Carter v. Territory Damon

• Decision Date: 15 November 1902
• Citation: 14 Haw. 465
• Parties: JOSEPH O. CARTER, WILLIAM F. ALLEN, WILLIAM O. SMITH, SAMUEL M. DAMON AND ALFRED W. CARTER, TRUSTEES UNDER THE WILL OF BERNICE P. BISHOP, DECEASED, v. THE TERRITORY OF HAWAII. SAMUEL M. DAMON v. THE TERRITORY OF HAWAII.
• Court: Hawaii Supreme Court

14 Haw. 465

JOSEPH O. CARTER, WILLIAM F. ALLEN, WILLIAM O. SMITH, SAMUEL M. DAMON AND ALFRED W. CARTER, TRUSTEES UNDER THE WILL OF BERNICE P. BISHOP, DECEASED,

v.THE TERRITORY OF HAWAII.

SAMUEL M. DAMON

v.THE TERRITORY OF HAWAII.

Supreme Court of the Territory of Hawai‘i.

Submitted October 7, 1902.

Decided November 15, 1902.

EXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT.

Syllabus by the Court

The Hawaiian statutes giving konohikis, or landlords, special privileges in the sea fisheries adjoining their land were not grants of property or covenants in the nature of grants but were public statutes in which no one could acquire a vested right.

The phrase “private property” used in these statutes denoted no more than the special rights, or privileges, given by the law over the sea fishery.

When the statutes were repealed by the Organic Act the konohiki, or landlord, no longer had any “private property” in such fishery.

Exclusive rights in a sea fishery surrounding these islands could not be acquired by prescription or ancient custom.

The konohiki's, or landlord's, “private property” in the sea fishery could not pass as an appurtenance to the land.

A Royal Patent containing, after the description of the land conveyed and before the habendum clause, a recital that “there is also attached to this land a fishery right in the sea adjoining” without express words of grant referring to the fishery does not convey any right in the fishery.Hatch & Silliman for the plaintiff.

Cecil Brown and Magoon & Peters on brief.

Robertson & Wilder for defendant.

GALBRAITH, J., JOHN T. DE BOLT, CIRCUIT JUDGE, IN PLACE OF FREAR, C.J., DISQUALIFIED, AND W. J. ROBINSON, CIRCUIT JUDGE, IN PLACE OF PERRY, J., DISQUALIFIED.

OPINION OF THE COURT BY GALBRAITH, J.

The plaintiffs commenced these actions under Section 96 of the Organic Act for the purpose of establishing an exclusive right to the fisheries of Waialae-iki and Moanalua, Island of Oahu.

In the first case the plaintiffs as trustees of the Bishop Estate, claim a vested right as sole and exclusive owners in fee simple of the sea fishery, same not being a pond or artificial enclosure, situated within the reef adjoining the land of Waialae-iki, setting out a description by metes and bounds; and further allege in their petition that plaintiffs' claim consists of the right each year to set apart for themselves for their sole and exclusive use within the fishing grounds described, one species or variety of fish natural to said fishery, giving public notice of the kind and description of the fish so chosen or set apart; and also the right in lieu of setting apart some particular fish to their exclusive use to prohibit, upon consultation with the tenants of their land, all fishing within such fishery during certain months of the year; and during the fishing season to exact from each fisherman one third of all the fish taken upon said fishing ground; that from time immemorial the plaintiffs and their grantors by ancient custom and prescription have had an exclusive fishery within the bounds set out, subject only to the rights of tenants on the land of Waialae-iki; that the said fishery was originally appurtenant to the land of Waialae-iki awarded to A. Paki by Apana 3 of Land Commission Award No. 10,613 and confirmed by Royal Patent No. 3578; and that plaintiffs claim an absolute estate in fee simple in said fishery by purchase under various mesne conveyances.

In the second case the plaintiff makes a similar claim to the fishery situated at Moanalua and also sets up an additional ground for the claim of right, i. e., that the said fishery was confirmed to L. Kamehameha by Royal Patent No. 7858 under whom the plaintiff claims an absolute estate in fee simple in said fishery by purchase through various mesne conveyances and by descent.

The cases were tried to a jury in the Circuit Court. In the first the Judge granted defendant's motion for non-suit at the close of plaintiff's evidence. In the second a verdict was directed for the defendant. The plaintiffs excepted and come to this court on bills of exceptions. The cases were argued and submitted together.

In the first case the claim of plaintiffs is based on three grounds, to-wit: (1) That the right claimed is an appurtenance to their land; (2) that it is based on prescription or (3) on Ancient Hawaiian custom while in the second case these three grounds are relied on and an additional claim for the right is made i. e., a grant from the King.

