The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-11-11
FITCH FILES
HIS CLAIM
The Marcus Island
Title Before
hay.

tinn OF tne Mdfcus iflduu nudho Nohi-
pany for a money indemnity for the
loss of Marcus Island, or for the resto-
ration of their rights to the speck In
the mid-Pacihc. The application is
placed in the hands of Ex-senator John
M. Thurston who will present 1t to the
State Department.
The documents sent to Secretary Hay
go to prove the ownership of the island
by Captain Rosehill. w. c. Peacock
and Thos. Fitch. Affidavit is made by
Captain Rosehill of his discovery of the
island and the hosting of the Ameri-
can flag and the subsequent visit after
The claim was made. The correspond
ence with the japanese government Is
set out in full and there are also pho
tographs illustrating the landing of the
party from the Julia +. Whalen and of
scenes on the island.
As the matter now stands the Marcus
Island Co, is liable to forfeiture Of the
bond of $4,000 filed with the State De-
partment, I'm which 1t was agreed
that proper facilities for the removal
of the guano deposits must be made
within twelve months. AS 1t is now
impossible to do this the Honolulu pro-
moters are up against a serious prop
osition.
An exhaustive brief has been pre-
pared by Col Fitch in support of Cap
tain Rosehill's claim to the island. Mr.
Fitch in his view Of the case claims
that:
$50 far as Rosehill's individual rights
.aI 10 10, tv,,A hot h, ,ieyI1t
have lost them ultimately, by non user,
or by abandonment. Such abandon
inert might have been effected by a
formal instrument, filed with the De-
partment of State, or it might have
been presumed from failure to occupy
The island. But such presumption can
only be INDUCED in. when the owner Of
land. or Of an easement such as a road
or alley, or of q, water right, absolute
ly abandons or continuously for a per-
iod as long as is necessary to acquire
an adverse title to real estate under
the statute of limitations. In few of
the States is this period fixed by stat
ute, at less than ten years, and at COM
men law it Is twenty-one years. Cap
tain Rosehill was not physically absent
from Marcus, more than seven years
at any one time, and between his last
visit in 1895, and the Japanese advent
i'll 1896, the period was less than one
year. In any event, IL Rosehill was
guilty Of neglect, that was question
between his government and himself,
with which the government of the Mi
kado had no concswn: and Rosehills
]aches, if there We're laches, was con-
doned by the United States when 1t ac-
faI tic ALL
and issued to him it's license to occupy
Marcus Island.
There is another view of the law
under which If we cannot obtain the
island we ought to obtain from Japan
indemnity for its loss.
III the State Department shall hold
that the action of Secretary Blaine in
1889, in filing Captain Rosehills papers,
did not constitute an acceptance, by
the United States, of sovereignty over
Marcus Island, and that the action of
the department in 1902. in accepting a
bond from Captain Rosehill, was not
an acceptance of sovereignty, because
in 1895 the claim of Japan interviewed.
If the State Department shall hold that
the United States has never claimed or
exercised sovereignty over Marcus ISL
is not to be considered at ak in this
connection, ii still appears:
First That Captain Rosehill, by
mis- acts in 1889 acquired possession of.
and right of property in, and that
this right so acquired became vested
by the building of house, and years
actual occupation.
Second. That this right was still ex-
fct IN nd h,r
claim, when, in 1895, he again landed
on the island.
Third. That the Government of
Japan does not claim that its subjects
made any formal claim to the island
or attempted any permanent occupancy
of il until 1896 or that the japanese
Government recognized Marcus as a
part of its possessions until 1898.
Fourth. That the rights of property
acquired by Captain Rosehill in 1889,
and re-asserted in 1895. could not under
the laws Of Japan, or of any other civ
ilized power have been lost by aban-
donment, or non use, during the brief
period that existed between his occu-
pancy, and the advent of the Japanese
Fifth. That these rights We're still
existing when Rosehil and his men
japanese Government officials, in Aug
ust, 1902.
Sixth. That conceding that the Uni
ted States has no claim to sovereignty
over Marcus. yet its citizen has a just
claim against Japan for the value OF
his property forcibly taken from his
possessions.
Seventh. That II is the duty of the
United States To present his claim.
IF the Department of State shall
coincide with these views. the Marcus
Island Company will be ready to sup
ply II with proofs as 10 the actual val
ne of the Island. which ! may state in
formally Is the value of the guano there
deposited This under the Act of Con-
gress. Is four dollars per ton-less than
one-half OF It's actual value. The ex-
tent OF these deposits is not known. and