United States v.

• Decision Date: 12 May 1947
• Docket Number: FULLARD-LEO,No. 429,429
• Parties: UNITED STATES v. et al
• Court: U.S. Supreme Court

331 U.S. 256

67 S.Ct. 1287

91 L.Ed. 1474

UNITED STATES

v FULLARD-LEO et al.

No. 429.

Argued Feb. 12, 1947.

Decided May 12, 1947.

[Syllabus from pages 256-258 intentionally omitted]

Mr. Frederick Bernays Wiener, of Providence, R.I., for petitioner.

Mr. A. G. M. Robertson, of Honolulu, Hawaii, for respondents.

Mr. Justice REED delivered the opinion of the Court.

This writ of certiorari was allowed to review a decree of the United States Circuit Court of Appeals for the Ninth Circuit 156 F.2d 756, affirming a decree of the District Court of the United States for the District of Hawaii, 66 F.Supp. 782. 329 U.S. 697, 67 S.Ct. 100. The United States began the present proceedings by a petition, filed in the District Court, to quiet title in it to a group of islets in the Pacific, long known as Palmyra Island. Palmyra was annexed to the Kingdom of Hawaii on February 26, 1862, and the United States claims that it remained a part of the governmental lands of Hawaii and passed to the United States by the Joint Resolution of Congress of July 7, 1898, 30 Stat. 750, which annexed Hawaii to the United States and accepted for the United States all public, Government or Crown lands and all other public property then belonging to the Republic of Hawaii.¹ The lands and sovereignty of the Kingdom of Hawaii previously had passed & be placed under the Hawaiian Flag directly to the Republic of Hawaii, through the intervening Provisional Government.

Palmyra Island is around one thousand miles south of the main Hawaiian group. It is the first considerable body of land in that direction and lies between the Hawaiian Islands and Samoa. The Palmyra group is a coral covered atoll of about fifty islets, some with trees, and extends—reefs, intervening water and land—5 2/3 sea miles in an easterly and westerly direction and 1 1/3 sea miles northwardly and southwardly. The observation spot for the map in the case is Latitude 5 52 18 N., Longitude 162 05 55 W. The British islands of Washington, Fanning and Christmas lie within a 500 mile radius to the southeast of Palmyra. Use of the islands by the respondents and their predecessors in the title was intermittent. The question of title became important in 1939 when Congress authorized the construction at Palmyra of naval aviation facilities and appropriated $1,100,000 for their construction. 53 Stat. 590. Negotiations with these respondents, as owners, were undertaken in 1938 by the Navy Department for a lease of the property but were not completed. This suit was filed in 1939.

There have been two trials of this case. The records of both are before us, as the record of the first trial was made a part of the second. Certain contemporaneous written evidence of the early transactions was produced.

The findings of fact in the first trial show that two Hawaiian citizens, Johnson Wilkinson and Zenas Bent, made a representation concerning Palmyra Island to the King and the Cabinet Council. The minutes of a meeting of the Council which took place at Honolulu on February 26, 1862, are extant. The 'representation' has not been found. The Council minutes show the following:

'P. Kamehameha read a Representation from Z Bent & Mr. Wilkinson, about the Island Palmyra, requesting that the Island should be considered a Hawaiian possession

'After some discussion it pleased the King to direct the Minister of the Interior, to grant what the Petitioners apply for, following the precedent of the Resolution regarding the Island Cornwallis & without exceeding the same.'

The action of the Council was communicated to Wilkinson and Bent through a letter by the Minister of the Interior on March 1, 1862. In the letter it was said that the Hawaian Govern ment consented to the taking possession of Palmyra 'for the purpose of increasing the trade and Commerce of this Kingdom, as well as offering protection to the interests of its subjects.' Accompanying the letter was a commission empowering Bent 'to take possession in our name of Palmyra Island.' Explicit directions were contained in the commission that Bent was to sign a declaration and leave it in a bottle buried at the foot of a pole wrapped with the Hawaiian flag. The commission was signed jointly by the King and the Minister of Interior. On June 16, 1862, Bent reported that he had carried out the commission and left a paper as directed. In the same report Bent told of the trees on the island and the kind of vegetables that would grow. He said that he had erected a dwelling house on the island and a curing house for biche de mer, a kind of edible sea slug that is prized in the Orient. It also said that he had left five men on the island and proposed to return in about ten days. Thereupon the Minister of the Interior duly issued a proclamation on June 18, as follows:

'Whereas, On the 15th day of April, 1862, Palmyra Island, in latitude 5 50 North, and longitude 161 53 West, was taken possession of, with the usual formalities, by Captain Zenas Bent, he being duly authorized to do so, in the name of Kamehameha IV, King of the Hawaiian Islands. Therefore, This is to give notice, that the said island, so taken possession of, is henceforth to be considered and respected as part of the Domain of the King of the Hawaiian Islands.'

