Harris v. Carter

• Citation: 6 Haw. 195
• Parties: C. C. HARRIS v. H. A. P. CARTER, J. MOTT SMITH, AND J. O. DOMINIS, COMMISSIONERS OF CROWN LANDS.
• Decision Date: 01 March 1877
• Court: Supreme Court of Hawai'i

6 Haw. 195

C. C. HARRIS v. H. A. P. CARTER, J. MOTT SMITH, AND J. O. DOMINIS, COMMISSIONERS OF CROWN LANDS.

Supreme Court of Kingdom of Hawai'i.

March 1, 1877

EJECTMENT.

Syllabus by the Court

The Mahele of 1848, and ancient Hawaiian land tenures considered, and defined.

A release by the Mahele from the King to his Queen is good.

Ahupuaa Ili, and Ili Kupono, defined.

Although the grant of an ahupuaa ordinarily includes all the land within its boundaries, yet as all the Ilis recognized in the Mahele and awarded by the Commission were undoubtedly Ili Kuponos, having their own distinct identity, the Court holds that such Ili Kuponos were not included in the grants of the ahupuaas within whose boundaries they lie, it not being clearly expressed or manifestly intended that they should be so included.

Although there is no prescription against the state, the King, as an individual, cannot claim this immunity.

The King did not have to go to the Land Commission for confirmation of his titles in his reserved lands.

Plaintiff in person.

A. S Hartwell, for the defendants.

BEFORE JUDD, J.

DECISION

JUDD J.

This is an action of ejectment. The complaint was filed January 20th, 1875, and on the same day service was admitted and the jury waived by the then Commissioners of Crown Lands-J. S. Walker, R. H. Stanley and J. O. Dominis.

On the 20th January, 1877, the present commissioners were substituted as defendants on motion of the plaintiff. The plea of the general issue was then filed by plaintiff's consent, and the case argued and submitted on the 23d of January.

The plaintiff claims title to the Ili of Kawailoa, in the Ahupuaa of Kailua, Koolaupoko, Oahu, and to the Ilis of Kaluapuhi, Halekou, Kuou, Waikalua, Keaahala, Kahalekauwila, and Kanohouluiwi, in the Ahupuaa of Kaneohe, Koolaupoko, Oahu; and shows in evidence as follows:-

1. The " Mahele" or " Great Division" of 1848, of the Ahupuaas of Kailua and Kaneohe to Hakaleleponi Kalama, the Queen of Kamehameha III.

2. Awards of the Land Commission to Queen Kalama, dated May 20th, 1854, issued April 13th, 1855, upon claim No. 4452, designated as Apanas 12 and 13, for the Ahupuaas of Kailua and Kaneohe respectively.

3. Will of Kamehameha III., who died December 15th, 1854, dated the 2d day of April, 1853, admitted to probate January 27th, 1855, in which the said Ahupuaas of Kailua and Kaneohe are, with other lands, devised in fee simple to Queen Kalama.

4. The admission that Queen Kalama died intestate 20th September, 1870, leaving as her heir-at-law His Highness Charles Kanaina.

5. Deed of Charles Kanaina to the plaintiff, dated 1st of May, 1871, of all the right, title, and interest which the late Queen Kalama possessed at the time of her decease in and to the Ahupuaas of Kailua and Kaneohe.

The plaintiff claims that, by virtue of the above-recited chain of title, Queen Kalama was entitled at the time of her decease to the whole of the Ahupuaas of Kailua and Kaneohe, and to the aforesaid Ili of Kawailoa in the Ahupuaa of Kailua aforesaid, and the said Ilis of Kaluapuhi, Halekou, Kuou, Waikalua, Keaahala, Kahalekauwila, and Kanohouluiwi in the Ahupuaa of Kaneohe, and which are included in and are a part of the said Ahupuaas, and which by deed of C. Kanaina are conveyed to the plaintiff.

It is clear to me that the plaintiff's title is not affected by the fact that the Mahele of 1848 of these lands was made by the King to his own wife. Kalama was Kamehameha III.'s Queen, but she was also his subject, and so far as this Mahele is concerned, could take direct from the King, her husband, like any other chief.

It is also clear that the title to the Ahupuaas of Kailua and Kaneohe is in the plaintiff.

The principal question remains to be considered, viz: Do the grants of these Ahupuaas include and carry with them the so-called " Crown Ilis, " above enumerated? I suppose it will not be questioned that the grant of a tract of land which is described either by survey or in any other sufficiently definite mode, will be held to include all that is within its boundaries. This may be illustrated thus: If a man sells his house-lot, the conveyance will be held to include the fountain or the garden which is in the house-lot.

So a grant of an Ahupuaa will include the grantor's fishponds or kalo patches lying within the Ahupuaa.

The argument is made that an Iliaina is a portion or subdivision of an Ahupuaa, and therefore the grant of an Ahupuaa includes the Ilis lying within its circumscribing boundaries. And this reasoning is applied to the present case as follows: When Kamehameha granted, at the great Mahele, the Ahupuaa of Kaneohe to Kalama, he granted whatever made up that Ahupuaa; that is, all the Ilis within it not granted to other persons.

