The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-03-12
THE QUEEN
OWNS SAND
Titles Extend to
Low Water
Mark.
HUMPHREYS
IS REVERSED
Supreme Court Consisting of Gal
braith, Gear and Fitch Rules
Against the Territory.

! Neither the Territory nor the United
States has title to the lands Of Hawaii
between high water and low water
mark. if it had been conveyed to other
parties by persons holding title prior
to annexation, is the ruling of the Su
preme Court in the case of Territory
VS.. Liliuokalani and John II. Wilson.
as made yesterday. The points decid-
ed are of much interest. in that there
are similar cases affected.
The Circuit Court, Judge Humphreys.
| is reversed, the opinion having been
written by Judge Gear. acting justice.
| and concurred in by Justice Galbraith.
Justice Perry was also disqualified. and
| his place had been filled by Thomas
Fitch, who also filed a separate con-
curing opinion. in which he went into
| the question more fully.
The case at point involved the right
Of John H Wilson. who held certain
lands at Waikiki, by leases from the
ex-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 he is 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
maIlele of 1S4S. 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 a law, the Privy Council
had 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-
daries 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 IL is claimed that Kameha-
meha was a 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 consti- |
tutional rulers. and had the right to
convey the land between high and low /
wafer mark. TO the defendants grant |
orr
The court further holds that the I
Privy Council had no right to enact 1
laws and that the legislative power was
in the House OF Mobiles and the House I
OF Representatives. In concluding its
opinion the court says:
The Attorney General further con-
tends that as the royal patent aud |
award contained the words "koe nae /
Ike kuIeana ma kanaka, TINS re-
served to the people all the rights be- |
low high water mark and not express !
Iy 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 ana
nv the land commission award to issue
the royal patent reserving, however,
the peoples kuleana therein. The peo-
nIe's kuleana was the land between
high water mark and the low water
mark. which Kamehameha had no au-
thority to ALLEVIATE.
By reference to the statutes OF l'4o-
46. vol. 9. pages S-94, ii Will be seen
that the grants are to be made SUD
iect to the private rights of the ten
ants IL there be any on the land, ana
ON mage So. in a definite statement o.
the public rights to which the grant Is
subject. showing that the words "koe
nae Ike kuleana o ma kanaka, nave no
reference to such public rights BUT can
,nrI- have reference to the house lots
and taro patches and gardens OF ten
ants living on land within the Dounda-
-ies OF the larger tract granted.
We are of the opinion that the words
,uoted have a well understood mean
ne, as used in conveyances within TINS
Territorv. and that they, as well as
ne English equivalent ''reserVing, now
Yer the peoples kuleana therein,
,,ean the reservation OF the house lots
md taro patches or gardens OF natives
Ting within the boundaries OF the
.ract granted
The order overruling the demurrer or
,afeudaufs is reversed, and the cause
-ernanded with directions TO the trial
.o11r-t 10 sustain the demurrer ana or
Ter the bill dismissed.
In the cOncurring opinion OF Mr.
fitch. he says that the right Of BATH
NO is not a right recognized by the
and that there could be
IN obstruction OF navigation by the
IIowance OF such a privilege. He fur
her holds that where lines have not
cen established by the Secretary OF
var. the riparian owners right 70 re-
lain extends 10 the line Of praciica!
avigation-