In re Petition of the Territory of Haw. to Register & Confirm Its Title to the Ahupuaa of Kioloku in the Dist. of Kau
| Decision Date | 15 March 1920 |
| Docket Number | No. 1212.,1212. |
| Citation | 25 Haw. 357 |
| Parties | IN THE MATTER OF THE PETITION OF THE TERRITORY OF HAWAII TO REGISTER AND CONFIRM ITS TITLE TO THE AHUPUAA OF KIOLOKU IN THE DISTRICT OF KAU, ISLAND AND COUNTY OF HAWAII, TERRITORY OF HAWAII. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREERROR TO JUDGE OF THE LAND COURT. HON. J. T. DEBOLT, JUDGE.
Syllabus by the Court
There is a marked difference between a title acquired by prescription under the statute of limitations and a title acquired through the medium of the common law presumption of a lost grant.
Under the statute of limitations the rule is an arbitrary one and the presumption is conclusive, whereas the common law presumption is rebuttable.
The statute of limitations cannot be invoked against the State but where sufficient facts are shown the common law presumption of a lost grant may be indulged in and the rule will be applied as a presumptio juris et de jure even as against the State.
Where the evidence is sufficient to apply the common law presumption of a grant it may also be assumed in the absence of circumstances repelling such conclusion that all that might lawfully have been done to perfect the legal title was in fact done and in the form prescribed by law.
The doctrine of the common law presumption of a lost grant may be invoked in favor of the State as well as against it.
J. Lightfoot, First Deputy Attorney General, for plaintiff in error.
A. G. M. Robertson ( Robertson & Olson on the brief) for defendant in error.
This cause is brought here on a writ of error sued out by the Territory of Hawaii to review numerous rulings of the judge of the land court of the Territory of Hawaii made during the trial of said cause as well as the final decision and decree made and rendered therein. There are in all twenty-five specifications of error. The controversy is in respect to what is known as the ahupuaa of Kioloku, district of Kau, Island of Hawaii. This ahupuaa contains an area of about 850 acres. In August, 1913, the Territory of Hawaii sought to have its title thereto registered. After a report by the examiner which was favorable to the claim of the Territory notice was served upon adjoining owners and possible claimants as provided by law. The Hutchinson Sugar Plantation Company (hereafter referred to as the company), the present defendant in error, was the only party appearing to make claim to the property in question. It interposed an answer denying title in the Territory and asserted ownership of the land in fee simple in itself. Trial of the issue thus joined was not commenced until October, 1918.
It is the claim of the Territory that the ahupuaa of Kioloku was not included in the great mahele of 1848 by which the lands of the Kingdom of Hawaii were supposed to have been partitioned and set apart in severalty to and between the king, the chiefs and the government, respectively, nor has the government by any subsequent award or grant conveyed away its title in said ahupuaa. The company asserts title in fee simple in itself under a mahele and land commission award which cannot now be produced and of which no present record can be found but which it claims must be presumed to have been made to the high chiefess Ane Keohokalole and invokes the common law presumption of a grant and attempts to establish its claim of the existence of the grant by secondary evidence.
The facts involved in the controversy are simple. The predominant question is whether under the facts and circumstances shown to exist by the record a grant from the government to Ane Keohokalole can properly be presumed. As aptly said in the brief of the attorney general: “The whole issue of the case may be summarized in the one question, namely, under the facts and circumstances as shown in the case, will the court presume a grant of Kioloku to Ane Keohokalole?” The judge of the land court found after an able and exhaustive review of the evidence as well as of the authorities that a grant from the government to the company's predecessor in interest must be presumed and that the petitioner, the Territory of Hawaii, had no right, title nor interest whatsoever in or to Kioloku and thereupon dismissed the petition of the Territory.
At the trial before the land court it was established either by evidence or the admission of the parties that Caezar Kapaakea was the father and Ane Keohokalole the mother of David Kalakaua (afterwards King Kalakaua); that as far back as 1861 Ane Keohokalole, through her trustee C. R. Bishop, was collecting rents from the ahupuaa of Kioloku; that Ane Keohokalole died in 1869 leaving surviving her David Kalakaua and three other children; that in 1870 the lands of Ane Keohokalole were partitioned and divided between her children by a deed of partition duly executed and recorded and that by this deed the ahupuaa of Kioloku was set apart to and as the sole property of David Kalakaua; that from that date to the present time Kalakaua and his successors in interest have held actual, open, continuous and uninterrupted possession of the land in question, using it for such purposes as it was adapted, and that the Hutchinson Sugar Plantation Company succeeded to the rights of Kalakaua by several mesne conveyances. The petitioner has also admitted that the land has been assessed by the several governments of Hawaii, to wit, the Monarchy, the Provisional Government, the Republic of Hawaii and the Territory of Hawaii, and the taxes so assessed have been paid by the successive occupants since 1870 to the present time.
The record herein further discloses that in 1873 David Kalakaua presented a petition to Rufus A. Lyman, boundary commissioner for the Island of Hawaii, to have the boundaries of the ahupuaa of Kioloku and other lands settled and adjudicated. It appears from the record of the boundary commissioner that the owners of adjoining lands were notified of the proceedings as required by law and that in response to this notice the then reigning monarch of Hawaii, His Majesty King Lunalilo, owner of one of the adjoining tracts of land, appeared and was represented by J. G. Hoapili, and that the government, the owner of one of the adjoining tracts of land, appeared and was represented by W. T. Martin; that testimony was taken and a judgment defining the boundaries of Kioloku by a survey description was entered; that no objection was made to the proceedings or to the findings of the commissioner either by King Lunalilo or by the government. From ancient maps and surveys of lands adjoining Kioloku and of a small kuleana located within the boundaries of Kioloku as early as 1852 Kioloku was referred to as konohiki land. Konohiki, when used as a noun, designated the person having charge of the land in behalf of the king or chief or other person to whom the ahupuaa had been assigned or awarded, but the word “konohiki” is in common use as an adjective denoting land which is privately owned in contradistinction to “aupuni” or government land. The classification of the lands in these islands which has been in vogue since the great mahele of 1848 is (1) government land; (2) crown land; (3) konohiki land, and (4) kuleanas of the common people. In royal patent grants issued about 1860 the ahupuaa of Kioloku was referred to simply as “Kioloku” while other lands in that vicinity which it is conceded were government lands were referred to as “aupuni.”
Mr. Kanakanui, a witness for the government, testified to having searched the records of the land commission and of the privy council of the former Kingdom, as well as the records of the mahele of 1848, without being able to locate any record of an award or mahele of Kioloku. And it is further shown by the Territory that Kalakaua in his petition filed with the boundary commissioner of the Island of Hawaii to have the boundaries of Kioloku and other ahupuaas adjudicated represented that no award of Kioloku had ever been made to his mother Ane Keohokalole. The petition referred to is as follows:
Island of Hawaii.
(Sgd.) D. KALAKAUA.
Honolulu, June 23rd, 1873.”
No living witness has been produced who was present at the proceedings before the boundary commissioner and while the statement of Kalakaua in his petition was weighty evidence supporting the claim that no award of Kioloku had been issued to his mother yet the proceedings had upon the petition before the commissioner strongly refute that assumption. Kalakaua could only have presented and sustained his petition upon the hypothesis that Kioloku had been awarded by the land commissioners or patented or deeded by the king without defined boundaries and that petitioner was at that time the owner of the land, for it was prescribed in the law authorizing the proceedings, to wit, the act of the legislative assembly of the Kingdom approved June 22, 1866, that ...
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