The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-03-14
THE QUEEN
OWNS SlNO.
Titles Extend to
Low Water
Mark.
rrom Wednesdays panrl

Neither the Territory nor the United
states has title to the lands ~ Hawaii
between high water and low water
mark, II IL had been conveyed 90 other
parties by persons holding title prior
to annexation, Is the ruling Of the SUI
preme Court In the case of Territory
W. Liliuokalani and John II. Wilson,
as made yesterday. The points decid-
81 are OF much interest, in that there
are similar cases affected.
The Circuit Court. Judge Humphreys.
H. reversed, the opinion having been
written by Judge Gear, acting justice,
end concurred in by Justice Galbraith.
Justice Perry was also disqualified and
his place had been filled by Thomas
Fitch. who also flied a separate CON
curing opinion, in which he went into
the question more fully.
The case at point involved the right
of John II. Wilson. who held certain
lands at Waikiki. by leases from the
eN-queen, to remove sand at low water
point Judge Humphreys sustained
the attorney general. overruling a de-
murrer, and granting an injunction re-
straining the removal Of the sand. His
decision Is reversed by the Supreme
Court, and n r. directed to sustain the
demurrer and dismiss the bill Of COM
plant.
The syllabus says:
A royal patent issued in 1866 by Ka
mehameha V to land covered by the
inahele of 1siS. which describes the
seward boundary line as along the
sea at low water mark" conveys the
land lying between high and low wa
ter mark
The resolution of the Privy Council
of August 20, 1850. did not have the
effect of law, as the Prlvy Council
Mad no authority To enact laws.
The words "koe nae Ike kuleana ma
kanaka" or in their English equiva-
lent therein, "reserving, however, the
peoples kuleana therein" mean res
ervation of the house lots, taro patches
or gardens of natives within the boun-
diaries Of the land
The sole question upon which the
case hinged. according to the supreme
Court, was whether Kamehameha V
had the power to convey the land be-
tween high and low water mark. on
this point the court says:
While IT is claimed that Kameha-
meha V was constitutional monarch,
II seems that he was little embarrrass-
ed by constitutional restrictions. BY
his own authority he abrogated the
constitution of the kingdom that was
adopted by Kamehameha III in 1852
and promulgated new one to his own
liking, August "a, 1864. Such a mon
arch certainly possessed the usual pow
ers of sovereignty conceded to constl-
tutional rulers, and had the right to
convey the land between high and low
water mark, to the defendants grant
or"
hold hot
Priyy Council had no right to enact
laws and that the legislative power was
in the House of Mobiles and the House
of Representatives. In concluding hs
opinion the court says:
The Attorney General further con-
tends that as the royal patent aud
award contained the words "koe nae
Ike kuleana o ma kanaka," this re-
served to the people all the rights be-
low high water mark and not express
ly recognized as private rights, ana
that this reserved all rights excepting
the rights to fish and the right to re-
move coral rock. He states that the
King was authorized by the law and
by the land commission award to issue
the royal patent reServing, however
the peoples kuleana therein. The peo-
pies kuleana was the land between
high water mark and the low water
mark, Whlcn ha1nenanlend hdu III az
thority to ALLEVIATE
BY reference to the statutes of li4o
&C. vol 2, pages 1874, 1t will be seer
that the grants are to be made sub
ject to the private rights of the ten
ants, If there be any on the land, anc
| on page So, in definite statement o.
the public rights to which the grant l:
| subject, showing that the words 'ko'
| nae Ike kuleana o ma kanaka," have NJ
Ia
only have reference to the house lot
| and tarO patches and gardens OF ten
ants living on land within the bounda
ries of the larger tract granted.
We are of the opinion that the word
quoted have well understood mean
ing as used i'm conveyances within TN
Territory, and that they, az well
the English equivalent ''reserving, how
ever the peoples kuleana therein,
mean the reservation of the house lot
and taro patches or gardens OF native
living within the boundaries or tn
tract granted.
The order overruling the demurrer o
defendants is reversed, and the caus
remanded with directions to the tria
court to sustain the demurrer ana OF
der the bill dismissed.
In the concurring opinion OF Nj
Fitch, lie says that the right or bath
ing Is not right recognized by tn
government, and that there could b
no obstruction of navigation by tn
allowance of such a privilege. He fur
Their holds that where lines have ne
Abeen established by the Secretary
War, the riparian owners right to re
claim extends to the line Of practici
navigation.
Internal Revenue Collector Ro