The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-04-07
JUDGE HAPAI'S
HOME IS SAFE
Supreme Court Affirms Judge
Parsons in Re 0Iaa Land
Patent.

t Court rendered yesterday morning, is
ordered to issue land patent TO Judge
C. w. A. Hapai of Hilo, for a lot at
Olaa, which patent had been refused
by the Land Commissioner on the
ground that the applicant. had not full
/ filled the residence conditions, the SUI
preme Court by its opinion affirming
| the decree of Judge Parsons.
According to the opinion, written by
Justice Wilder, a lessee under right
/ of purchase lease of public lands, who
applies for patent, satisfies the stat
| utory prerequisite that he has re-
sided thereon not less than two years"
! by showing that he has for that pc
Rod maintained on the premises a
permanent and fixed abode with the
| present intention there to remain.
Says the court:
! "All that is necessary to decide in
| this case is whether plaintiff has re-
sided on the land for not less than
| two years. The contention of defend
ant is that plaintiff, in order to pre-
vail, must show that he has maintain
ed on the premises for not less than
| two years a permanent and fixed abode
with the present intention there to re-
main. Even if this contention goes
| too far plaintiff has shown by undis-
puted evidence all that is required by
| it. That plaintiff also maintained a
home in Hilo, where he lives when
absent on business from his Olaa
| place. is not sufficient in this case to
show a noncompliance with the stat
| ute, whatever it's effect might be in
some other case. In so far as the
conclusion depends upon a question of
fact, the finding of the circuit judge is
| finding is not binding on this court, it
is certainly entitled to weight. We
may add that, il it appeared in any
way, as it does not in this case, that
| the compliance with the condition as
to residence was not made in good
faith, different conclusion might fol-
low.
1.-The decree appealed from is affirm
ed"
C. F. Clemens (Thompson & Glenn
ons on the brief for plaintiff; w. L.
Whitney, Deputy Attorney General &C.
R. Hemenway, Attorney General, also
on the brief) for defendant.
In the body of the decision appears
the following:
'fR. L. Sec. 322 provides that at any
time after the third year of the said
term. the lessee shall be entitled to a
land patent from the government con-
veying him in fee simple the land de-
scribed in his lease, upon his paying to
the government the appraised value of
the premises as set forth in such lease, |
if he has reduced to cultivation twenty
five per cent of said premises and has
resided thereon not less than two years,
and has substantially performed all
other conditions of his lease, one of the |
conditions of the lease being that /
the lessee shall, from the end of the I
first year of the said term, to the end !
of the, fifth year thereof continuously |
maintain his home on such premises /
r. L. Section 319.
1.-The uncontradicted evidence in the
case shows that plaintiff commenced I
living on the land in April or May of
1902, shortly after the execution of the +
lease, and thereafter, except when pre-
vented. PLAINTIFFS wife lived on the
land for various periods running from
a week to month at a time, occupying
the place in all about half of each year,
and his children occupied the place
during school vacation times. Plaintiff
built house on the land during the
first year of his tenancy. He has Gull
tivated almost all of the land with
bananas, pineapples, coffee flowers,
bles and fruit trees. His inten-
ton was to make the place his home
when his work did not necessitate his
presence in Hilo. All his savings went
toward improving the place. In 1906,
after the application for a patent, he
voted in Olaa, previous to that time
voting in Hilo. If all of the times the
place was occupied by plaintiff, his
wife and family were added together I
It would make about two years.
which is claimed was not fulfilled being
the one that the lessee shall from the
end of the first year of the said term
to the end of the fifth year thereof. con-
maintain his home on such
premises 1t will be observed that that
condition in the lease cannot be per {
formed to its full extent by lessee
Who shortly after the third year of his
term applies for a patent, otherwise he :
could not get patent until after the
fifth year of his term. To reside on
certain premises and to continuously {
maintain home thereon do not mean {
the same thing" 4
The application of Judge Hapai was a
under right of purchase lease of 27.10 {
acres. Ii
POWER OF ATTORNEY REVOKED. 7
j. K. Kalanianaole revokes the row. S
er of attorney held by ris brother, c
David Kawananakoa. to vote his shares T
IF the kapiolani esta,. and transact I
-t,- ~l,.-l a. n