Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1861-04-06
Ghe polnnesian,
SUPREME COURT.--Jauuary Term. Is61.--
In Bauco.
GEORGE DAVIS rs. WILLIAM L. GREEN

GEORGE DAVIS rs. WILLIAM L. GREEN
Justice Robertson delivered the Judgment of the Court
| as follows:
This is an action of trover, brought by the plaintiff
to recover from the defendant the value of
bullock hides alleged to have been wrOngfuly taken
and converted by certain agents of the defendant
WaImea, Hawaii The action was brought up 10 this
Court at the July Term 1860 on appeal from the Po-
lice Court of Honolulu, and tried before Jury who
found verdict for the defendant Counsel for the
plaintiff filed bill of exceptions to certain rulings OF
the presiding judge and TO parts of his charge
the jury, and thereupon moved the Court to grant
new trial. This motion came up for argument at the
present term, when il agreed by the parties that
the case should be reargued before the Court in bancO
upon the evidence previously adduced with the addi-
ton OF such further testimony either party might be
able to produce that the merits of the controversy,
the real magnitude of which far exceeds the pecunary
measure of the present action should be fully iaVes
gated by the Court, according to whose final judgment
review, the verdict of the Jury should either be
affirmed or set aside.
The plaintiff is the proprietor Of extensive tract Of
land, called the Ahupuaa of Wakoloa, the north
western slope of Maunakea, and running down - Wal
mea, island of Hawaii, where he also pOssesse Irge
herd of cattle. The Ahupuaa of WaikOoa ad . for
many miles, the lands upon which run the herds of
tle usually known " the wild cattle of the Hing and
Government The twenty-nine hides, the value of
which Is sued for in this action. taken from un-
branded animals lid 20 have been found and captured
on the plaintiff S i nd were in his possession or in
that of his servants, vi taken away by the defend
ants agents.
The defendant sets up title to the hides in question,
rs agent for, and behalf Of Mr.. Robert C. JanOn,
who it is claimed is the lessee Of the lands of the King
and of the Government upon which the wild unbrand
ed cattle about Maunakea, and the grantee Of the
herds Of cattle themselves that he stands not in the
position of mere wTVngdoer 1t is therefore neces
sary that the plaintiff should show something more, 10
m N han hare
cordngy he claims the general, absolute property
in the hides, upon the following grounds, viz: first,
that the animals having been captured upon his land,
must be presumed, although unbranded, to have been
his cattle secondly, that the wild unbranded cat
tle and about Maunakea are a:imas ferO nature,
not the property of any person, until he has TAXI
them into possession and may be lawfully captured by
any person who finds them upon his own land third
w. that if the animals in question belonged the herds
called " the wild cattle of the King and Government,
plaintiff had the right, by custom, to capture them
when found upon his land, and to convert them to
his
As matter of history it is known to the Court that
the first cattle placed upon these islands, were landed at
Hawaii, in the years 1898 and 1874, by the British
navigator Captain Vancouver. by whom they were in
tended as prospective boon to the inhabitants and
those who should visit the islands for purposes Of trade
or of refreshment. King Kamehameha the First, had
at that time attained the ascendency over the whole
island of Hawaii, and ut the suggestion of Vancouver
he proclaimed strict against the
killing of the cattle their offspring. for period of
ten years. This wise precautiOn secured the accom-
pishment of the donors friendly intentions, for before
the lapse of many years. the cattle were numbered by
thousands, and in of time the herds
large part of the island.
1t is in evidence before US, by the testimony of Will
liam Hughes and Others that about the year lS26, when
the late chief Kuakini John Adams) Governor of
Hawaii he employed Hughes to catch and kill cattle
of the roaming herds for the purpose of obtaining
their hides and allow, source Of income for the
Government, or rather for his late Majesty kameha-
meha the Third no constitutional government having
been established at that time. The King subsequently
engaged the late Joaquin Armas with small party of
Caifornians, prosecute the same business Hughes
estimates the number of cattle captured and killed by
himself and his party at forty thousand In the year
lS4I the cattle again placed under taboo, all per-
sons being publicly prohibited from capturing killing
them MIR. J. p Parker test6es that mp to that time
he was the only person who had the privilege of shoot
ing cattle Oh the mountain while Mr.. Haaleiea, who
lived with Governor Adams, mentions others,
who he thinks had like privilege from T. Govern
or Dr. Judd testifes that after the taboo Of lS4l,
person had the privilege OF taking any OF the cattle
cpt some Foreigners who pursu the business of saw
ing timber in the forest and who were permitted by the
Government take cattle for food. The charge Of the
cattle on the mountain, after Hughes time, given
10 Mr. William Beckley, and after him to Mr.. Isaac
Davis a son OF the plaintiff who acted agents for the
King and Government. In the year $780, the follow
ing petition presented to the King in Council, by
the late James Young KanehOa, viz
HoSoLuLu, Oahu, April 9th. 1850.
His Majesty KAMEHsMEHA, in Privy Council:
SIRE Your Majesty mos probably aware that the
Captain Vancouver these islands, he presented
n.trous Sire and my father some cattle from which
the erS Wild cattle that
the mountains of Hawaii So long as these cattle
were appropriated your Msstys private peii
tOneF the which they were disposed OIL
Petitioner ost humby bees :hat your Majesty will gra
ciousy pleased order portion of these cattle be
the faithful companion Msesty's father and in duty
bound your Petitioner will ever pray. ]. Y KASEHoA.
On the 18th of April 1850, the following Resolution
was passed, in Council, touching the foregoing petit
ton, viz:
esolced That thousand of the wild cnre of Hawaii,
be aud are hereby the heirs Of John Young Senior
parton said catfe and thai the shepherd OF those
cattle hereby authorized TO select and deliver To or permit
take such cattle whenever shall please them
do Procided however that said heirs shall take said
cattle within two ears from this DATE without
On the 10th of june 1850, the following Resolution
was passed by the King in Council, viz:
his Majesty Government with regard 10 the cattle IN
Wanea Hawaii be hereby confirmed far as r joint own
prceeds cf ali divided equally between his Ma
~ and the Government aud that neither party shall sell or
without the concurrence OF the other
ty said be left in charge OF agent 10
be chosen matuay BY the k1ns ana te Minister OF he In
derstood cattle running IL the joint herd but belonging TO
or The other of the parties exclusively affected by
the resolution.
In the General Appropriation Bill of I've year 1915.
the Legislature made appropriation Of two thousand
dollars for the construction Of road from Wamea to
Hilo be paid-out Of the avais of wild CATTLE, to
be sold for that purpose.
On the Sth day of April. 1857, the Minister of the
Interior conveyed TO Mr.. Edward P. Adams, by in
strument in writing all and singular the wild cattle,
to wit bulls oxen, cows and cIlves, unmarked and un
branded W running the island of Hawaii. in the
District of Hilo Hamakua, and South kohala, and on
Or near the mountains of Maunakea and Mauna Loa,'
excepting SO many of such cattle had been previously
sold to other parties, and then remained undehyered
together with the privilege of pursuing taking driving
and sarghterng the same wherever they may be found
upon lands belonging either to the King or the Govern
nent without charge for pasturage while they pasture
On the portions of the lands which they have here
ofore and now range and with the right of entry upon
The said lands (the Kings land of Pnukapu excepted)
Eor nd during the term of three wears from and after