The Hawaiian gazette., 1904-05-13

the Hawaiian fisheries case. 1t was de-
cided by the unanimous vote OF the
court, favorable to the defendant, as al
ready stated in cable dispatches.
After making statement Of the case
and the title claimed by defendant JUS
tice Holmes, who wrote the opinion,
says:
The foregoing laws not only use the
words private property, but show that
they mean what they say by the restric-
tions cutting Gown what otherwise would
be the incidents of private property.
There is no color for suggestion that
they created only a revocable license,
and If they imported a Grant or con-
firmation of an existing title, of course
the repeal of the laws would not repeal
the grant. The argument against their
effect was not that in this case the ahu-
puaa did not belong to the fishery, with
in the words landlords whose lands, by
ancient regulation belong to the same
(the land seems formerly to have been
incident to the fishery) but that citizens
have no vested rights against the repeal
of general laws. This is one of those
general truths which become untrue by
being naccurately expressed. A general
law may grant titles as we'll as special
law. 1t depends on the import and di-
rection OF the law. A strong example of
the application of the rule intended by
the argument is to be found in Wiscon-
sin & Michigan Railway " Powers, 1or
u. 5. 37o where a railroad company
was held to have no vested right to
exemptions proclaimed in general tax
act The statute was construed not to
import an offer, covenant or grant to
railroads which might be built in reli-
ance upon it. But if general law does
express such an offer, as it may, the
grant is made. Ii the Hawaii statutes
did not import a grant it is hard to
see their meaning.
However, in this case it is not neces-
sary 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 predecessors in title
have been exercising for forty years, have
been recognized as private property.
Such is the view of the leading case,
decided in 1883 and acquiesced in, we
believe, ever since. Haalelea " Mont
gomery, Hawaiian r. 62, 66. In the
present instance the plaintiff claims un-
der royal patent, admitted to have been
effective as to whether, by its true con-
struction, it purported to convey. This
patent describes the ahupuaa by metes
and bounds. 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 CIV
ing boundaries, and continuing: The
islands of Mokumoa, Mokuonini and
Mokuoco are a part of Moanalua, and
are included in the above area The
description of what is intended to be con-
veyed could not be palmer. But the
habendum is to have and to hold the
above granted land and it is said that
as the fishery of an overload or kono-
hiki, unlike the rights of tenants did not
pass as an inc -dent of land, but must be
distinctly granted, the fishery was not
included in the patent. Haaelea V.
Montgomery, Hawaiian r. 62, II.
Again, we must avoid being deceived
by form of words. We assume that
a mere grant of the ahupuaa without
mention OF the fishery would not convey
the fishery. But it>does not follow that
any particular 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 definite
right of fishery, it does not matter
whether the statement is technically ac-
curate or not; it is enough that the grant
is its own dictionary and explains that
it means by land iNthe habendum land
and fishery as well. There is no pos
sibility OF installing the intent OF the