The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-03-28

OPINION OF THE COURT PER JUDD, c. J.
This is an action of trespass begun
in the Police Court of Eva, Oahu, by
which plaintiffs claimed that the de-
PENDANTS had unlawfully entered the
sea fishery of Auiole, of the Ahupuaa
of Waikele, Eva, and taken fish
therefrom 10 the damage Of the
plaintiffs, the lessees of the said
right, $500. The plaintiffs are the
lessees of Mr.. and Mrs. G. A. Brown
who own the land of Auiole and
claim the fishery of Auiole as appur-
tenant to it, and defendants are
lessees of Mr.. James Campbell who
owns the land of Honolulu. The
case was tried on appeal before a
jury in the Supreme Court in July,
1892, and verdict rendered for the
defendants. The plaintiffs moved
for new trial on the ground that
the verdict was contrary to the law
and the weight of evidence and also
alleged errors of law occurring dur
ing the trials as follows:
~ The refusal of the Court to ad-
NIT in evidence in rebuttal and in
contradiction of the defendants
theory of the case, the records in the
case Of Akeni VS.. Wong Ia Mau, on
the ground that such records ought
to have been offered in chief.
~ The refusal of the Court to adj
NIT in evidence in rebuttal and in
contradiction of the defendants
theory of the case, that the fishery of
"Auiole" is not and never was subject
to the "chin deep" principle sought
to be established by the defendants
(which principle was admitted by the
plaintiffs to be applicable to the other
fisheries of the lagoon.
The first ground for a new trial,
that the verdict was against the
weight of evidence, was not argued
nor relied upon by plaintiffs.
An inspection of the records of the
case and of the evidence sent up
makes it clear that the evidence put
IN by the plaintiffs was for the pur-
pose of showing that the fishery of
"Auiole" extended out from the
lagoon Tor what is known as the west
loch of Pearl Harbor), and was
bounded by certain points of land,
and would include within its limits
the spot where defendants had taken
the fish. The contention on behalf
of the defendants was that the fishery
appurtenant to the land of Honouli-
uli extended from the shore of Homo
uliuli into the Loeb and across it to
where, on the opposite coast, man
could touch bottom with his feet.
That is, all the deep water over
a mans heighth was included
within the fishery of honolulu"
and this would include the spot
where the fish in question were
taken.
1t is true that an action of trespass
does not necessarily involve the title,
its gist being the injury to the pos
session; but title may be involved,
and, from the way the case was put
to the jury, it is clear that what was
equivalent to the plea of " liberum
tenementum," or justification under
special plea of title, was made by the
defendants, and the issue for the
jury to pass upon was whether the
fishery of "Auiole" extended to or
near the middle of the west loch, or
whether it was limited to the shallow
water near the shore whose depth
was up to q mans chin. The de
PENDANTS contended for the "chin
deep" principle the plaintiffs con
tended that the fishery of "Auiole"
was an exception to this principle.
1t was, then, the plaintiffs case to
put in all competent evidence in chief
to sustain the boundaries of the fish
ing right as claimed by them, and
the defendants having closed their
case, it was not rebuttal to offer evi-
dedce of former adjudication of
fishing right in another part Of the
lagoon, or to establish the exemption
claimed for " Auiole" of the schin
deep" principle. These facts were
what the plaintiffs witnesses had en-
deavored to establish in chief, and it
would have been cumulative evidence
and not rebuttal if put on after the
defendants had closed. Where the
title is the issue in an action of
trespass it becomes similar to the &C.
ton of eiectment. and the burden is
upon the plaintiff to prove his title
If the record of the Akeni v. Wong
Ia Mau case had been offered in eYi-
dence as part of the plaintiffs case
in chief. it is impossible to ascertain
from the bill of exceptions what rele-
vsncy it had to the issue then tried.
If it was for the purpose of showing
that another jury had found that in
another part of this lagoon the
boundary Of the fishery of 1Honouli-
ulip extended to the middle of the
lagoon, this verdict would not be con
elusive in regard to the title claimed