The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1905-02-14
IMPORTANT NEW PHASE
OF THE FISHERY CASES
Contention That Original Grants Are Not
Necessary Act Questioned Claim
That Territory Must Buy Rights.

property in the Hawaiian fisheries
Time was given to present claim.
which made that provision of the Act
a statute OF limitations. With the es-
tablishing of rights II 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-
trary was done by Kamehameha III.
who had the power of life and death
over some of his subjects. 1t dated
further back than the remembrance OF
anyone now living. Did Kameharheha
III build up those stone walls or make
the marks on the hills? No, they ex-
listed long before his time. The de-
oision of the United States Supreme
Court was itself equivalent to a grant
In answer to the court, Mr.. Whiting
said 1t was not necessary that a fish
cry should have been mentioned in q
grant. The rights were in existence
long before the patent. though there
were no boundaries. There were stone
fences, though boundaries were not
defined. Recognition was given, from
the very day that civilized government
rights in sea fisheries.
Al,
these fisheries, related how fish could
have been seen piled up at Honolulu
because the tenants had to leave the
fish there in a certain place when the
konohiki was not there to receive his
toll He had seen at Kappa $4,000 fish
brought In and the konohiki unable to
get away with his third of the
catch. There was an iii of land In
Palolo, the people of which had right
to go down to Kaalawai, about two
miles away, and catch fish. This was
a case of fishery separate from the
land.
Mr.. Derby called special attention to
the language of the Hawaiian fishery
statute, which made the sea for one
mile from shore, adjoining a land and
appurtenant thereto, the property OF
the konohiki owning such land. That
must be either grant or n license,
and the Supreme Court of the United
States held It could not be considered
license under any color. II the rights
had existed for so or so years there
was no reason why they should not
exist now. Mr.. Derby read from
Cooley's Constitutional Limitations, to
show that limitation PROVISIONS could
not take away rights from, anyone al
ready In possession of property M
Mr. Brown held that these proceed
ings were the preliminary. steps to con-
demnation proceedings. o. Immediately
after these steps condemnation pro-
eeedings must be taken by the Terri
tory before these fisheries can be made
free. ,.af ,st.aa NJ .A.ft
IF the Organic Act itself Is constitu-
uonal on this ipatterif Judge DE bolt
observed. yus 90 i'uG1 sca1ucgI
Mr. Ballou selaimed that the clauseJof
the orgnnie2Aot, saying, "but no such
vested right shah be- valid after three
years from the. taking effect of this Act
unless established as hereinafter PRO-
Ni'Su' p WAS 1ufIconSlltutfOnal. l'l---A
Mr.. Mngoon eontended it was not
necessarysto have the fishery right in
a grant OF land "One REGULARITY or
this country" he went on to say. ais
that land may be passed from one
owner to another without being de-
scribed at all by metes and bounds.
The fisheries pass by prescription.
Could you have any higher title than
the statute?"
DO you understand that the fisheries
pass as apPurtenapees Of the land?"
the Attorney General asked.
Certainty A-ttts the answer.
Mr.. Andrews then read from Had
lelea VS., Montgomery to show. the con-
trary Of that proposition s.s5e3
Mr.. Magoon said the decision quoted
was perfectly consistent with subse-
quent decisions, The citation of the
Attorney General had been stumbling
block Answering, a question, Mr.. Ma
goon said one could sell, a fishery, sep-
asirateely from the land It had been a
custom always to lease fishery. The
fishery might be the most Important
part of a mans land. M u 81
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