The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-02-28

date Of the Act OF 1850, occupied and in
use as site for a school house, it did not
and could not pass to Gruben by the
lease of Kamehameha Ill. OF March 7,
1858.
1t is urged that the title to the lot in
controversy is not controlled by this Act
because sites for school houses "owned
by private parties" are exempted from
the operation OF the Act. and as Kane
hameha Ill owned the land of Pokii, he
as 'private party" would own the
school site within its boundaries, unless
IA written grant OF the lot from him be
shown. We regard this argument as I'M
sound. The sites of school houses con-
templated by the Act were those for the
public schools supported by the
nation, and the clause "and not
owned by private parties" was intro
duced for the purpose OF excepting pri-
vate schools, of which there are few
instances mainly in Honolulu, from the
operation of the Act. When the site was
taken under the Acts OF 1910 or 1916, for
public school, Section of the Act of
1850 applies to it.
The Act required the sites of school
houses or houses for public worship then
in occupation, referred to In Section Z, or
thereafter, to be taken for school house
sites, referred 10 in Section 9, to be sur
veyed as we'll as the lands connected
Herewith. and registered in book, to be
deposited in the office of the Minister of
Public Instruction for the use of the
Kings Government, the expense OF the
surveys to be betrayed out of the avails
of school lands--clearly showing that
only public schools, supported by the
State, were referred to. We have init
mated that the taking of the sites by the
State was valid even if out of lands then
owned by the King. The King is not
specifically named in Section of the
Act, but the word "chiefs" which in the
Hawaiian version is "na Lii" would in
clude the King. The King was in an
cient times often called "ke Lii Nui,"
"the great Chief" and he is still called
"Ke Lii" Vide declaration of Rights
of kamehameha III. and Kekauluohi, OF
October 8, 1910, on page 5 of the Ha-
waiian version.
Having thus settled what We deem to
be the law which should control this
case, brief review of the facts estab-
lished by the evidence becomes neces-
sary.
We find them to be substantially as
AOiAONo. ~ SoIHCtlihC lOuS W 1910,
grass school house was built on the lot
in question and was occupied as school
until it was replaced by wooden one in
1862. A survey of this lot, of two acres
in extent, made by J. w. Makalena, a
surveyor employed by the Department
of Public instruction, dated the I'd of
February, 1853, approved by the Minis
ter of the Interior and the Minister OF
Public instruction, January IL, 1854, is
in existence on the files of the Land
office. This school house site was used
as such until 1886, when the school house
was removed therefrom by plaintiff.
Omnia praesumuntur sOlenniter esse
acta.
''All acts are presumed to be rightly
DONE" The survey of the site for the
school house made regularly according
to the Statute of 1850, while it was in
force, is presumptive evidence first, Of
the fact that the site was in the use as
such when the Act was passed, and,
second, of the fact that it had been
granted for that purpose by it's owner the
King.
At this lapse of time, when nearly all
the actors in these transactions are dead,
We are authorized to infer that the site
in question had been taken for 8 school
house and was used and occupied as such
when the Act of 1850 was enacted. This
presumption is reinforced by positive
testimony that ut some period previous
to 1858 a grass school house had been
built on the lot and was occupied as a
public school, and by the fact that it had
been used and occupied as site for
school house thereafter and until 1886,
when the house was removed by Plaintiff.
Having come to these conclusions, it is
unnecessary to discuss many matters
upon which the evidence is contradictory
and uncertain.
We cannot find that the Royal Patent
No. 80, which is proffered by defendant
as its title, was issued, as far as plain
tlff's rights are concerned, without au-
thority Of law and inadvertently. The
title of the defendant as a Department
of the Government in charge of the educa-
tional interests Of this Kingdom to this
lot would be good as against plaintiff
without the issuance of this Patent to it,
But the Patent was regularly issued i'm
pursuance of an Act of the Legislature of
the 18th August, 1880
The decree of MIR. Justice Bickerton
dismissing the bill is sustained.
"A. +. JUDD,
l.. MCCULLY,
RICH'D +. BICKERToN.
A. S. Hartwell for plaintiff; A. p.
Peterson. Dep. Acknowledgement for de-
PENDANT.
Honolulu, February "a, 1890.
MIR. Justice Dole heard the arguments
in this case, but left for California before
the opinion of the Court was arrived at.