Territory Hawai`i v. Wilson

• Decision Date: 11 March 1902
• Citation: 14 Haw. 88
• Parties: THE TERRITORY OF HAWAII v. LILIUOKALANI AND JOHN H. WILSON.
• Court: Hawaii Supreme Court

14 Haw. 88

THE TERRITORY OF HAWAII

v.LILIUOKALANI AND JOHN H. WILSON.

Supreme Court of the Territory of Hawai‘i.

SUBMITTED NOVEMBER 1, 1901.

DECIDED MARCH 11, 1902.

APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.

Syllabus by the Court

A royal patent issued in 1866 by Kamehameha V to land covered by the mahele of 1848, which describes the seaward boundary line as “running to the sea; thence along the sea at low water mark,” conveys the land lying between high and low water mark within such boundary line, the king having power to convey land between high and low water mark.

The resolution of the Privy Council of August 29, 1850, did not have the effect of a law, as the Privy Council had no authority to enact laws.

The words, “koe nae ke kuleana o na kanaka” or, in their English equivalent, “reserving however the people's kuleana therein,” as used in conveyances in this Territory, means a reservation of the house lots, taro patches, or gardens of natives lying within the boundaries of the land conveyed.

E. P. Dole, Attorney-General, for the Territory.

Robertson & Wilder for the defendants.

Hatch & Silliman as amicus curiae on behalf of defendants.

GALBRAITH, J., GEO. D. GEAR, CIRCUIT JUDGE, IN PLACE OF FREAR, C.J., DISQUALIFIED, AND THOMAS FITCH, ESQ., OF THE BAR, IN PLACE OF PERRY, J., DISQUALIFIED.

OPINION OF THE COURT BY CIRCUIT JUDGE GEAR.

This is an appeal by the defendants from a pro forma order made by a judge of the First Circuit Court overruling a demurrer to a bill in equity for an injunction.

The bill alleges title of the United States in and to the public lands in Hawaii, and that the right to the possession, use, income and benefit thereof is in the Territory of Hawaii.

The bill then sets out in haec verba. Royal Patent number 5,588, issued March 23, 1866, by Kamehameha V. and alleges that defendant Liliuokalani claims ownership under said patent.

The patent describes one of the boundaries of the land as following a certain line “running to the sea; thence along the sea at low water mark to commencement.”

The defendant Wilson is alleged to be a licensee or lessee of Liliuokalani authorized by her to remove sand and gravel from the land between high and low water mark, and the bill seeks to restrain either and both of the defendants from removing the sand and gravel, on the ground that the land between high and low water mark belongs to the Government and that so much of the royal patent as purports to convey land below high water mark is null and void, for the reason that Kamehameha V had no lawful power or authority at the time of issuing the patent to convey the same.

It will be seen therefore that the only question necessary to be decided is as to whether or not the king had power to grant and convey the land between high and low water mark.

The general rule of law is that the sovereign power of any country or state can make a valid grant to a private individual of land between high and low water mark.

Gould, in his treatise on the law of waters, says: “The state may grant to individuals or corporations the soil of public navigable waters,” and cites many cases upholding this proposition. Gould on Waters, Sec. 36. But “an express declaration is necessary to warrant the inference that it was intended to permit the shore below high water mark to be converted into private property.” Idem. “The United States, while they hold the country as territory having all the power, both national and municipal government may grant, for appropriate purposes, titles or rights in the soil below high water mark of tide waters.” Idem Sec. 40; Shively v. Bowlby, 152 U. S., 1, 47, 58.

“Individuals may also acquire by prescription, against the Crown or State, the right to the soil of public waters. Idem Sec. 37.

“When the shores or flats of tide waters have become private property the title thereto may be lost by disseisin. Idem.

The same doctrine is laid down in the following text books and reported cases: Black's Pomeroy on Water Rights, Sees. 21, 238; Woolrych on Waters, p. 440; Hale Deportibus Maris, Chap. 4; Mayor of Mobile v. Eslava, 33 Am. Dec. 329;Robers v. Jones, 1 Wend. 237, 19 Am. Dec. 493;Gouch v. Bell, 21 N. J. L. 165,22 N. J. L. 44;People v. Perry Co., 68 N. Y. 71;Langdon v. New York, 93 N. Y. 144; Eisenbach v. Hatfield, 12 Lawyer's Rep. Ann. 630; Hess v. Miner, 65 Md. 601, 5 Cent. Rep. 585; Ward v. Ellis, 6 Jones Law (N. C.) 183, 72 Am. Dec. 570;Pike v. Monroe, 36 Me. 309, 58 Am. Dec. 753;Wrights v. Seymour, 69 Cal. 122;Church v. Meekin, 34 Conn. 421a;Peck v. Lockwood, 5 Day, 26;Parker v. Taylor, 7 Or. 436; Cadmody v. Rowe, 6 C. B. 879; Boston v. Lecran, 56 U. S. 426;Webb v. Demopolis, 21 L. R. A. 62;Abbott v. Treat, 78 Me. 121;Clement v. Burns, 43 N. H. 609.

