The Hawaiian gazette., 1883-03-14
Baluaiiall Gazette.
"WEDNESDAY, MARCH "A, lsss.

Action Of eiectnent tried before Mccully, !.
the jury being waived
The ROYAL plaintiff the relict Of his late Majesty
kamehameha ". brings this action for the recoV-
CRY OF one undivided mOiety OF ten certain pieces
OF land in her complaint described -.
II linist the complainant discontinnes as 70 vi
fourth. seventh and ninth pieces. The several
pieces except the tenth, are parts OF Land Coh-
mission Award No. 10 SOC 30 His Majesty hameha-
mcha III. Tho origin Of the title Of these lois
differs from that Of the body Of lands now known
as the Crown Lands in several particulars Inc
Crown Lands, as appears BY the Act to relieve tne
ROYAL Domain from membranes and 10 render
the same inalienabo. January 3, 1860, are constl-
tuted Of schedule Of lands set forth IN the Act OF
June : 1875, relating TO the lands OF His Majesty
! The King and Of the Government. BY this last
named Act this enlightened and magnaninous Sow
creign laid the foundation for the tenure of real
estate now subsisting. BY separating his ownership
| in all the lands Of the Kingdom conformity with
s-Ine recognized but not well defined rights OF his
chiefs rulinquishinG To the general government for
just distribution 10 claimants and for public own
ership the greater part OF the territory, and rescry
ing for ms individual ownership, a royal estate
which was catalogueu IN the Act The pieces of
! land here IN question were awarded 10 kamehame-
ha H. sN OF seven years subsequently, July 9Th,
] 1884, January II, 1850. and March q $50. They
are not Lbs or Ahupuas described merely by Ganne,
but surveyed lots Of moderate size one being six
! tenths Of acre, one IS Il acres. kanehameha
III died on the 18th December, 1854 subsequent to
the award Of all the pieces but the first Thec claims
on behalf OF his estate in the ordinary proceed
ure of Land Commission business, as when appli-
! cation was made BIZ private persons for kuleana
| awards. some Of these were disputed, and testi-
| mony taken 70 determine the richtful claim
ant Tho tenth piece in the complaint was awarded,
\ by Award G752, 10 Nuuann and kamehameha III,
| and deed Of partition was made August 90 1855,
/ between Nuuanu and kamehameha ". The pisces
/ thus awarded passed into the estate of kRmeha-
Inoha III, together with the aforementioned
] lands reserved.
The estate Of Kainehamela Ill as well as the
| throne passed to kamehameha ", who continued
to treat the Royal Domain. as his predecessor had
done, as his private estate selling and mortcagine
pieces thereof occasion suited, his consort join
/ ing in the deeds to release her dover. UPon his
| decease intestate, November %, 1855 the throne
passing TO his brother by the provision of the viii
! Of kamehameha Ill the question of :" the descent
OF the properly held and possessed by his Into Ma
/ icsfv kamehameha " came before the Supreme
| tlourt uuoi 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 the intimate acquaintance with
the origin OF land tcuureS II this Kingdom defiv-
/ ed from his labCTs one of the Board of Com
l mlssloners TO quiet Land Titles. The Court had
access 10 the journals Of the Pryy Council. and TO
the records Of all the transactions leading to the
present system Of land titles, and the progress If
ideas and events Is LUMINOSITY set forth IN the
I decision, which must always remain among tho
/ most important contributions TO Hawaiian His
/ tory. md Haw. Rep, p. &c.
As having controlling influence on the findings
IL this case and having been the basis of snbse-
quent legislation it is we'll TO quote at large hero
! the concluding paragraphs Of that opinion.
81" In our opinion. while II WAS clearly the intei-
inn Of kamehameha III 10 protect the lands which
he reserved To himself ont of the domain which
had been acquired by ais family through the Prov
ess and skill OF his father the conqueror. from the
danger Of being treated public domain or Gov
eminent property. II also his intention to pro-
vide that those lands should descend TO his heirs
and successors the future wearers Of the crown
which the cJEqueror had won. we understand the
Act Of 7th June, 1875 having secured both these
objects Under TINT Act the lands descend IL fee I
the inheritance being limited however TO the sue
cessors 70 the throne and each successive posses
sor may regulate and dispose Of the same accord
ing TO his viii and pleasure, private property, in
like manner as was done by hamehameha III.
g In our opinion the fifth clause Of the will Of |
hamehameha III was not necessary TO pass the l
reserved lands 10 kamehameha w. any more than |
the first clause was necessary 10 pass him the |
crown. BE was entitled 10 inherit those lands by 4
force OF the Act o. 7th June, IS4S when he succeed
ed to the crown in virtue OF the proclamation
made by his predecessor With the consent of the
H0usu Of Mobiles, and he entitled Us tho adopt
ed son Of kamehamoha III 10 inherit the remain
der Of his estate not devised 10 any one else sub
iect 10 dover.
We are clearly Of opinion also that Her Ma
lesy Queen Emula IS lawfully entitled 10 dover in
the reserved lands. except so far as she NAV have
barred her right therein by her o0n act and deed.
