# United States v. Fullard-Leo

Supreme Court of the United States
331 U.S. 256
UNITED STATES v. FULLARD-LEO ET AL.
Certiorari to the Circuit Court of Appeals for the Ninth Circuit.
No. 429. Argued: Feb. 12, 1947 --- Decided: May 12, 1947

## Dissenting Opinion

    Rutledge
1. On the facts of this case, including both an unbroken chain of private conveyances and a claim of right to exclusive possession since 1862, when possession of Palmyra Island was taken by respondents' predecessors in interest in the name of the King of Hawaii, and on the presumption of a lost grant, the Government's claim of title to Palmyra Island as successor to the Kingdom and Republic of Hawaii is denied and fee simple title to the island is quieted in respondents—notwithstanding their failure to show actual occupancy of this isolated island in the Pacific Ocean except for intermittent periods aggregating less than two and one-half years out of 77 years since the origin of their claim of title. Pp. 269–281.
2. A resolution adopted by the King and Cabinet Council of Hawaii in 1862 authorizing respondents' predecessors in interest to take possession of the island in the name of the King of Hawaii and the formalities of annexation are construed as requiring only that sovereignty over the island be acquired by the King and not as requiring that title to the island should vest in the King or as being [p257] otherwise inconsistent with a presumption that a grant of title to the island was issued to respondents' predecessors in interest. Pp. 260–265.
3. Under the laws in effect in Hawaii at the time of the annexation of Palmyra Island in 1862, both the King and the Minister of the Interior with the authority of the King in the Cabinet Council had power to convey the lands to private citizens. Hawaiian Civil Code, 1859, §§ 39–48; Hawaiian Act of January 3, 1865, Rev. Laws, Hawaii, 1905, p. 1226, § 3. Pp. 266–269.
4. This Court takes judicial notice of the laws of Hawaii prior to its annexation as a part of our domestic laws. P. 269.
5. The rules under which the Hawaiian people lived under the monarchy or republic define, for the sovereign of today, the rights acquired during those periods. P. 269.
6. Hawaiian law, as it existed before the annexation of the Territory, is controlling on rights then acquired in land. P. 269.
7. In matters of local law, the federal courts defer to the decisions of the territorial courts of Hawaii; but, where a claimed title to public lands of the United States is involved, that is a federal question and the federal courts will construe the law for themselves and are not bound to follow Hawaiian decisions. Pp. 269–270.
8. The presumption of a lost grant to land recognizes that lapse of time may cure the neglect or failure to secure the proper muniments of title, even though the lost grant may not have been in fact executed. P. 270.
9. The rule applies to claims to land held adversely to the sovereign. Pp. 270–272.
10. The law of the Territory of Hawaii recognizes and has applied the doctrine of the lost grant in controversies between the Territory and a claimant to government land. Pp. 272–273.
11. Where, as in this case, there was power in the King or the officials of the Kingdom of Hawaii to convey a title to Palmyra Island during the years immediately following its annexation to the Kingdom of Hawaii and prior to many of the private conveyances in respondents' chain of title, the doctrine of a lost grant may be applied, in suitable circumstances, and its existence presumed in favor of respondents' predecessors in title. P. 273.
12. In order for the doctrine of a lost grant to be applicable, the possession must be under a claim of right, actual, open and exclusive. P. 273.
[p258] 13. A claim for government lands stands upon no different principle in theory, so long as authority exists in government officials to execute the patent, grant or conveyance; but, as a practical matter, it requires a higher degree of proof. Pp. 273–274.
14. The sufficiency of actual and open possession of property to justify the presumption of a lost grant is to be judged in the light of the character and location of the property. P. 279.
15. While uninterrupted and long-continuing possession of a kind indicating the ownership of the fee is necessary to create the presumption of a lost grant, the rule does not require a constant, actual occupancy where the character of the property does not lend itself to such use. P. 281.
156 F.2d 756, affirmed.
After Congress had authorized construction of naval aviation facilities on Palmyra Island by the Act of April 25, 1939, 53 Stat. 590, the Government sued to quiet title to the island. The District Court dismissed the suit. 66 F. Supp. 774. The Circuit Court of Appeals reversed, holding that the Hawaiian Kingdom acquired title in 1862 and that such title was ceded to the United States in 1898. 133 F.2d 743. This Court denied certiorari. 319 U.S. 748. On remand, the District Court denied the Government's claim and quieted title to the island in respondents. 66 F. Supp. 782. The Circuit Court of Appeals affirmed. 156 F. 2d 756. This Court granted certiorari. 329 U.S. 697. Affirmed, p. 281.
Frederick Bernays Wiener argued the cause for the United States. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Bazelon, Roger P. Marquis and Alvin O. West.
A. G. M. Robertson argued the cause and filed a brief for respondents.
C. Nils Tavares, Attorney General of Hawaii, filed a brief for the Territory of Hawaii, as amicus curiae, in support of respondents.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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