In determining in whom lava extensions should vest, we are guided by equitable principles and must balance between competing interests. On the one hand, there is the interest of the former littoral owner seeking to regain access to the ocean. On the other hand is the interest of the public at large, the original and ultimate owner of all Hawaiian land.

Certainly, a grant of the lava extension to the former littoral owner would compensate him for the loss of the beach-frontage character of his property. However, it is the windfall of the added acreage which such owner would also be afforded which this court finds troublesome. If a one-third acre parcel fronting the ocean is flowed over by lava which adds one or two seaward acres to the parcel, is it equitable that its owner acquire property which is three or six times the size of the preexisting parcel? If a littoral owner is to be thus compensated for lava devastation, should not an upland pasture or farm owner be also compensated with pasture or farm land for the *735 destruction of what had been the chief economic attribute of his parcel?

It is impossible for any court to fashion a legal doctrine which will equitably compensate all victims of lava devastation. This court believes that it is within the province of the legislature to determine the nature and extent of compensation for such natural disasters.

Rather than allowing only a few of the many lava victims the windfall of lava extensions, this court believes that equity and sound public policy demand that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee. Given the paucity of land in our island state and the concentration of private ownership in relatively few citizens, a policy enriching only a few would be unwise. Thus we hold that lava extensions vest when created in the people of Hawaii, held in public trust by the government for the benefit, use and enjoyment of all the people.

Under public trust principles,[18] the State as trustee has the duty to protect and maintain the trust property and regulate its use. Presumptively, this duty is to be implemented by devoting the land to actual public uses, e.g., recreation. Sale of the property would be permissible only where the sale promotes a valid public purpose.

While the Zimrings cannot be granted the private beachfront title which they seek, they, as members of the public, would share in public access to the lava extension and to the ocean, unless the interest in allowing public access is outweighed by some other public interest, or unless the land is sold in furtherance of the public interest.

It was long ago acknowledged that the people of Hawaii are the original owners of all Hawaiian land. The Constitution of 1840, promulgated by King Kamehameha III, states:

KAMEHAMEHA I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and the people in common, of whom Kamehameha I, was the head, and had the management of the landed property.
Fundamental Law of Hawaii (1904) at 3 (emphasis added).

Responding to pressure exerted by foreign residents who sought fee title to land, and goaded by the recognition that the traditional system could not long endure, King Kamehameha III undertook a reformation of the traditional system of land tenure by instituting a regime of private title in the 1840's. In adopting a system under which individuals could hold title to land, the public domain, which theretofore had been all-encompassing, necessarily was diminished.

*730 A Board of Commissioners to Quiet Land Title, commonly known as the Land Commission, was created in 1846 for the "investigation and final ascertainment or rejection of all claims of private individuals," and was empowered to make Land Commission Awards. The Minister of Interior was authorized to issue Royal Patents upon such awards, upon payment of commutation by the awardee to the government, usually set at one-third the value of the unimproved land at the time of the award.[3] A Land Commission Award furnished as good and sufficient a ground upon which to maintain an action against any person as a Royal Patent. Act of August 10, 1854, Laws of Hawaii, 1854; RLH 1925, Vol. II at 2146-7.

In 1847, the King together with the Privy Council determined that a land mahele, or division, was necessary for the prosperity of the Kingdom. The rules adopted to guide such division were, in part, (1) that the King shall retain all his private lands as individual property and (2) that of the remaining lands, one-third was to be set aside for the Government, one-third to the chiefs and konohiki,[4] and one-third for the tenants.[5] The Great Mahele was started in 1848, with the chiefs and konohiki first coming forward to settle their interests by agreement with the King. The Mahele agreements were essentially reciprocal quitclaims and did not convey title. Detailed claims had to be presented to the Land Commission for formal Land Commission Awards.

Once the Mahele agreements with the chiefs and the konohiki had been completed, there was to be a division of the remaining lands between the King and the Government. The King's motives in undertaking such a division were indicated by this court in Estate of His Majesty Kamehameha IV, 2 Haw. 715, 722 (1864):

Even before [the King's] division with the [chiefs and konohiki], a second division between himself and the government or state was clearly contemplated, and he appears to have admitted that the lands he then held might have been subjected to a commutation in favor of the government, in like manner with the lands of the chiefs. The records of the discussion in Council show plainly his Majesty's anxious desire to free his lands from the burden of being considered public domain, and as such, subjected to the danger of confiscation in the event of his islands being seized by any foreign power, and also his wish to enjoy complete control over his own property. Moved by these considerations and by a desire to promote the interest of his Kingdom, he proceeded with an exalted liberality to set apart for the use of the government the larger portion of his royal domain, reserving to himself what he deemed a reasonable amount of land as his own estate.
To effect this, the King signed and sealed two instruments. By one instrument, the King, having "set apart forever to the chiefs and people the larger part of my royal land, for the use and benefit of the Hawaiian Government," retained for himself and his heirs certain designated lands, thereafter referred to as Crown Lands. By the second instrument, the King "set apart forever to the chiefs and people of my Kingdom" the remaining designated lands. Id. at 723. Until 1865, when Crown Lands were made inalienable,[6] Kamehameha III and his successors acted like private owners respecting such lands. The deeds executed by the King upon sale of any portion of the Crown Lands are known as Kamehameha Deeds.

The public domain, which previous to the Mahele had been all-inclusive, was diminished by withdrawals of the Crown Lands and the lands successfully claimed by *731 chiefs, konohiki and tenants. It included, inter alia, the lands surrendered to the Government by the King, the lands ceded by the chiefs in lieu of commutation, the lands purchased by the government, and all lands forfeited by the neglect of claimants to present their claims to the Land Commission within the period fixed by law.[7] In 1893, following the overthrow of the monarchy, the Republic declared that Crown Lands were Government property and part of the public domain.

As to lands which were overlooked in the Mahele and thus unassigned, the question arose whether they were Crown or Government Lands. This court in Thurston v. Bishop, 7 Haw. 421 (1888), adopted the position that such unassigned lands remained part of the public domain.[9]

Following the Mahele, portions of the public domain were sold from time to time in order to provide landless citizens with land and to obtain revenues for public expenditures. Purchasers of these lands were issued documents called Grants or Royal Patent Grants.

This encapsulation of the origin and development of the private title in Hawaii makes clear the validity of the basic proposition in Hawaiian property law that land in its original state is public land and if not awarded or granted, such land remains in the public domain.