United States v. John Ii Estate
| Citation | 91 F.2d 93 |
| Decision Date | 19 July 1937 |
| Docket Number | No. 8008.,8008. |
| Parties | UNITED STATES v. JOHN II ESTATE, Limited, et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Ingram M. Stainback, U. S. Atty., J. Frank McLaughlin, Sp. Asst. U. S. Atty., and Jean Vaughn, Asst. U. S. Atty., all of Honolulu, Hawaii, and H. H. McPike, U. S. Atty., of San Francisco, Cal.
Anderson, Marx, Wrenn & Jenks, Robbins B. Anderson, Heaton L. Wrenn, and Norman W. Applegarth, all of Honolulu, Hawaii, for appellee John Ii Estate, Limited.
Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.
This is a condemnation proceeding under the Act of April 14, 1930, c. 149, 46 Stat. 165, and, except as hereafter indicated, is similar in all respects to United States v. Shingle (C.C.A.) 91 F.(2d) 85, this day decided.
The rights here sought to be condemned are the privately owned rights of fishery within designated areas in Pearl Harbor, Island of Oahu, Territory of Hawaii, these being part of the larger area specified in the act. Answers were filed by all the appellees. The answers raised no issue save as to the amount of compensation to be paid and the distribution thereof. At the trial below, the John Ii Estate was permitted, over appellant's objection, to file an amended answer in which it set up a claim for damages similar to that set up in the amended answer of the Oahu Railway & Land Company in the Shingle Case. The trial court's judgment condemns for public use all privately owned rights of fishery within the above-mentioned areas, adjudges the value of said rights to be the sum of $90,000, awards said sum of $90,000 to the John Ii Estate and James Panai Oneha, trustee, and directs that distribution thereof be made by paying $89,999 to said estate and $1 to said trustee. The judgment also awards $34,752 to the John Ii Estate as damages found to have been sustained by it prior to the commencement of this proceeding. The government appeals.
There are in this case 33 assignments of error. Eleven of the assigned errors (assignments 6, 8, 10, 11, 14, 18, 19, 22, 23, 24 and 27) are not specified in appellant's brief, as required by our rule 24, and are therefore disregarded.
Assignments 1, 2, 3, 4, 5, 7, 9, 13, and 32 in this case are similar to assignments 1, 2, 3, 4, 6, 8, 9, 14, 15, 16, 17, 18, and 19 in the Shingle Case in that they are based, not on the record, but on the trial court's opinion, which is no part of the record. In this case, as in the Shingle Case, the trial court made no finding of facts other than the general finding embodied in its judgment. No special finding was requested, and none was made. For the reasons stated by us in the Shingle Case, the questions which these assignments attempt to raise cannot be considered.
Assignment 12 is that "The court erred in not sustaining appellant's motion to require the John Ii Estate to elect to take compensation for only one species or variety of fish, or, in the alternative, one-third of the entire fishery." Appellant's motion, as actually made, was "that the John Ii Estate be compelled to elect as to which species or variety of fish it chose to take, or, in the alternative, one-third of the entire catch." Assuming, without deciding, that the estate had any such right of election, appellant was not entitled to demand, nor was the trial court empowered to require, the exercise of that right in this proceeding. That right, if it existed, was one of the "privately owned rights of fishery," the condemnation of which was sought in this proceeding. The purpose of the proceeding was to condemn rights, not to compel their exercise. Appellant's motion was properly denied.
Assignments 15 and 16 in this case are similar to assignments 20 and 25 in the Shingle Case, in that they complain of the action of the trial court in permitting the John Ii Estate to amend its answer by setting up a claim for damages said to have been sustained by it prior to the commencement of this proceeding. Assignments 20, 21, and 25 in this case are to the admission of evidence in support of said claim for damages. For the reasons stated by us in the Shingle Case, the action of the trial court in permitting this amendment and in admitting this evidence was erroneous.
Assignment 17 in this case is similar to assignment 22 in the Shingle Case and, for the reasons there stated, is without merit.
Assignments 26 and 28 in this case are to the admission of evidence (Exhibits 7 to 25 inclusive) offered by appellees and objected to by appellant. These assignments do not quote the full substance of this evidence, as required by our rule 11, and, for that reason, are disregarded.
