The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1905-02-14

Ancient Hawaiian law was magnifled
in Judge De Bolt S courtroom yesterday
afternoon. The theme was the kono-
.hiki, or landlord, fisheries, and Hawaii
an customs of immemorial origin were
argued to constitute 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.
J Not on the rights created by old Ha-
waiian law, however, but on Cooley's
constitutional doctrines, the Organic
Act itself was assaile~. 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'l. NJ. Damon, II. A. Parker,
Grace Kahoalii, J. M. Monsarrat, d. J.
Pike ct a., John De Fries, J. o. Carter
ct al. (trustees of Bishop Estate),
Bruce Cartwright (trustee of two es-
tates), Abigail X. Campbell ct al, and
Mary +. oster. One of the principal
points Mt 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 court IS decision.
Attorney General 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 s. NJ. Ballou, w. A. Whit
ing, Cecil Brown, b. l.. Marx, J. M.
Monsarrat, A. Perry, Abram Lewis, Jr.,
s. II. Derby and ]. A. Magoon.
"We have but to show that, by the
ancient statute, we had a fishing right,
to bring us within the statute" was
the conclusion of Mr.. Ballou Is 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 tho inference
drawn from the decision quoted.
''How about the lease of fishery -
Mr.. Whiting asked. "Was not that a
severance2'
Mr.. Brown contended that since 1889
UT Iotu, Wuen tHe Legislature NJ LII
haina first recognized the proprietary
rights in fisheries, until the present
time every land abutting on the sea-
shore was sold with n fishery attach
ment. The konohiki had the right to
one kind of fish. Chief Justice Judd
held that tenant could not delegate
his right to fish to another.
"With regard to the outside fishery,
we claim under the statute" Mr.
Brown said. Whether the fishery is
mentioned in the royal patent or not
makes no difference if you can prove
that fishery was attached to the
land"
Of it is vested right, had Con-
gress the power to take it awayi"
Judge DE Bolt asked. OIAu
cit must be paid for, "lAkBiown
answered. He had already mentioned
that Mr.. Whiting would tell the court
that the Organic Act jwasepnB sustat-
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. ti'so2s
Mr.. Whiting said the Organic Act
IL anything showed that there was a