The Hawaiian gazette., 1882-07-05
Balraiialt Gazette
WEDNEsDAY, JULY 5, 1852.
suurcuae Court OF the Hawaiian Islands.
July Terra 1882.

July Term 1ss2-
A. r. Judd and S. D. Doll, Guardians Of
Irene Il rs. Ruanale'ra, &C., a. al
BEPoRE NccUIIY,g ~ JURY BENG WAIVED.
The plaintiffs claim possession Of tract Of
land Of 29e acres extent lying on the border Of
the Abupuaa Of Waipio and included within
the surveyed boundary therof, and in the
Royal Patent held by plaintiffs. They also
J claim the fishing right to certain tract oil
water portion Of Pearl River lying contigu-
Gus to the premises claimed.
The principal defendant is kuan2iewa, W.
the heir Of Manini and Harbottle, who sets up
that. this marcel Of land constitutes the III 9f
HasaDolli, and that the fishing rights OF the
water tract arc appurtenant to the said III: that
this Iii was assigned by Kamehameha ], to
VIM Uarbottle the ancestor Of the chief de-
PENDANT here, Kauaualewa. Harbottle was one
Of he body Of retainers and body guard Of the
King, known as his Hulumanus.
There is a grant Of land designated as the
Tliaina Of Hanapouli TO Harbottle, 20 chains in
extent, Kuleana lying within the Ahupuaa
Of Waipio. Bet the defendants offer testimony
to establish that there was q large division or
denomination Of land known from ancient times
as Hanapouli, which was what was assigned
TO their ancestor. II was not taken before the
land commission for award, aud there is no
separate award or patent for II, apd u e IN
| cluded within the surveyed and patented lines
of Waipio-and they claim that they have
held possession Of this larger Hanapouli since
a time prior TO 1853 There are sundry kule-
anas within the premises in question, upon the
shore Of the bay.
Now to maintain tho defendants right in the
| premises against the right OF the patentee
| there must be showing ofSa distinctly ad-
verse. exclusive and hostile possession for
twenty years.
The first Circumstance 10 be considered is,
! how Il was that Harbottle should not have
taken out an award for these premises ii they
] had been assigned him by the King. He did
take an award for the small piece called the
| Iliaina Of Hanapoui The inference is that he
secured all that belonged to him Ii he had
had the same claim to the 239 acres here IN
question why should he not have taken an
award for it. The award to Wm. Harbottle
recites that he claims lis LLAMA Of Hanapouli
which he had received from his father John
Harbottle, who had derived it from Kane
hameha l. This was awarded 10 him and the
description, survey and content are included in
the award, as He Loi H0elc at Hanapoui of
20 chains in extent
The inference that Hsrbottle did not claim
any larger rights than those he receiyed-and
that he did not from that time hold adversely
any other land than that he applied for and
received the award Of, is in itself conclusive
against the defendants, unless they shall show
clearly that there was such adverse holding
for the time required by statute.
The defendants ancestors in 1856 acquired
the title to the Kuleanas of Kaholohana, de- |
ceased, ono Of which is described as an LLAMA |
Of Hanapouli, at Waipio, containing ? $40
acres, the other as a purse lot on tho back Of |
Hanapouli, containing 27-lO0 acre. Thus by |
Kuleana holdings in the midst of the premises |
the defendants had position on the land, and |
a right TO certain pieces of it, namely, what |
had been awarded as Kuleanas. The tcsti- |
mony as to their assertion Of ownership out
side Of these pieces, until recent time, is |
uncertain and conflicting.
The testimony of Haupu, the first witness |
for defendants, is 10 the Effect that the houses |
were OH the Kuloanas and the cultivation upon |
them, except perhaps the portion lately leased /
by defendants TO Cinnamon But he says that
defendants at some time cultivated potatoes,
calabashes etc, in the ravine. This may have
been outside of the Kuleana limits, but is
vague as to the extent and the date. Il was
in the reign of Kamehameha III, who died IN
1854.