It is contended on behalf of the Territory, and the ruling of the Circuit Judge seems to have been based on this theory, that in the second case the Patent for the land of Moanalua does not grant the fishery to the patentee and in both cases that the plaintiffs did not and could not acquire an exclusive right in the fisheries by prescription or by ancient custom, and that whatever right they enjoyed in the fisheries on June 14th, 1900, the time of taking effect of the Organic Act, was derived from the Hawaiian Statutes on the subject of fisheries and that these were public statutes or laws unde which no one could acquire a vested right and that when the statutes were repealed all of the rights and privileges of the plaintiffs in the said fisheries were abrogated and annulled.

The provisions of the Organic Act on the subject are as follows, “Section 95. That all laws of the Republic of Hawaii which confer exclusive fishing rights upon any person or persons are hereby repealed, and all fisheries in the sea waters of the Territory of Hawaii not included in any fish pond or artificial inclosure shall be free to all citizens of the United States, subject, however, to vested rights; but no such vested rights shall be valid after three years from the taking effect of this Act unless established as hereinafter provided.”

Section 96. “That any person who claims a private right to any fishery shall, within two years after the taking effect of this Act, file his petition in a Circuit Court of the Territory of Hawaii, setting forth his claim to such fishing rights, service of which petition shall be made upon the Attorney-general, who shall conduct the case for the Territory, and such case shall be conducted as an ordinary action at law.

That if such fishing right be established, the attorney-general of the Territory of Hawaii may proceed, in such manner as may be provided by law for the condemnation of property for public use, to condemn such private right of fishing to the use of the citizens of the United States upon making just compensation, which compensation, when lawfully ascertained, shall be paid out of any money in the Treasury of the Territory of Hawaii not otherwise appropriated.”

The question of greatest difficulty presented by these cases is to determine whether or not the rights of the plaintiffs in the respective fisheries were properly “vested rights” within the saving clause of Section 95, of the Organic Act.

By the Common law the title and dominion of the sea and navigable rivers and arms of the sea within the Territorial jurisdiction were in the King who held the same in trust for his subjects who had a common right of navigation and fishery therein. This jurisdiction was held to extend one marine league from the beach at low water mark. 2 Blackstone 52; Gould on Waters, Sec. 3; Rogers v. Jones, 1 Wend. 237 at 256;Shively v. Bowlby, 152 U. S. 1;The King v. Parish, 1 Haw. 58.

Although the claim to an exclusive right in a sea fishery has been the subject of much litigation and of conflicting decisions the weight of authority seems to hold that at common law such a right might be acquired by grant or by prescription which presumes a grant. Gould on Waters, Sec. 189, and cases cited in note: Rogers v. Jones, supra:

The Supreme Court of New York has held that by the common law the King had the right to grant the soil under navigable water, and with it the exclusive right of fishery. Brookhaven v. Strong, 60 N. Y. 56. A grant made by a Colonial Governor and confirmed by Act of Assembly was held to vest the title to an exclusive fishery in the grantee. Robins v. Acherly, 91 N. Y. 98. The holding of the New York Courts on this question was followed by the Supreme Court of the United States in Lowndes v. Huntington, 153 U. S. 1.

It is said by Woodworth, J., in case of Rogers v. Jones, supra, “It is well known that numerous grants have been made from time to time, by the Commissioners of the land office of lands under the waters of the Hudson, all which have proceeded on the ground that it was the undeniable right of the people of this state to make such grants. Until very lately, I have not understood that the power was questioned. It is here proper to observe that this principle does not at all conflict with the doctrine laid down by writers on national law, who declare the air, running water, the sea, etc., arc common property (Vattel, b. 1. Ch. 23, Sec. 280, 287. Grotius, b. 2 Ch. Sec. 3.) The same writers, however, admit that the various uses of the sea near its coast render it very susceptible of property; and rivers are susceptible of property, because confined in banks; such places may be appropriated by the people to whom they belong and the productions within reach, in the same manner as the land they inhabit.” p. 156.

Kamehameha III, who ruled the Hawaiian Islands before there was any written laws or Constitution, as well as after the adoption of a written Constitution, was in the fullness of the common law phrase “the universal lord and original proprietor of all lands in his kingdom.” He, was the source of title. He could give and take from. His will was law. None of his people held allodial titles prior to 1840. There is little, if any, doubt that he had the power to grant exclusive fisheries to any of his subjects if he desired to do so. (Territory v. Liliuokalani, ante 88. Brown v. Spreckels, ante, 400), although there is a declaration by Chief Justice Judd that tends strongly...