The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-11-19

mission under which the plalnllH
claims. The argument Is made that
as adverse possession prior to all
awari Of the Land Commission can
not be tackled on to- adverse posses
sion subsequent to that date in order
to make out the full period of twenty
years fkanaiua W.. Ong Haw. X.
332J 50 the adverse possession cannot
be defeated by permIs-ive acts or pos
session or entries antedatiDg the
award. In other words the possession
of "A person living on land by permits
sion of the chief before he obtained
paper title TO the land cannot be con-
sidered in law a. continuing TO have
this permissive nature.
We cannot agree with this cOnten-
ton. The Land Commission was a
court and had full jurisdiction TO set
tie all claims TO land, whether by
claimants of the larger divisions of
land as div ided 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 a kuieana title, showing
merely their occupation of the same
as a foundation for il, 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 coDsid-
cred as continuing until some act of
theirs changed their holding from the
permissive nature to one of an adverse
or hostile nature. The evidence shows
that the defendants thought they had
a 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, Lahaina 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 |
by the applicant. In Oni |
V. Meek, 2 Haw. 81, this Court held |
that the Act repealed the former leg |
islatiOn and 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
'the protecting the hoaainas in the
enjoyment of certain rights therein
enumerated as against the sweeping
operation of the kOuohikis' allOdial
titles" In Haalelea V. Montgomery,
lad SD the Rnnrf hnl1 that the ga Ia nf
portion of an ahupuaa gave to the
grantee as a tenant or hOaaina of the
lhupuaa a common right of piscary in
Inc fishing ground adjacent; and that
IN the meaning of the law regulating
fisheries, a tenant was any one occu-
Dying "Ld1CfuLty" any portion of the
ihupuaa.
The argument might be made that
he grant of these specific rights, at
ached to all persons living on any
lhupuaa, whether kuleana holders or
lot was Inconsistent with their hold
ng as tenants at will OF the land
,wner.
This use of the word "lawfulr shows
hat the court did not intend to hold
hat any person living without right
IN the ahupuaa whether a kuleana
holder or not, had the specific rights
ranted to the people. To entitle
person to such rights he must be a
lawful" occupier, that is, have some
tile whether by being the holder of
or having purchased a por-
ion of the ahupuaa, a. was the case
,efore the court, or by some other law
ul tenure. Now, If the hoaaina so ! .
allied, without paper title by kule-
ma, remains on the land after his per
nissive occupancy has ceased either
" notice to quit or by his own act
4 refusing To attorn, he cannot be
onsidered as being "lawful occu-
'ier" and entitled to the specific
lights of the people above set forth.
Z seems to us that these specific
lights on an ahupuaa must be con-
med to those who have lawful right
o reside there whether upon kule-
mas or by the will of the owner. To
ay that the old tenancy by will of the
hief or konohiki became an adverse 4
Olding as soon as the chief or kono-
Xxi received his title TO the land and
his without notice on the tenants
art that he held thenceforth adverse
Y, would give such person holding
hereafter for twenty years, to all in Z
ents and purposes, as perfect title
D the land he held as if he had ap- "
lied for and received a fee simple
tile therefor and he thus be saved il
he expense OF procuring such title.
he law did not intend thus to
avOr those who slept upon their -
lights.
By the evidence the holding of =,
hese defendants became adverse in
SIS when they refused to pay rent.
he statute began to run then. This
Tit interrupts ii. We think the t
udge's charge was right and was
7arTanted by the evidence.
The last nOlnr ne considered Il
nat the record discloSes that joint
alignment has been obtained against s
efendants who lived separate and
part from each other upon the same n
hupuas not claiming Jointly or "a
snAnts in common; but each for him >
IF on a distinct portion of the ahu-
uaa acquired by him, it may be OF
he same grantOr, but at different
mes and under different circum
anceS.
This point. not having been raised s
the trial below and not being certl-