The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-06-23

| sidered the private property of the ko-
! nohiki,' etc, in nearly the same words
and other sections codified the reguIa-
| tions just mentioned There was
later repetition in the Penal Laws of
1897, sec. 1852, etc, and this was in
force when the organic act of Congress
was passed, repeating, as we have said,
the laws comforting 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 a sug-
| gestion that they created only a revo-
cable license, and if they imported a
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
regulation, belong to the same (the
land seems formerly to have been Incl
dent to the fishery, but that citizens
have no vested rights against the re-
those general truths which become I'M
true by being inaccurately expressed.
A general law may grant titles as we'll
as special law. It depends on the
import and direction of the law Al
strong example of the applicat ton OF
the rule intended by the argument is
to be found in Wisconsin & NJ r. co.
VS.. Powers, 191 U. S. 379, ante, p. 107,
"a Sim or vx-ho =
company was held to have no vested
right to exemptions proclaimed in a |
general tax act. The statute was con-
strued not to import an offer cove /
nant, or grant to railroads which might |
be built in reliance upon it. But if |
general law does express such an |
offer. as it may, the grant is made If |
the Hawaii statutes did not import |
grant, it is hard to see their meaning. |
However, in this case it is not ne |
eessary to invoke the statutes further |
than to show that, by the law in force !
since 1916, at least, such rights as the |
plaintiff claims, and which. as is shown |
by the evidence, he and his predeces- |
sors in title have been exercising for |
forty years, have been recognized az /
private property. Such is the view of |
the leading case, decided in 1858 and |
acquiesced in, we believe, ever since. |
Haalelea VS.. Montgomery, 2 Hawaiian |
Il. 81 Sc. In the present instance the
plaintiff claims under a royal patent
admitted to have been effective as to |
whatever, by it's true construction, it |
purported to convey. This patent de-
scribes the ahupuaa by metes and
bounds, and then the granting clause
goes on: There is also attached to
this land q fishing right in the adjoin-
ing sea, which is, bounded as follows"
again giving boundaries, and continu-
ing: THE islands of Mokumoa, Moku-
onini, and Mokuoeo are a part of Mo-
analua, and are included in the above
area" The description of what is in
tended to be conveyed 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
overload or konohiki. unlike the rights
Of tenants, did not pass as an incident
Of land but must be distinctly granted,
the fishery was not included in the
patent. Haalelea VS.. Montgomery, 2
Hawaiian Rep. 81, II. Again, we must
avoid being deceived by a form of
words. We assume that a mere grant i
Of the ahupuaa without mention of the
fishery would not convey the fishery.
But it does not follow that any parti-
cular words are necessary to convey it
when the intent is clear. When the
description of the land granted says
that there is incident to it a definite
right of fishery, it does not matter
the statement is technically |
accurate or not; it is enough that the
grant is its own dictionary and ex-
plains that it means by land" in the
land and fishery as we'll
There is no possibility of mistaking
the intent of the patent. It declares
that intent plainly on it's face There
s no technical rule which overrides the
intent, like that of the COM
mon law, which requires the mention
Of heirs in order to convey a fee We
are of opinion that the patent did what
t was meant to do, and therefore that
The plaintiff is entitled To T,rayai1