21 Haw. 175 | Haw. | 1912
Lead Opinion
OPINION OF THE COURT BY
This is an appeal taken by the Territory from a judgment made and entered by the court of land registration denying and dismissing its application to have registered a fee simple title to a- parcel of land situate at Lahaina, Maui, known as “Pa Pelekane,” containing an area of 2.28 acres. In response to the usual notice given in such cases several persons appeared, and filed answers. Among the respondents who thus appeared were the trustees under the will and of the estate of Bernice P. Bishop, deceased, who' claimed title in fee simple to the land described in the petition except a portion thereof theretofore conveyed by them to one E. K. Nahaolelua, the ancestor of some of the respondents. The other respondents set up claims to distinct portions of the land and some of them denied that the Territory had any title in or to any of the land described in the petition. The third paragraph of the petition sets forth, “That the Hawaiian Kingdom obtained title to said property on August 29, 1850, by a resolution of the Privy Council reserving and confirming the said Pa Pelekane as Government property, said resolution being on file in the office of the Department of- Public Lands of the Territory of Hawaii, in Vol. 3, p. 427, of the Privy Council Records, and the Territory of Hawaii obtained title to said property by virtue of its political succession to the said Hawaiian Kingdom.”
The Territory’s contentions are recapitulated in the attorney
At the hearing counsel for the Territory offered in evidence the resolution of the privy council referred to in the application claiming that it was evidence of “the exercise of the right of eminent domain,” and also of the fact that the land in question “had always been government land.” The respondents objected to the evidence and it was rejected. The Territory had failed to prove the source of title set up in its application, but certain evidence as to adverse possession was before the court and that tended to show that the petitioner was entitled to a registered title to a part, at least, of the land described in the application. Considerable evidence as to possession by and under the government was offered and much of it was admitted, — some without objection and some over objections as to its competency. The claim of title by adverse possession was inconsistent with the claim that the land in dispute was never the subject of private ownership, and evidence of possession need not have been offered except in reply to an affirmative showing of title on the part of
At the close of the case for the Territory, the respondents, without resting, moved that the application be dismissed on the ground that the petitioner had failed to establish or support the material allegations of the petition, and had failed in its proof. The court granted the motion. The procedure was improper. A proceeding to bring land under the operation of the law providing for the- registration of titles is of the nature of a suit in equity, and the rules of equitable procedure generally apply. In equity it is not correct practice for the court to dismiss a bill at the close of the complainant’s case, on the motion of the respondent, unless the respondent also rests. Territory v. McCandless, 16 Haw. 728; Texeira v. American D. G. Assn., 17 id. 41; Estate of Keaho, id. 308. But as pointed out by the Texeira case, if it appears that the plaintiff is not entitled to relief under the pleadings and evidence a decree of dismissal will not be reversed because of the error. It will be necessary, therefore, to ascertain whether in this case the petitioner was entitled to any relief. The statute (R. L. Sec. 2414) requires that the application shall contain “a description of the land, with a statement of whether an absolute, a qualified, or possessory title is required.” The form of application given in the statute, which is permissive, contains the following paragraph: “That I (or we) obtained title (if by deed, state name of grant- or, date and place of record, and file the deed, or state reason for not filing. If in any other way, state it).” The claim made in the Territory’s application was for “the legal estate in fee simple absolute” while the source of title was given as already explained. Assuming that no title was or could have been derived by or through the resolution of the privy council, the de
