The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-01-08
IMPORTANT BANC0 DECISION.

UphoIds Claim of Minister OF the In
terror to Kamehameha Lands-Jus-
tice Dole Dissents from Reversal Of
His Previous Decision.
A very important opinion OF the SUI
preme Court in baneo, Justice Dole dis
sentinc. was fled on Thursday. January
Sd. It was in the suit OF ejectment OF
Lorrin A. Thurston, Minister OF the In
terror, vs.. c. R. Bishop, s. NJ. Damon,
c. N. HYDE, c. NJ. Cooke and ]. o. Car
Ter. Trustees OF the Estate OF Mrs. B. P.
Bishop, deceased. BY consent jury was
waived and the case heard before JUS
ice Dole at the last July term. That
Justice on July oath gave decision,
previously reported, in favor OF the de-
PENDANTS. The chief ground OF His
Honor's decision was that Lot Kameha-
.neha, from whom the title descended to
the tesiator in question, was a minor
when the celebrated Land Commission
made its awards, and as such could not
Re bound by the neglect OF his guardian
70 have his title to the land in question
established by the Commission. This
upon the recognized principle OF law
that an infant cannot be held to acts of
MS guardian to the infants prejudice.
An appeal was taken from this decision
70 the full bench and there heard for
and against. A. S. Hartwell was coun-
sci throughout for the Minister OF the
Interior, and Paul Neumann and f. NJ.
Hatch Tor the Bishop Trustees.
The opinion OF the full Court, by Chief
Justice Judd, is filed as above, reversing
Justice Dole's decision after voluminous
reasoning and citations. Thirty-three
pages OF legal cap are occupied with the
opinion, seven pages being taken up with
the quotation ii full OF the decision APP
nealei from. Justice AIcCully files
concerning opinion that fills ten pages.
Justice Dole in a lengthy dissenting
opinion upholds the reasoning and con-
illusions OF his former decision, maintain
ing that the plaintiff has no right to pos
session OF the land in question.
The majority opinion concludes in
these words: Having found that the
infancy OF Lot Kamehameha is no de-
'iense to this suit. we find, upon principle
and authority, that the plaintiff, upon
al the facts. is entitled to recover pos
session Of the land described in the de-
claratiQn. and accordingly order judy
nent - be entered in his favor as in the
nature OF 4 judgment non obstante
veredictO" Notwithstanding the verdict,
or judgment).
The land sued for by the Minister OF
the Iuterior-for the Hawaiian Govern
southwest OF the city plot. 1t is an inn
mense tract extending TO the head OF
Makiki valley and including part OF
Pauoa valley. The original plan OF the
Trustees regarding the hamehameha
Schools was TO have the School for Girls
established upon this part OF the estate,
the BOYS School being erected on the
lands at the opposite end OF the city.
The importance OF the majority decis !
ion Just rendered IS wherein it may
affect land tenure in respect OF other !
estates throughout the Kingdom. l. is |
impossible at this writing to say to what 1
extent such may be the case. \ prom |
luent lawyer, interviewed upon this 4
point. said there were undoubtedly many |
estates the tenure OF which might be /
attacked under this decision. He added !
that the majority opinion implied that /
the Judges regarded the Land Commits |
sion as an authority for creating land !
titles instead OF one for determining
them. The same gentleman was asked !
i the Trustees could have the case re-
opened, by writ OF error or otherwise. |
He replied that the issue could be tested
further by bill in equity, but there was
no opening for review OF the case
through a writ OF error. There was no
error IN the proceedings. The case
turned upon the rights Of minors and the
powers OF the Land Commission. When
that body was created by law, Consti-
tuition was in existence, which declared
that no person could be deprived OF pro-
petty without due process OF law.