Year: 1861

0l,t
move their cattle before the ls day of May 1885, and
warming all other persons against taking any Of the
wild cattle


On the 10th of November, 1882 the Minister of the
Interior, acting behalf of His Majesty and of the
government, entered into written agreement under
seal, by which he leased to Mr.. Robert c. Janion his
representatives and assigns, all that part of those
lands belonging to His Majesty and 10 the Government
on the mountain of Maunakea lying above the Forest
on the Hllo side Of the mountain and the Waimea
side Of the mountain, above the lands of Paauhau and
WalSoloa, Excepting certain lands specified in the in
strumeni) with the privilege of catching and killing
the Wild unbranded cattle thereon, and also the privi
lege OF catching and killing the said wild unbranded
cattle on any other lands belonging His Majesty
to the Government in the districts of Hlo HamaSua
and South Kohala. excepting His Majesty's land Of
Funkapu) for and during the term of five years from
and after the first day of August A. D. 1859" The
instrument, which is somewhat nartifcialIy drawn,
concludes with on the part of the Minister
OF the Interior " that he is duly and fully authorized
and has good right sell and convey the above named
cattle, and all the right, title and interest either Of
His VI Jesy the King, of the Hawaiian Government
therein or thereto aforesaid and also to lease His
Majesty S lands included in this agreement


10 this instrument there is appended an additional
writing, which reads follows ''Whereas it in
tended by the party of the first part to the foregoing
instrument, dated November 16th 1882 to give to the
party OF the second part all such right His Majesty
aud the Hawaiian Government may have to catch and
kill wild unbranded cattle the Island of Hawaii, for
|
| gust, A. D. 1859:


Now these presents witness that the said party of the
hrst part In said instrument for the considerations
therein mentioned, and for the further of one dol
lar the receipt whereof is hereby acknowledged hath
given, granted and leased and by these presents doth
give, grant and lease unto the said Robert C. Janion,
his executors, administrators, and assigns all the right,
title and interest of His Majesty kamehameha w., and
also Of the Hawaiian Government in and to all and
singular the wild and unbranded cattle, to w.t. bulls.
oxen. COWS and calves, unmarked and unbranded now
running on the Island of Hawaii with all such right
as His Majesty and the Hawaiian Government have or
may have respectively catch, kill and convert the
same, for the of five years from the LIST day of
August, A. d. 1859, as aforesaid.


- In witness whereof | have hereunto set my hand
and the seal of the Department of the INTERIOR this
18th day Of March, 1860.


| al. 81 L. KAMEHANEHA''


The origin and growth of the different herds of cat
tie, bel ngng TO private individuals about Wainea and
the slopes of Mauna kea, have been fully described in
evidence and it appears from this evidence hat there
is mum of what may be termed " wild CATTLE, or,
some of the witnesses called them bush cattle, which
have located themselves in the forest belt of Hamakua
1t appears that these cattle have msny sprung from
animals which have srayed from the herds Of the late
Mr.. William French, (now Mr.. JaniOn's) Mr.. Parker,
and Mr. Purdy, whose cattle frmerly if not st pre-
sent, ran in common the ranges of pasture land not
being divided by fences But these bush cattle are said
to be readily distingushabe from the wild mountain
cattle, which differ in appearance from all other cattle
upon the Island of Hawaii. There is proof also
that there unbranded cattle running on the plain
tfs land of Waikooa that is animals belonging 10 his
| private herd which have escaped being branded


As to the first point made by the plaintiff, viz that
| the animals from which the hides in question were
taken, having been found upon his land must he pre-
sumed, although not branded, to have been his
cattle; we are of the opinion that such presumption
cannot be made, conclusively in his favor with any
greater propriey than it could be concusvey presum-
ed the other hand that because these cattle
,,laI
tain cattle, belonging to Mr.. Janion. Th question
to whether these cattle belonged to the plaintiffs herd
TO the herds of wild cattle, properly left to the
decision of the jury as question of fact, upon all the
circumstances of the given in evidence and
the jury having found for the defendant. they must
have been satisfied that according the weight of evil
dence the cattle in question wild mountain cattle
The only ground that appears for pres ming that these
cattle belonged to the plaintiff the fact that they
found upon his land where there are ssid be
unbranded cattle of his which have escaped the drvings
of his herdsmen But the presumption that these
mountain cattle from the wild herds rests upon broad
foundation While it is the habit of the Of
private herds to brand every animal they possess.
far their animals be cleaned - that purpose by
stated drivngs in,' from the dife parts of their
ranges, not of the wild cattle of lie King and the
Government which the mountain ever brand
ed for the law which regulates the brands and marks
of private owners intended to apply to the
wild herds which the sides Of Mauna Kea, and
which universally recognized the '' mountain
Government
too tht numbers Of these cattle frequently on
Waikoloa and many of them have been captured there
from time tme showing that they in the habit Of
freouentng that land. Further appears that of the
twenty hides in question no fewer than ten or
twelve large bulls hides, and only the
hides of cows, showing dsproportion between males
and females, peculiar to the wild herds and which does
not exist in any herd accustomed to be penned. to
be taken care Of by herdsmen. Upon these grounds
think the inference is irresistible that the animals
he TAX ufaip


But it is cOntended the part of the plaintiff that
the herds of wild mountain cattle animals tere
trR. of wild nature, which the law does not recog
the subject of property in any person. until he
has reduced them possession and that if the cattle
from which the hides taken belonged to these wild
herds, he had right to capture them, wild animals.
and to convert them to his when found upon
his land.


In our opinion these mountain cattle cannot be legal
ly regarded as animals ferG Raiwe They do n { be-
long to species of animals which classed as
wild animals by nature. either by writers on law
natural history. Nor is their state like that OF animals
originally fTe nature, which have for time been
brought under the immediate control and dominion OF
man, but have escaped and gone back their naturally
wild state. These cattle the progeny Of the tame
cattle landed by Vancouver which in the of time
have become wild in their habits and appearance
than the cattle which range the lower lands, from
the fact that they have been allowed range Mt large,
and to propagate their race, free from the restraints and
the management usd in the of the private herds
many OF which, however, can only ne reiuceu 70 man
ua possession by the means that thousands Of the
mountain cattle have been captured, namely, with q
feet horse and a lasso. The difference between the
mountain cattle and the cattle of private owners is not
a difference Of species Of nature but merely differ
ence the degree Of wildness in habit and appear
ance supernduced by various causes and they can
more be regarded as animals feTe nature on that
count than the cattle of the plaintiff could be regard
ed, if he should t to let them breed and range
WaikoOa for several generations without bestowing



that the plaintiff cattle, however wild they might
become would still be his property and could not be
captured and converted by neighborng proprietors
wild animals, when found upon their own lands.