Robinson, Application of

• Decision Date: 05 December 1966
• Docket Number: No. 4234,4234
• Citation: 421 P.2d 570,49 Haw. 429
• Parties: , 49 Haw. 520 Application of Elizabeth Cockett ROBINSON.
• Court: Hawaii Supreme Court

Page 570

421 P.2d 570

49 Haw. 429, 49 Haw. 520

Application of Elizabeth Cockett ROBINSON.

No. 4234.

Supreme Court of Hawai'i.

Dec. 5, 1966.

Rehearing Denied Jan. 5, 1967.

Second Rehearing Denied Feb. 6, 1967. See 423 P.2d 437.

Syllabus by the Court

1. By a combination of the Act of July 20, 1854 (S.L.1854, p. 21, sec. 3) and the Act of July 29, 1872 (S.L.1872, c. 21, sec. 1) patents based on Land Commission Awards have been reduced in importance to a mere release of the government commutation, but a Land Commission Award nevertheless must be interpreted as what it originally was-a determination of a right to a patent.

2. The prescribed form of patent, set out in article II of chapter VII, part I, Second Act of Kamehameha III (S.L.1845-1846 pp. 100-101), governed Land Commission Awards as well as other dispositions.

3. A Land Commission Award, when made, was subject to the mineral rights reservation required by statute to be contained in the patent to be issued on the Land Commission Award, though such reservation was not set out in the Land Commission Award itself.

4. The repeal of a statute does not enlarge a right already established.

Andrew S. O. Lee, Deputy Atty. Gen. (Bert T. Kobayashi, Atty.Gen., on the briefs), for appellant.

Thomas W. Flynn, Honolulu, for respondent.

Before RICHARDSON, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

RICHARDSON, Chief Justice, and LEWIS, Justice.

Appellee filed a Land Court application under R.L.H.1955, c. 342, as amended, to register her title to two lots, one being the whole of Royal Patent 1862, Land Commission Award 10568, Apana 3 to Oleloa, and the other being a portion of Royal Patents 636 and 4565, Land Commission Award 4552, Apana 5 to Aumai. ¹ Each of the patents concededly contained the following provision:

'* * * excepting and reserving to the Hawaiian government, all mineral or metallic mines, of every description.'

Because the Land Commission Awards made no mention of mineral rights, the Land Court held that 'the reservation of mineral rights in the Royal Patents was null and void.' A decree was entered registering the lands under the Torrens System without reservation of the mineral rights, and the State, which had asked that the registration be made subject to such reservation, ² appealed.

We pass without comment the question whether the applicant was estopped from registering her title without the reservation contained in the Royal Patents, ³ and proceed to the question whether the reservation was and is valid.

The Land Commission Awards were is-sued by the Board of Commissioners to Quiet Land Titles, hereinafter called the Land Commission, provided for by the Second one Act of Kamehameha III, entitled 'An Act to Organize the Executive Departments of the Hawaiian Islands,' pt. I, ch. VII, art. IV, S.L. 1845-1846, p. 107, effective February 7, 1846. Said chapter VII related to the bureau of the land office. S.L. 1845-1846, p. 95. By article II of the same chapter it was provided:

SECTION VI. The form of all royal fee simple patents shall be as follows:

'KAMEHAMEHA-By the grace of God, king of the Hawaiian Islands, by this his royal patent, makes known unto all men, that he has for himself and his successors in office, this day granted and given, absolutely, in fee simple unto _ _, his faithful and loyally disposed subject, for the consideration of _ _ dollars, paid into the royal exchequer, all that certain piece of land, situated at _ _, in the Island of _ _, and described (by actual survey or by natural boundaries as the case may be) as follows:

containing _ _ acres, more or less; excepting and reserving to the Hawaiian government, all mineral or metallic mines, of every description.

'To have and to hold the above granted land in fee simple, unto the said _ _ his heirs and assigns forever, subject to the taxes to be from time to time imposed by the legislative council equally, upon all landed property held in fee simple.

'In witness whereof I have hereunto set my hand, and caused the great seal of the Hawaiian Islands to be affixed, at Honolulu, this _ _ day of _ _, 18_ _.

'(L.S.) _ _.

'Attest, _ _,

Premier.' (S.L. 1845-1846, pp. 100-101.)

The Land Court held that this section applied 'only to grants by the government and not patents issued on awards.' As will appear, the correctness of this conclusion is the controlling issue here.

