The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-12-31

DIARIES OF hAPOINO, IN w Al
EHU, MAUI.
BEFORE JUDD, CD, M'oULLY, PRESTON, BECKER
TON AND DOLE, u.
Opinion of the Majority of the Cour
by Judd, c. J.
This is an application by the Ha.
waiian Government to have the
boundaries of the Iii of Kapoino, in
the Ahupuaa of Waiehu, Island Of
Maui, settled.
It is contested by the trustees OF
the estate of Lunalilo, in whom is
the title of Waiehu. The boun-
diaries of Wa;ehu are settled, and
whatever is not shown to be the Iii
of Kapoino remains as part of the
Ahupuaa of Waiehu. Testimony
of persons familiar with the boun-
daries of lands in this kingdom is
becoming more and more difficult
TO obtain as the old Hawaiians die
off, and appeals from Boundary
Commissioners present questions of
fact difficult to settle. The evil
dence of native residents is taken
by the Commissioner in his district
and reduced to writing, and the
notes sent up to us on appeal.
The Appellate Court not having
the witnesses before it, is deprived
of the means of forming correct
opinion as to the veracity and ex-
tent of knowledge of the witnesses,
for on paper all witnesses appear
equally well and equally credible.
For this reason, a well considered
Judgment of a Commissioner of
Boundaries is entitled to great re-
spect, and should not be set aside
on slight grounds. In the case be-
fore us, we have the testimony of
several witnesses, the general effect
of which will carry the boundaries
of the Iii of Kapoino down to the
sea, and embrace within its limits
not only the taro lands, which con-
stituted the main value of the land
in early times, but large quantity
of comparatively worthless land,
consisting of level land not then
cultivated, and sand hills. The
boundaries, as claimed by the petit
TONERS, after they leave the points
which both sides cOncede to be the
boundaries of the land in question,
run straight to the sea, not following
any ridge or gulch or any natural
land marks. This fact, although
not conclusive against the claim of
the Government, is unusual unless
some satisfactory reason is given
for it. Only one witness positively
limits the extent of this Iii as
claimed by the trustees of the es-
state of Lunalilo, contestant, but
this witness, Kaaimalani, had been
a konohiki of Waiehu for a number
of years, and appears to know all
the boundaries of the land in dis
pute, and the adjoining lands quite
thoroughly. A careful perusal of
the testimony on behalf of the pc
TONERS will show that though GER
tain as regards the land of Kapoino,
it is uncertain as regards other
lands adjoining. We think it far
more likely that the original char
acter of the Iii of Kapoino was
mainly kalo land and that it had a
fishing right on the sea; and that
the reason that the witnesses for
the petitioners have extended its
boundaries to reach the sea, is on
account of this fishing right, in
order that it might be embraced.
The witnesses for the petitioners
speak of two Ills, Kanaio and Ka-
hoana, as existing in the Iii of Ka-
poinO, above the Government road.
We are not aware of case of an Iii
within an Iii, and we think it i'm
possible. No one is able to give
the accurate boundaries of these
Ills, if they are Ills, and some of
the witnesses for the Government
say that they were a part of Wal
ehu: if this be true, they cannot
form part of Kapoino. 1t appears
to us that they are Ills belonging to
the Ahupuaa of Waiehu, distinct
for convenience only, and are not
IIi-kuponos, having an ownership
distinct from that Of the Ahupuaa
but their existence, even though
the boundaries are not well ascer-
tanned, affords strong proof that
Kapoino does not extend down fur
Their than to them, and certainly
not beyond them to the sea.
Upon careful reflection, we see no
adequate reason for reversing the
judgment of the Commissioner, and
therefore affirm his decision.
The Attorney-Gener for petit
TONERS; w. o. Smith for contest
ants.
Honolulu, Dec. IL, 1889.