In re Territory of Haw. to Register & Confirm Title to Certain Land Situate in Kakaako

• Decision Date: 14 November 1928
• Docket Number: No. 1819.,1819.
• Citation: 30 Haw. 666
• Parties: IN THE MATTER OF THE APPLICATION OF THE TERRITORY OF HAWAII TO REGISTER AND CONFIRM TITLE TO CERTAIN LAND SITUATE IN KAKAAKO, CITY AND COUNTY OF HONOLULU, TERRITORY OF HAWAII.
• Court: Hawaii Supreme Court

30 Haw. 666

IN THE MATTER OF THE APPLICATION OF THE TERRITORY OF HAWAII TO REGISTER AND CONFIRM TITLE TO CERTAIN LAND SITUATE IN KAKAAKO, CITY AND COUNTY OF HONOLULU, TERRITORY OF HAWAII.

No. 1819.

Supreme Court of the Territory of Hawai‘i.

Argued October 24, 1928.

Decided November 14, 1928.

OPINION TEXT STARTS HEREERROR TO LAND COURT. HON. A. M. CRISTY, JUDGE.

Syllabus by the Court

An award of the land commission, describing by metes and bounds the land awarded, passes to the awardee title to all of the land within the outer boundaries set forth, excepting only kuleanas of the natives expressly reserved.

An award of the land commission, made in 1854, of land therein described by metes and bounds, cannot be construed to exclude land situate within its outer boundaries which had not been theretofore awarded and is not therein expressly excepted or reserved, even though it were anciently an independent ili or a lele of an independent ili.

An award of the land commission, which was not appealed from as permitted by law, is final and conclusive.

Fraud cannot be presumed. The burden of proof is upon the party alleging it.L. A. Dickey (also on the briefs) for plaintiff in error.

A. G. M. Robertson ( Robertson & Castle on the brief) for defendants in error.

PERRY, C. J., BANKS AND PARSONS, JJ.

OPINION OF THE COURT BY PERRY, C. J.

The Territory of Hawaii filed an application in the land court for the registration of its title to two certain pieces of land situate at Kakaako in Honolulu. The examiner to whom the application was referred reported adversely to the application. The Territory elected to proceed in spite of the adverse report. Upon the issuance of summons the trustees of the estate and under the will of Bernice Pauahi Bishop filed an answer claiming to be the owners of the land which was the subject of the petition. After trial the land court held that the Territory had no title. Thereupon the Territory appealed to a jury and asked the court to frame issues of fact to be submitted to the jury. This the land court refused to do, on the ground that in spite of all the evidence submitted by the Territory the land commission award under which the trustees claim would have to be regarded as conclusive, that there was absolutely no evidence tending to show fraud in the procurement of the land commission award and that therefore there were no issues of fact to be submitted to the jury. The case comes to this court by writ of error.

On January 27, 1848, the King, Kamehameha III, signed his portion of a mahele, in the usual form, consenting that Mataio Kekuanaoa go before the board of land commissioners, who were entrusted with the power and the duty to create titles to lands in individuals and to divide a portion of the lands originally belonging to the King amongst his chiefs and his common people, and procure an award for “Kaakaukukui, an ili in Honolulu”. On the same day and doubtless as a part of the same transaction M. Kekuanaoa, father and guardian of the property of Victoria Kamamalu, and Ioane Ii, guardian of the person of Victoria Kamamalu, signed a statement approving of the mahele whereby the King was to have the lands of “Puunui 1, 2 and 3, ilis in Honolulu for the Fort”. On April 29, 1854, the land commission made an award (L. C. A. 7712, apana 6) to “M. Kekuanaoa for Victoria Kamamalu”, in other words, an award in favor of Victoria Kamamalu, reciting that she had asked for her land of Kaakaukukui, an ili in Honolulu, and awarding to her a tract of land described therein by metes and bounds prepared by William Webster, a surveyor. This tract of land contained an area of about eighty-three acres. The award contained the usual exception, “aka, koe nae na kuleana o Kanaka maloko” (“excepting, however, the kuleanas of the natives therein”). On April 3, 1861, R. P. 4483 was issued in favor of Victoria Kamamalu, based upon L. C. A. 7712, apana 6, confirming her title to “i kela wahi a pau loa ma Kaakaukukui, iliaina ma Honolulu, Kona, mokupuni o Oahu, penei na mokuna”, which being translated means “all of that land situate at Kaakaukukui, an ili in Honolulu, Kona, in the Island of Oahu, bounded and described as follows”. The same description by surveyor's metes and bounds was incorporated in the patent as in the award.

