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

The full text of the decision by the
United States Supreme Court in the
fisheries case, S. M. Damon VS.. The Ter
ritory of Hawaii, was received by the
Sierra. 1t is as follows:
This is an action at law, somewhat
like bill to quiet title, to establish the
plaintiffs right to a several fishery of
peculiar sort between the coral reef
and the ahupuaa of Moanalua on the
main land of the Island of Oahu. The
Organic Act of the Territory of Hawaii
repealed all laws of the Republic Of
Hawaii which conferred exclusive fish
ing rights, subject however, to vested
rights, and ii required actions to be
started within two years by those who
claimed such rights Act of April 30,
1900 ch. 3S9, SS 95, Sc; 81 Stat. 141, 100.
At the trial the presiding judge directed
a verdict for the defendant. Exceptions
y ~ taken but Ware oVerruled by the
Supreme Court of the Territory, and
the case comes here by writ of errCc.
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 taboo on
all fishing within the limits for certain
months and to receive from all fisher
men one-third of the fish taken upon
the fishing grounds. right of this
| sort is somewhat different from those
| familiar to the common law, but it
| seems to be well 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 easement or
profit a prendre as such. 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 nothing
for the courts to do except to recognize
it as a right. Wedding V. Meyler, 1872,
! u. S. 573, 5S3.
| The property formerly belonged to
| Kamehameha ", from whom it passed
| 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 statutes
and a royal grant. The history is as
| follows In 1889 Kamehameha III took
| the fishing grounds from Hawaii to Ka-
uai and redistributed them-those nam
! ed without the coral reef, and the ocean
| beyond, to the people-those from the
coral reef to the sea beach for the land
| lords and for the tenants of their sew
| eral 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. 1t is not necessary to specu-
late as to what the effect of this act of
the king would have been, standing
alone, he then having absolute power,
1t had at least the effect Of inaugural
ing system, de facto. But in 1916, the
monarchy then being constitutional, an
act was passed, article of which was
entitled "Of the Public and Private
| Rights of PiscaTy." BY the first sec
tion of this article it was provided
| again that the same fishing grounds
outside the reef should be free to the
! people, &c; and then by the second IL
was enacted that the fishing grounds
from the reefs to the beach, or, where
| there are no reefs, for one mile sea-
| ward, shall in law be considered the
lprivate property of the landlords whose
lands, by ancient regulation, belong 10
the same; in the possession of which
II private fisheries the said landholders
shall not be molested except" &c
BY "the landholders shall be con-
sidered in law to hold said private fish
cries for the equal use of themselves
and of the tenants on their respective
lands; and the tenants shall be at lib
erty to use the fisheries of their land
lords, subject to the restrictions in this
article imposed" Then follows a state
ment Of the rights OF the landlord as