Albertina v. Kapiolani Estate, Ltd.
| Citation | 14 Haw. 321 |
| Parties | SISTER ALBERTINA, TRUSTEE FOR STELLA K. COCKETT, v. THE KAPIOLANI ESTATE, LIMITED, DAVID KAWANANAKOA, JONAH KALANIANAOLE, W. KAAUWAI AND KEANAPUNI. |
| Decision Date | 10 July 1902 |
| Court | Supreme Court of Hawai'i |
Submitted April 21, 1902.
EXCRETIONS FROM CIRCUIT COURT, FIRST CIRCUIT.
Syllabus by the Court
When one is shown to have been, for more than the statutory period, in actual, open, notorious, continuous and exclusive possession of land, apparently as owner, and such possession is unexplained as by showing that it was under a lease from or other contract with or otherwise by permission of the true owners, the presumption is that such possession was hostile.
Peterson & Matthewman for plaintiff.
Kinney Ballou & McClanahan for dependants.
This is an action of ejectment for a piece of land situate at Honuakaha, Honolulu, and containing an area of 1.6 acres. The property consisted formerly of a fishpond and its banks and perhaps, a small piece, additional, of a dry land, and was a lele of the Ili of Kaalaa, situate at Pauoa, Honolulu. Mahele Award No. 61 was signed by Kamehameha III on January 28, 1848, the King thereby consenting to the award by the Land Commission to one Namakeha of the Ili of Kaalaa. The Mahele Award reads as follows:
" Ko B. Namakeha.
Na Aina. Ahupuaa. Kalana. Mokupuni.
Kaalaa. Ili no Honolulu. Kona. Oahu.
Waikele. Ili no Waikele. Ewa. Oahu.
Ke ae aku nei au i keia mahele, ua maikai. No Beneki Namakeha na aina i kakauia maluna: ua ae ia ‘ ku e hiki ke lawe aku imua o ka Poe Hoona Kuleana.
(Sgd) Kamehameha.
Hale Alii, January 28, 1848."
On December 7, 1854, L. C. A. No. 7260 was issued to Namakeha, this award covering, however, only that portion of the Ili known as Kaalaaluna and describing the latter by metes and bounds. R. P. 4371, dated May 14, 1858, to Namakeha, was likewise for Kaalaaluna only, -again describing the land by metes and bounds. Namakeha was evidently entitled to receive an award or patent for the remainder of the Ili, to wit, for Kaalaalalo and the lele, but, for reasons not appearing in this case, no such award or patent was issued during his lifetime. He died in December, 1860. On June 24, 1862, the Minister of the Interior under the authority of the Act of 1860, made an Award (Vol. 3 of Awards, p. 337) which reads as follows:
" Helu 61. Namakeha.
Ili no Kaaha, ma Honolulu, Oahu. Helu 61 B. Ili Waikele, ma Waikele, Ewa, Oahu.
Koe nae ke kuleana o na kanaka.
Costs $2 each, $4.00.
24, June, 1862. (Sgd) L. Kamehameha.
Pd 25 June for 1 Aw'd (60)"
Assuming that " Kaaha" was intended for " Kaalaa, " this award or grant would seem to be broad enough in its terms to cover the whole ili or, since Kaalaaluna had been already covered by the Land Commission Award and Royal Patent above referred to, at least Kaalaalalo and the lele. However that may be, Kaalaalalo is not claimed in this action under this award or otherwise.
By whom this award or grant was applied for, does not appear in evidence. R. P. 7429, referring therein to Mahele Award No. 61, was issued March 10, 1880, in the name of Namakeha, with habendum to him, his heirs and assigns forever, and describing by metes and bounds the lele only. This Patent recites that application therefor was made to the Minister of the Interior by Her Majesty Queen Kapiolani.
The plaintiff claims under a deed of trust from Stella K. Cockett. The latter, it appears from the evidence, is the daughter and sole heir of one Hinau, who was the son and sole heir of Namakeha. She claims by inheritance from Namakeha, if the latter died intestate as to the land in controversy, but claims also that the lele was devised by Namakeha by his last will to Kapiolani, his widow, for life and after her death to the Prince of Hawaii, and that from the latter an undivided three-fourths interest passed by descent to her, the plaintiff. It may be assumed for the purposes of this case that Stella Cockett was entitled by inheritance to three fourths of the interest, if any, of the Prince of Hawaii. She seems to claim, further, under the award or grant of 1862 as the heir of Namakeha.
At the time of Namakeha's death, the title to the lele, so far as appears from the evidence, was in the Government; Namakeha at that time had no title to it. The presumption, if any, would be that under those circumstances he would not attempt to devise it by will. Nor can this will be construed as attempting to dispose of that property. The clauses in question read as follows, the first being in the original will and the second in a codicil:
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