The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-02-14

Ancient Hawaiian law was magnltled
in Judge De Bolt s courtroom yesterday
afternoon. The theme was the kono-
hiki, or landlord, fisheries, and Hawaii
argued to constitute a valid common
| law peculiar to these islands in force
! and effect today. So strongly was the
argument pursued that layman might
perceive such a logical conclusion to
| the whole matter as that all the revo-
lutions of the past twenty years might
be made to turn backward in their or
bits by means of bill in equity.
Not on the rights created by old Ha-
waiian law, however, but on Cooley 8
constitutional doctrines, the Organic
| Act itself was assaiieu. The court ask
ed if certain line of argument did
not imply contention that part of the
fishery sections of that charter of the
Territory was contrary to the Constr
tuition of the United States. An attor-
ney later gave his opinion that it was
even so.
The cases in court were those of An
ma Perry, Victoria Ward, Solomon Kau-
al, Oahu Railway & Land Co., W. G.
Irwin, Sam u. NJ. Damon, II. A. Parker,
Grace Kahoalii, J. NJ Monsarrat, D. J.
Pike ct AL, John De Fries, j. o. Carter
ct al. (trustees of Bishop Estate},
Bruce Cartwright (trustee of two es-
tates), Abigail K. Campbell ct al, and
Mary E. L oster. One of the principal
points at issue was whether the Da-
mon case, settled by the United States
Supreme Court in favor OF the plain
tiff, covered all the other cases even If
the fisheries were omitted from the
original grant. In that case the fishery
did have the advantage mentioned,
which was the ground of the Federal
highest courts decision.
Acknowledgement Andrews appeared
Yesterday for the Territory, which the
Organic Act requires to condemn for
| the free use of the public al Hawaiian
sea fisheries in which vested rights have
| been established within three years
from the taking effect of that enact
| ment. Attorneys for the claimants
present were M. IOd1lOil. W. a. w LIC-
ing. Cecil Brown, B. L. Marx, J. M.
| S. II. Derby and J. A. Magoon.
| eve have but to show that, by the
ancient statute, we had fishing right,
to bring us within the statute was
| the conclusion of Mr.. Ballou's argu-
ment.
Mr.. Brown said that the Honolulu
case was different from the others, in
| having two distinct fisheries. One was
| inside Pearl Harbor and the other
| started from the entrance at Puuloa
outward The only fish claimed for the
| inside fishery was the mullet, but for
| the outside sometimes it was mullet and
| sometimes one of two or three other
| kinds of fish. In the case of Haalelea
VS.. Montgomery, relating to the Ho-
| nouliuli fisheries, the Supreme Court
! of Hawaii held that sea fishery could
| be severed from the land. Therefore,
| it was an easement.
| Mr.. Andrews disputed the inference
drawn from the decision quoted.
''How about the lease Of fishery -
Mr.. Whiting asked. "Was not that a
severance?'
Mr.. Brown contended that since 1888
or 1910, when the Legislature at La
| haina first recognized the proprietary
| rights in fisheries, until the present
| time every land abutting on the sea
| shore was sold with a fishery attach
| ment. The konohiki had the right to
| one kind of fish. Chief Justice Judd
| held that a tenant could not delegate
| his right to fish to another.
''With regard to the outside fishery,
we claim under the statute,' Mr..
eel
mentioned in the royal patent or not
makes no difference if you can prove
that a fishery was attached to the
land
If it is a vested right, had Con-
gross the power to take it away2"
Judge De Bolt asked.
cit must be paid for Mr.. Brown
answered. He had already mentioned
that Mr.. Whiting would tell the court
that the Organic Act was only stat
ute of limitations ON the time wherein
the rights must be established
Mr.. Ballou denied that the onus of
proof of property should be thrown on
the owners. He later expressed himself
more explicitly on this point.
Mr.. Whiting said the Organic Act
if anything showed that there was
property in the Hawaiian fisheries.
Time was given to present a claim,
which made that provision of the Act
statute of limitations. With the es-
tablishing of rights it came to a
definite act of condemning the fisheries
by the Government of the Territory.
Congress recognized. Mr.. Whiting
said. that the fisheries here were differ
ent from fisheries anywhere else. either
in the United States or England, or
under the common law. Hawaii had
a common law of its own, part OF
which related to these fisheries. He
was not saying that anything arbi-
tfary was done by Kamehameha III,
who had the power of life and death
over some of his subjects. It dated
further back than the remembrance of
anyone now living. Did Kamehameha
III build UP those stone walls or make
the marks on the hills? No, they ex>
listed long before his time. The de-
scs,