The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-06-24

one species of fish to the owners sole
use, or, alternatively, to put taboo
on all fishing within the limits for GER
tain months. and to receive from all
fishermen one-thrd of the fish taken
upon the fishing grounds. A right of
this sort is somewhat different from
those familiar to the common law, but
1t seems to be well known to Hawaii,
and, II 1t is established there is no
more theoretical difficulty In regarding
1t as property and 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 1t were something anomalous
or monstrous, difficult to conceive and
more difficult to admit. Moreover,
however, anomalous 1t is, If it is sane
| toned by legislation, If the statutes
have erected 1t into a property right,
property 1t will be, and there is moth
ing for the courts to do except to
recognize it as right Wedding VS..
Meyler, 1872 U. S. 573, $50, ante, p. 1922,
"a Sup. CT. Rep. 1922.
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 series of stat
utes and a royal grant. The history Is
as follows: In 1889 Kamehameha III
took the fishing grounds from Hawaii
to Kauai and redistributed them,-
those named without the coral reef and
/ .. A.
| from the coral reef to the seabeach
| 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. 1t 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, at least,
the effect of inaugurating a system, de
facto. But in 1896 the monarchy then
being constitutional, an act was pass
ed article of which was entitled "Of
the Public and Private Rights of Piss
cary" By the 1st section of this arti-
Gle it was provided again that the same
fishing grounds outside the reef should
| be free to the people, ETC.; and then
by the second it was enacted that the
fishing grounds from the reefs to the
beach, or, where there are no reefs. for
one mile seward, "shall in law be con-
sidered 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
coiI lon hol .han ha tal
| except" etc.
By sec. "the landholders 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
| landlords shall not have power to lay
any tax or to impose any restrictions
upon their tenants regarding the priv
ate fisheries other than those pre-
scribed.
The Civil Code or 1859, sec. ss7 re-
| pteitu tlc VI SCI. tHdl
the fishing grounds within the reef or
one mile seward SHALL in law, be con-
sidered the private property of the ko-
nohiki" etc, in nearly the same words
and other sections codified the regua-
tions just mentioned. There was a
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
d
dent to the fishery, but that citizens
have no vested rights against the re-
peal of general laws. This is one of
those general truths which become I'M
true by being ipaccurately expressed.
A general law may grant titles as well
as special law. 1t depends on the
import and direction of the law. A
strong example of the application of
the rule intended by the argument is
to be found in Wisconsin & NJ. r. Co.
vs. Powers, 1871 U. S. 379, ante, p. 107,
"a Sup. CT. Rep. 1O7, where a railroad
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 1t. But If
n general law does express such an
offer, as 1t may the grant is made. II