A finding was made that certain comments on the expedition were published in the Honolulu papers between the representation to the Council and the proclamation which was only important in the present litigation as showing a contemporaneous understanding that possession was being taken of an island as part of the Domain of the King of the Hawaiian Islands.

As shown by the minutes of the Cabinet Council, the Minister of the Interior was directed to grant the application of Bent and Wilkinson 'following the precedent of the Resolution regarding the Island Cornwallis & without exceeding the same.' The meaning of these words is not made clear by the record. The United States contends that the words limit any rights of Bent in Palmyra 'to a five year contract to take guano,' and that he never was 'granted or intended to be granted a fee simple title.' The trial court thought that the purpose of the Council might reasonably have been to limit the authority of Bent and Wilkinson to islands that were 'not in possession of any other government or any other people.' The reason for this supposition lies in the fact that the commission of May 31, 1858, to Samuel Clesson Allen, who discovered Cornwallis Island for Hawaii, to take possession of the island contained the words just quoted. On the same day that the commission was issued, a contract was made with Edward P. Adams for him to take guano for five years from any islands acquired for Hawaii by Allen in the schooner, 'Kalama.' Adams' request for the grant of a fee to a 7/8 interest in any island discovered, so far as shown by the record, was not acted upon by the Hawaiian legislative body.

Allen took possession of Cornwallis Island and submitted a report of his expedition on July 12, 1858, to the Minister of the Interior. Thereupon at a meeting of the Privy Council on July 27, 1858, the following resolution was passed:

'Resolved that Corwallis Island in latitude 16.43 North, and longitude 169.33 west from Greenwich, and Kalama Island, in latitude 16.44 North and longitude 169.21 west, having been taken possession of, with the usual formalities, on the 14th and 19th of June 1858, by Samuel C. Allen Esquire, in the name of Kamehameha IV, the said Islands are to be considered as part of His Majesty's Domain.'

It will be noted that this resolution is substantially in the form of the later proclamation in regard to Palmyra.

The annexation of Cornwallis Island faled becaus e of prior discovery by the United States and later, on October 16, 1858, the Minister of the Interior cancelled the contract which had been made with Adams.

Thus it will be seen that the meaning of the minutes concerning the acquisition of Palmyra, following the precedent of Cornwallis, is uncertain. The resolution annexing Cornwallis is substantially the same as the proclamation concerning Palmyra. The commission authorizing Bent to take possession of Palmyra is substantially the same as the commission to Allen that resulted in the discovery of Cornwallis. There is no evidence of a contract with Bent and Wilkinson similar to the guano contract made with Adams. We conclude that there is nothing in the requirement that the Palmyra acquisition should follow the precedent of the Cornwallis resolution to indicate anything more than that the sovereignty over Palmyra was to be acquired for Hawaii, as stated in the proclamation of possession. There is nothing to lead us to disagree with the trial court's finding as to Palmyra, as follows:

'The words used in the formality of annexation and proclamation need not and likely would not have been different whether it was the intention that the act of annexion should constitute the vesting of a fee simple title to the lands in the King, or merely extend sovereignty over the domain annexed.'

We find no evidence of a consistent plan or custom of the Kingdom of Hawaii relating to title to lands on islands when possession was taken for the Kingdom. The instructions to Wilkinson and Bent were:

'I am authorized to State on the part of his Majesty's government that they consent to the taking possession of the island of Palmyra, situated in longitude 161 53 West and in latitude 6 4 North as described by you in said memorial; for the purpose of increasing the trade and Commerce of this Kingdom, as well as offering protection to the interests of its subjects—' The trial court, United States v. Fullard-Leo, D.C., 66 F.Supp. 774, 782, ended its findings of fact and conclusions of law on the first trial in these words:

'My controlling finding is, that the sovereignty of the United States was extended over Palmyra Island by Annexation, but the Republic of Hawaii did not in fact or in form...