The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-02-13


This case came to the Supreme Court By appeal
from the intermediary Court Of Oahu. The orig
inal controversy is as to the line dividing the fish
inC grounds respectively of the lands Of Homo
uliuli and Waipio in Pearl River, an extensive
loeb IN the island Of Oahu. The exceptions relate
to the ruling Of the Court upon the effect of cer-
tain proceedings had before the Boundary Com
missioner Of OIhu. The following are the in
structions asked for by the defendant and refused
and the instruction given by the Court:
l. That the plaintiffs lessons are estopped from
now disputing the fishing right of Honolulu be
ing present and asserting thereto and the right of
Waipio being then passed upon.
>. That If the jury are satisfied that J.. homO-
ksehuehu was present he being the co-e1ecutor OF
the Chief Justice and asserting, either of them
that such assent to the finding Is binding between
the owners Of WaipiO and honolulu,
3. That if the Jury find that either of them was
present, it is strong evidence in favor Of the de
PENDANTS.
Which directions the presiding Judge declined
to give but directed the jury that the lessons Of
the plaintiff not bound by the proceedings
before the Boundary Commissioner so far as re-
garded the fishing rights claimed. And that the
case must be decided according to the law govern
ing prescription in this country as no grant is
shown
A copy of the record of the Boundary Commits
sioner is attached to the Bill Of Exceptions and
| We cite from it as follows
The present ease IS 4 claim Of right of piscarJ
| over a naviCabls bay or loeb perhaps unlike any
other in the Kingdom, and Is 4 claim of exclusive
| fishing right as to the whole of 4 certain branch
Of the part lying outside of line 'chin deep Op
posite the other lands situate on this branch. Il
i Is distingUisha5le from the right claimed and by
statute given to kouohiki with certain reservation
| Civil Code Sec. esp being claim as a private
/ and exclusive fishing right completely tia
within his chin deep" line is claimed for th'
| lands adjacent
Il find in repeated instances that the Board de
clIued to award and define piScary rights, leavln!
parties to their rights under general statutes e.
IN the award to Kiahua vol. 10 p.jO where the shn
right was surveyed aud included in the land aske'
for, the Board expressly refused to award thu pOr
ton of the survey renting the claimant to tn
Law. endorsing this refusal both on the notes o
| survey in the award and on the accompanying
plot: and no instances of contrary practice ar
shown to me-
sUpon due consideration OF the premises, | de
cline to award the fishery of HONOLULU RICH
or as territory but deeming If of Importance tina
all rights depending on kamaaina testimony b
now settled as far as may be, and knowing of Il
/ better place than the records of the BOundar
Commissioner for the preservation of such claim
l take the testimony offered on the subject an
make such a supplementary finding as such te;
timony warrants
| ''Fishiur Rights Of HOuouliuli in Pearl Loch.n
| "FOr reasons set forth at large IN the record {
the Commissioner. the Fishing Right is not aEarI
ed in the body Of the certificate of boundarie
but the finding Of the Commissioner on the test
mony presented a. we'll as by the assent of partis
adjacent and interest is set forth in this suppl
| ment to wit:
| We think there Is but one sentence in the abOI
citation which colOrably supports the prUpOsitiO
| Of the defendant viz; the latter part of the la
quoted sentence, these words, 1.-THE finding of Il
Commissioner on the testimony presented as We
by the assent of parties adjacent and in intere
Is set forth IN this supplement as follows" Be
these words even taken by themselves, fall sho
of a claim to jurisdiction. The finding is called
supplement and IS excluded FROM that which Il
, Commissioner considered himself authorized
make. The assent of all parties must be taken
mean their assent TO taking the testimony, sr D1T
Tor preservation which the owner of Honolulu
wished to present for preservation. But the d
termination of the Commissioner to take test
In0uy must be considered in view of what he ha
above expressed. Nothing can be more eIplic
and void Of uncertainty than these words, "upC
due consideration Of the premises | decline to
ward the fishery as a rigEf OF as territory" I
gives the authorities and reasoning by which
arrives at this conclusion. How can 1t be no
claimed that right or territorial line has been
Earded By an officer when he has positively decli
cd to make it, And how could the presence Of Il
representatives Of Waipio be held TO give assent
something which was not done at allf
We therefore override the exceptions
5. Is. Dole for plaintiff; Z. Preston and Ger
! Brown for defendants