Year: 1862

lows:


The bill and answer in this case have been so fully
forth in the decision, which has hitherto been given
by the Court a demurrer to the bill, that regard


it unnecessary to present them in full again. and will
only refer them in discussing the positions taken by
the parties.


The execution of the agreement of the llth January,
1927 by and between Kalaimoku and the respondent,
which set forth in the BILL is admitted and further,
that the respondent in pursuance of said agreement,
entered into possession of the premises as tenant in
common with KalaimOku, ana has continued to occupy
a portion of the premises till the time of filing the
amended b and that the other portion has been
possession of by the Governor of Oahu for the
use and benefit of the Hawaiian Government.


II is specifically alleged in the bill, that the respon
dent presented to the Board of Land Commission, a
claim based on the agreement of the llth January,
1927 in which he set forth that he was deprived of
portion of the land supposed to be included in said
agreement, and that His Exceency MataiO hekuanaoa,
acting for the heir of Kalaimoku, having agreed to
add the portion described in said bill part No. 1,
that portion described rt 3 that said Board con-


rmed the claimant, the present respondent. his heirs,
executors administrators and assigns. in the same
rights and privileges, in the lot commonly called the
" int, and now including the additional piece under
part No. g as they designated in the survey set
forth in the BILL granted in the original agree
ment and given in full in the award, and subject, at
the same time to the same rules and conditions
therein contained that the agreement was confirmed
by the Board in its application to the claim present
ed 1t is alleged that the agreement by which part I'd
substituted for whatever ground may have been
taken from that included in the agreement of the 1lth
January aforesaid, was made during the year 1851,
and that in pursuance thereof the respondent entered
upon the second part, and continued to occupy the
till the day of the filing the bill, and has received
large of money and profits for the use and Occu
patton of lots No. / and 2


The counsel for the respondent says " that they ad
NIT the presentation of the claim based the agree
ment, and that the Board made an award ); and they
set forth all the proceedings had therein but deny en-
ering into any agreement with KalamOku or his heirs,
other than the original dated 1927, in relation to
the premises described therein.


1t appears By the award and by all the testimony
having reference it, that it claimed and rendered
by virtue of this agreement 1t further appears that
the present respondent claimed equivalent,
count of infraction of the original agreement,
which caused long suspension of the At length


there final settlement by mutual concession, sat
sacOry TO both parties concernedthe representative
ofthe grantor, NJ. KekuanaOa, with the approval of
the Hawaiian Government, consented to addition of


piece of ground to the original lot, IN lieu OF the al
legged deprivation and there appearing counter
claimant this modification of the agreement made.
WhereupOn, the Board confirmed the respondent, his
heirs, executors, administrators and assigns in the
rights and privileges in the lot commonly called
the g Point" and now including the additional piece
under part 2, they both designated in their
metes and bounds by a survey of T. Metcalt-as were
granted in the original agreement and subject to the





and that said instrument is confirmed by this Board in
full application to the present claim and correctly de-
scrbed in the surveys Of part and set forth in
said Bill.


1t is admitted that all the claim the respondent bad
to present to the Land Commission, based the
agreement of Kaaimoku and it is equally clear that
he made effort obtain equivalent for the por-
ton of land which had been added to the Fort This
caused some delay in the proceedings but at length
an agreement made by the representative OF the
foff fba Dauv
Government that piece of ground. which is called
part No. 2 should be added to the original lot, in lieu
of the alleged deprivation and the award was made
accordingly 1t is alleged in the award that obstrue
tions to a final settlement removed by mutual
concession satisfactory to both parties concerned"
Who these parties but the claimant for the award
under the agreement the present respondent, and NJ
kekuanaoa, the representative of the heirs Of the
grantor?


What moved the Board to include in an award to the
claimant piece of land not included in the original
agreement unless was satisfy him for the piece of
which the parties to the original agreement had been
deprived Is it not equally clear that he complained
Of the heirs of KalamOku, and claimed that they
should make equivalent him for the injury he had
suffered by the loss of piece of the land included in
the original agreement? Unless there a clear
derstandng between those parties, why was it that the
Board declared in their award that the terms and
dtiOns of the agreement should apply to lot 2, well
as to the original lot called by them lot 1t is in evil
dence that on the fourteenth day of June, 1850,
agreement was made and executed by and between
John H. the guardian of John Pitt Kinau, the and
heir of Leeiohoku and Keelikoani, his mother, and
the widow of LeeOhOku, for settlement and division
of their respective interests the real property OF said
estate in which the widow relnquished her right of
dover in certain lands therein specified, of which
that part of Pakaka the possession OF the reSpOn
dent, makai of " the stone wall" The consideration
for this REIMBURSEMENT of dover that she should
enjoy the entire of certain other lands during her


e one of which that part of Pakaka situated mauka
of the stone WALL. At that time the guardian of the
minor was authorized by law to make the agreement.


1t appears in evidence that VI. KekuanaOa is the
father of complainant, who then widow of Leleo-
hoku and who held No. as allotment of dover,
and that she was the mother of John Pitt Kinau who
claimed to be the heir of the rights of his father Leeo
hoku in lot l. called the " Point, and in the agree
ment with the claimant before the Land Commission.


1t is reasonable to suppose that NJ. kekuanaoa would
have represented his daughter and her before the
Board make the best efforts in his power to repair
any injury which had arisen to the parties to the org
nal agreement by being deprivedof part of the Kings
wharf By those who claimed to have inherited all the
rights that kalamoku had in the Kings wharf, and
by virtue of the original agreement, this consideration
given, and modification was made in the agree
ment in the nature of additional article 1t is very
evident that the award of lot No. made expressly
the surrender of the claim of Keekolan and the
Board say, in lieu of what had been taken from the
original lot as described in the agreement All the
rights which the respondent asserted before the Land
Commission, were derived from the agreement with
KaIamoku for lot and the agreement made before
the Land Commission with his representatives for lot
No. 2


1t is further alleged in the BILL that Kalaimoku died
in October, 1927, leaving his sole heir his Le-
eiohoku who inherited the property described there
in !; and that he acknowledged to be the heir by
the King, and was treated and considered the in
heritor of the said property. by the respondent The
respondent admits that he did regard Leeiohoku as
having the inheritance alleged but AYERS that he
has good reason now to believe that he may have been
in in so treating and considering said Leeohoku,
as he has been informed and verify believes, that
ther than Leeiohoku claimed TO be the heir of kaaO
moku to whom was granted the entire charge of his
after his decease in the presence and with the
approval of his late Majesty Kamehameha Ill.


The counsel for the respondent say, that the first
material allegation in the bill which they deny except