The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-03-15
Supreme Court OF the Hawaiian Islands
Jaruary Tenn, ISS21Jn BancO.
ANroNE PrDRo vs.. -OHuN YrN FAN.1

| ANibNis lsiItb W. NittN IL r An.
J,aIa, G. j, 1ic0aily and dustin j.. J--Optu,
ion Of he Curt By Judd, G. J.
This is an action Of tTespass guare cldusum
frega, begun in the District Court of Eve
Oahu, and brought by appeal Of defendant tc
| the Intermediary Court and again to this Court
in Banoo on the law involved.
The plaintiff holds under Royal Patent
Number 1925. dated the-l 9TH July, SOP, upoT
| confirmation Of " Mahele" No. Is to Paewa-
I hine, and grants one-half, being the western
side, Of the land Of Kaluaolohe, situated at
Waiau, Eva, Oahu.
The defendant holds under Royal Patent
Number 2S6l dated the 9TH April, 1862
| granted to one Jose. 1t appears that the por-
ton Of iapd upon YhiclIs the alleged trespass
was committed is brought by plaintiffs sur
veyor within the limits of his Patent, and it is
also brought by survey made in accordance
with defendants Patent within the limits Of
| this Patent.
1t is claimed by defendant that as this terri
| tory is included within the descriptions Of
both the Patents, the Oldest in date must pre-
vail
The plaintiffs Patent was granted, as we
have said, in confirmation of the "Mahele -
or Division Of 1915, which His Majesty Ka-
mechanical III. made with bis chiefs and peo-
! pie. This Mahele title was inchoate and the
duty deyolyed upon the ono receiving it 10
! present it to .he Land Commission FOR a formal
Award upon it. Many persons neglected tc do
this and, accordingly, on oath August, lsGO, an
Act was passed which authorized the Minis
ter of Interior TO receive such Mahee titles, and
to issue wards pursuant 10 them This was
done in the case before us aud the Award was
made on the 18Th January, 1862. As the law
lstood, the party reeeiyillg an Award for one
a nc of an iii or INSTRUMENTATION
iNlu 90 nan l.s., = have surveys made.
dividing the land and describing each portion
The survey was accordingly made. Isbears
date the 22d March, 1862, aud in due course
a ROYAL Patent was issued thereupon. Mean
while the government sold its half fthe iii to
one Jose by the Royal Patent under which the
defendant holds. uil ffe EaarT gG
We areof The opinion tbai IS the govern
ment was entitled TO only one-half Of the iii,
it could convey no more than one-balf to the
purchaser The government lad already by
the Award issued by the Niuister Of 1lherior
granted the other, the western half, to the
plaintiffs graDtor and this must be treated as
the elder iiue, IN ease, of any. conflict an the
surveys Such a conflict is indeed testified TO-,
but 4 o survoy m fie ttiefedant' s Patent
describes the lGe dividing -lle III into two
parts as follows: "Tfence 10 west II
chains dividing in the middle OF this IaIid,
separating the western half TO Paewahine,
etcS and the intention Of the Patent is mani
testify to describe and convey only the remain
ing Cor eastern halo Of the. land 10 the pur-
chaser, did each Patent grants Y acres We
must hold fiat As the territory trespassed
.1.l. 1l,o. e fba
Patent Of biiSaii, Il ishis iandl for IL eoincs
within his half, and he may recover for the
trespass. ..,o $50 ft-
Tho point does not come properly before
this Court on this appeal, but we are strongly
of the impression that both these surveys were
made contemporaneodsly and by The same
person and that IL unlikely that there is
any real conflict between them, and that
comparison by skilliul surveyors would show
this B., -stey patt.af aeerlr
q Judgment of Intermediary Court confirmed
F. NJ. Hatch for plaintiff, a. $. Hartwell for
defendant
Honolulu, March 9TH, 1882