The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-06-23
FISHERIES
DECISION
Full Text of Report
Arrived in Last
Mail.

| Following IS the full text OF the
Fisheries Decision in the Damon case
Samuel NJ Damon, plff. in err, VS..
Territory of Hawaii. G,rants-convey-
ance of fishing right-effect of haben-
dunn clause referring only to land
A definite fishing right in the adj
joining sea-" described in the granting
clause of a royal patent as attached
to this land and which right is of a
sort long recognized by the Hawaiian
laws as private property, is included
in the grant, although the habendum
is to have and to hold the above
granted land" which, standing alone,
might not include fishing right
No 207. Argued April II, 1904. Decid-
ed April %, 1904
In error to the Supreme Court of the
Territory of Hawaii to review a judg-
ment which affirmed the judgment of
the Circuit Court for the First Circuit
of that Territory, entered on a directed
verdict in favor of defendant in an
action at law to establish a fishing
right. Reversed.
See same case below, II Hawaiian
Rep. 465.
The facts are stated in the opinion.
Messrs. Francis NJ. Hatch, Reuben
D. Silliman, and J. j. Darlington for
plaintiff in error.
Mr.. Lorrin Andrews for defendant in
error.
Mr.. Justice Holmes delivered the
opinion of the court:
This is an action at law, somewhat
like bill to quiet title to establish
the PLAINTIFFS right to a several fishery
of a peculiar sort, between the coral
reef and the ahupQaa of Moanalua on
the main land of the island of Oahu
The organic act of the Territory of
Hawaii repealed all laws of the Re-
public of Hawaii which conferred ex-
elusive fishing rights, subject, however,
to vested rights, and it required ac-
tons to be started within two years
by those who claimed such rights Act
of April 80, 1900, chap. 339, secs. 95, So
81 Stat. at L. 141, 160). At the trial
the presiding judge directed a verdict
for the defendant. Exceptions were
taken but were overruled by the SUI
preme court of the territory, and the
case comes here by writ of error.
The right claimed is a right within
certain metes and bounds to set apart
one species of fish to the owners sole
use, or, alternatively, to put a taboo
on all fishing within the limits for GER
tain months, and to receive from all
fishermen one-third of the fish taken
upon the fishing grounds. A right of
this sort is somewhat different from
those familiar to the common law, but
it seems to be we'll known to Hawaii,
and, if it is established, there is no
more theoretical difficulty in regarding
it as property and a vested right than
there is regarding any ordinary ease
ment or profit a prendre as such. The
plaintiffs claim is not to be approach
ed as if it were something anomalous
or monstrous, difficult to conceive and
more difficult to admit. Moreover,
however, anomalous it is. if it is sane
toned by legislation, if the statutes
have erected it into a property right,
property it will be- and there is moth
ing for the courts to do except to
recognize it as a right. Wedding VS.
Meyler, 1872 U. S. 573, $50, ante, p. 322, j
"a Sup. CT. Rep. 322.
The property formerly belonged to
Kamehameha ", from whom it pass
ed to his brother, Lot Kamehameha
and from him by mesne conveyances to
the plaintiff. The title of the latter to |
the ahupuaa is not disputed. He claims
the fishery also under a series of stat
utes and royal grant. The history is
as follows: In 1899 Kamehameha III
took the fishing grounds from Hawaii |
to Kauai and redistributed them,-l
those named without the coral reef. and !
the ocean beyond, to the people: those |
from the coral reef to the sea beach |
for the landlords and for the tenants
of their several lands, but not for
others. The landlord referred to
seems to have been the konohiki or
overload, of an ahupuaa, or large tract
like that owned by the plaintiff. It is not
necessary to speculate as to what the
effect of this act of the king would
have been standing; alone. he then hav-
ing absolute power. 1t had, al least,
the effect of inaugurating a system, de
facto. But in 1916, the monarchy then
being constitutional, an act was pass
ed. article OF which was entitled "Of
the Public and Private Rights of Pts
cary By the 1st section of this arti-
Gle it was provided again that the same
fishing grounds outside the reef should
De free TO the people, etc; and then
by the second it was enacted that the
fishing grounds from the reefs TO the
peach, or, where there are no reefs for
one mile seward, shall in law be con-
sldered the private property of the
landlords whose lands, by ancient reg
ulation, belong to the same; in the pos
session of which private fisheries the
said landholders shall not be molested
except" etc
BY sec. 3 the Iandholders shall be
considered in law to hold said private
fisheries for the equal use of them
selves and of the tenants on their re-
spective lands; and the tenants shall
be at liberty to use the fisheries of
their landlords subject to the restric-
tons in this article imposed Then
follows a statement of the rights of
the landlord as they have been summed
up above. and a provision that the