The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-07-26

HAS TITLE
The Kings Private
Land May Be
Taken.
SUPREME COURT
PASSES ON CLAIM
Title Obtained by Clsghorn to
Waikiki Property Against the
Kapiolsni Estate.

A. g. Cieghorn retains title TO his
Waikiki property as against the Ka-
piolani Estate. according to the decision
Of the Supreme Court rendered yester-
day Judge Gear is sustained in the
majority opinion, written by Chief Jus
tice Frear. Justice Perry dissents.
The suit was one for ejectment for
valuable Waikiki property and the jury
held for defendant, Cleghorn, who
claimed adverse possession as against
Kalakaua and the Kapiolani Estate,
though the court instructed that the
plaintiff had established a paper title.
The following is the syllabus of the
opinion:
1t is not error to refuse to instruct the
jury that a certain article of a certain
constitution was in force during certain
period, without stating the substance OF
the article, even if the article were ap-
plicable to the case.
Times does not run against the state
even though the state does not acquire
title until after the period of limitation
has begun to run against the prior owner.
The rule that time does not run against
the king applied to the King of Hawaii
in his capacity as sovereign only, and
not in his private capacity.
Article 80 of the Constitution of 1864,
which provided that, THE Kings private
lands and other property are inviolable,
though applying to his strictly private
lands as distinguished from crown lands,
did not prevent the statute of limitations
from operating upon such private lands
Evidence held sufficient to justify the
giving of instructions as to the law or
lacking successive adverse possessions.
Where one is shown to have been in
possession for the period of limitation
ion
is not explained or otherwise accounted
for it will be presumed to have been adj
verse although the presumption is open
to rebuttal.
Instructions need not be given in the
form requested if given substantially in
other form.
Evidence held sufficient to support the
verdict.
The principal question was the con-
struction of article SO, constitution OF
1864 witch said THE Kings private
lands and other property are inviola-
ole'' The court holds that this section
relates to lands owned by the king in
his private capacity. The court adds:
1.-The question would then remain
whether the word inyiolable' should be
construed as exempting the Kings pri-
vate lands from the statute Of linita-
tiofs."
Referring to the provision in the con-
stitution giving to king certain priv
:leges the court says There is much
reason to suppose that the intention
was not to exempt the Kings private
lands from the operation Of the statute
Of limitations and, the question being
%
should be toward the more enlightened
view" The court further holds that
the defendant was the heir of the
Princess Kaiulani. The court con-
cludes: ''The main contention on this
point is that the possession was shown
TO be permissive and not adverse. 1t
must be conceded that there is much
that can be said in support of this con-
tention. But the argument is one that
would more appropriately be addressed
to the jury. On the whole, in our opin-
ion, there was sufficient evidence to
sustain the verdict. whether the weight
of the evidence was on that side or
not
Justice Perry concludes his opinion
as follows:
"I;l my opinion the title of the king
was. until July Z. 1887, the date of the
adoption of a new constitution In which
the provision in question did not ap-
pear incapable of being Invested or ex
tinguished by adverse possession or by
the operation of the statute Of limita-
lions. and the statute did not run
against him during that time"