a “lawful fence.” HRS § 142

- 61(b).

Th e 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 hei ght, (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 requirem ents 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 de finition requires that the fence be capable of “turning [away] all stock.” That is, the trespass itself

w ould 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.”***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

16 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 A guiars 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 th e 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 advance d 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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

17 2. The Legislature Intended T o 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. Brantl ey , 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 interpret ation of HRS §§ 142

- 63 and 142

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

are required to determin e the meanings of the terms “properly fenced” and “unfenced” as used in the se provisions
. T he 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 184 1 . We therefore begin our review of the legislative history of HRS §§ 142

- 63 and 142

- 64 by considering the e volution of the early laws regarding livestock trespass and the amendments made in 1888 and 1975.

Early Laws Regarding Livestock Trespass a. The first statute regarding tresp assing livestock was enacted in 184 1 as part of the Laws of the Hawaiian Kingdom ( “ 184 1 Act ” )
. Translation of the Constitution and Laws of the***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

18 Hawaiian Islands, Established in the Reign of Kamehameha III , Ch. XIV, at 58 (1842) [hereinafter Laws of 1842]. When the 184 1 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 t heir ve getables 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. T he 184 1 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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

19 In 1846 , “i n consideration of the numerous petitions presented” to “[t]h e 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 (1 847) [ h ereinafter 184 7 Stat. Laws]. Under the 1846 A ct, “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. T he 184 6 Act also included a provision that made livestock owners liable for the trespass of their animals onto

u ncultivated 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 i d.

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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

20 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 [ h ereinafter 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 “production s of the land.” 20 Id. § 5, at 50. Like t he 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 follo ws: 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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

21 a provision that incre ased 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 an imals. 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 cultiv ated 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” a s 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 nat ural 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, fiv e feet high, thigh and high to turn stock. 1856 Sess. Laws § 9, at 51.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

22 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 uncultivat ed, 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 o f section 243, which amended the definition of a “lawf ul fence.” 23 See 1859 Civ. Code § 243 , at 54
. These provisions were also compiled in to 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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

23 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

- 5 7 (1884) [hereinafter 1884 Civ
. Code]
.

Thus, t he evolution of the early statutes address ed the concerns of farmers who were “greatly annoyed, by having their vegetable s destroyed” by unconfined livestock , Laws of 1842, at 58, and indicate d 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. 1888 Amendments b. Beginning in 1846, the livestock statutes provide d 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 rec eived 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

- 5 7
.

24 Section 240 of the Civil Co de 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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

24 Th ese statutes thus placed liability on livestock owners for trespass of their animals onto any cultivated land
. See Laws of 1842, at 58

- 59; 184 7 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

- 5 7
.

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]. A n 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 con solidated provision functionally incorporated the increased penalties from the prior law and substitut ed 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 trespas s 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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

2 5 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 an imal 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 “ B ut 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.” T he 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,” ind icating that this portion of the provision was to be placed into its own section. Bill No. 27 § 9, at 5. When this division was***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

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
. ” S ections 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 a ny 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 goa ts, 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 there of 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 (emphas e s 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 Hawa i  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 ow ner thereo f shall pay to the owner of such land

. . . . ( continued . . .)***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

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 exclud e all cultivated land with a fence that did not meet the requirements of a legal fenc e (“ 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
. Th e significant effect of abruptly exclud ing not
- properly fenced, cultivated land from all statutory protection against trespassi ng 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.

I t 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.
K amana  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 Se ss. Laws §§ 10, 11, at 77

- 78 (emphases added).***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

28 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 I f section 10 only applied to cultivate d land that was wholly unfenced , then the statute would prot ect 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 1 888 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 lan d

- owner the full amount of such damage. 1888 Sess. Laws § 11, at 78 ( e mphasis added)
.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

29 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 cu ltivated 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 fe nce 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 stat ute , compared to crop owner s 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, p rinciples 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, 1 8 , 346 P.3d 70, 87 (2015)
.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

30 Under the 1888 Act, before a person could impound trespassing animals , the person was required to provid e a statement that included the amount of damages and expenses claimed
. 1888 Sess. Laws § 4, at 75. 29 T hese 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 Se ss. 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 a nd 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).***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

31 statute. See Coon v. City & Cty. of Honolulu , 9 8 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 animal s 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 anima ls. 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 ref use 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).***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

32 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 “impoun ding 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, 11 47 (1994) ; see also Kim v.
Contractors License Bd. , 86 Hawai  i 264, 269

- 70, 965 P.2d 806,
81 1

- 1 2 (1998); Richardson v. City & Cty. of Honolulu , 76 Hawai  i 46, 60, 868 P.2d 1193, 120 7 (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***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

33 the aggrieved land owner. See 1856 Sess. Laws § § 8, 9, at 51.
T he 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.

