The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1883-03-07
suprene Court, january Term. 1883.


Her Majesty Ear,tA kArE1roSaIASI. Queen Dow
acer, eS Gas. II. jun, e. ais, the Commission
ers of Crown Lands.
Before Jssis C. j. MeC,slly end AtStia J. J..tlpia-
ios Of tAs Conft ~ NeCnfly J.
Action of e;ectnent tried before MoCully, J.
The koyal plaintiff. The relict of his late Majesty
kamehameha w.. brings this action for the recoy-
cry Of one undivided moiety of ten certain pieces
of land IN her complaint described
IL fiRiHs the complainant discontinues as TO the
fourth, seventh and ninth pieces. The several
pieces, except the tenth. are parts OF Land Com
mission Award No. 10,S06 TO His Majesty hameha-
meha III. The origin of the title of these lots
differs from that of the body of lands now known
as the Crown Lands IN several particulars. The
Crown Lands. as appears BY the Act TO relieve the
Royal Domain from membranes and TO render
the same lnaiienahle January :, 100, are consti.
tuted of schedule of lands set forth in the Act of
June = lSiS, relating to the lands of HIS Majesty
the King and of the Government. BY this last
named Act this enlightened and magnanimous Sow
ereiSn laid the foundation for the tenure of real
estate now subsistiug by separating his ownership
IN all the lands of the Kingdom conformity with
some recognized but not well defined rights of his
chiefs relinquishing tothe general government for
Just distribution to claimants and for public owner
ship the greater part of the territory and reSeryng
for his individual ownership 3 royal estate which
was catalogued IN the Act. The pieces of land here
II question were awarded to kamehameha III, six
seven years subsequently, July 9th, 1854, Janu-
airy II, 1855, and March N 1855. They are not HIS
or Ahupuaas described merely by name, but sur
veyed lots of moderate size. one being but six
tenths of acre, one Is IL acres. hamehameha III,
died on the 18th of December, 1854 subsequent to
the award OF al the pieces but the first The claims
on behalf of his estate are in the ordinary pro-
cedure of Land Commission business as when ap-
plication was made by private persons for kuleana
Awards Some of these were disputed, and testl-
mony was taken determine the rightful claimant.
hat arrarflefi.
Award 6,752, to Nuuanu and hamehameha III. and
a deed of partition was made August 20. 1855. be-
tween Nuuanu and kamehameha ~. The pieces
thus awarded passed into the estate OF hameha-
meha III together with the bsfore-mentioned lands
reserved.
The estate of Kamehameha III as well as the
throne passed to kamehameha w. who continued
to treat the Royal Domain. as his predecessor had
done, his private estate selling and mortgaglng
pieces thereof as occasion suited. his consort join
ing in the deeds to release her dover Upon his
decease intestate, November 30. 1868. the throne
passing to his brother by the provision of the Will
of hamehameha ILL., the question OF " the descent
of the property held and possessed by his late
Majesty kamehameha " came before the ST.
preDe Court upon an agreed statement OF
facts The opinion of the Court was written by
Mr.. Justice Robertson, whose thorough and judicial
cast of mind was aided by she intimate acquaint-
ance with the origin of land tenures in this King
dom, derived from his labors as one OF The Board
Of Commissioners TO quiet Land Titles. The Court
LAD access 10 TIE lOuTudlS VI 4Uc NOuhSA-
and to the records of all the transactions leading
TO the present system of land titles, and the pro-
gress of ideas and events is lumnousiy set forth In
the decision, which must always remain among the
most important contributions TO Hawaiian history
md Haw. Rep, p. 126.
As having controlling influence on the findings
In this case, and having been The basis Of snbse-
quent legislation. it is well to quote at large here
the concluding paragraphs of that opinion
"In our opinion. while 1t clearly the Intention
of Kamehameha III to protect the lands which ne
reserved to himself out of the domain which had
been acquired by his family through the proves
and skill of his father, the conqueror, from the
danger of being treated as public domain or Gov
eminent property, it also his intention TO pro
vide that those lands should descend to his heirs
and successors, the future wearers OF the crown
which the conqueror had won; we understand the
act of 18th June. 1S4S as having secured both these
objects. Under that act the lands descend in fee,
the inheritance being limited however to the sue
cessors to the throne, and each successive posses
sor may regulate and dispose of the same according
to his will and pleasure, as private property, IN
like manner as was done by kamehameha Ill
In opinion the fifth clause of the viii OF ha-
nehameha III was not necessary to pass the re-
served lands to kamehameha ", any more than
the first clause was necessary to pass him the
crown. He was entitled to inherit those lands by
force of the act of It'll June. 1873 when he succeed
ed to the crown, in virtue of the proclamation
made by his predecessor with the consent OF the
House OF Mobiles. and he was entitled as the adopt
der of his estate not devised to any one else. sub
ject to dover.
I'VE are clearly of opinion also that Her Ma
jessy Queen Emma is lawfully entitled to dover In
the reserved lands, except so far as she may have
barred her right therein by her own act and deed.
There is nothing in the act of TIN june 1885, which
can be understood as taking away the Queens
night Of dover IN the lands therein named; nor Is
there any law of this Kingdom which renders the
matrimonial rights of the wife of the King any
less than or any different from those OF the wife
of any private gentleman Such was unquestIon.
ably the understanding of both kamehameha Ill
and his successor to dover IN those lands, which
are to be dealt with in ali respects as private in
heritabe property subject only to the special Leg
lslatve restriction on the manner of their descent
But His Majesty Kanlehameha ~ was possessed
of other property. both real and personal. at the
time of his death, not affected with the special
character attached to the reserved lands The
descent of that part of his estate must be governed
by the general law of inheritance and distribution,
and Her Majesty Queen Emma IS therefore emit
tied as statutory heir to one half of that property,
after the payment thereout of such portion of
the late King debts not specifically charged
By mortgage or otherwise upon the reserved lands.
Debts of the latter class ought clearly to be paid
out of the estate encountered Herewith
In consonauce with the findings of the Cont the
Legislature passed the Acts of Dec. 81. 1864, TO
make a permanent settlement on Her Majesty
Queen Emma and of Jan. 3. 1865. TO relieve
the Royal Domain from membranes, and to
render the same inalienable." The former pro-
vides an annuity to Queen Emma on condition
Of her release of dover in the Royal Domain By
the second Act the Government is authorized TO Is
sue excheequsr bonds for the payment of mort
cages on the Crown Lands, to be repaid with in
.erest from the income thereof In 1866 the Legis
AZURE assumed the payment of these bonds and
released the estate clear to the Commissioners.
1t is plain from the foregoing citations and
that the premises here In question are
lot portion of the Crown lands of which the con
rol IS vested in the Crown Land Commissioners
Who are here Defendants, and that they descended
o the personal heirs Of Alexander Iiholiho, who
ras Kameharneha ".
The learned Attorney General, on the part of the
efendantE, submits that the plaintiff Is estopped
rom asserting her legal title on two grounds:
i. That if it had been the property of Kameha- |
neha ~ it must have been sold to pay his debts |
?. That he having accepted the relief from the 1
government, the Crown has now acquired this 1
roperty-
He introduces the testimony of GoF.J. o. Dominis i
D this effect, that he was the Administrator of his
iziesty Kamehameha Nv. succeeding Mr.. Vim. late 4