The Hawaiian gazette., 1877-03-21

the OlEi Zone, on an agteeu eidleineHL vi WHICH
the following is the substance.
''0n the 9th September A. d., 1854. the Board
of Land Commissioners issued an award by survey
to one Honaunau, of certain premises situate on
the easterly angle Of Nuuanu and Beretania
streets in said Honolulu.
No Royal PGtent-has been issued for the
whole of said award, but on the 18th January a.
D., 1854. Royal Patent numbered 1898 was,
in consideration of one hundred aud twenty-f five
dollars paid by II. Macfarane combination.
issued confirming the said. award TO portion OF
the said premises, to wit: to that portion there
of on the easterly angle of Nuuanu and Bere-
Lania streets aforesaid, where the Commercial
Hotel is situated and including area OF 0.2205
of an acre. On the 18th April A. d., 1876, the
said j. Ii. Brunz came into possession, through
the deed OF Theodor Won Borstel, the executor
of the will of Ma;hda Erkart, late oil said Homo
lulu deceased, of IA portion of the said award, OF
which portion the metes and bounds are as fol-
lows
The said portion of the said award purchased
and described as aforesaid has never been con-
firmed by Royal Patent nor have the bound
aries thereof been fixed by the Commissioner Of
boundaries
The Commissioners of Advertisement for the
island of Oahu have appraised the said portion
according 10 the said survey.
J. Mott Smith, Minister of Interior, as well as
to his predecessor IN Office for Royal Patent
confirming the said award Tor the said portion
thereof in his possession aforesaid, but they
have refused TO Issue such Royal Patent al
though the said j. Ii. Brunz stands ready to
commute for the government rights therein &C.
cordng to the said appraisement.
Wherefore. we the said parties pray this Hon.
orable Court to adjudge and determine between
them
Counsel for the plaintiff cites Section 43 OF
the Civil Code, which is it is the basis of his ar
gument, we quote Section 40 4 Royal Patent
signed by the King and countersgned by the
Kuhina Nui and the Minister of the Interior
shall issue under the Great Seal of the King
dom, to the purchaser in fee simple of any GO
vernment land or other real estate; and also to
any hc!der of an award from the Board of Com
missoners to quiet land titles for any lard in
which he may have commuted the government
rights"
He claims that the case at bar does not come
within the provisions of the several acts of 1862
1868 and 1872 which establish the Boundary
Commission and define its Jurisdiction, inasmuch
they relate to the settlement of boundaries of
lands awarded by name only and without survey
the act OF 1872 which authorizes the Minister of
the Interior to issue patents for portions of
Ahupuaas Ills or other denominations of land"
when defined by a Boundary Commission, not
applying to parts of lots awarded by surveyed
boundaries and that not coming within these
notifications of Section 43, the owner of frac-
tional award must be entitled by that section
on payment of his appraised commutation, to
receive Royal Patent for such part; that
otherwise he must pay the Communication for the
whole award without power to recover contri-
button from the other owners, or else continue
I'LL L.. i ,,,l-sa IL, :.
terest therein. and that either of these alterna-
tves is an injustice which cannot be intended
by the statute.
Per contra, it was said that the Minister has
no power in the issuing of patents beyond the
express and strict provisions of the law and that
should he exceed them the patent would be in
valid; that If the case ut bar is not thus pro-
vided for, parties must seek relief IN the enact
ment of new statute.
The award to Honaunau is 10 the Hawaiian
language of the form used IN snch grants, and
may be rendered as follows
The petitioner makes claim for his house-lot
| situated in Honolulu. island of Oahu. on the
| ground that he received it from Kamehameha
! III. in 1885, and has since then held peaceabIe
possession. We award accordingly to Honaunau
an interest (Kueana) less than alodial He is
to pay the costs of this proceeding. being $50
and upon payment TO the government of its one
fourth interest, shall be entitled to q ROYAL Pa
tent in fee simple" A survey by metes and
bounds follows.
Thus there was confirmed to Honaunau both
on interest, ono.fourth less than alodal and
right TO commute this into an absolute title, and
it has never been doubted that these pass to his
heirs and assigns, as vested rights, recognized
but not conferred by Section 43. The sole
question at issue Is this: Can the owner of a
If ola
lawfully issue, on payment Of proportional COM
mutation, patent for such portion, or is the
right and duty confined to patents for entire
awards.
an aid of the construction to be given we cite
from the '' Principles adopted by the Board of
Commissioners TO Quiet Land Titles" which
were approved by an act of the Legislative Coun-
Gil October 26th, 1876. They say The Ha-
waian Rulers have learned by experience that
regard must be had to the immutable law of pro-
pery in things real, as lands, and in things per-
sonal, as chattels; that the well being of their
country must essentially depend upon the proper
development of their internal recources of which
land is the PRINCIPAL aud that in order to Its pro-
per cultivation and improvement the holder must
have some stake il it more solid than the bare
permission to evolve his daily bread from an
article 10 which he and lis children can lay no
intrinsic claim" They recognizes the perma-
nent good of the subject" The Commissioners
must infer that His Majesty intended the utmost
lberality to prevail towards the claimants, rather
against the interests Of the body polite than
against those OF the claimants. Statute Laws.
l847. PIP. Sc and 80. Such being the spirit and
the controlling principles at the foundation Of
these grants, if that must be the truest expo.
sition of law which harmonizes with its design.
its objects, and its general structure" Vattell as
! quoted 10 Dwarrs on statutes p. l79 we may
well construe the provision in the award and the
corresponding statute, savoraby to securing
permanent" titles
1t must have been contemplated that the ori.
ginal parcels of land would in no long time be
subject to division by partition among heirs. and
by sales which for the first tina in Hawaiian
history common man had the power to make.
and we can hardly suppose that it was meant
that the right to acquire complete title should
depend in its exercise anon the concurrence of
other owners in the same tract, a condition
which would often practically destroy the right.
1t is likewise 10 be observed that there Is no
negative limitation in tie statute, that while it
is not expressed that patents may issue to part
owners il is not expressed that they shall be only
for individual awards.
We are aware that rutiI recent wears MANY
patents were issued for part awards; indeed as
it appears BY the submission. patent has been
granted for another piece of this Honaunau
tract, but we can readily surmise reasons wby
1n T.~erE l. L. L.