The writer, speaking for himself only, is of the opinion that the contention advanced on behalf of the Territory that the privy council at the time referred to (or at any time for that matter) possessed the power of eminent domain is not sustained. The right of eminent domain is an inherent prerogative of sovereignty, though under civilized governments its exercise is usually regulated by express law. “The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and, as said in Boom v. Patterson, 98 U. S. 106, requires no constitutional recognition. The provision found in the Fifth Amendment to the Federal Constitution, and in the constitutions of the several -States, for just compensation for the property taken, is merely a limitation upon the use of the power. It is no part of the power itself, but a condition upon which the power may be exercised.” United States v. Jones, 109 U. S. 513, 518. In the early history of these islands the power resided, of course, in the King. This was recognized in the “Principles adopted by the Board of Commissioners to Quiet Land Titles” (1846) wherein, in the enumeration of the sovereign prerogatives affecting lands, was included the power “to resume certain lands upon just compensation assessed, if for any cause the public good or the social safety requires it.” But the exer
The contention of the respondents is that the land in dispute is a part of the ahupuaa of Paunau which was set apart to Victoria Kamamalu in the Mahele of 1848; that said ahupuaa was awarded, pursuant to the Mahele, by the Land Commission on April 7, 1854 (L. C. A. 7713) ; and that upon that award Royal Patent 4775 was issued to Victoria Kamamalu on April 3, 1861. The respondents, most of whom claim under the award., urge that the resolutions of the privy council could not affect the title so granted to Kamamalu. The award and patent, however, conveyed the land without survey or description other than the name “Paunau.” The claim that Pa Pelekane was a part of the ahupuaa of Paunau is based on the opinion of the examiner of the court to whom the Territory’s application had been referred for investigation and report. At the same time the respondents decline to concede any force to the examiner’s further
This controversy, upon its merits, involves two principal questions, viz.: (1) Did the title to Pa Pelekane ever pass into private ownership by any award or grant, and (2) If the land was ever the subject of private ownership, has the government acquired title thereto, or any part thereof, by adverse possession. These issues may be tried under the pleadings as they stand, subject to possible amendment of the application to conform to the facts as they may appear at the close of the case. Included in the first general question are the other questions, as to what
It will not be necessary to consider all of the numerous objections lodged by the appellant against the rulings of the court below in rejecting evidence offered by the petitioner. It is apparent from what has been said that many of those rulings were erroneous. Upon the new trial which will be had they will be corrected, and others not touched upon may not be repeated. We will refer briefly to some of the more important documentary evidence which was offered. The record of the proceedings of the privy council of May 24, 1859, referring to the petition of Governor Kekuanaoa asking that the land of Beretania be restored to Princess Kamamalu was admissible as evidence tench ing to show that at that time the government was in possession of the land in question. Land commission award 8559 to Kanaina, dated March 31, 1855, describing a piece of land at Lahaina purporting to adjoin government land which, it is claimed, is the land in dispute, would be admissible if supplemented
One ruling made by the court below in the course of the hearing prompts us to advert to another point. The court expressed the view that the former governments of these islands were, as to the present government, foreign governments. That is a mistaken view. The courts of this Territory should take judicial notice of the laws of Hawaii which were enacted at any time prior to the annexation of these islands by the United States. So also as to the principal facts of Hawaiian history. The supreme court has decided that where a country has been acquired by the United States the laws which prevailed there prior to the acquisition are not regarded as foreign laws but those of an antecedent government which the courts of the United States will take judicial notice of. United States v. Perot, 98 U. S. 428; United States v. Chaves, 159 U. S. 452. In United States v. Teschmaker, 22 How. 392, 405, it was held that official records of the Mexican government kept in the archives at Monterey, California, are public documents which the court has a right
The judgment appealed from is reversed and a new trial granted.
Concurrence in Part
OPINION OP
CONCURRING IN PART AND DISSENTING IN PART.
