In re Petition of the Territory of Haw. to Register & Confirm Its Title to Certain Land Situate in Lahaina

• Decision Date: 10 July 1912
• Citation: 21 Haw. 175
• Parties: IN THE MATTER OF THE PETITION OF THE TERRITORY OF HAWAII TO REGISTER AND CONFIRM ITS TITLE TO CERTAIN LAND SITUATE IN LAHAINA, ISLAND OF MAUI, TERRITORY OF HAWAII, AND KNOWN AS PA PELEKANE.
• Court: Hawaii Supreme Court

21 Haw. 175

IN THE MATTER OF THE PETITION OF THE TERRITORY OF HAWAII TO REGISTER AND CONFIRM ITS TITLE TO CERTAIN LAND SITUATE IN LAHAINA, ISLAND OF MAUI, TERRITORY OF HAWAII, AND KNOWN AS PA PELEKANE.

Supreme Court of the Territory of Hawai‘i.

Submitted May 29, 1912.

Decided July 10, 1912.

OPINION TEXT STARTS HEREAPPEAL FROM COURT OF LAND REGISTRATION.

Syllabus by the Court

A proceeding to bring land under the statute providing for the registration of titles partakes of the nature of a suit in equity, and it is not correct practice in such a proceeding to dismiss the application at the close of the petitioner's case on the motion of respondent unless the respondent also rests.

Where, in such a proceeding, the application sets forth a claim of title in fee simple absolute and alleges a source of title which is legally invalid, but no objection was raised to the form of the pleading, any evidence tending to prove the general claim of title in fee simple is admissible, and the matter of amending the application may remain in abeyance until the close of the evidence.

A resolution of the privy council of the Hawaiian Kingdom that certain land “be and is hereby confirmed as government property and that Governor Kekuanaoa's claim therefor is hereby negatived,” adopted in response to an adverse claim by Kekuanaoa on behalf of another individual for the land mentioned, was not intended to be and was not an exercise of the power of eminent domain.

The title to land which was never awarded by the land commission nor granted by the government remains in the government. The Mahele of 1848 did not confer title on the chiefs to the lands therein set apart to them.

The award of an ahupuaa by name only would not pass title to a piece of land which, though originally a portion of the ahupuaa, had, prior to the award, been permanently detached from and taken out of the ahupuaa.

The former governments of the Hawaiian Islands are not to be regarded as foreign governments. The courts of this Territory take judicial notive of the laws of Hawaii which were enacted prior to the annexation of the islands by the United States, as well as of the principal facts of Hawaiian history, and the public records of the Hawaiian government when called to the attention of the court.

Alexander Lindsay, Jr., Attorney General, and A. G. Smith, Deputy Attorney General, for the petitioner.

Holmes, Stanley & Olson, Castle & Withington, J. Lightfoot, Larnach & Robinson, and R. P. Quarles for the respondents.

ROBERTSON, C.J., PERRY AND DE BOLT, JJ.

OPINION OF THE COURT BY ROBERTSON, C.J.

This is an appeal taken by the Territory from a judgment made and entered by the court of land registration denying and dismissing its application to have registered a fee simple title to a parcel of land situate at Lahaina, Maui, known as “Pa Pelekane,” containing an area of 2.28 acres. In response to the usual notice given in such cases several persons appeared and filed answers. Among the respondents who thus appeared were the trustees under the will and of the estate of Bernice P. Bishop, deceased, who claimed title in fee simple to the land described in the petition except a portion thereof theretofore conveyed by them to one E. K. Nahaolelua, the ancestor of some of the respondents. The other respondents set up claims to distinct portions of the land and some of them denied that the Territory had any title in or to any of the land described in the petition. The third paragraph of the petition sets forth, “That the Hawaiian Kingdom obtained title to said property on August 29, 1850, by a resolution of the Privy Council reserving and confirming the said Pa Pelekane as Government property, said resolution being on file in the office of the Department of Public Lands of the Territory of Hawaii, in Vol. 3, p. 427, of the Privy Council Records, and the Territory of Hawaii obtained title to said property by virtue of its political succession to the said Hawaiian Kingdom.”