A ssuming 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
t he definition of lawful fence
.

First, to be properly fenced, fence d land must be capable of preventing the trespass of livestock.

SECTION 15. E very 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 (emphas i s added)
. To satisfy this requirement , land would have to be enclosed by a fence or have an impassable barrier on all four sides. A ny 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”***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

34 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 be ing partially fenced unless the barrier completely enclosed the property
. In such a situation , the cultiv ated land would not be consider ed to have “no fence , ” and the landowner would not be entitled to compensation when livestock trespass occurred unless the remainder of the property w as properly fenced. A
crop owner with an impassable barrier on the property would therefore be require d 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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

35 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) no t 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 disincentiviz ing fencing on cultivated land because a landowner with no fence could always recover for trespass under sectio n 10, but the owner of fenced cultivated land would always have to prove the land was “properly fenced” pursuant to section 9.

I nterpreting “unfenced” to mean “no fence” thus leads to unjust and absurd results
. 32 Rather, i t 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).***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

36 1888 Ac t’s drafters intended section s 9 and 10 to be construed together such that livestock owners would continue to be liab le 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 eviden ced by the legislative history of the prior livestock
statutes.
Accor dingly, 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 fen ce.

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).***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

37 1975 Amendments c. 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 cultiv ated 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 amendment s was explained by both a House and Senate report. The House R eport 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, she ep, 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 u nfenced 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 l and, whoever suffers the damage or loss.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

38 The purpose of this bill is to modify the liability of livestock owners for trespass of their ani mals 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 al so 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, t he Senate Report explained the following purpose of the Act :
Th e 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 toda y 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, bu t 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 ( e mphases added)
.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

39 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 o wners 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 p reviously required to make fact

- intensive determinat ions as to whet her a property was “ properly fence d ” 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, i n such cases, t he burden would presumably be placed upon the crop owner to prove the se 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***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

40 fence , ” which would almost always be disproved by the fact that the livestock was able to circumvent the fence.

But a fter the 1975 amendment s , 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, t he 1975 amend ment s “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 r ather 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, th e legislative intent to simplify the determination of damages would not have been achieved unless HRS § 142

- 64 appli ed 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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

41 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 woul d 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 u pon 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 inco rrect 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 ”

n or “ unfenced
. ”
B. The Exculpatory Lease Provision Is Contrary to Statutory Law and Public Policy
. Y in 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***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

42 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. 24 0, 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 will ingly made and free from
fraud.” Id. (quoting Fujimoto v. Au , 95 Hawai  i 116, 156 , 19 P.3d 699, 739 (2001) )
. However, exculpatory clau ses “ 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 Will i ston 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 Enter s . , 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 n ot void against public policy.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

43 risk of harm and one cannot exempt himself from such liability for harm that is c aused 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 15 6 , 19 P.3d at 73 9 ; 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 § 2 1 :5 , at 481 (2d ed. 201 9 ) ; 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 inequ al ity of bargaining power.” Fujimoto , 95 Hawai  i at 156, 19 P.3d at 739 (citing***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

44 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
18 7, 1 94 , 881 P.2d 1255, 12 62 (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 al ter 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 rente r 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, t he 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 sui t against***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

45 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 p ublic 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 wou ld 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 com pany.” Id. at 2 79 , 965 P.2d at 127 9
. For more than 175 years, Hawai  i law has held livestock
owners liable under specified circumstances for the damages***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

46 caused by their trespassing livestock, with the law in Hawai  i providing greater statutory protectio ns to cultivated land as time passed. See supra Part IV. A. 2 . T hese 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 exculpate s the Aguiars from all damage to Yin’s land that resulted from their trespassing cattle. Even if Yin’s property was

“ un fenced,” t his 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 bo und to pay damages. This directly contradicts***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

47 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 t he 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 , 7 41 ( 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
. T he circuit court accordingly erred in concluding that the exculpatory lease provision did not violate public policy , and t he 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.***FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER***

48 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 circui t 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 th e 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 Defend ants 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
S i dney 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