The Hawaiian gazette., 1908-04-07
JUDGE HAPA|'s
HOME IS SAFE

Land Commissioner J. w. Pratt. by
unanimous decision of the Supreme
Court rendered yesterday morning. Is
ordered to issue a land patent to Judge
G. 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
filed the residence conditions. the Su-
preme Court by its opinion affirming
the decree of Judge Parsons.
According to the opinion, written by
Justice Wilder. a lessee under a right
of purchase lease of public lands. who
applies for a patent, satisfies the stat
utory prerequisite. that he has re-
sided thereon not Nss 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
Il
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 IL this contention goes
too far, plaintiff has shown by undis-
puted evidence all that Is required by
1t. 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 noncompliance with the stat
ute, whatever its 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
in favor OF plaintiff. and while that
finding is not binding on this court. It
is certainly entitled to weight. We
may add that, II II appeared In any
way, as 1t does not in this case, that
the compliance with the condition as
to residence was not made in good
faith. n different conclusion might fol-
low.
The decree appealed from is affirm
ed"
c. p. Clemens Thompson & Glenn
ons on the brief) for plaintiff: w. l.
Whitney. Deputy Attorney General &C..
r, Hemenway, Attorney General. also
on the brieO for defendant.
In the body of the decision appears
the following:
& "R. l.. See 500 provides that at any
time after the third year of the said
term, the lessee shall be entitled to
land patent from the government con-
veylng him in fee simple the land de-
scrlbed in his lease upon his paying to
the government the appraised value OF
the premises as set forth in such lease,
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
of the lease being that
the lessee shall, from the end of thu
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.
"The uncontradicted evidence in the
case shows that plaintiff commenced
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 a 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 a house on the land during the
first year of his tenancy. He has cub
tivated almost all of the land with
bananas. pineapples. coffee, flowers.
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 We're added together
It would make about two years.
''The only other condition in this case
which is claimed was not fulfilled being
the one that the lessee shall from the
End of the first year of the said term
% the end Of the fifth year thereof con-
inuously maintain his home on such
PREMISES 1t viii be observed that that
in the lease cannot be per
ormed to its full extent by a lessee
no shortly after the third year of his
ERIN applies for patent, otherwise he
.ould not get a patent until after the
fifth year of his term. To reside on
ertain premises and to continuously
maintain a home thereon do not mean
he same thing"
The application of Judge Hapai was
nder right of purchase lease Of 271O
ores.
'oWER OF ATTORNEY REVOKED.