The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-12-27

| information as TO whether be was the surveyor OF
copied what was in his handwriting, the MAJ
and notes being without signature and Without
date, nor have we any information as to the
knowledge on which the survey was made. liz
1854 the Department sold ten pieces of land,
each containing 1874 acres, purporting to be
out Of Waikapu, for which the Government is
sued Royal Patents describing the lots by survey;
but for alleged failure to pay the notes taken in
the sale all these grants were surrendered and
cancelled, and quit-claim deeds made back
TO the Board Of Education, dated August, 1860.
These lots are plotted in pencil, with the names
Of the purchasers, in the handwriting of Mr..
Marsh on the Waikapu map, thus taking up the
&" Waikapu Commons as therein given. The ap-
pellants also exhibit a plot made by Mr.. Schussler
from the descriptions in the cancelled patents,
drawn on the same scale as the Monsarratt map,
by which it is made to appear that the ten lots
extended to include the part Of Pulehunui which
the appellants claim for Waikapu.
In 1875 the Board of Education sold at auction
the " Land known as the Ahupuau of Waikapu,
saving grants hitherto made within said ahupuaa,
or sales by the Board Of Education, r" to Henry
Cornwell, the Government issuing a Royal Patent
in the above terms without survey or statement
Of area. Mr.. Cornwell afterward sold to Claus
Spreckles and others the part known as Waikapu
Commons, giving a warranty deed with a sur
veyed description, perhaps according TO the pat
ents, covering as we have said the west end of
Pulehunui, as found by the Boundary Commits
sioner.
The argument for the contestants is, that Wal
kapu was sold by the Government as included in
the description in the ten patents, and that there
was no claim made against this by the owner of
Pulehunui, and that the Government should be
holden to have fixed the boundary accordingly.
Now if those patents had not been returned and
cancelled, the Commissioner of Boundaries could
not have found the lines of Pulehunui to include
any part of them, whatever proofs might have
been gwen that in fact Waikapu had been
wrongly extended beyond its ancient line, for the
statute provides that 8 he shall in no case alter
any boundary described by survey in Royal Pat
ent, in Deed from the King, or in Land Commits
sion Award" Section 5, Act of 1868. But these
patents, having been cancelled, cannot be held to
have an existence for any purpose. When it is
said for the appellants that there was a good in-
ference or understanding to be taken that the
legal boundary was as had been described in
them, we think the answer made for the appellee
is good that if any inference is to be drawn it
should be that the Government, or the Board of
did not have an assurance that Wal
kapu extended as they had sold it, for it is singu-
lar that of the ten pieces sold not one of them
should have been paid for and held by the
grantees, or that not one of the grantees should
have been compelled to pay his note and it is to
be observed very strongly that in the sale made in
the grantOr does not convey by any descrip-
ton or area. The purchaser must have taken
might be found to belong to Waikapu, ac-
SOldlDR I l 1 DCuuudTl, DIS UeEHGen IL anu
Pulehunui, as it may be found by the Boundary
Commissioner.
The Act to facilitate the settlement of bound
aries by the appointment of commissioners and
was passed in 1868, in its present form,
the first act for this purpose was pas
in 1862. By the act of 1868 the owners of
OF land awarded or patented by name
without survey, are required to apply for tho
OF boundaries, and the Judgment of
commissioners (subject to appea) determines
is to be holden as the grant under such a.
ward or patent. A survey and plot which might
De in existence in any Office of the government
would not in itself be evidence of a boundary, if
{ had not been incorporated in an award or pa
ent. Even 1t such a survey were more anthem
icated in respect to it's origin and the data on
which it was made, than this anonymous one of
Waikapu, what would it signify Nothing but
he opinion of the surveyor, on whatever grounds
be may have derived it, that such and such were
he boundaries of the land. But the bounds are
10 be determined Judicially, on evidence, and
with notice to all parties concerned. The sur
Ieyor is not such an officer, and the tribunal con-
for the purpose cannot take the findings
II the surveyor in lieu of or In contravention to
proper testimony. We have in our preliminary
emarks indicated what is the real subject of in
OF the commissioner of boundaries
nd the nature of the testimony which is appli-
able, and it is apparent that no survey even one
ounded on good can be anything
lOEG tudn e6COuudIy OflutIlee, WHEN IL mas Deen
'roved to have been so founded, and can be no
violence in itself without proof that it is the
Expression of original, Kamaaina direction.
Moreover the purchaser of Waikapu took his
atent in view OF Section 10 of the Act of 1868,
which is, The Minister Of Interior is not au-
and is hereby forbidden to issue any
atent from and after the passage of this act, in
of an award by name made by
commissioners to Quiet Land Titles, with
ut the boundaries being defined in such pa
according to the decision Of some commas
Toner of boundaries appointed under the act, or
y the late sole Commissioner or the circuit court
r Supreme Court on appeal
1t is true this patent was not issued in con6r-
nation OF an award, the land belonging to the
government, which by this granted a title in fee
Imple and without Communication, yet it cannot
e taken to have confirmed any boundary which
ad never been legally made and was nowisee x-
,ressed in it, neither can it be set up that the
faith of the government was given that the
and followed any survey in existence. The pos
statute requiring that lands for which pre-
iously a patent without survey had issued should
their boundaries defined by this tribunal,
lust have held to apply with at least no less
orce, to such a patent issuing after the statute
Sas in existence. The proceedings to settle the
oundary of Pulehunui, which must settle that
t Waikapu where they join each other are not
ffected by this map of Waikiki nor by the fol-
owing sale of ten lots.
The contestants also introduced as a witness
Ir. Keohokalole, who said that he had surveyed.
about twenty years ago. lie said he
ad made his survey after the direction of a par
y of Kamaainas, and that he thought, as he re-
it, that he had found the line between
faikapu and Pulehunui more conformed to that
n the Waikapu map than that on the Pulehu-
nj (Monsarratt) map, but said that as he had
urveyed there was a coast line and fishery, which
he Waikapu map does not allow, and that the
end OF Pulehunui reached to the sand and
hat it bowed in toward Waikapu, instead of
Vaikapu bowling into Pulehunui. We do not
uote this evidence as being quite admissible,
ut in order to dispose of all that came before us.
t does not support the appellants case, but, for
That is worth goes TO show that Pulehunui had
coast line as claimed and such a ' western bound
ry as petitioner claims.
Ii thus appearing that the decision of the case
must depend on the testimony submitted at the
rst trial we make what futher examination of it
necessary, briefly, for we have already indica-
oil in n praIiu,Iparv ohearvatious tho ooptrol-