There Is nothing in the act OF 9TH June 1873 which
can TIC understood rs taking away the Queens
right 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 hamehameha III
ana his Successor as TO dover in those lands which
are 10 be dealt with in all respects private in.
heT1able property. subject only to the special leg
isatiye restriction on the manner of their descent
But His Majesty hnHehamela " was possessed
Of other property. both real aud personal, IT the
time Of his death, not affected with the special
character attached 70 the reserved lands. The
descent Of that part OF his estate ust be governed
by the general law Of inheritance and distribution.
and Her Majesty Queen Ennma is therefore enti-
tied as statutory heir TO half Of that property
after the payment thereOut of such portion Of the
late Kings debts as are not specifically charged by
mortgage or otherwise upon the reserved lands.
Debts of the latter class ought clearly 10 be uail
out Of the estate enCumbered Herewith.
In consonance with the findings OF the Court the
Legislature passed the Acts of Dec. 81, 1864 To
make permanent settlement on Her Majesty
Queen Ennna, and OF JAM 1865. 81 10 relieve {
the ROYAL Domain from Membranes and to /
render the same inaIeuablc." The former pro
yldes an annuity 10 Queen Emma on condition of
heI release Of dover in the ROYAL Domain. By the
second Act the Government Is authorized to issue
e1chequer bonds for the payment OF mortgages on
the Crown lands TO be repaid with interest ! !
FROM the income thereof. IN 1866 the Legislature
assumed the payment Of these bonds and released
the estate clear TO the Commissioners. ,
II Is pialn from the foregoing citations and state
leni sthat the premises here in question are not
portion Of the Crown Lands Of which the control il
vested in the Crown Land Commissioners who are
here defendants. and that they descended to the :
personal heirs Of Alexander Liholiho. who was IA
~. T..
The learned Attorney General. on The uart of /!
the defendants, submits that the plaintiff is estou
ped from asserting her legal title on two grounds:
I. That if 1t had been the property Of kameha-
-neha ~ il must have been sold to pay his debts ~
= That she having accepted the relief from the
Soye rnnent. the Crown mas nov acquired this n
property. :
He introduces the testimony of C;ov.I O DOM I
20 H, Al.
bis Majesty kamelilmeha " succeeding Mr. VIM
W elster. the deCease Of that gentleman and I :,
continued Administrator till theesae was settled
Pursuant 20 orders from the Probate Conf he | q
sold, be supposed all the private lands Of The +
Royal decedent. he took possession of the Pa Moo Z
he lots at Waikiki and the other lots embraced !,
n tins action No claim was made at that time BY =
he heirs Witness was Crown Land Commits ! y
TONER from 1864 TO ISIS, and the agent for Crown
2nds lie was also the business agent for Queen =,
Emma from 1854 TO 1874. He did not as such y
gent. consider that they belonged % her fthe ii
leirs. These lands would have been sold at that i
lme Il he had supposed they were Of the estate of
II. y
Cross examinaiion:-I don't remember mort "
age on Pa Moo, but think there was one. Re y
lved the income from Pa Moo, the lands at Wal n,
lsi and lahalna during the period of my connis -
ionershlp. The lands sold were direct grants 20 ~
7 purchases by l1holiho. Considered the others
o be Crown Lands.
Counsel agree that there were no mortgages on "
ny Of the premises in this case the mortgages be- N
ng on Crown Lands and other lands than these "
The probate records Of the estate Of Kaneha n,
1eha " having been placed IN evidence iv the "
laintlti find that there were sundry orders Of n,
ouf for the sale Of real estate with confirmation ~
sales that the Administrator received S97OOl ~
from the treasury for the release of rnortraos :.
scured on Crown lands. and that at the final
5ttement OF his accounts and discharge January IN
IN. let9 there vas balance due the estate Of ne
s,Vl4-I6- rs by the account There were suniry n
riders Of tine Court respecting sundry items. and a.
e concluding order was that the Administering ~
discharged from further res0nsibilitv the resi- ~
Ne m his hands amounting 10 S-S6l4 being or NJ
cred 90 be paid to the Commissioners Of Crown =
auds OF whom the court is apptised the Admins
alor IS hfnsef one, and Is their business AGENT =
The learned Counstl for the defendants admits 10
argument that the heirs Of Kanleha1neha ", nr
wing had the advantage Of the statute of 1861 ~
Do no claim having been made against the pos
ssion Of these pieces by The Crown ere now Is Oh
ppcd hat the $1,000 was Z gift TO the Crown / of
nos 10y the nnt1on aud II makes difference 10 ma
en- that il was not payment nom Crown Lands f.
2 the release Of membranes whereby the re-
ainder OF the estate saved That on the Gift
the Government Of this sum for the navmenf m
the debts Of deceden any private lands not sold ~
main charged with payment Of that sum and IA,
IN au sums advanced by the administrator | M
hat i Ibis is g The efendants in the posi- Or Or
m Of q mortgage in possession till the amount
vanced shall be fully paid
OF the plaintiff II Is commended that title As to lev
moieiy vested IN her on the death of her Rova ~,
is1Ft that no act Of the Legislature can evest mr..
2 d hef private property and no voluntary as Ger
inpuon Of the debts of her husband can impose M
en on ier estate That these several rieceS not fas
ins enumerated and made Crown Lands and de-
wing been vested in kamehameha " by a dif- TO
rent form Of title were not affected BIZ statutes al
iating TO Crown Lands. And. finally that lie tbe
ca Of estoppe and Of equitable lien could not no.