Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1907-10-29
COURT HAD POWER
To CHANGE VENUE

The Supreme Court rendered an
opinion this morning on questions re.
served from the First Circuit Court
In the matter OF the Kapolani Estate
vs.. the Territory, an action to estab.
FISH fishing right, which, in addition
to being adverse to the Kapiolani Es.
tate, recites briefly the history of fish.
ing rights legislation in Hawaii and Is
CT considerable interest on that ac.
count. The opinion, written by Jus.
tee Wilder, is in part as follows:
This is an action instituted In the
fifth circuit court to establish fish.
! ing right under Sec. 80 of the Or.
eanic Act, which action, by consent
OF all parties, was transferred to the
! first circuit court, which last court re.
served two question for the consider.
alton of this court.
The first reserved question Is wheth.
er the fifth circuit court had power
With the consent Of both parties to
change the venue and transfer the
record to the first circuit court.
Plaintiff claims that this Is an ac.
ton to quiet title In real property and
IL triable only in the fifth circuit in
which the fishery claimed is situated
Assuming, but not deciding, that an
action to quiet title In real property Is
triable only In the circuit in which
the real property In question is sit.
uated and that the venue of such an
action cannot be changed, II does not
follow that the venue of this action
cannot be changed to the first circuit.
This is an action specially authorized
by Sec. SO of the Organic Act, which
Provides that "any person who claims
a private right to any such fishery
shall, within two years after the tax.
ing effect of this act. file his petition
in the circuit court of the Territory OF
Hawaii setting forth his claim to such
fishing right, service of which petition
shall be made upon the attorney gen.
eral, who shall conduct the case for
the Territory. and such case shall be
conducted as an ordinary action at
law"
1t is not alleged that defendant
claims an interest In the property ad.
verse to the plaitniff. and the declara.
ton as whole shows that II is not a
statutory action to quiet title In real
property. The first reserved question
Is answered In the affirmative.
| The second reserved question IL
whether the fishery claimed in this
action is included under Secs. 80 and
9G Of the Organic Act.
The fishery claimed Is entirely with.
in the Hanapepe river on the Island
Of Kauai, where the tide to certain
extent rises and falls. the water being
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
Enclosure exists across the mouth of
the river. The title to the fee of the
bottom of the river is In the plaintiff.
Sec. 95 Of the Organic Act is as fol.
lows:
THAT all laws of the Republic of
Hawaii which confer exclusive fishing
rights upon any person or persons are
thereby repealed, and all fisheries in
the sea waters of the Territory of Ha.
wall not included in any fish pond or
artificial Enclosure shall be free to all
citizens of the United States, subject,
however, to vested rights; but no
three years from the taking effect Of
this Act unless established as herein
after provided"
1t is then provided by Sec. SO of
the Organic Act that one who claims
a private right to ANY such fishery"
shall file his petition to establish the
same, etc. We tjke 1t that ANY such
fishery" means the fishery or fishing
right referred to in Sec. 50.
Congress intended to do away with
all fisheries In the sea waters of the
TERRITORY belonging to private indi.
viduals and not included In any fish
pond or artificial Enclosure and to pro-
vide for the condemnation Of such Of
them as were vested rights.
II is not the kind of fish caught
that determines the question but It Is
1.-THE place where the fish are caught.
So the fact that the kind OF fish taken
in this river are sea fish which have
come In from the ocean is immaterial.
In this case no claim is made that
there was grant Of a fishing right
as such.
In 1889 King Kamehameha III re.
sumed possession of all the fishing
grounds in the islands and redistrib
uted them, giving those without the
coral reef, namely, the Kilohee
ground, the Luhee ground, the Malolo
ground, and the ocean beyond, to the
Eeople, and those from the coral reefs
70 the sea beach are for the landlords
and for the tenants of their several
lands but not for others" Subsequent
statutes, which, with few changes,
have continued in force until repealed
by the Organic Act, confirm this divi-
sion by enacting that "the fishing
grounds from the reefs. and where
there happen to be no reefs, from the
distance of one geographical mile sea
ward to the beach at low water mark,
shall, in law, be considered the private
property of the konohikis, whose
lands, by ancient regulation. belong
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