By section V of article IV (the article creating the Land Commission), it was made the special duty of the Land Commission to advertise a prescribed form of public notice, containing inter alia the following:

'Patents in fee simple, or leases for terms of years, will be issued to those entitled to the same, upon the report which we are authorized to make, by the testimony to be presented to us.' (S.L. 1845-1846, p. 108.)

As indicated by the form of public notice, the objective of the Land Commission was to determine who were entitled to land patents. Sections IX and XI of article IV provided for the issuance of patents 'pursuant to the terms in which the said board shall have confirmed their respective claims,' and 'in accordance with the award * * *.' S.L. 1845-1846, p. 109. Upon issuance of the patent, the patentee held the legal title, and one claiming under the award contrary to the patent had only such rights as equity would give him. Davis v. Brewer, 3 Haw. 270: Davis v. Brewer, 3 Haw. 359, 361; Laanui v. Puohu, 2 Haw. 161.

By section 3 of the Act of July 20, 1854, it was provided that a Land Commission Award 'shall be final and binding upon all parties, and shall be a good and sufficient title to the person receiving such award, his heirs and assigns, and shall furnish as good and sufficient a ground upon which to maintain an action for trespass, ejectment or other real action, against any person or persons whatsoever, as if the claimant, his heirs or assigns, had received a Royal Patent for the same * * *.' S.L. 1854, p. 21. (Emphasis added.) Whether before the enactment of this statute a Land Commission Award without a patent conferred as good a title as one with a patent we need not say, for it is certain that both before and after the enactment of the statute a Land Commission Award without a patent conferred no better title than one with a patent.

By section 1 of the Act of July 29, 1872, S.L. 1872, c. 21, ⁴ it was provided that all Royal Patents issued upon Land Commission Awards should be 'in the name of the person to whom the original award was made, even though such person be deceased or the title to the real estate thereby granted have been alienated; And all Royal Patents so issued shall inure to the benefit of the heirs and assigns of the holder of such original award.' This eliminated the problem presented in Davis v. Brewer, supra, 3 Haw. 270, of issuance of a patent to one subsequently alleged not to be in fact the successor in interest of the awardee, and caused the court in Brunz v. Minister of Interior, 3 Haw. 783, 787, to remark that the doctrine of Davis v. Brewer had been modified by the 1872 Act, and that 'Patents based on awards do not therefore confer or contirm titles.'

It is apparent that by a combination of the 1854 and 1872 acts, ⁵ patents based on Land Commission Awards have been reduced in importance to a mere release of the government commutation. ⁶ But it would be a bootstrap operation to interpret a Land Commission Award as other than what it originally was-a determination of a right to a patent. The governing point, therefore, is the form of patent contemplated when the award was made.

On August 20, 1846, the Land Commission adopted a set of principles by which it would be guided. These were approved by a resolution of the Legislative Council October 26, 1846, whereby it was 'enacted, that from the date hereof, all claims for landed property in this kingdom shall be tested by those principles, and according to them be confirmed or rejected.' S.L. 1847, p. 94. Turning then to the authoritative principles of the Land Commission we find that the Commissioners took cognizance of, and deemed themselves limited by, any 'principle in past legislation' applicable to the point under consideration. S.L. 1847, p. 90, para. 3d. This conclusion stemmed from section VII of the article creating the Land Commission, which provided that 'the decisions of said board (the Land Commission) shall be in accordance with the principles established by the civil code of this kingdom' (S.L. 1845-1846, p. 109), and from the definition of 'civil code' contained in 'General Provisions of the Act to Organize the Executive Departments,' which provided that:

'Section III. Until the passage of the civil code, the principles of the foregoing act, and the prescriptions of all the civil statutes now existing not at conflict therewith, shall serve and be binding as a civil code for this kingdom * * *.' (S.L. 1845-1846, p. 270.)

While the statutory provision for adherence of the Land Commission to the principles of the civil code was in terms limited to enumerated topics, the Land Commission in its adopted principles, after adverting to the above noted statutory provisions, did not apply the maxim 'expressio unius est exclusio alterius' but on the contrary declared it incumbent upon the Commission, in passing upon the merits of each claim, after eliciting the facts from the witnesses, to 'reconcile those facts to the provisions of the civil code, whenever there is a principle in past legislation applicable to the point under consideration; but when no such principle exists, they may judicially declare one, in accordance with ancient usage and not at conflict with any existing law * * *.' S.L. 1847, p. 90, para. 3d. (Emphasis added.) The Commissioners moreover announced that they were not at liberty to disregard 'certain restrictions contained in the same Act, by the 4th Article of the 7th chapter of the first part of which they are created,' and that: 'Aliens ⁷ are not allowed to...