Assignment 29 states that the trial court erred in overruling appellant's objection to testimony which, it was stipulated in this case, a witness had given in the Shingle Case regarding the rental value of a certain fishery, the stipulation being subject to appellant's objection that the testimony was incompetent, irrelevant, and immaterial. It appears from the record, and indeed from the assignment itself, that the court did not, in fact, overrule appellant's objection, but stated that The record does not show what consideration, if any, the trial court gave this evidence. Thus, it is seen, the ruling complained of was not actually made, and the ruling actually made is not shown to have prejudiced appellant.
Assignments 30 and 33 in this case are similar to assignments 36 and 37 in the Shingle Case and, for the reasons there stated, are not valid assignments.
Assignment 31 is that the trial court erred "in finding that the fair market value of the sea fisheries herein condemned is $90,000." The assignment does not indicate why or in what respect the finding is erroneous. It does not attempt to raise the question of the sufficiency of the evidence to support the finding. Such an attempt, if made, would be futile, (1) because no such question was raised in the trial court, and (2) because the record does not contain or purport to contain all the evidence.
In so far as it awards damages in the sum of $34,752 to the John Ii Estate, the judgment is reversed. In all other respects, it is affirmed.
This important and vigorously contested appeal is one of a series of appeals, like Kelly v. U. S., 300 U.S. 50, 54, 57 S.Ct. 335, 81 L.Ed. 507, reversing this court, 83 F.(2d) 783, in which cases this court has frustrated the consideration of the major question of the merits by the application of technical rules of procedure.
I cannot agree with my conscientious and able brethren that, complicated and archaically artificial as the rules and decisions have made federal procedure, they have so sanctified the form above the essence that in this case they compel us to deny to the United States the consideration of the merits of its appeal.
The issue is a very simple one. It is whether the Ii Estate (called konohiki), claiming to be the owner of the several rights to take (tabu) several kinds of fish, namely, pua, nehu, and mullet, is, under the Hawaiian law, the owner of all three or the owner of only an optional right to take one kind of fish or one-third the catch of the entire three. The District Court held that the Ii Estate was entitled to all three. The United States appealed, and claims that under the Hawaiian law the estate is the owner of no more than the option to take a designated fish or one-third the catch, and that the District Court should have made its award on that basis.
The parties stipulated the value of the right to take pua to be $20,000 and to take nehu to be $10,000. The two stipulated values are specifically made by the court a part of the basis of the award. This is agreed to and relied on by the briefs of both parties. The award was for $90,000, obviously more than the value of both these. The court further states that it "finds" the mullet value "is $60,000.00, which the court will award to the Ii Estate." The sum of the three fish is $90,000. There is no finding of the value of one-third the catch.
In a single document, over the signature of the District Judge, having two headings — one called "Decision" and the other "Summary of Award," there is no other matter concerning the issue of the value of the Ii Estate's right to take all or a part of these three kinds of fish than appears in the following (segregated here into text and footnote):
"The sole question to be now determined, therefore, is:
What amount is the konohiki of the fisheries (John Ii Estate, Ltd.) entitled to as `just compensation' for the taking of the four fisheries here sought to be condemned?
* * *
"The John Ii Estate, Ltd., (owner of the konohiki rights), is awarded the sum of $90,000.00 ($10,000.00 as nehu value, $20,000.00 as pua value, and $60,000.00 as commercial mullet value) as representing the fair value of the four fisheries here sought to be condemned as of June 17, 1932." (Italics supplied.) (Tr. 76, 77, 81.)
This constitutes all there is in the document having to do with the issue of the value of the several fishing rights sought to be condemned in the area of waters described.
In the document there is preceding matter disposing of several of the claims of...
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US v. 1,070 ACRES OF LAND, IN HOUSTON COUNTY, GA.
...States v. Boston, C. C. & N. Y. Canal Co., 1 Cir., 271 F. 877, 899; United States v. Shingle, 9 Cir., 91 F.2d 85, 89; John Ii Estate, Ltd., 9 Cir., 91 F.2d 93, 94; Carlisle v. Cooper, 2 Cir., 64 F. 472; Danforth v. United States, 308 U.S. 271, 282, 60 S.Ct. 231, 84 L.Ed. 240; United States ......
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United States v. 534.7 ACRES OF LAND, ETC., 11676.
...United States v. Shingle, 9 Cir., 1937, 91 F.2d 85, 89, cert. denied 302 U.S. 746, 58 S.Ct. 264, 82 L.Ed. 577; United States v. John Ii Estate, 9 Cir., 1937, 91 F.2d 93, 94, cert. denied 302 U.S. 746, 58 S.Ct. 264, 82 L.Ed. 577; Carlisle v. Cooper, 2 Cir., 1894, 64 F. 472, 476; Cf. United S......