Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1858-12-18

by the plaintiff is made to rest upon far broader
grounds than that just mentioned. which fact rem
ders this case one of great importance not only to
the large landed proprietors throughout the King
dom, but to thousands Of the common people II IS
contended on behalf of the plaintiff that he. as
hoaaina of honolulu, has a right to pasture his
animals on the kula land of that Ahupuaa upon one
or both of two grounds first by custom or second
ly, by statute law.
1t appears by the evidence, that horses were first
introduced on the Ahupuaa of honolulu about the
year 1888; that within ten years afterwards thev
had become numerous, and that the horses belong
ing TO the hoaainas allowed pasture upon the
kula land, IN common with those of the konohiki
1t appears further that about the year 1851 after
the enactment OF the laws relating TO the tenure
OF land, a large number of the hoaanas of HonouIi
ull, including, as understand Mr. Haaeleas tes-
timony, some who had Obtained awards for their
kuleanas. and Others who had not came to Mr. Haa-
lelea, the KonohikI, and expressing their under
standing and belief that under the order of things
they would be cut off from the enjoyment of some of
their accustomed rights and privileges including the
right or privilege of pasturage they offered to con-
tinue to labor TOR him, formerly, upon the Kono-
hiks labor days, in consideration of his allowing
them enjoy all their accustomed rights and priv-
leges to which proposition he agreed; that since
that time all the hoaainas who have duly performed
their labor on the Konohiki's days. have been per-
mitted to pasture their horses on the kua land as
formerly and that the plaintiff is one of those who
have continued to labor according to that agreement
1t appears Also that within the three wears last past
the defendant has repeatedly notified the hoaainas to
remove their horses from the Kua lands leased by
him.
Upon this state of facts it is argued by the learned
counsel for the plaintiff that he, in common with the
other hoaainas of HONOLULU is entitled to the right
of pasturage, by custom. On the other hand, it is
contended the part of the defendant that before
the court can sustain this claim on the ground OF
custom. the custom attempted to be set up must ap
pear to have existed from time immemorial to be
reasonable, to be certain, and not inconsistent with
the laws of the land.
While of the opinion that the objection
urged by the counsel for the defendant against the
custom sought to be set up by the plaintiff that it
not shown TO have obtained from time mmemorial,
entitled to great weight, do not think it neces-
sary to express a conclusive opinion upon that point
at present. For it is obvious to that the custom
contended for is unreasonable, So uncertain.
and repugnant to the spirit of the present laws
that ought not to be sustained by judicial author
lty. Further II Is perfectly clear that, II the plain
til is hoaana, holding his land by virtue Of fee
simple award from the land commission, he has no
pretence for claiming right of pasturage by cstoH
for so far as that right ever was customary, it
annexed TO the holding Of lana by a far different
tenure from thar by which he now holds-a tenure
by which the hoaaIna bound TO labor a certain
number OF days IN each month. for the Immediate
lord Of the land, and like number OF days for the
King or government, as payment or rent, both for
the use of the land and for the enjoyment of the
other rights and privileges appUrtenant thereto,
whereas the very fact that the plaintiff holds his
land by virtue of fee simple title, frees him for
ever from the labor formerly due to the government
and to the Konohiki; he no longer owes, can he
be called upon to perform such labor, by law aspay
ment for the of his land, or for the enjoyment
OF any right privilege, and if he performs such
labor 1t IS neither by force of law custom, but in
fulhlment of 4 private contract. Again, ii the
plaintiff claims t. be a hOaaina of HonOuiiuh, hold
ing his land, not independently, upon an award
from the Land Commission, but according to ancient
tenure, in dependence upon the Konohik and that,
therefore, he is entitled the right of paSturage by
CUSTOM he is met by the testimony of the principal
witnesses introduced by himself the effect that in
the year 1851 he, in common with the other hoaanas
of honolulu, admitted that his former right priv
ileee of pasturage determined by the operation of
the laws affecting the tenure of land, and that he
has since been permitted to opasturage
for his horses, not by force OF law custom, but
consideration of certain labor which he has perform
ed, in accordance with special contract with the
konohiki, to that effect, made at a time when the
right of pasturage could not have been said, with
any show of reason, to have become established by
| ancient custom. And whatever private agreement
as to pasturage may have existed between the plain
tiff and the KOnohik, that, OF course, cannot affect
the defendant rights under his leases unless he had
special notice of such agreement, and bound himself
! to respect its terms.
| Let us now pass on to the examination of the
1
is claimed by the plaintiff, viz: by statute law. The
law referred is the joint resolutions the sub
ject of rights in lands and the leasing, chasing
and dividing of the same, passed the 7th day OF
November, 1916 which it is contended, and rightly
so have never been expressly repealed by the Legis
ature. The plaintiff relies, particularly, upon
part of the first of those resolutions, which reads
as follows, viz The rights of the hoaana in the
land consist of his tarO patches, and all other
places which he himself cultvates for his use,
I 10,
pied parts, he has the right to do He has also
rights in the grass land if there be any under his
care, and he may take grass for his own or for
sale, and may also take tuei and timber from the
mountains for himself. He may also pasture his
horse and COW and other animals on the land, but
not in such numbers to prevent the KOnohiki from
! pasturing his. He cannot make agreement with
others for the pasturage of their animals without the
consent of his Konohiki, and the Minister OF the
| Interior
! This declaratory enactment passed by the
Legislature at time when the old system as TO the
tenure of lands still in existence, and before the
passage of laws upon the subject of land titles,
the operation of the land Commission, and the great
Division of 1913, had brought about and perfected
that entire revolution in the law affecting rights in
land, and land titles, which has taken place since
the year 1916. The character of the old system OF
tenure and the state of titles and interests IN land
at the time of the passage of the joint resolutions OF
November 1916, NAV readily be gathered from those
resolutions themselves, and from the fundamental
Principles adopted by the Board of Commissioners
to quiet land titles in their adjudication CT claims
presented to them,' 70 be found pages 81 to "a,
inclusive of the I'd vol. Statute Laws While it Is
true that the joint resolutions referred to- have never
been expressly repealed, think there can be no
doubt that at least those of them which merely
declaratory of the law relating rights in land, have
all been implicitly annulled and superseded by other
enactments upon the same subject.