The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-10-19

suGt ne had u per cent OF his lot OF
is.@S acres under cultivation and that
the Sub-Ageut of Public Lands found
that he had about ten acres under cui-
tivation. tie could not have applied
under the second part uf the section
unless he had thirty acres under rulti-
vatton. Having obtained a patent for
all the land covered by his lease uu-
der the urst part 90 the section be- nov
seeks to obtain n patent 81 additional /.
land under che second part % the s.C-
ton.
When he obtained his patent f1r the \
whols uf the land covered "a the lease
the lease terminated. In such Cass the 4
lease WOULD naturally merge tu the 4
patent. and that it would become i
merged seems to have been Cuutsm- I
plated as shown ~ the clause ia $50
ton = tCiv. l.. Sec! s6sl. which pro- /
vtdeS: The premises thus sought to
De patented shall. from the date us
such application accompanied by one
fourth of the purchase price. be free
from the stipulations uf such crown
lease. which shall. however. remain IN
full force Is 90 the remainder 90 the
premises described therein" Sine. the
application aud patent covered the en-
| tire premises in this case. the entire
premises became free from the stipula-
tions of the lease and there was no re-
maindeT OF the premises as to Nhich
the lease could remain in force.
The question. then. Is whether a
1 person who has once exercised his
right and who has obtained a patent
for the whole Of the land covered by
his lease under the first part OF the
| section NAV exercise his right a scc-
| ond time and under the second part of
the section. We need not decide
| whether person may first exercise
| his right under one part OF tn. Sec
ton and then under the other part or
whether he may exercise his right
more than once under either part in
case he should not obtain n patent for
the whole zoo acres on his first appli-
cation. for in our opinion he can Cxer-
else his right only 80 long aS he holds
a crown land lease. and IL appears in
this case that the applicant has No
such lease. IL having terminated upon
his obtaining his patent for the whole
land covered by the lease.
The statute does not. as Cuutsutstl
ON behalf OF the plaintiff. confer an
absolute right to obtain a patent upon
a person holding n lease at the date ot
the Act irrespective of whether he
I holds the lease at the date of his APP
plication for the patent. n that were
II
could obtain - patent even though ne
might have assigned hts lease prior "a
his application for the patent and his
assignee. the holder OF the lease. could
not obtain n patent: or he could oh.
I tain patent even though he had sur
r rendered his lease before his applica.
; ton for the pateut-whicu the 9pplt,
? cant has practically done in this cas-
I by accepting u title in fee SimpN. This
( statute clearly ConfcTS the right upot
only those who hold at the date al
D their application leases in existence nj
the date of the statute. II says in ths
{ first part of the section: Any person
holding land under a lease" not .''any
$ 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
: guagc OF the section throughout bears
: out this construction. IL does not SAY
2 that a person having n lease OF fiftS
r acres may cultivate ten acres and thcr
surrender his lease and obtain n fcs
= simple title for the whole lot and then
cultivate thirty acres of his own land
. thus obtained and held in fee simple
, and then obtain a patent for 1S0 acres
more.
; This construction is entirely con.
I sisteut with the decisions in Webster
vs.. Luther. 163 4. =. $50. and othcI
: cases relied on for the plaintiff. which
held that sections 3SOt and s3os OF the
!. United States Revised Statutes con
! ferred upon certain soldiers and Others
Z an absolute aSsiEnable right to- acquire
4 additional lands. Similarly. u might
. he held under our statute that a per,
I son who came within the terms OF tn.
r statute acquired an absolute right Il
' obtain additional land. which RICH
would pass with an assignment Of tn.
5 lease. But IL could not be held tina
Q one who did not come within the term
r of the statute had such right. TIL
4 statute ccnfcrs the right upon oni,
Q those holding land under leases an,
n who have Improved the required are.
= Of the leased premises. In this cas-
= the applicant does not hold n crow
= land lease aud he has not improve,
!. the required area OF land held urdc
Il such n lease. As basis for his pres
: ent application he has shown mercl
y that he has 4 fee simple in his ow1
l. right and that he has improved onl
II the land so held In fee. although
Is once held the land under leaSc-b.foT
N he made the improvements and b.for
h he made his present application.
IS Judgment Is ordered for the defend
n ants.
Tnnt Uf<-1. E.nn,s . names