In the petition for registration it is alleged that “the Territory of Hawaii has the power of disposing of the legal estate in fee simple absolute” of the parcel of land situate at Lahaina, Maui, known as Pa Pelekane, which is the subject of the proceeding. If this were the only allegation on the subject, the Territory would doubtless be at liberty to' present, under the pleading and without amendment, proof of derivation of its title from any legal source or sources whatever; but the allegation does not stand alone. It is followed by the statement that “the Hawaiian Kingdom obtained title to said property on August 29, 1850, by a resolution of the Privy Council reserving and confirming the said Pa Pelekane as government property, said resolution being on file in the office of the Department of Public Lands of the Territory of Hawaii in Volume 3, page 129, of the Privy Council records and the Territory of Hawaii obtained title to said property by virtue of its political succession to the said Hawaiian Kingdom.” The later statement qualifies the first and is to be read as a part of it. It is immaterial that the two are in separate paragraphs. The allegations read together are in effect an assertion that the fee simple absolute which the Territory claims as the successor of the Kingdom was derived by the
The presentation and the admission of evidence of the acquisition of title by the petitioner by adverse possession, during its case in chief, while at the same time it was claiming that the land remained unawarded, was not inappropriate or erroneous. Whatever rule is ordinarily followed in actions of trial of title to land, the Territory was at least not required to refrain from presenting its evidence of adverse possession until its case in rebuttal. The offer of the evidence was an appropriate precaution against the possibility of a successful motion to dismiss
One of the contentions of the Territory at the trial and in this court is that the Kingdom derived title by virtue of the power of eminent domain exercised by means of a resolution of the Privy Council adopted August 29, 1850, and reading: “Resolved, that the premises known as Beretania in Bahama, Maui, be and is hereby confirmed as government property and that Governor Kekuanaoa’s claim therefor is hereby negatived.” It is unnecessary to consider whether or not the Privy Council possessed in 1850 or at any other time the power of eminent domain. Assuming for the purposes of this appeal that it did, a sufficient answer to the contention now under consideration is that the resolution was not an exercise of that power. It did, not on its face purport to be. On the contrary, it clearly appears from its language that it was not. It is recorded in the minutes of the proceedings of the council for the day named that “Kekuanaoa on behalf of Victoria claimed, a piece of land called Beretania and a wharf lot in Bahama that had belonged to Kaahumanu” and that “it was acknowledged on all hands that Victoria was the heir of Kaahumanu.” Then follows the resolution and there is no other reference to the subject,. The terms of the resolution and of the preamble expressly negative the view that private property was thereby taken. What the record of the council shows is that a private individual claimed the land as successor in interest to Kaahumanu, that the council conceded in the claimant’s favor that she was the heir of Kaahumanu but declared that in spite of that admission the land, was the property of the government and that the individual’s claim was therefore “negatived” or denied. The resolution was a distinct assertion that the title was already in the government and that Victoria’s claim could not be acquiesced in. This is further emphasized by two earlier resolutions of the Privy Council, also offered in evidence by the Territory. Under date of March 5, 1850, the record shows: “Mr. Bee
So, also, the resolution of August 29, 1850, if it was intended as legislation, did not operate as a limitation of the power of the Land Commission to award the land to a private individual. The Privy Council did not possess legislative powers. Territory v. Liliuokalani, 14 Haw. 88.
The three resolutions were admissible, however, as evidence in support of the claim that Pa Pelekane was not at the date of the Land Commission award a part of the ahupuaa of Paunau and was not, therefore, by that award granted to Victoria Ramamalu. It is well settled that an award of the Land Commission, unappealed from as by the law then in force provided, is final and binding and not subject to collateral attack but it is not an infringement of this rule to ascertain, with or without the aid of extrinsic evidence as the case may be, and to declare the identity and the extent of the land described, or named in the award. What were the ancient boundaries of the ahupuaa of Paunau is not necessarily the sole inquiry, in this respect, iii the case at bar. It may be that Pa Pelekane, though originally a part of Paunau, was not at the date of the award a part of the ahupuaa. I concur in what is said in the opinion of the chief
' I concur also in the views expressed by the chief justice relating to judicial notice of the laws of Hawaii enacted prior to annexation and of the principal facts of Hawaiian history, and to the admissibility of official records preserved in the government archives; in the rulings in detail concerning the erroneous exclusion of other evidence specifically referred to; in the views that the examiner’s opinions are not evidence upon a trial of the issues in a contested case, that evidence (more than a scintilla) was offered by the Territory tending to show (a) that Pa Pelekane was unawarded land and (b) that as to certain parts at least of Pa Pelekane title if it had ever passed by the award, had been acquired by the government by adverse possession, and that petitions for registration are amendable so as to conform to proof of title of a part only of the land claimed; and in the conclusion that a new tidal should be granted.
Concurrence Opinion
CONCURRING OPINION OP
As to the disposition of the question of eminent domain I concur in the views as expressed by Mr. Justice Perry. In all other respects I concur in the opinion of the chief justice.