Na9o says there were disputes about rights
of fishery, SAYS be thinks defendants did not
get award for lower Hanapouli because they
neglected to 70 after it. Says there was no
cultivation on the lower part when he was at
the place He grew up on this place and was
there till 1868.
Hipi, an interested witness for defendants
tcstifcs that lis cattle ran over this land be-
cause it was not fenced, and gives no distinct
testimony Of possession by the defendants.
H0lokGud lived at Hanapaui from 1889 to
1852 and has since visited there, owning
small Kuleana in Hanapouli. He gives no
evidence Of an occupation Of this land as is
now claimed outside os the Kuleauas.
Rtalg, says that the defendants occupied
the Kula land back to the cliffs.
Euapaisrd, the principal defendant says
that she received tribute of sugar-canc and
bananas grown on Hanapoui and not on the
Kucanas.
Kauai, witness for plaintiffs testifes that
his house was built on these premises in 1865
by permission Of Ii, who helped him build it.
II still stands and witness has sold it to China
men, lessees holding the land which defendants
claim. He says that Harbottle and his wife
lived on their Kuleanas, and their cultivation
was on their Kuleanas He says that Ii
planted the land now claimed with corn and
water melons, witness helping him. He says
Kipi who had made some claims under defend
ant, worked under Ii after a certain settlement
before the District Judge, Kahaleaahu.
Witness was present at the survey of the
land for claims. Wm. Harbottle had only a
few patches in upper land surveyed. Ii was
also present. Harbottle claimed that the King
gave him the fishery and Ii said he would
point out his fishery, and sent man who
wadcd in the water along the line of it. This
pl,a11 70 x,1,nt,
fishery rights.
This witness says that he used the beach of
these premises as landing when fishing out
side for Ii. That be has not known of any one
cultivating this land adversely to Ii till the
Cinnamon recently. All the cultivation was
under ii. The stock on the land belonged to
Ii aud to natives who did Poalima work for
him. Witness had planted cane on this land
on shares with Ii
Upon the whole testimony relating to the
dry land find for the plaintiffs, the holders of
the title. The defendants testimony does not !
support such an adverse possession as upon !
The principles now frequently enunciated in
this court establish prescriptiye right in the
(2) In regard TO the fishing riglsls, the tcsti-
mony Of the plaintiffs witnesses as well as :
the defendants shows that Harbottle had some
AEnto IL q lshNl. dllHAAhIuaAk " LIS 6AduAs | Z
and greater than those Of common Kuleana !
holders and tenants Of the Konohiki. have !
above cited passage of testimony showing
hat this right was conceded by John Ii the !
holder Of the Ahupuaa of Waipio. This right
nay be supposed to have arisen from the fact :
hat the claim and award to Harbottle was for i
m Iii Alma, distinguished from a mere
OF a lot which the claimant had occu-
pied OF cultivated. The assignment by the
King Of an Iii Alma carried with it appurten-
int rights, not subserviont to the Konohiki of
be Ahupuaa. Kamai, witness for plaintiffs
avs the fishery was a iele Of Hanapouli.
There is some conflict Of testimony as to the
xtent Of the water premises, although all I
gree that it was not deep water fishery. a !
nan could wade along the outer boundary.
The original survey and plot made by Rev.
l. Bishop, who surveyed this branch of Pearl
iver, as the Kai or water sppurtenant to
Yaipio, for Ioane ii is before me. 1t bears A
ote by the Secretary of the Land Commission,
. L. Nailiili dated March 2sth, 1855, TO the
feet that the land commission declines 10 \
ward the water rights by metes and bounds,
,aving them TO be determined by the general
Nv. On this map is line drawn from
oint near Loko Eo, and running to a point
ear Jaehopu, where it intersects the line
'hich divides the Kai of Waipio from the kai
{ Waiawa, and in Mr. Bishops handwriting
he words Kai Hanapouli. j
49, = ~ II L Al I