The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1895-11-19

claims. The argument is made tina
as adverse possession prior to al
award of the Land Commission can
not be tackled on to adverse posses
sion subsequent to that date in orde
to make out the full period of twenty
years tKanaiDa VS.. 1 ong Haw. r
332) so the adverse possession cauno
be defeated by permissive acts or pos
session or entries antedating tn,
award. In other words the possession
OF person living on land by permits
sion of the chief before he obtained {
paper title to the land cannot be con
sidered in law as continuing to have
this permissive nature.
We cannot agree with this conten
ton. The Land Commission was 8
court and had full jurisdiction to set
tie all claims TO land, whether by
claimants of the larger divisions OF
land as divided in ancient times by
name, or by the hoaainas or natives
! living on the lands under the chiefs
\ If the Land Commission expired and
the hoaainas or native tenants neg
lected to present their claims for the
parcels of the land which they desired
and for which they would ordinarily
be awarded kuleana title, showing
merely their occupation of the same
as foundation for it, We think they
must be considered as content with
their prior status as tenants by permits
sion of the land owner. Such tenancy
would therefore, in law, be cousid-
cred as continuing until some act OF
theirs changed their holding from the
permissive nature to one of AL adverse
or hostile nature The evidence shows
that the defendants thought they had
right TO the land because they had
lived on it so long
The legislation in behalf of the
native tenants was extremely liberal.
We call especial attention to an Act
passed on the 9th August, 1850, where
fee simple titles free OF Communication
were authorized to be granted to all
native tenants or hoaainas for the
land occupied and improved by them
whether the same were portions of
government lands or land held by the
king or any chief or konohiki. House
lots, not in Honolulu, Labaina or
Hilo, not exceeding one quarter of an
acre, were authorized to be granted
and the cultivated ground or kalo
lands were limited to those actually
cultivated by the applicant. In Oni
V. Meek, 2 Haw. 81, this Court held
that the Act repealed the former leg
islation aud the ancient tenure, but in
the 9TH section preserved TO the peo-
pie, whether hOaainas by ancient
custom or kuleana holders, certain
specific rights as to take firewood,
house timber, thatch, &c, for their
own use. Judge Robertson says that
this Act had for one of its purposes
1.-THE protecting the hoaainas in the
enjoyment of certain rights therein
enumerated as against the sweeping
operation of the konohikis' allodial
titles" In Haalelea v Montgomery,
Id 81, the court held that the sale of
portion of an ahupuaa gave to the
grantee as tenant or hoaaina of the
ahupuaa common right of piscary in
the fishing ground adjacent; and that
in the meaning of the law regulating
fl ,heries, a tenant was any one occu-
plying "LoWfuLly" any portion of the
ahupuaa.
The argument might be made that
the grant of these specific rights, at =
tached 10 all persons living on any
shupuaa, whether kuleaua holders or
not was Inconsistent with their hold
ing as tenants at will of the land
owner.
This use of the word "lawfuln shows
that the court did MT intend to hold
that any person living without right
on the abupuaa whether a kuleana
holder or not, had the specific rights
granted to the people, 70 entitle
person to such rights he must be
'lawful" occupier, that il, have some
title whether 10y being the holder of a
kuleaDa, or having purcha-ed "a por-
ton of the ahupuaa, As WIS the case
before the court, or by some other law
full tenure. Now, if the hoaaina so
called, without paper title by kule
ana, remains on the land after his per
mlsslve occupancy has ceased either
by notice to quit or by his own act
of refusing To attorn, he cannot be
considered as being "lawfu occu-
pier" aud entitled to the specific
rights of the people above set forth.
1t seems to US that these specific
rights on an ahupuaa must be con
fined to those who have lawful right
to reside there whether upon kule-
anas or by the will of the owner. To
say that the old tenancy by will of the
chief or konohiki became au adverse
holding Is soon as the chief or kono.
hikl received his title to the land and
this without notice on the tenants
part that he held thenceforth adverse
ly, would give such person holding
thereafter for twenty years, to all in
a 4 10
to the land he held as if he had ap-
Piled for and received a fee simple
title therefor aud he thus be saved
the expense OF procuring such title.
The law did not intend thus to
favor those who slept upon their
rights
By the evidence the holding of
these defendants became adverse in
1885 when they refused to pay rent
The statute began TO run then. This
suit interrupts it. We think the
Judges charge was right and was
by the evidence.
The last point to be considered is |
that the record discloses that a Joint |
Judgment has been obtained against |
defendants who lived separate and |
apart from each other upon the same |
ahupuaa not claiming jointly or as
in commoD; but each for him
self on distinct portion of the ahu-
puaa acquired by him, it NAV he of
the same grantor, but at different |
times and under different circum
stances.
This point, not having been raised |
at the trial below and not being certl- |
led to us in the bill of exceptions, We /