The Hawaiian gazette., 1876-05-17
HAWAIIANGAZETT
AN INDEPENDENT JOURNAL,
DEVOTED TO HAWAIIAN PROGRESS.
Supreme Court of the Hawaiian
IsIands.-APril Term IS76.
BOARD OF EDUCATION rs. WILLIAM
Il BAILEY.
OPINIoN sy nARRls, J.

On the 5th day Of November. 1873. Mr.. vii
liam II. Bailey applied TO the Commissioner Of
Boundaries Tor the island Of Maui for determine
ton OF the boundaries OF the innd called "Alakae
hur situated in X gla district Of Makawao, island
Of Maui aud the Board Of EiucatiOn. owning the
adjoining land Of - MakaWae" appeal from the
decision made by the Commissioner 90 that pc.
titiOn.
1t is objected at the hearing before this Court
that the 4th section Of tue act to facilitate the
settlement OF boundaries. enacts that all owners
Of Ahupuaas and Ills OF baud within this king
dom, whose lands have not been awarded by the
Land Commissioners, patented or conveyed by
deed from His Majesty the King. by boundaries
decided in such award. patent. or deed, are here
by required within Eve years from the 23d day Of
August. A. ID. 1865. To file with the Commits
sioDer of Boundaries for the circuit in which the
land Is situated an application 10 have the boun-
daries Of said land decided and certified TO by
said Commissioner or his successor in Office
A nd that the petition does not set forth that the
land under consideration awarded, decided or
patented without the boundaries being described
in such award. deed or patent, aud therefore it
was not within the authority OF the Commission
er. 1t is asserted. that in point Of fact, there was
no award Tor this land, and the land commission
record was produced to support that fact. IL Is
certain that the Commissioner would have no
rgli TO pass upon the title Of the land and it is
certain that the Board of Education have right
10 the land OF Makawao.
Their grant Is undIsputed. And as the Minis
ter OF Interior has requested that the Court
would 20 on aud adjuuicaIe the matter, notwth-
standing the objection. and rs the said Minister
has filed his assent 10 writing. and a., by the til-
ing Of such assent all parties in interest or who
may possibly, have any interest in the land, are
before the Court and seeking its aid, We will pro-
coed with the adjudication.
1t appears from the decision Of the Commits |
sioner, which is certified up. that after proceed |
adds the following words and Incorporates them |
into his decision =" And the right to the water /
Of the springs Of kaRahOu to be divided equally /
between Makawao and the Ahupuaa of Makae
hu."
Both parties are satisfied with the boundaries
as set forth in the Commissioners award but the
Board OF Education object to the Incorporation
Of the above quoted remark in the decree be-
cause the COMMISSIONER authority is c0nfned to
finding the boundaries and setting up the boun-
dairy marks.
We 6nd the objection Of the Board OF Educa-
ton well taken when the Commissioner has de-
cided the boundaries. he can go no farther he
cannot say the boundaries are thus and so, but
has such and such rights BIS side Of the boun-
DAIRY. Ii the spring Of Kawaihou falls on the
Mukawao side Of the boundary. and the owner VI
Makaehu thinks that he has a right in the spiing
be must establish that right in court Of law, II
il is denied 10 him by The owner Of Mnkawao,
md rice rsrSd. And we therefore, adudge that
the decree Of the Com m:SsiOuer be corrected, by
striking out the words A o Ia pono wal ma ma
mapuna wal Kawahou mahee Ike ia DO Ma
kawao a me ke Ahupuaa Makaehu," and that
the rest Of the Commissioners award do stand at
irmed. Let the costs Of appeal be divided.
CHAs. q. HARRIS
a. FRANCIS JUDD,
Justices Supreme Court.
A. s. Harlwe for plaintiff, L. Preston for re-
'pondent-
Honolulu, May 5th 1876.