The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-01-22
Dissenting Opinion OF FIR. Justice
Dole.

AO1Ss
The main question raised by plant
ifs exceptions to the findings and
Judgment of the Court below, is
whether or not, Lot Kamehameha,
being a minor during the time linn
tied bv the Board of Commissioners
to Quiet Land Titles for the present
ing of claims, was deprived of what
ever interest he had in the premises
in question through the non-presen-
tati0n of his claim by him or by any
one for him. Wood on Limitation of
Actions, Sec. l, says, "Statutes of
limitation are such legislative enact
ments as prescribe the periods within
which'actiOns may be brought upon
certain claims or within which GER
tain rights may be enforced" The
statute creating the Board of Com
missioners provides for such a llmita-
ton, (SectiOns ) and s. but the prin-
ciples adopted by the Board of Com
missiohers and confirmed by the Leg
islature, extended the force of the
statute TO the extent of declaring that
the titles of all lands which shall not
be presented to the Board for adjudi-
cation on or before the 18th day of
February, 1913, shall vest in the Gov
eminent p Statute Laws 93). This
feature of the law adds to its severity
and takes ii somewhat uot of the
description of a statute of limitation
OF actions given by Wood, and is spe-
cially important in considering the
rights of a minor under this law, be-
cause its action upon failure to pre-
sent claim within the time limited,
is i'll the nature of Il decree of court
adiudicating the title of real property.
The only similar statutes that ] know
of are the Act of Congress of March
3d. 1851, for establishing a commits
sion for the settlement of private land
claims in the State of California, and
other United States laws for the set
Element of private land claims in ter
ritory acquired by the United States
from other Governments, and the pos
sessory law of the Island of jamaica,
hereinafter referred to. The Act of
Congress OF 1851, however, differs
from the Hawaiian Statute estab-
fishing the Land Commission, in
that, the former contemplates only the
adjudication of the question Of title
between the government and the
individual, while the latter makes
the decision of the Land Commission
in favor of a claimant, the creation of
an absolute title, Communication being
settled, against all the world. Act
to provide for the dissolution of the
Board of Commissioners to quiet land
titles, See. 3, approved July Goth,
1879. 1t is evident from this, and
the provisions of the "Principlesn of
the Land Commission q Statute
Laws 92) for the decision of contested
claims, that the proceedings neces-
saTy to the filing and hearing of a
claim before the Land Commission,
were in the nature of Il suit at law,
requiring adult intelligence and COM
potency. This necessity is empha-
sized by the following words of the
"PFinciplcs" of the Land Commits
sion. "Parties who thus neglect to
present their claims do so in defiance
of the law, and cannot complain of
the effect of their own discretionary
q Statute Laws 93-9N words which
may apply to adults but never to
infants. The principle of Il rule of
limitation of this kind as set forth in
the Hawaiian Statutes and elabOr-
ated in the Principles of the Land
Commission, clearly is something like
the following: that those who do not
file their claims within the time linn
tied, either waive their rights and
voluntarily give up their interests, or
willfully or carelessly neglect and sac
rifice them; the failure to act in either
supposition could only, by the weight
of authority, prejudice adults; infants
not having the legal discretion to
waive their property interests or to
sacrifice them through negligence,
the control of their persons and prop
erty having been placed in their
fathers hands by the same act which
created the Land Commission.
/ have carefully examined all the
authorities referred to by the plain
tih's counsel, and the opinions of the
majority of the Court upon this point
and many other cases beside without
finding sufficient reasons for changing
my views set forth in the decision APP
Pealed from.
The cases upon the status of infancy
rs affected by statutes of limitation
referred to with approval by the
plaintiffs counsel are:
Whittingham's Case, Ewell's Lead
ing Cases on Infancy, etc, 50.
Nils as. Dennis, Johns. Ch. 36S,
and EwelfS Leading Cases, 234
Han rs. BuBlStcdd, 20 Pick, s.
Bedford u.s. Wade, II Vesey, Jr. 81.
Bryan is. Kamett, 113 L. :. 1T9.
The cases referred to by the majority
of the Court in support of their con-
illusions upon this point are:
Hall u.s. Bunlstedd and Rockford as.
Wade, quoted by plaintiffs counsel,
and
Demorest rs. Wyakoop, Johns. Oh.
l29.
Ben rs. Morrison, Peters, 800.
Fisher rs. HagndeB, Paine Cir. CT 81
McCJuny Us. Sillindn, 8 Peters,
go.
Laaaui as. Puobt, Haw. 1852.
Kdmebdmeha as. KdhookdRO, ,
Haw. rs.
find, upon examination, the fol-
lowing particulars and features of
these cases, which weaken their au-