Here it becomes necessary to examine the nature of the land tenures in this Kingdom, and particularly the great Mahele of 1848. As to the former, the " Principles adopted by the Board of Commissioners to Quiet Land Titles, " 2 Hawn. Statutes, p. 81, et seq., furnishes us a clear exposition, and in the investigation of the latter I have been much aided by the decision of the Full Court in 1864, " In Re Estate of His Majesty Kamehameha IV., " 2 Hawn. 715, written by the late Mr. Justice Robertson, our best authority on such matters.

It seems that after long and patient investigation in which the patriotism of the King and chiefs was often severely tested, it was finally settled and fully established that there were but three classes of persons having vested rights in the lands of this Kingdom. First, the King; second, the landlords, comprising the chiefs and Konohikis; third, tenants, who afterwards became " Kuleana-men." But as each of these classes had rights in most of the lands, in a descending scale, as it were, it became necessary to separate and define the rights of each-or, rather, to partition in severalty to each one his proper share of the whole. It was finally settled that the King should allow the landlord (2d class) one-third; the tenants (3d class) one-third; and retain himself (1st class) one third.

The " Mahele Book, " which was put in evidence and which I have carefully studied, is to my mind in effect and substance the record of various deeds of quit-claims between the King on the one hand, and the various chiefs and landowners on the other, of their several interests, each to the other, in the various lands of the Kingdom.

After all these preliminaries were settled, the work began, and the first Mahele was made between the late Princess Victoria Kamamalu (by her guardians) and the King, on the 27th day of January, 1848. This work continued on from one chief and Konohiki to another with the King, taking up one island after another, and going on regularly from day to day, and the last Mahele was signed on the 7th March, 1848.

As an example I copy here the transaction between Queen Kalama and the King, on one page of the Mahele Book, to wit, 146:

KO KAMEHAMEHA III.

Na Aina. Ahupuaa. Kalana. Mokupuni.

" 28 different Ilis in Wailuku Puali. Kom. Maui.

" Ke ae aku nei au i keia Mahele, ua maikai, Ko ka Moi na Aina i kakauia maluna. Aohe o'u kuleana maloko.

" HAZALELEPONI KAPAKUHAILI. [L.S.]

" Hale Alii, 11 Feb., 1848."

(Translation of the above.)

" I hereby agree to this division; it is satisfactory. The lands above inscribed are the King's; I have no right to them.

HAZALELEPONI KAPAKUHAILI. [L.S.]

Palace, 11 Feb., 1848."

On the opposite page, 148:

KO HAZALELEPONI KALAMA.

Na Aina. Ahupuaa. Kalana. Mokupuni.

Kula Ahupuaa Puna Hawaii.

Kapalaalaea ‘ Kona ‘

Kalahuipuaa Ili no Waimea Kohala ‘

Anaehoomalu ‘ ‘ ‘ ‘

Waipio Ahupuaa Hamakua ‘

Kaohe Ili no Wailuku Puali. Kom. Maui.

Puhiawawa ‘ ‘ ‘ ‘ ‘

Lemukee ‘ ‘ ‘ ‘ ‘

Puuohala ‘ ‘ ‘ ‘ ‘

Manienie ‘ ‘ ‘ ‘ ‘

Waikahalulu ‘ Honolulu Kona Oahu.

Kailua Ahupuaa Koolaupoko ‘

Kaneohe ‘ ‘ ‘

Hakipuu ‘ ‘ ‘

Ke ae aku nei au i keia Mahele, ua maikai. No Hazaleleponi Kalama na aina i kakauia maluna; ua ae ia'ku e hiki ke lawe aku imua o ka Poe Hoona Kuleana.

KAMEHAMEHA. [L.S.]

Hale Alii, 11 Feb., 1848.

(Translation.)

" I hereby agree to this division; it is satisfactory. The lands above inscribed are Hazaleleponi Kalama's; she has permission to take them before the Land Commission.

KAMEHAMEHA. [L.S.]

Palace, 11 Feb., 1848.

The Mahele being completed on the 7th of March, 1848, the King's suzerainty over the lands held by his chiefs and other individuals was at an end, and the list of lands in which the interests of the chiefs and lesser Konohikis had thus been released, became the King's.

But the Mahele, as Judge Robertson expresses it in the decision above referred to, granted the lands to the chiefs " by freehold title, certified to the Land Commission for its formal award, capable of being converted into an allodial title by payment to the Government of a commutation to be fixed in Privy Council."

It appeared to the King that the land thus released to him might be subjected to commutation in like manner with the lands of the chiefs.

To quote again from the decision in 2 Hawn. 722: " The records of the discussion in Council show plainly His Majesty's anxious desire to free his lands from the burden of being considered public domain, and also his wish to enjoy complete control over his own property.

" Moved by these considerations and by a desire to promote the interests of his Kingdom, he proceeded with an exalted...