Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1858-12-18
No. 33

that, whenever in anv case tract of land was di-
vded between the several parties IN interest, those
rights which they had previously held in common,
while their interests IN the land were undivided,
should cease TO be so held. The fourth Joint Reso-
luton provides that, If any wish to obtain an
allOdal title to the land which he has himself cult
yated, he should have the right to petition the
Minister of the Interior for the purchase of such
land, and if the land sold and patented the price
obtained therefore be divided equally between
the Government and the konohiki. The fifth Joint
Resolution reads as follows: " Whenever any indi-
vidual secures alodial title to his cultivated
grounds, specified above, and the pasture ground
and uncultlvated parts remain, then that remainder
shall belong equally Government and to the kono-
hiki.' The seventh Joint Resolution provides that,
90 If any konoiki wish to have his portion of any
given iii or ahupuaa set off to him according to his
rights in the same, that he may procure allodial
title therefor, he may petition the Minister OF the
Interior, stamped paper, who. shall have power,
with the appreciation of his Majesty in Privy Coun
Gill; to complete the arrangements for the same, after
which thereshall be given 20 the konohiki patent
for the same" Can it be claimed that, after d.
vision OF the land between the several parties, in
conformity with the provisions just quoted the hoa
alma still had the right to pasture his horse and
and other animals the land of the konohiki,
to an indefinite extent? We think not. 1t might
with equal proprety be contended that he still had
the right '' to extend his cultivation unoccupied
parts of the konohikis land, without his consent.
We much strengthened IN this view OF the case
by the reading of the Act passed the 9th day of
August 1850. confirming certain Resolutions pass
ed by the King IN Pryy Council on the 2lst day OF
December, 1919, granting fee simple titles, free of
commutatiOn, to native tenants, (or hoaalnaS) TOR
their cultivated lands and house lots and also pro-
tecting the hoaainas IN the enjoyment of certain
rights therein enumerated as against the sweeping
operation OF the kOnUhki's allOdia titles. The Sd
section of that act empowered the Land Commission
to grant fee simple awards, and to define and separ
ate the portions of land belonging to different ind
viduas, that each mans land should be By itself.
The 9th section reads as follows % In granting
the people their cultivated grounds or kalo lands,
they shall only be entitled what they have really
cultivated, and which lie in the form of cultivated
lands and not such as the people may have culti-
waited in different spots, with the seeming intention
of enlarging their lots, shalt they be entitled to the
lcaSte lands
Upon a careful examination of the Joint Resolu-.
tions of November 1885, and the Act Of the 9th Of
August, 1850, find that several of the provisions
OF the latter clearly inconsistent with those of
the former, and we are OF opinion that, so far as
this is true the provisions Of 1916 must be held, by
necessary implication. to be repealed by those Of
1850. The first, have already intimated, We're
passed while the old system of land tenure was still
in full force and the rights OF the different parties
intel esJed in the land yet undivided; the
last were passed at a time when the entire change
of system which has taken place since l846 was nfu
progress, and had already, 10 great extent, been
achieved. We think the following language held by
the Master Of the Rolls in thecase OF the Dean OF Ely
vs. Bliss applies here If two inconsistent acts
be passed different times, the last is TO be obey
ed and if obedience cannot be observed without de-
rogatiug from the first it the first which must give
way. Every act of Parliament must be considered
with reference TO the state OF the law subsiSting
when it came into operation, and when it IS to be
applied: il cannot otherwise be nationally construed.
Every act is made, either for the purpose OF making
q change in the law, for the purpose OF better de-
claring the law. So, also, the following dctum of
Lord Denman. in the case of Reg. VS.. Inhabitants
of st. Edmunds Salisbury: 90 While We hold that !
positive enactment is not to be restrained by infer
ence, we must also act the maxim, teqeS p0Ste-
riores prioTes e0ntraTiaS arrogant, whenever II
comes in operation (See Dwarris on Statutes, p.
53l.) Upon this ground, we must hold that the lst
Joint Resolution, of November, 1916, has been ab-
rogated, and that the enumeration therein contain
ed of certain specific rights of the hoaaina. apart
from his right 70 the land he cultivated. has been
Iperseded by the specification of the same rights,
contained in the 9TH Section of the Act cf August,
1850, which specification reads as follows, viz:
"When the landlords have taken alodial titles to
their lands the people each OF their lands, shall
not be deprived Of the right to take frewood house
TIMBER aho cord, thatch, leaf, from the land on
which they live for their private use, should
they need them, but they shall not have right to
take such articles to sell for profit, They shall also
inform the landlord his agent, and proceed with
his consent. The people shall also have right to
drinking water and running water, and the right OF
way"
That it was the intention of the Legislature to
declare in this enactment, all the specific rights Of
the hoaaina, Except fishing rights,) which should
be held to prevail against the fee simple title of the
konohiki we have no doubt. We think this is con-
eusivey shown by the fact that the Legislature, at
its next session. in 1851, had its attention renewedly
directed to this subject which occasion it revised
and partially amended the section just quoted, by
an act which commences with the following pream-
bIe viz: Whereas many difficulties and
plants have arisen from the bad feeling existing on
account of the konohiks forbidding the tenants ON
the lands eniOyin the benefits that have been by law
given them Therefore," etc. 1t was evidently the
intention of the Legislature, at the time OF the pas
SAGE of the act of 1850 that the former right OF the
boaaina to pasture his horse and COW, and other
animals on the land, but not in such numbers as to
2revent the konohi i from pastuIng his, should
cease to exist. It was inconsistent with the new
system and was therefore not preserved on the
change of the law. That such was the general un-
derstanding throughout the country, alter the pas
SAGE of the act of 1880, clearly appears from the
evidence given in this case and it is matter OF his
t,ry that during several subsequent sessions OF the
LEGISLATURE petitions were presented for the enact
mept OF a law granting to the common people the
right of pasIurage the lands OF the kononlkls out
without success on the ground that 1t would inter-
fere with vested rights We understand the latest
enumeration, by the Legislature, OF the speelnc
rights of the hoaana, to be restrictive as against the
rights of the konohiki and the Government, and we
think, therefore, that the maxim eIPTesslo talas
est erc,Bio alters, (Dwarrls on Ststu'es' P, oVoJ
must be held TO apply in this case, with conclusive
force and that too without any distinction as to
whether the plaintiff is a kuleana holder, or otner-
wise. our understanding of the term people, as used
in the 7th section of the act OF 1850, oeng that u Is
SYNONYMOUS with the term tenants, as used IN the
law relating to private fisheries, OF whlch We e1-
pressed our view in the recent case OF Haaeiea vs..
cr1pr