Forum

Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation

Leprosy, which is also known as Hansen's disease, is a mildly infectious degenerative disease caused by the micro-organism Mycobacterium leprae. The disease produces lesions in the skin, the mucous membranes, and the peripheral nervous system. In its more advanced stages, it affects internal organs and renders its sufferers vulnerable to other diseases such as diabetes and cancer. See Dorland's Illustrated Medical Dictionary 849 (25th ed. 1974). Leprosy is endemic to subtropical climates such as that of Hawaii. In 1952, there were more cases of leprosy in Hawaii than there were in the remainder of the United States. See S.Rep. No. 1335, 82d Cong. 2d Sess. reprinted in (1952) U.S.Code Cong. & Admin.News, pp. 1630, 1631. (Hereinafter Senate Report)

The United States conveyed the land in fee simple subject to a condition subsequent. The conveyance was by quitclaim deed, which incorporated by reference an Application for Purchase with Discount submitted by Hawaii which application stated:

This real property will be used by the Territory of Hawaii on a permanent basis for a Hansen's disease hospital facility.

The Quitclaim deed provides in pertinent part:

That for a period of twenty (20) years from the date of this deed the above described property herein conveyed shall be utilized continuously for public health purposes in accordance with the proposed program and plan as set forth in the application of the said GRANTEE dated June 24, 1955, and for no other purpose

That one year from the date of this deed and annually thereafter for the aforesaid period of twenty (20) years, unless the Secretary (of Health, Education and Welfare), or his successor in function, otherwise directs, the GRANTEE will file with the Department (of H.E.W.), or its successor in function, reports on the operation and maintenance of the above described property and will furnish, as requested, such other pertinent data evidencing continuous use of the property for the purpose specified in the above identified application

In the event of a breach of any of the conditions set forth above . . . all right, title and interest in and to the above described property shall, at its option, revert to and become property of the UNITED STATES OF AMERICA, which in addition to all other remedies for such breach, shall have an immediate right of entry thereon, and the said GRANTEE, its successors, or assigns, shall forfeit its right, title, and interest in and to the above described property . . . PROVIDED FURTHER, that in the event the UNITED STATES OF AMERICA fails to exercise its option to re-enter the premises for any such breach of said conditions within twenty-one (21) years from the date of the conveyance, the conditions set forth above together with all right of the UNITED STATES OF AMERICA to re-enter as in this paragraph provided, shall, as of that date, terminate and be extinguished.

The GRANTEE shall at its own sole cost and expense keep and maintain the improvements, including all buildings, structures and equipment, at any time situated upon said property, in good order, condition and repair, free from any waste . . . . Should the GRANTEE, its successors or assigns, fail to repair or replace any improvements which need repair or which have been lost, damaged or destroyed as aforesaid within ninety (90) days after written notice to do so, given to the GRANTEE by the Secretary, or his successor in function, the GRANTOR shall be authorized as agent of the GRANTEE, its successors and assigns, to enter upon the premises and to cause such repairs or replacements to be made on the behalf and at the expense of the GRANTEE.

The quoted portions of the deed evidence not only the obligation of the State of Hawaii to maintain the Hale Mohalu site, but further evidences the requirement that the facility be used to provide Hawaii's Hansen's disease patients with a medical care facility. Hawaii's obligation to provide leprosy sufferers with care and treatment was also codified. See Haw.Rev.Stat. § 326-1, note 5, infra.

The 1977 regulations were those in effect at the time Hale Mohalu was officially closed and are therefore controlling