The Hawaiian gazette., 1899-10-20

fsct that he stated IN his application
that he had 10 per cent OF hts lot OF
s7.2S acres under cultivation ana tnst
the Sub-Agent OF Public l.ands found
that he had about ten acres uhuer cur
tivation. ne could NOT nave appned
under the second part OF the section
unless ne had thirty acres uhder cuIu-
walton. Having obtained patent Ios
all the land covered by MS lease un-
der the first part OF the section ne now
seeks to obtain patent OF additionai
land under the second part OF tne Sec
ton.
When ne obtained MS patent Ior the
whole OF the land covered ny the tease,
the lease terminated. In sucn case the
lease would naturally merge In the
patent, ana that II would become
merged seems 10 nave been contem-
plated as shown Dy the clause IN sec
tion IS tClv. L. sec. soI), wnicn pro
vides: The premises tnus soueht 10
be patented snaii. rom the oate OF
such application accompanied ~ one
fourth OF the purchase prsce, De Tree
from the stipulations OF sucn crown
lease. which snail. however. remain IN
1uIl force as 10 the remainder Ot tne
premises descrined tnerein. cince tne
Application ana patent covered tne en-
tire premises IN TINS case, the entire
premises became free from the stpoia-
tons OF the lease ana there was no re-
mainder OF the premises as 10 wnich
the lease could remain In force.
The question, then, ID wnether
person VINO mas once exercised MS
rlgnt ana VINO mas oDtained patent
Tor the whoie OF the land covered Dy
MS tease under the nrst part OF tne
section may exercise his right sec
ond time ana under the second part OF
the section. we need not decide
whether person may hrst exercise
ms right under one part OF the sec
tlon ana then under the other part OF
whether ne may exercise MS rignt
more than once under either part In
case he SHOULD not OBTAIN patent LOT
the whole ZOO acres on MS nrst apph-
cation FOR In our opinion ne can exer-
else his right only SO long as ne holds
a crown land lease. and 1t appears IN
this case that the applicant mas no
such tease. II having terminated upon
his obtaining MS patent Tor the whole
land covered by the lease.
The statute does not, as commended
on behalf OF the plaintin, confer an
absolute right to obtain patent upon
a person holding q lease at the date Of
the Act irrespective OF whether ne
holds the lease at the date OF his ap-
plication Tor the patent. III that were
so the holder ut the date OF the Act
could obtain patent even though NJ
might have assigned his lease prior tt
his application for the patent and hi
assignee. the holder OF the lease, coult
not obtain a patent; or he could OBJ
tain a patent even though he had sur
rendered his lease before his applica'
ton for the patent-which the appli
cant has practically done in this cas-
by accepting title In fee simple. TIT
I statute clearly confers the right up0r
| only those who hold at the date o
, their application leases In existence a
the date OF the statute. 1t says In thu
I first part OF the section: ANY person
holding land under lease, not AN!
5 person who has held land under
lease';' and In the second part OF tn
: section: ANY SUCH person as AFORESAID
: whose lease covers" etc.; and the Ian
v guage OF the section throughout bear
s out this construction. 1t does not sa'
e that person having lease OF mt
r acres may cultivate ten acres and thel
: surrender his lease and obtain Re
= simple title for the whole lot and thel
: cultivate thirty acres OF his own lan'
a thus obtained and held in Zee simpl
e and then obtain patent for $50 acre
more
3 rms construction Is entirely con
I sistent with the decisions In Webste
VS.. Luther, loS U. .. aSI, ana otne