In re Lincoln Loy Mccandless for Registration of Title to Land in the Dist. of Waianae

CourtSupreme Court of Hawai'i
Citation34 Haw. 93
Docket NumberNo. 2204.,2204.
PartiesIN THE MATTER OF THE APPLICATION OF LINCOLN LOY MCCANDLESS FOR REGISTRATION OF TITLE TO LAND IN THE DISTRICT OF WAIANAE, OAHU, BEING GRANT NO. 527 TO A. BISHOP AND CALLED THE LAND OF “KALENA.”
Decision Date05 March 1937

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. H. E. STAFFORD, JUDGE.

Syllabus by the Court

When in a land court proceeding to register, confirm and establish title to land a decree is rendered by the land court from which an appeal to the circuit court sitting with a jury is taken and on which appeal the United States appears specially and moves to dismiss on the ground that the court is without jurisdiction, and upon a hearing on the motion facts are adduced to show that the United States, although not a party of record, is a real party in interest claiming, occupying and possessing the land, the title to which is sought to be determined, the proceeding being essentially a suit against the Federal government cannot be maintained without its consent.

C. H. Tracy (also on the briefs) for applicant.

G. P. Kimball, Deputy Attorney General ( W. B. Pittman, Attorney General, with him on the brief), for respondent.

I. M. Stainback, United States Attorney (also on the briefs), for the United States.

C. D. Pratt ( Stanley, Vitousek, Pratt & Winn on the brief) amicus curiae.

COKE, C. J., BANKS, J., AND CIRCUIT JUDGE METZGER IN PLACE OF PETERS, J., DISQUALIFIED.

OPINION OF THE COURT BY BANKS, J.

The instant controversy arose out of a land court application filed by Lincoln L. McCandless on February 25, 1918, to register and confirm title in him to a certain parcel of land comprising 482 acres situate in the district of Waianae in the City and County of Honolulu, Territory of Hawaii, which is part of what is commonly known as Schofield Barracks. The original source of the applicant's title was Artemas Bishop to whom it was alleged was granted by the Kingdom of Hawaii in 1851, Royal Patent No. 527. Citation was issued on April 3, 1918, citing for appearance the following: Territory of Hawaii to United States Army, Territory of Hawaii by I. M. Stainback, Attorney General, and Bertram G. Rivenburgh, Commissioner of Public Lands; City and County of Honolulu by Joseph J. Fern, Mayor, and President of the Board of Supervisors; and to all whom it may concern.” The Territory of Hawaii filed its answer claiming that 228 acres of the land sought to be registered by the applicant belonged to the United States of America in fee simple to which the Territory of Hawaii was entitled to the use, control, management and the power of disposition in fee simple. No other appearance was made.

After a hearing on the application the land court awarded to the applicant only 254 acres of the land claimed by him and decreed that the remaining 228 acres were public lands, and therefore refused to register the same in the applicant. From that decision the applicant appealed to the circuit court sitting with a jury as prescribed by statute. The appeal remained dormant for many years when it was finally set down for trial on December 3, 1934. Shortly before the date set for trial the United States of America, by its present United States District Attorney for the district of Hawaii, I. M. Stainback, Esq., who was duly authorized by the Attorney General of the United States to appear specially, filed the following motion: “Comes now the United States of America, By I. M. Stainback, United States Attorney in and for the District of Hawaii, and appearing specially for this Motion and for no other purpose, moves this Court for an Order dismissing the petition and appeal to a jury upon the following ground: That this Court is without jurisdiction to entertain a suit against the United States or against the property of the United States or determine title to property in possession of the United States and claimed by it. This Motion is based upon the records and files herein and upon the affidavit of I. M. Stainback attached hereto and made a part hereof.” After a hearing the motion was granted and it is from this decision of dismissal that the applicant has brought the case here on writ of error. This action of the lower court and the motion upon which it is predicated present the only question upon which our judgment is sought.

Upon the hearing on the motion the Territory of Hawaii, appearing by George Kimball, Deputy Attorney General, disclaimed any interest in the lands for the reason that they had been set aside for military purposes by two presidential proclamations. These two executive orders were introduced and received as evidence and are a part of this record. The first executive order, No. 1242, was issued by President William H. Taft on August 23, 1910, and the second, executive order No. 2800, was issued by President Woodrow Wilson on February 4, 1918. The second executive order covered substantially the land described in the first but was more precise in its description. It appears from the evidence that these two orders included the lands claimed by the applicant and that the area in question was, at the time the application was filed, and is now claimed by the United States government and was and is now occupied by the United States military forces.

The authority of the Presidents of the United States to so deal with the public lands of the Territory exists by virtue of the agreement of annexation entered into between the then Republic of Hawaii and the United States of America. On February 9, 1897, a resolution was passed by the senate of the Republic of Hawaii ratifying annexation of the Republic which reads in part as follows: “Be It Resolved, by the Senate of the Republic of Hawaii: That the Senate hereby ratifies and advises and consents to the ratification by the President of the treaty between the Republic of Hawaii and the United States of America on the subject of the annexation of the Hawaiian Islands to the United States of America concluded at Washington on the 16th day of June, A. D. 1897, which treaty is word for word as follows: * * * Article I. The Republic of Hawaii hereby cedes absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies; and it is agreed that all the territory of and appertaining to the Republic of Hawaii is hereby annexed to the United States of America under the name of the Territory of Hawaii. Article II. The Republic of Hawaii also cedes and hereby transfers to the United States the absolute fee and ownership of all public, government or crown lands, public buildings or edifices, ports, harbors, military equipments, and all other public property of every kind and description belonging to the government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining. The existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the United States shall enact special laws for their management and disposition. Provided: that all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil, military or naval purposes of the United States, or may be assigned for the use of the local government, shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.’

On July 7, 1898, the Congress of the United States passed a resolution annexing the Hawaiian Islands, which reads in part as follows: “Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining; Therefore Resolved by the Senate and House of Representatives of the United States of America in Congress Assembled, That said cession is accepted, ratified, and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are hereby, annexed as a part of the territory of the United States and are subject to the sovereign dominion thereof, and that all and singular the property and rights hereinbefore mentioned are vested in the United States of America. The existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the United States shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil, military, or naval purposes of the United States, or may be assigned for the use of the local government, shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.”

In 1900 when Congress passed the Organic Act it provided in section 91 in part as follows: “That, except as otherwise provided, the public property ceded and transferred to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July seventh, eighteen hundred and ninety-eight, shall be and remain in the possession, use, and control of the government of the Territory of Hawaii, and shall be maintained, managed, and cared for by it, at its own expense, until otherwise provided for by Congress, or taken for the uses and purposes of the United...

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