The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1906-12-11
WHO'LL PAY
DAMAGES?
cFrom Mondays Advertlser)

tFrum Mondays AdVcrtser)
In his very full resume OF the vested
Fisheries matter. in his report to the
Secretary OF the Interior, Governor
Carter passes the buck OF paying the
bill up To Congress. as Congress with
out adequate knowledge of the case
created the obligation. The following
are some of the Governors remarks:
The Supreme Court of the Terri
tory, In the Garter case. held that the
plaintiffs could not base any claim to
the fishery on ancient custom or pre-
scription; that the fishery was not APP
purtenant to the land and that the
statutes did not confer vested right,
and. in the former case, upon the
further ground that IL did not APP
pear from the patent that 1t was the
intention of the grantor to convey the
fishery and that the grant of exclusive
right should not be presumed. the pre-
sumption being against the grant and
in favor of the public.
THE Supreme Court of the United
states reserved the decision of the
Territorial Supreme Court in the Da-
mon case, and since the last report |
took like action In the Carter case.
THE practical result of these two |
decisions has been to dissolve all cases |
pending into mere proceedings to es,
tablish fisheries either by grant or pre-
scription, and as fast as circumstances
have permitted these cases have been |
disposed of. But few are pending. Up |
on the completion of this litigation
there will have been established in the |
sea waters adjoining the islands of
this Territory private and exclusive
fisheries covering the greater portion
of sea waters between the coral reefs |
and the shore.
by the common law the title and |
dominion of the sea and navigable
rivers and arms of the sea within the
territorial Jurisdiction We're in the
king, who held the same for his sub
jects, who had common right of fish
cry therein The right of fishing in the
open sea, like that of navigation. was
a public right. Congress recognized
that principle in it's repeal of all laws
pertaining to private and exclusive
fisheries. 1t manifested it's intention,
except as to vested rights, to make
fishing in the sea waters of this Ter
ritory common right to citizens of
the United States, for their free use
and benefit. But Congress did not ap-
preciate the extent to which vested
rights in fisheries obtained in these is
lands. The early statutes fostered a
custom far reaching in its scope. Ear
~ land tenure concentrated land hold
ings in a few, and the right to sea
fisheries appurtenant to the lands
built up practically exclusive dominion
over adjoining sea waters One can
only appreciate the extent of the 80
claims filed by an examination of the
coast lines covered by the appended
list of cases instituted for the purpose
Of establishing fishing rights. And the !
Supreme Court of the United states
has declared these rights to be vested,
while Congress has enacted that these
private and exclusive rights to sea fish,
cries must be acquired by the Terri
:ory for the use of the citizens of the
United States The Territory. how
,ver, is without funds and without the
lbility to borrow the money in settle-
nent of these claims. The organic
aw required that proceedings In con-
emnation must be instituted, but be- }
ore these proceedings are commenced !
here must be the available funds to v
atisfy whatever judgment in condem- 4!
ation may be awarded against the
territory. We are at present without
he information as to what the total =
alue of these fisheries will amount
0. Congressional assistance by proper 4
of money is the only y
tactical method by which citizens of
he United States can secure for them 4
elves that right which is preserved 4
, all our citizens in common of States
nd Territories bordering on the sea-
ne free and open right of fishery"