United States v. Fullard-Leo, Civ. No. 417.

• Citation: 66 F. Supp. 774
• Decision Date: 23 December 1940
• Docket Number: Civ. No. 417.
• Parties: UNITED STATES v. FULLARD-LEO et al.
• Court: United States District Courts. 9th Circuit. United States District Court (Hawaii)

66 F. Supp. 774

UNITED STATES v. FULLARD-LEO et al.

Civ. No. 417.

District Court, Hawaii.

December 23, 1940.

Ingram M. Stainback, U.S. Atty., and John E. Parks, Asst. U.S. Atty., both of Honolulu, T. H., for the United States.

Robertson, Castle & Anthony, of Honolulu, T. H., for Fullard-Leos.

Smith, Wild, Beebe & Cades, of Honolulu, T. H., for Coopers and other interests.

METZGER, District Judge.

This cause, entitled "An Action to Quiet Title", was tried by the Court, jury waived.

Evidence, Facts, Discussions and Findings

Palmyra Island lies about one thousand miles in a southerly direction from Honolulu and is a coral covered atoll comprising fifty or more islets, many of which are covered with trees and tropical vegetation, surrounding three deep-water lagoons. Its early history is of no importance here, beyond the fact that the island remained unannexed by any nation until 1862.

In the early part of 1862 Johnson Wilkinson and Zenas Bent, citizens of the Kingdom of Hawaii, made a "representation" concerning Palmyra Island to the King (Kamehameha IV), or the Kingdom of Hawaii, as shown by the minutes of a meeting of the Cabinet Council held at the Palace at Honolulu on February 26, 1862, at which meeting the King presided, with Ministers Prince Kamehameha, Chief Justice Allen, Mr. Gregg and Mr. Wyllie present. These minutes, preserved in a bound volume in the Public Archives of the Territory, were exhibited to the Court by the archivist and a photostatic copy put in evidence. Full extent of the representation made by Wilkinson and Bent are not known, but an authenticated transcript of the minutes, prepared by the archivist, reads as follows, in reference to the subject of the island:

* * * * * *

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

"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 following day February 27, 1862, the Pacific Commercial Advertiser at Honolulu, printed an article reading in part as follows:

"Expedition. — The sloop Louisa has been purchased by J. Wilkinson, and is now being fitted for a southern expedition, under command of Captain Zenas Bent. We understand she will take possession of an island during her cruise. * * *"

On March 1, 1862, Prince Lot Kamehameha, Minister of the Interior, addressed a letter to Messrs. J. Wilkinson and Zenas Bent, as follows:

"Interior Office Honolulu, March 1, 1862.

Gentlemen:

I am instructed by his Majesty's government to acknowledge the receipt of your petition of the 24th Ult. and to inform you that in Cabinet Council held on the 27th ult. at the Palace, the above mentioned memorial was considered and discussed; and 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 —

I have the honor to forward with this dispatch the Authority under the Royal Sign Manuel to Zenas Bent, Esq. to take possession of the above mentioned island of Palmyra, and I beg to request that you will after having executed the orders contained in the Commission, you will report the fact to this Department —

Hoping that the enterprise may prove Successful, I beg to remain

Gentlemen Your Obt. Servt. L. Kamehameha" The commission referred to was put in evidence, and reads as follows:

"Kamehameha IV, By the Grace of God, of the Hawaiian Islands, King:

To All whom it May Concern Greeting: Know Ye, that We, have authorized and empowered our faithful Subject Zenas Bent and by these presents, do hereby empower the said Zenas Bent to take possession in our name of Palmyra Island — the said island being situated in longitude 161° 53 West and in latitude 6°4 North, not having been taken possession of by any other government or any other people, by erecting thereon a short pole, with the Hawaiian flag wrapped around it and interring at the foot thereof a bottle well corked containing a paper signed by him in the following form, viz:

`Visited and taken possession of by order of His Majesty King Kamehameha IV, for him and his successors on the Hawaiian throne, by the undersigned in the Schooner "Louisa" this ____ day of ____ 186_.'

In witness whereof, We have hereunto set our hand, conjointly with our Kuhins Nui, and Caused the Great Seal of the Kingdom to be affixed, this 1st day of March, A.D. 1862.

