The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1904-05-11
Fisheries Decision

they have been summed up above and |
provision that the landlords shall not
have power to lay any tax or to'im-
pose any restrictions upon their ten
ants regarding the private fisheries 9TH
er than those prescribed.
The Civil Code of 1859, $751; repeat
ed the enactment of 2, that the fishing
grounds within the reef or one mile
seaward shall, in law, be considered
the private property of the kOnohih,"
in nearly the same words and other
sections codified the regulations just
mentioned. There was later repeti-
ton in the Penal Laws of 1897, 1852,
&c, in nearly the same words, and other
ganic Act of Congress was passed, re-
pealing, as we have said, the laws con-
ferring exclusive fishing rights but
preserving vested rights.
The foregoing laws not only use the
words private property" but show
that they mean what they say by the
restrictions cutting down what other
wise would be the incidents of private
property. There is no color for sug-
gestiOn that they created only a revo-
cable license, and if they imported
grant or a confirmation of an existing
title, of course the repeal of the laws
would not repeal the grant. The argu-
ment against their effect was not that
in this case the ahupuaa did not be-
long to the fishery, within the words
landlords whose lands, by ancient reg
ulation, belong to the same" (the land
seems formerly to have been incident to
the tishery) but that citizens have no
vested rights against the repeal of
general laws This is one of those gem
eral truths which become untrue by be-
ing inaccurately expressed. \ general
law may grant titles as we'll as a spe-
cial law. 1t depends on the import and
direction of the law. strong example
of the application of the rule intended
by the argument is to be found in Wis
consin Il Michigan Railway V. Powers,
l9l U. 5. 379 where a railroad company
was held to have no vested right to
exemptions proclaimed in a general
tax act. The statute was construed not
to import an offer, covenant or grant
to railroads which might be built in re-
lance upon it, But if a general law
does express such an offer, as it may,
the grant is made. If the Hawaii stat
utes did not import a grant it is hard
to see their meaning.
However in this case it is not nee
essary to invoke IT,. statutes further
than to show that, by the law in force
since 1916 at least such rights as the
plaintim claims, and which, as is shown
b" the evidence. he and his predeces-
sors in title have been exercising for
forty years, have been recognized as
private property. Such Is the view of
the leading case, decided in 1858 and
acquiesced in, we believe, ever since.
Haalelea Montgomery, Hawaiian
r. 62, sc, In the present in
stance the plaintiff claims under
a royal patent admitted to have
been effective as to whatever, by its
true construction 1t purported to con-
Yey' This patent describes the ahu-
puaa by metes and bound, and then
the granting clause goes on: There is
also attached to this land fishing
right in the adjoining sea, which is
bounded as follows"-again giving
boundaries, and continuing: "The ISL
ands OF MokumOa, KOkuonini and Mo-
kuOco are part of Moanalua, and are
included in the above area" The des-
cription of what is intended to be con-
Yeyed could not be palmer. But the
habendum is ito have and to hold the
above granted land" and it is said that
as the fishery of an overlord or konO-
hiki, unlike the rights of tenants, did
not pass Ls an incident of land, but
must be distinctly granted the fishery
was not included in the patent Haa-
lelea V, Montgomery, Hawaiian r. 60,
II. Again, We must avoid being de-
ceived by form of words. We as