The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1858-12-23
hmerciaI Advertiser.
. Co.ri--ociober Tern'' 1855.
Ori vs.. John Meek.

5Iows:
1T of Honolulu. to recover the value
iee -, bv the defendant on his land al
- ss,e-v.rsls impounded and sold. a,
'il.' Il.'e,,,J,nt agreed that judgment should
ls him in court below, reservina
81 =, appeal, in order that the case
~ no n -e~tiOns of great importance
- the rights of many other persons
,.,, ,ltin.i.f and defendant. might be
Is-;.lel by this court
-, evidence submitted To MS that
t.rI. under three several leases. the
~ ,be ,hupuaa { n HonouliuIi with
..-rt ,in portions expressly reserved
= latest lease. made on the 18th
1873; that the plaintiff is u hoa-
-',t, residing on some part of that
- -, Land awarded 70 him as Ka-
T,,,i Commission, or otherwis and
= I,-I,,,. in, - him were seized rs es-
S.s,,,Japt.- order. on some part OF the
=, IN, nd carried to the government
- ger. s,ib>el Iently sold under the
a-,,,7rrent of the case great stress was
'D1,5,7rifF- :. counsel upon the clause ia the
I'll Of February, 1888. which reads as
t,1a o hi i k..ia hOoiimalima ke kue
m kanaka e noho ana malalo o ka
-, -1us That i 30 say. .. This lease
..,-.-rue,l A. conflicting COR interierine) }
,,..,r the people irving under the shade
- n the list part 9TH knnOhiki.") lie
b,-tfi. c!l-.se tnc rights of the plaintiff.
| - i.,-i-rr IN Der thC S,.ade of the Kono-
| .,,-a-.lv reserved by the grantor, Ny.
INT those II -,hrs included the right
| ....r -.leir auima,,. Neither the lease of
~ 1915. which covers the Iii OF I.ihue.
--e I5-h o. Juiy 1851. which covers the
al.1. contain any clause parallel to that
--,,-eI irc1n the lease oil thc l6th of
| ~. - that befJre the plaintiff could
.,er. bv f0Ice of the reservation III f.vor
=. NJ the people living undcr the KonOhi-
me lease OF 1853, he must first prove
7--s- were seized on the land covered by
1. -e.. use It i expressly declared IN that
neither the Iii Lime nor the Iii of Wal
II ine!ui ieI in il, and that the terms and
1. n re several leases made in 1916. and
ro- affrct Il IN any way Whatever by the
Sjf. No evidence having been introduced
siu..f. 20 prove that his horses were seized
= .1,u any part of the land c.,vered by the
-. We arr OF the opinion that. 20 far as his
n MS upon the reservation referred TO, in
Z must fall 20 the ground. y
\ = .la be considered that the line of argu-
ID 5y the defendant, waived the necessity
this. still we ere OF the opinion that the
/ an clnnot stand upon the narrow basis
|-s-vllion III the lease. for the clause which
1.5-ed cannot fairly be construed to be any
ne tlan simply a reservation of the rights
/, bv Jaw % the hoaainas living under the
{, CT tie l6rh Of Frbrnary, 1858. We re-
cause therefore as of very little practical
&c. ina>mueh a. those rights would, "a ii
u. have been equally well preserved with
clause and 1t was not in the power of
.hISI- FAD he been so disposed. to alienatc
hr secured by law u the plaintiff.
cIln Of a right of pIsturHge, put forward
lin-iH, i made to rest upon lar broader
.I4u that Just mentioned. which fact rem
tl,e one or great importance. not only 70
iauded proprietors throughout the King
20 thousands of the common people. Ii Is
Z or behalf of the plaintiff that he, as
o. Iion0uliuiI. has n right To pasture his
ia the huia Land Of that Ahupuaa, upon one
(. two grounds; first, by custom or second
ltgIe law.
- by the evidence, that horses were first
i on the Ahupuaa Of honolulu about the
B; that within ten wears afterwards they
we numerous. and that the horses belong
g Loaaiua> were allowed to pasture upon the
!, IL c1mmSa with tn sc OF the nOnnhiki.
: igIther. that about the year 1851. ait'r
lelt ni the new laws relating To the tenure
d .irse nIaaher Of the hOaainas of Hou1ull-
M, ~ we understand sir. Haalelea's tes-
-sme wh, had Oh aimed awards for their
}. a.. others win had not, came to Mr.. Han
AlaoniaI. and expressing their under
lal eIei that under the new order OF things
u 'e eat oH from the enjoyment OF some OF
l'tlmel rig IT. and privileges, including the
lrlEll--e Ol pisturase. they offered TO con-
alor ;3E lLE, a. formerly. upon the hono-
. days, IN consider tti9n of his allowing
--il1y al tieir accu>romed .htS and prvl-
Wliel pro Io-ition he agreed; that since
. az the hSaa.nas wh, have duly performed
o. 9n the 1OuOhi IL days, have been per-
i4stsre their horses on the kula land a
: and that the plaintiff IL cue of those who
Inue1 70 isDOr according to that agreement
:. also. that within the three years last past
.t'at Aas repeatedly not. ned the hoaainas to
AeiE hOrses IRON The hu.a lands leased oy
a. > te Of facts, It is argued by the learned
y 'he piaintIH. that he, In common with tne
ana, o. HOnDu.iu.i, - entitled to the n ISht
t1e- oy Gust II. On the other hand, 1t Is
i II the part OF the defendant, that bef''re
TN sustain TINS cl i'm on the ground OF
hs enslom attempted 10 be set up must ap-
ave exlsted from time iInmemorial; to be
{. % De certain, and not inconsistent with
Of the land.
We are oi the opinion that the objection
the counsel foE the drfendant against the
'lsAt u Le sei up by the plaintiff, that II l.
y % nave obtaIned f-om time immenoriai,
10 great weight, we do not think il neces-
'P'e,s 4 conclusive opinion up N that point
: fOl Il l. obvious 10 us that the custom
: "t i 80 unreasonable. s., uncertain.
Plshint 10 the spirit of the present laws,
s'e not TO De sustained by judicial author
II y perfectly clear that, IL the plain
.'ialna' holding his land by virtue ot a fee
4'd nom the land commission, he has no
=. canning right of pasturage by custom,
"a" rISnt ever was customary, IL was
y .Ae holding OF lano by a far different
IN 'hat oy which he now hoIds-a tenure
!. '',e hoaaiHa was bound to labor a certain
" Iiys IN each month. for the immediate
: 'A'd and like number OF days for the
! r''es'Hlnent, as payment or rent, both tor
: = .he land ard for the enjoyment of the
= ana privilege appurtenant thereto,
.e very TACT that the plaintiff holds his
'n'ue OF fee simple title, frees him f'r-
'e = laoor formerly due TO the government
:, nOhonlkl; he no longer owes. nor can he
ION ,tE 10 perform such labor, by law. aspay
,e ,H use OF his land. or for the enjoyment
'-' "f privilege, and if he performs such
'sisAer oy force of law or custom, but in
private contract. Again, if the
i-'iins u be a hoaaina of Honouliuli, hold-
'ad, not independently. upon an award
-.ahu dH Commission. but according to ancient
pendenee upon the Konohiki. and that,
: e entitled to the right of pasturage. by
= met by the testimony of the principal
~, ,f Pdueed by himself. 10 the effect that in
= oi ne, IN common with the other hoaainas
'-a'i' admitted that his former right or priv
,.uiase was determined. by the operation OF