Rob Perez

Raising Cane

By Rob Perez

Sunny Lee, a Makiki homeowner, is in a dispute with a neighbor over her sewer line.

Sewer line case blurs
lines of right and wrong

This is a controversy without a bad guy, a dispute in which neither side clearly is in the wrong.

Yet the results thus far are tragic nonetheless.

Punchbowl neighbors of nearly half a century who used to exchange mangoes from their trees are now immersed in a bitter legal battle that has reached the state's highest court.

Police have been called to the neighborhood multiple times to deal with the feuding. And one of the neighbors, an 83-year-old widow suffering from high blood pressure, has been without sewer service for three weeks, creating health and safety concerns.

Sunny Lee, who has lived in her Prospect Street home for 46 years, no longer can flush her toilet or do laundry or wash dishes without risking waste water backing up to her property and into her house.

Whenever she or other residents of the three-bedroom home use the bathroom, they must dispose of any solid waste by hand.

Two days after a neighbor shut off a valve that cut waste-water service to Lee's home, the stress became too much for her; Lee was rushed by ambulance to the hospital, where she spent half a day until her blood pressure and nerves were calmed.

"It is very, very, very much stress," Lee told me last week. "I never thought this would happen."

The focus of the dispute is an underground sewer line that serves the Lee home and two other Prospect Street residences and runs beneath the adjacent Magazine Street property of Melvin and Mildred Bender.

From the Bender property, the lateral line, which has been in use since at least the 1950s and possibly since the 1930s, connects to city waste-water pipes under Magazine Street, following the downward contour of the hillside.

Lee's daughter, Monica, said her parents had no idea when they moved into the newly built home in 1957 that the underground piping went through a neighbor's property. (The 1956 building permit documented a sewer connection but didn't specify the location).

Likewise, the Benders, who have owned their Magazine Street home since the 1940s, claimed they weren't aware of the neighbors' connections until the lateral line sprung a leak in 2000.

The Benders spent nearly $2,000 to fix the break and subsequently asked Lee and a second neighbor whose home was connected at the leak point to pay for the repairs. They also asked all three Prospect Street neighbors to sign a licensing agreement -- at no cost -- to use the line.

When the neighbors didn't sign, the Benders in September 2001 filed a lawsuit accusing the three of trespassing for using the line without permission.

Eventually, two of the neighbors signed the agreement and were dismissed from the lawsuit. But Lee resisted, believing she had a legal right after all these years to use the existing piping.

Going against the advice of the court, Lee represented herself in the proceedings, relying largely on the advice of her daughter, Monica Lee, who isn't an attorney but did extensive research on issues related to the case.

Monica Lee said her mother couldn't afford an attorney. She also said the licensing agreement was unfair, running only 10 years and giving the Benders the unilateral right to demand at any time that the pipes be relocated. Monica Lee likened the agreement to a form of extortion.

On Dec. 18, 2002, state Judge Richard Pollack granted the Benders' motion for summary judgment, ruling that the elder Lee had no easement or any other legal right to connect to the sewage line under the Bender property. Pollack also ruled that if Lee didn't disconnect by Jan. 31, 2003, the plaintiffs would have the right, at Lee's expense, to arrange the disconnection themselves.

That's precisely what happened on the weekend of March 7, escalating the neighborhood feud and triggering shouting episodes over the concrete block wall separating the two properties. Police were called several times to the neighborhood that weekend.

At one point, Melvin Bender closed the recently installed shut-off valve on his property, cutting service to the Lees, only to discover the next day that someone had re-opened it. When he closed it again, he discovered the next day that the valve had again been re-opened.

Finally, he closed it and drove a stake into the ground to prevent the valve from being re-opened.

The elder Lee said she can't understand why the Benders cut her sewer service, especially given that her relationship with them has been cordial over the years. "If we not get along, maybe I understand," Lee said, her voice trailing off as she broke into tears.

The Benders declined to discuss the case on the advice of their attorney, Paul Schraff, who didn't return my phone call seeking comment.

But in court documents, the Benders made clear they want nothing more to do with the Lees.

"Sunny Lee treated the Benders' offer of a free license as if it was extortion rather than a gift," Schraff said in one filing. "The conduct of the Lees has now become so offensive and has now cost the Benders so much that the Benders are not willing to have any dealings at all with the Lees."

The elder Lee, continuing to represent herself in court, earlier this month asked the state Supreme Court to rescind Pollack's order and to restore her sewer service. A ruling has not been issued.

The Lees also have appealed to Mayor Jeremy Harris for help, but were told the city couldn't get involved in a dispute between private parties.

But the disconnection of Lee's sewer line, which was authorized by the court, ironically may have created a violation of city regulations and could pull the city into the dispute anyway.

In a March 6 letter to Lee, Maile Chun, city deputy corporation counsel, said cutting of the sewer line would be a violation of the city's plumbing code and that Lee and the Benders may be cited if that happened. Chun also mentioned possible solutions to Lee's problem, including Lee paying to install a system that would pump her sewage uphill to a Prospect Street city line.

Chun's letter was in response to a Feb. 4 letter Lee had sent to Harris. Lee got Chun's response March 8 -- the day after the Benders' initially shut off her sewer service.

Councilman Rod Tam, whose district includes the Prospect Street area, criticized the city for taking so long to respond to Lee's concerns. He said he has advised Lee to sue the city.

A city spokeswoman had no comment on Tam's criticism.

Adding even more irony to the case, a San Diego law professor who teaches about property rights told me Lee has a strong legal argument that she was entitled to continue using the sewer line on her neighbor's property.

A person who continuously uses another person's property without permission in an open, obvious fashion for a specified period (typically 10 to 20 years, depending on the state) can be granted what is called a prescriptive easement, or the legal right to continue using that property.

If Lee could show that the Benders knew or should have known she was using the sewer line, it would bolster the prescriptive easement argument, said Mary Jo Wiggins, who teaches property law at the University of San Diego.

City records may support that argument.

Even though the Benders say in court documents that they only discovered the neighbors' use of the lateral sewer line in 2000, they filed a property tax appeal in 1994 on the basis of the Lee line running onto their lot, according to city records. The city, in turn, granted the Benders a discounted assessment that still is in effect.

Monica Lee also said city waste-water maps show the lateral line.

After I recounted such details to Wiggins, she said, "I would have no problem passionately arguing that a prescriptive easement arose."

Of course, it may be too late for Lee to make such an argument.

But the Lee quagmire, occurring in one of the city's most densely populated areas, raises an intriguing question about whether Honolulu is likely to see more such cases in the future.

Other older neighborhoods where large lots were subdivided years ago into smaller parcels, much like what happened in Lee's area, are now crowded urban patchworks that sometimes have private sewer lines running under more than one lot.

What happens when one of those aging lines breaks? You could have a case like Lee's all over again.

Star-Bulletin columnist Rob Perez writes on issues
and events affecting Hawaii. Fax 529-4750, or write to
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. He can also be reached
by e-mail at:

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