The Hawaiian gazette., 1912-07-12
NEW TRIAL GRANTED
BY SUPREME COURT
Tribunal Hands Down Decision
in Land Case-Justlce
Perry Dissents.
From Thursday = Advertised

uefeu ueclNlon IN tnc ulhtteT OF thu /
petition of the Territory of Hawaii to
register and confirm its title to certain
land situate in Lahaina, Island of Maui |
known as "Pa Pelekane," appealed !
from the court of land registration. The
Judgment appealed from is reversed
and new trial granted.
Justice Perry filed a separate opinion,
concurring in part and dissenting in
part.
The law of the ease, as laid down in
the syllabus of the courts opinion,
written by Chief Justice Robertson, is
rs follows:
GA proceeding to bring land under
the statute providing for the registra
ton of titles partakes of the nature
of suit in equity, and it is not correct
practise in such proceeding to dismiss
| the application at the close of the pc
| titioner's case on the motion of respUn-
| dent unless the respondent also rests.
'Where, in such proceeding, the
application sets forth claim of title
in fee simple absolute and alleges
source of title which is. legally invalid,
but no objection was raised to the form
of the pleading, any evidence tending
to prove the general claim of title in
fee simple is admissible, and the matter
of amending the application may re-
main in allowance until the close of the
evidence.
GA resolution of the privy council
of the Hawaiian Kingdom that certain
land 'be and is hereby confirmed as
government property and that Govern
or Kekuanaoa s claim therefor is here
by negatived, adopted in response to
an adverse claim by KeRuanaoa on
behalf of another individual for the
land mentioned, was not intended to be
/ land was not an exercise of the power
of eminent domain.
4 ''The title to land which was never
awarded by the land commission nor
granted by the government remains IN
, the Government. The Mahele of lS4s
: did not confer title ON the chiefs to the
! lands therein set apart to them.
: "rhe award of an ahupuaa by name
/ only would not pass title to piece OF
q land which, though originally a por
/ ton of the ahupuaa, had, prior to tn,
/. award, been permanently detached
!, from and taken out of the ahupuaa.
4 "The former governments of the Ha
:, waiian Islands are not to be regarded
n
: this Territory take judicial notice o.
the laws of Hawaii which were enacted
a prior to the annexation of the Island
g by the United States, as well as of tn
g principal facts of Hawaiian history
= and the public records of the Hawaiian
a government when called to the atten
/, ton of the court"
N In the separate opinion fled by Jus
~ tice Perry. who concurs in part wit
- and dissents in part from the opinion
70 of the court, he says:
=, Sin the petition for registration it i
~ alleged that 'the Territory of Hawai-
= has the power of disposing of the lega
estate in fee simple absolute of tn
"a parcel of land situate at Lahaina, Maui
+ known as Pa Pelekane, which is tn
~ subject of the proceeding. If this wer
10 the only allegation on the subject, tn
II Territory would doubtless be at libert.
u to present, under the pleading and with
re out amendent, proof of derivation o
III its title from any legal source or source
IN whatever; but the allegation does no
ie stand alone. 1t is followed by tn
statement that the Hawaiian Kingdom
VI obtained title to said property on Au
" gust %, 1850, by resolution of tn
"a Privy Council reserving and confirmin
InG Sdlu L a 90 So S''''''N'
Al property, said. resolution being on fill
is in the Office of the department OF pull
81 lie lands-of the Territory of Hawaii /
ID Volume 3, page 429, of the Privy COM
az ell records and the Territory OF Ia
2, waii obtained title to said property D
~ virtue OF MS political succession ,DI 10 IN
y SAID haWallah hlhgaom: Inc late
70 statement quallnes tne hrst ana Is
. pc reaa as a Pal1 Oh IT, ~ rs i, ra "a
:, terlaL thaI the Lwo are ia sePai ate pa"
~ graphs ne aliesatioHs it Eau 'o ~ se
~ are IN eHecI an asseI'iot en"G nv tne ~ ~
ie Simple aos4iute wnicn inc g. i l';n1o,
~ claiinS as tne successor VI tne nihsu th
X was derived ny e1e hihguo % u nut VI
II. resoIuIion reiefieu TO- - ~ 10 iouhu a
Of matter Oh law tGat .ne reoo ~ o wa
IL not an eAel,ise u lne po"ei ~ Gun n len
domain ana qua not nave the e.ie :
IL c ial lol ~ tnG "noie a.sinnen'
as Lltle iaias anu WHOM hnlenu men eN.
r. dehce Oh the ueliSa.ion OF title lloI
e, other sources wouIu ne ihau,iiissiIle,
cd my DC ~ unGer tne s 81, ie IN