The Hawaiian gazette., 1907-11-01
RIGHTS
IN REVIEW

n The rights given by law to various
e persons and corporations for the ex-
/ elusive privileges of fishing in certain
e waters were reviewed in a decision OF
: The Supreme Court. handed down YES
q terday in the matter CT the claim of
\ the Kapiolan: Estate to fishery rights
in the Hanapepe river. Kauai. The de-
clsion is that these rights are not in
: cluded among those established by the
r Organic Act II also decides the ques-
r tion of the power OF a Circuit Court To
change the venue in an action with the
consent of both parties, deciding this
in the affirmative. The opinion. writ
ten by Justice Wilder. is in part as
follows:
|, This is an action instituted in the
Fifth Circuit Court to establish a fish
ing right under Section IS of the Or
ganic Act. which action, by consent
of all parties. was transferred to the
First Circuit Court. which last court
reserved two questions for the consid-
GRAFTON of this court.
The first reserved question is wheth-
er the Fifth Circuit Court had power
with the consent of both parties 10
change the. venue and transfer the rec
ord to the First Circuit Court.
Plaintiff claims that this is an ac-
ton to quiet title in real property and
is triable only in the Fifth Circuit. in
which the fishery claimed is situated
Assuming. but not deciding thar an
action to quiet title in real property is
triable only in the circuit in which
the real property in question is situ-
ated. and that the venue of such an
action can not be changed. it does not
follow that the venue of this action
can not be changed to the First Cir
cult. This is an action specially au-
thorized by Section 96 of the Organic
Act, which provides that "any person
who claims a private right to any
such fishery shall, within two years
after the taking effect of this act. file
his petition in the Circuit Court OF
the Territory of Hawaii setting forth
his claim to such fishing right. ser
vice of which petition shall be made
upon the Attorney General. who shall
conduct the case for the Territory. and
such case shall be conducted as an or
binary action at law"
1t is not alleged that defendant
claims an interest in the property ad-
verse to the plaintiff. and the declara-
ton as whole shows that it IS not a
statutory action to quiet title in real
property. The first reserved question
is answered in the affirmative
The second reserved question Is
whether the fishery claimed in this
action is included under Sections 95
and 96 of the Organic Act
The fishery claimed is entirely within
the Hanapepe river. on the Island Of
Kauai, where the tide to a certain ex-
tent rises and falls the water being
a mixture of sea water brought into
the river by the action of the tide and
fresh water coming down the river.
The fish taken are sea fish coming
from the ocean. No weir or artificial
inclosure exists across the mouth of
the river. The title to the fee OF the
bottom of the river is in the plaintiff
Section 95 of the Organic Act is as
THAT all laws of the Republic OF
Hawaii which confer exclusive fishing
rights upon any person or persons ara
hereby repealed. and all fisheries in
he sea waters of the Territory of Ha-
vail not included in any fish pond or
artificial inclosure shall be free to all
;itizens of the United States. subject,
'owever. to vested rights: but no such
rested right shall be valid after three
'ears from the taking effect of this
Act unless established as hereinafter
provided"
1t is then provided by Section 90 OF
10 lrcr1 r1r7fa At
private right to ANY such fishery
hall file his petition to establish the
ame etc. We take it that ANY such
sherry means the fishery or fishing
isht referred to in Section 95.
Congress intended to do away with
II fisheries in the sea waters of the
'erritory belonging to private indi-
iduals and not included in any FISH
ond or artificial inclosure and 10 pro-
ide for the condemnation of such OF
hem as were vested rights.
1t is not the kind Of fish caught
hat determines the question, but It is
ne place where the fish are caught.
o the fact that the kind of FISH taken
n this river are sea fish which have
ONE in from the ocean Is immateriaI
n this case no claim IS made that
here was grant of a fishing right
s such.
In 1899 King Kamehameha III re-
1med possession of all the fishing
rounds in the islands and redistrib-
ted them, giving those without the
oral reef. namely, the Kflohee
round, the Luhee ground, the MaloIo
round, and the ocean beyond, to the
eople, and those from the coral reefs
} the sea beach are for the landlords
nd for the tenants of their several
nds, but not for others" Subsequent
-atutes, which, with few changes.
ave continued in force until repealed
y the Organic Act. confirm this divi-
on by enacting that .'the fishing
rounds from the reefs. and, where
iere happen to be no reefs, from the
Stance of one geographical mile sea-
ard to the beach at low water mark.
lall. in law, be considered the private
roperty of the konohikis. whose
nds, by ancient regulation. belong TO
le same" and further setting our the