The Territory's contentions are recapitulated in the attorney general's brief as follows: “(1) That this land of Pa Pelekane had, prior to the Mahele, been set apart by the King as Government land for the use of the Government. (2) That if the Government had not acquired title by eminent domain prior to the Mahele, it did acquire such title by virtue of certain resolutions of the Privy Council purporting to confirm the same as Government land, some of these resolutions being made after the Mahele, but prior to the land commission award to Victoria Kamamalu, others being after the award but prior to the issuance of the patent. (3) That the land of Pa Pelekane was not situated within the ancient boundaries of the Ahupuaa of Paunau. (4) That even if it was located within the ancient boundaries of Paunau, yet that this land of Pa Pelekane was what is known as town lots or house lots within the class denominated as being situated in Hilo, Lahaina or Honolulu, and so did not pass by the grant of the Ahupuaa, and (5) That the Territory, as successor to the Kingdom of Hawaii, has obtained title to this lot by prescription.”

At the hearing counsel for the Territory offered in evidence the resolution of the privy council referred to in the application claiming that it was evidence of “the exercise of the right of eminent domain,” and also of the fact that the land in question “had always been government land.” The respondents objected to the evidence and it was rejected. The Territory had failed to prove the source of title set up in its application, but certain evidence as to adverse possession was before the court and that tended to show that the petitioner was entitled to a registered title to a part, at least, of the land described in the application. Considerable evidence as to possession by and under the government was offered and much of it was admitted-some without objection and some over objections as to its competency. The claim of title by adverse possession was inconsistent with the claim that the land in dispute was never the subject of private ownership, and evidence of possession need not have been offered except in reply to an affirmative showing of title on the part of the respondents. If Pa Pelekane was never awarded by the land commission and had not been sold by the government the title remained in the government and it was not necessary for the Territory to show that the government had had possession. However, the evidence was received and the court was bound to consider it.

At the close of the case for the Territory, the respondents, without resting, moved that the application be dismissed on the ground that the petitioner had failed to establish or support the material allegations of the petition, and had failed in its proof. The court granted the motion. The procedure was improper. A proceeding to bring land under the operation of the law providing for the registration of titles is of the nature of a suit in equity, and the rules of equitable procedure generally apply. In equity it is not correct practice for the court to dismiss a bill at the close of the complainant's case, on the motion of the respondent, unless the respondent also rests. Territory v. McCandless, 16 Haw. 728;Texeira v. American D. G. Assn., 17 id. 41; Estate of Keaho, id. 308. But as pointed out by the Texeira case, if it appears that the plaintiff is not entitled to relief under the pleadings and evidence a decree of dismissal will not be reversed because of the error. It will be necessary, therefore, to ascertain whether in this case the petitioner was entitled to any relief. The statute (R. L. Sec. 2414) requires that the application shall contain “a description of the land, with a statement of whether an absolute, a qualified, or possessory title is required.” The form of application given in the statute, which is permissive, contains the following paragraph: “That I (or we) obtained title (if by deed, state name of grantor, date and place of record, and file the deed, or state reason for not filing. If in any other way, state it).” The claim made in the Territory's application was for “the legal estate in fee simple absolute” while the source of title was given as already explained. Assuming that no title was or could have been derived by or through the resolution of the privy council, the defect in the application was apparent on the face of the pleading and presented a question of law. The point was one which should have been raised by pleading. It is immaterial here whether the objection might have been made by demurrer, exception, or answer, but if the respondents intended to rely on the point they should have raised it in some way before the hearing. However, they did not raise it until after the hearing had begun. Besides some oral testimony and formal proofs, a mass of documentary evidence was offered, all but such as the court considered admissible on the question of adverse possession being rejected. The evidence admitted tended to show that the successive governments of these islands had occupied and used, apparently under claim of right, certain portions of the land in dispute for a great many years and longer than necessary to have acquired title by adverse possession if the land had previously been held in private ownership. Most of the respondents concede that adverse possession was shown as to the land covered by the lighthouse and the wharf site, but they claim that the Territory is not entitled to have its title registered as to those portions of the land because no offer or attempt to amend the application was made so as to limit the claim to those portions and to define them. It is in this connection that the error in granting the motion to dismiss is made clear. The court always has power to dismiss a bill of its own motion where there has been a total failure of proof, but in a case where there is only a partial failure of proof, or it appears that the plaintiff is entitled to some relief, the...