The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-04-16
In the Supreme Court of the Ha-
waiian Islands-In Banco. Spe-
cial Term, March, 1889.
ROBERT HALsrEAD VS.. JAMES GAY.

OpWtOR OF the Court per McCULty, j.
The case GENES by appeal of the
defendant upon matters of law from
the decision of Mr.. Justice Preston
sitting as Intermediary Court, y
who rendered the following opin-
ion:
This is an appeal from a decision
of David Dayton, Esq, Police
Magistrate of Honolulu, whereby
he gave judgment in favor of the
plaintiff for one dollar damages and
costs in an action of trespass upon
land of the plaintiff, is particularly
set forth in Royal Patent 276, dated
the 30th day of May, 1851.
Phe following agreement was en-
tered into by counsel on behalf of
their respective clients:
"The said parties hereby mu-
tually agree that for all the pur-
poses of the said cause, and of the
Judgment to be made, the PLAINTIFFS
exclusive possession of the land on
which the alleged trespass was COM
mitted was at the date thereof con-
structive only, and based upon the
title claimed by the plaintiff herein.
"2d. That the land on the sea-
shore, makai of the limit of the
land described in Royal Patent 276,
has, by imperceptible accretion, be-
come attached to and a part of the
mainland described in said patent"
Upon this statement l have to
give my decision. 1 have no doubt
as to the law on the subject.
Land formed by alluvion, or the
gradual and imperceptible accretion
from the water, and land gained by
reelection, or the gradual and imper-
ceptible recession of the water, be-
long to the owner of the contiguous
land to which the addition is made.
See Rec Us. Marlborough, Barn &
Or, 81.
Clifford Us. Marlborough, Bing,
1853.
Gould on Waters, 2S4.
Angel on Tide Waters, 249.
Woolrych on Waters, 81.
Phear on Rights of Water, 30.
COulson & Forbes on the Law of
Waters, %.
Washburn on Real Property, vol.
3, p. 80; and the various cases and
authorities therein cited.
l therefore find that the land
upon which the trespass was COM
mitted belonged to the plaintiff,
and affirm the decision of the lower
Court with costs.
BY THE COURT In this appeal
defendants counsel does not seek to
contrOvert the law as cited and de-
clared in the Court below, but claims
that the description and bounds
given in the patent do not permit |
the owner of the patented land to
claim the rights of riparian or
littoral proprietor, the land and sea
being claimed to be not cOterminous.
In determining this objection, it |
will be useful to set forth more |
fully the terms of the land grant in
the Hawaiian language, and to give
our translation and exposition of |
the Hawaiian phrases used to de-
scribe the boundary in question.
The lot is a long parallelOgram,
the upper end lying along certain
government road, and running sea-
ward.
The first course is of 6S chains
ga hiki kahakai THE third
course, being on the opposite side
of the strip is of Sc chains-"a
hiki i kahakai )" the fourth and
last is "ma kahakai hiki ka
hope ka holo mua ana" without
distance given.
Kahakai is compounded of the
words kaha and kai. Kaha means
primarily scratch, or mark. Kai
means the sea, or salt water. Ka-
hakai, then, means the mark of the
junction or edge of the sea
and land. See Andrews Hawaiian
Dictionary. They are common Ha-
Waiian words, known in this signi-
tication by all who understand the
language. By extension of the
term beyond its strictest etymo- :
logical meaning, it means the sea-
shore, the sand of the beach, and
still further the region of country
on the sea. We hold
that in the description of this sur
yey it means the high-water mark :
IN the sea beach. &" a hiki i kaha-
lai" is then to be translated {
reaching to high-water mark"
and "ma kahakai a hiki i ka {
nope ka hoIo mua ana" is rem t
Tered "'along the high-water mark l
o the end of the first course" The i
Orm of the survey is peculiar. t
Starting from one corner on the
Dad it gives a course and distance t
o the sea; then returning to the {
initial corner it gives the course {
md distance along the road, and 5
hence course and distance 10 the G
ca, and closes the survey by giving '
he kahakai line without stating
What the course or distance may be q
0 the point where the first course I
trikes kahakai. a
The intention is clear to grant to
he sea. and make il cOterminOus +