One of the pieces of land claimed in this proceeding by the Territory contains an area of 17.20 acres and the other an area of 1.162. Both pieces are situated wholly within the outer boundaries of the land described in the award and the patent to Victoria Kamamalu. Neither of them is expressly excepted or reserved, in any language whatsoever, from the award or the patent. The claim of the Territory is that these two pieces of land constitute together one of the ilis of Puunui which, under the mahele above recited, fell to the portion of the King, or are leles of one of the ilis of the King,-which of these two the claim is does not appear definitely from the record. The evidence introduced by the Territory at the trial in the land court was partly oral and partly documentary. It was shown that an Hawaiian, Kauwe, who had lived in Kakaako and its neighborhood for a long period of years, had gone upon the ground with several representatives of the Territory and had indicated to them the boundaries, as he had had them pointed out to him by other Hawaiians, of the land which he said was Puunui and was “Fort land”. An affidavit of Joseph Keohokii was received in evidence in which he deposed that he had heard from one Kahili, “a konohiki at Kakaako”, that “a certain piece of land at Kakaako was a lele of Puunui” and that Kahili had pointed out “the lele to me”; also that certain fishing rights “belonged to the ili of Puunui”. In the affidavit, however, there is no description of the boundaries or a precise location of the Puunui at Kakaako.

The documentary evidence included the following: L. C. A. 677A to M. Kekuanaoa, dated April 10, 1849, described one of its nine courses as running “ma ka aina o Aupuni” (“along the land of the government”), and under its diagram contained the statement, “Eia ke kuleana He lihi ia no kuu aina no Puunui” (“This is the kuleana, the boundary of my land at Puunui”). L. C. A. 2045 to Kauwahi (no Puniai), dated April 29, 1853, described the land as “pahale ma Puunui Lele Alialia ma Honolulu Oahu” (“houselot at Puunui, a salt-drying lele at Honolulu, Oahu”). On August 29, 1853, the privy council resolved that fee simple title be granted to Puniai “for his land, claim number 2045, in Puunui”. L. C. A. 10605 to Iona Piikoi, dated June 19, 1852, for land at Pualoalo, apana 3, contained this description in part: “alaila iho pololei ikai ma na Puunui o ke Aupuni, a hiki i ka Puunui o Dr. Rooke ma, alaila * * * ma Puunui o Dr. Rooke a me Kaakaukukui” (“thence go straight towards the sea along the Puunuis of the government, to the Puunui of Dr. Rooke, thence * * * along the Puunui of Dr. Rooke and Kaakaukukui”). L. C. A. 10605, apana 7, to Kamakee Piikoi, dated June 19, 1852, described one of its courses as running along “Puunui Aupuni” (“the Puunui of the government”).

On December 15, 1851, Kekuanui filed a claim with the land commission (79 F. L.) the translation of which is in part as follows: “I am submitting my claim for land in Puunui 1, in the ili of the Fort land in Honolulu”. Kahakai, a witness who testified before the commission in support of Kekuanui's claim, referred to the kuleana as situate “at Puunui, ili of Honolulu, a pond and a small pond, a place for drying salt, the taro patches are mauka and the pond and salt place are makai; the boundaries are as follows: mauka is Kaukea's land, Waikiki the river, makai Kaliu, Ewa Puunui of Nahalelauhala”; and Uhuuhu, another witness, said that his “knowledge is the same as above testified by Kahakai”. It does not appear that any action was taken by the land commission upon this claim.

On August 19, 1873, Kapolei filed with the commissioner of boundaries a petition to adjudge the boundaries of the “Lele of Puunui”, accompanied by a survey by J. W. Makalena, a private surveyor, of “elua Loko Ia me ka aina hana paakai ma Kakaako lele o Puunui Honolulu Oahu” (“two fish ponds with salt-making land at Kakaako, a lele of Puunui, Honolulu, Oahu”). The application was opposed on behalf of the government on the grounds, first, “that petitioner has a royal patent not including this piece and therefore excluding further claim for it” and, second, that “Puunui is a Fort land, any lele belongs to the konohiki, i. e., the government, not to private parties”. It does not appear that any decision was rendered by the commissioner.

R. P. 3182, dated January 31, 1878, and R. P. 3183, dated February 1, 1878, granted to John Magoon land “situated at Puunui” and which was in fact within the outer boundaries of the land described in the L. C. A. to Victoria Kamamalu. This supposed error, however, was later corrected by a formal release from the trustees of the Bishop estate and by a deed whereby the government conveyed to the trustees other land in exchange.

Comments relating merely to the weight to be given to these items of evidence adduced by the Territory would be out of place upon a consideration of this writ of error and are therefore omitted. As a matter of law, however, it is to be noted with reference to the elements of descriptions in awards of kuleanas made prior to April 29, 1854, the date of the award to Victoria, that they are not adjudications by the land commission that the persons or entities there named owned or were equitably entitled to the neighboring or adjoining lands thus incidentally mentioned. They furnish no aid in the construction of the award later made to Victoria. In making each of these awards of kuleanas what the land commission was adjudicating was that each of such lands was being given in fee simple to the applicants who had succeeded in showing some manner of equitable claim to those particular pieces. To whom...