Kamehameha Kaahumanu By command of the King and the Kuhina Nui L. Kamehameha"

Under date of June 16, 1862, Zenas Bent made the following report of his doings, as shown by a copy of a document on file in the Interior Department Lands file in the Public Archives of the Territory, which was put in evidence.

"In re. Palmyra Island.

To His Royal Highness Prince L. Kamehameha, Minister of the Interior.

Sir: In pursuance of the authority granted to me by His Majesty Kamehameha IV., on the first day of March A. D. 1862, I took possession of Palmyra Island, in the name of His Majesty; and according to my instructions, I erected on the island a pole, with the Hawaiian flag wrapped round it; and I interred at the foot of it a bottle well corked, containing a paper signed by me, in the following form:

`This island is taken possession of by order of His Majesty King Kamehameha IV., for him and his successors on the Hawaiian throne, by the undersigned, in the schooner Louisa, this 15th day of April A. D. 1862.

(signed) Zenas Bent'

By correct observation, I found the island to be in latitude 5° 50' North, and in longitude 161° 53' West.

The island is about ten miles in length and six miles in breadth. The eastern end rises about twenty feet above the level of the sea. The landing is on the west end; and a vessel can lie in perfect safety in three fathoms of water.

The trees on the island are cocoanut, puhala and a species of the koa.

All kinds of vegetables will grow on the island. I planted some beans, corn and watermelons.

I erected a dwelling house on the island, and also a curing house for biche de mer.

I left on the island one white man and four Hawaiians, who are engaged in curing the biche de mer.

I propose returning to the island in about ten days.

I have the honor to remain

Your obedient servant Z Bent"

June 16, 1862.

Thereafter there was published in the Polynesian, the Government's Gazette, the following proclamation as shown by printed notice on file in the Interior Department Lands file of the Public Archives put in evidence.

"By Authority.

Proclamation!

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.

L. Kamehameha Minister of Interior. Department of the Interior, June 18, 1862."

The Polynesian on June 14, 1862, published the following:

"Memoranda

The sloop Louisa, Capt Bent, sailed hence March 28, and arrived at Palmyra Island on the 6th April, having had pleasant weather on the passage down, with moderate winds from the southward of East. Left again May 17 and touched at Washington Island on the 24th, having had light westerly winds between the two. The first eight days from Washington Island had light northerly winds, with frequent rain squalls; and then had the wind from NE to NNE to within 200 miles of port. Was 10 days from lat 4°40'N to 10° N. Capt. Bent wishes particularly to call attention to the fact, that in long 158° to 160° W, and lat 4° to 9°N, he found a westerly current of 20 knots in 24 hours—He has been over the same locality every few months during the last five years, but always found an easterly current. During this last crossing he was almost entirely becalmed the greater portion of the time, and the rain was much heavier than he ever before experienced. A tub 16 inches deep, left standing on the deck was completely filled four times during one watch."

On August 27, 1885, an instrument was recorded in the Registry of Conveyances of the Kingdom at Honolulu, showing that a copartnership which had existed between Wilkinson and Bent was terminated on December 24, 1862, on which date Bent sold and conveyed to Wilkinson all of his interest in Palmyra. The pertinent part of the instrument reads as follows:

* * * * * *

"Know all men by these presents that I, Zenas Bent of Honolulu, Oahu, Hawaiian Islands, in consideration of Five hundred Dollars to me paid by Johnson Wilkinson of Honolulu aforesaid, the receipt of which is hereby acknowledged do hereby give, grant, bargain, sell and convey unto the said Johnson Wilkinson his representatives and assigns, All my right title and interest in and to all the property of whatever description now lying or situated on Palmyra Island in the Pacific Ocean which Island by a proclamation of His Majesty Kamehameha IV at present belongs to the Hawaiian Kingdom. And also all my right, title and interest in and to any partnership property that I may have an interest in as Copartner with the said Johnson Wilkinson. To have and to hold the same with all the rights, privileges and appurtenances to the same belonging unto the said Johnson Wilkinson his representatives and assigns. In witness whereof, I have hereunto set my hand and seal this...