A grant of land bounded by high water “including all the shore to low water mark” will pass title to the shore. Dillingham v. Roberts, 75 Me. 469.

From a review of the above decisions we are satisfied that Kamehameha V had power to make a grant of land between high and low water mark. While it is claimed that Kamehameha V was a constitutional monarch it seems that he was little embarrassed by constitutional restrictions. By his own authority he abrogated the constitution of the kingdom that was adopted by Kamehameha III in 1852 and promulgated a new one to his own liking August 24, 1864. Such a monarch certainly possessed the usual powers of sovereignty conceded to constitutional rulers and had the right to convey the land between high and low water mark to the defendants' grantor.

The Attorney-General contends however that even if the general rule of law be as above stated, that at the time the deed in question was made (1859) the king was not authorized under the law to award title to land below high water mark, because of a resolution of the king's privy council passed August 29, 1850, and if the deed or royal patents be construed to pass, by its terms, land between high and low water mark the king and his premier exceeded their powers and that so much of the deed as purports to convey the title to such land is null and void.

To sustain this contention the Attorney-General quotes the resolution of the privy council of August 29th, 1850, which reads as follows:

“Resolved, that the rights of the king as sovereign extend from high water mark a marine league to sea, and to all navigable straits and passages among the Islands, and no private right can be sustained, except private rights of fishing and of cutting stone from the rocks, as provided and reserved by law.” 3 Privy Council Record, p. 425.

The Attorney-General argues that as this resolution was ten years prior to the Act of 1860 “for the relief of certain konohikis” who were entitled to lands under the great mahele of 1848 but who had failed to obtain their awards from the Land Commission, and who, by that Act, were given further time to procure their awards, therefore an award granted subsequent to the passage of the resolution of the privy council was subject to said resolution and void in so far as it attempted to pass title to land mentioned in the resolution.

This contention is without merit for two reasons, the first one being that the privy council had no power to enact laws. The only power they had at the time of the passage of this resolution was to advise with the king.

The powers of the privy council are provided for in the old Civil Code and are as follows:

“It shall be the duty of every privy councillor: (1) to advise the king according to the best of his knowledge and discretion. (2) To advise for the king's honor and the good of the public without partiality through friendship, love, reward, fear or favor. (3) Finally to avoid corruption and to observe, keep and do all that a good and true councillor ought to observe, keep and to do his sovereign.” Civil Code, Sec. 26.

The legislative power was in the house of nobles and house of representatives, and only by their combined action and assent could laws be passed. We find no power given by any statute empowering the privy council to enact laws.

But even if it be conceded that the privy council possesses such power and that the “Resolution” quoted had the effect of a law, we are of the opinion that it would not affect the award and patent in this case, as they relate back to and are determined by the great mahele of 1848, in pursuance of which they were issued.

The award and patent in question were issued under the Act of 1860 for the relief of certain konohikis, section I of the Act being: “The Minister of the Interior is hereby authorized to grant awards for their lands to all konohikis who have failed to receive the same from the land commission, provided that the names of such konohikis appear in the mahele book of the year 1848; and all awards so granted by said minister shall be equally valid with those of the land commission.”

The case In re Boundaries of Pulehunui, 4 Haw. 239, held that an award of the land commission of land “by name” is intended to assign whatever was included in such land according to the boundaries as known and used from ancient times. The opinion in that case, written by Mr. Justice McCully, describes practically how the boundaries of awards designated by name are arrived at.

“After the surrender by Kamehameha III, in 1848, of the greater part of the land of the kingdom to his chiefs and people, the necessity of a speedy distribution of it in accordance with what may be called the feudal rights of the chiefs, required that awards of lands be made by name only without survey. No body of surveyors could have been found in the country or practically could have been brought here, who might have surveyed these large estates within the lifetime of half the grantees, so that every award should have been issued as of a tract defined by metes and bounds, or with even an approximate statement of the acreage. The “mahele” or division was, therefore, made without survey. Tracts of land known to...