26 Haw. 382 | Haw. | 1922
OPINION OF THE COURT BY
This case comes to this court upon writ of error to the circuit court of the fifth circuit to review the judgment of that court, jury waived, in favor of defendants in error (hereinafter referred to as defendants). It was previously before this court upon reserved questions raised by defendants’ demurrer to plaintiff’s traverse to defendants’ plea in bar. (See 25 Haw. 651.) Upon decision by this court on the reserved questions and remand to the trial court the defendants’ demurrer was overruled,, whereupon they filed a rejoinder to said traverse; the plaintiff in error (hereinafter referred to as plaintiff) in turn filed a replication to such rejoinder and the cause proceeded to trial upon the issues raised by the plea in bar and the answer of defendants theretofore filed.
It is apparent from a reading of the opinion of this court upon the reserved questions and the subsequent pleadings in the trial court on the plea in bar after the cause was remanded by this court that plaintiff’s right to recover depended on its ability upon the trial to sustain its claims that the land in dispute on June 16, 1862, when Mahele Award No. 55, purporting to award one-half of the Ili of Koula, was granted to. Paniani, upon which on October 30, 1877, R. P. 6998 was issued and from which defendants deraign their title, was in fact a part of the Ahupuaa of Hanapepe and not a part of the Ili of - Koula and hence crown land, and that the whole of the Ili of
There was no dispute and the trial court found (we have adopted .herein the same numbering as appended by the trial court to its findings) : “(1) That the Ahupuaa of Hanapepe on the Island of Kauai was assigned to the King and by the act of June 7, 1848 (R. L. 1905, pp.' 1197, 1201), became crown land ⅞ * ⅜. (2) That on the 1st day of February, 1848, there was a bnahele’ or division of the Ili of Koula between one Paniani and Kamehameha III, under which ‘mahele’ or division, one-half of said Ili of Koula was set apart for Kamehameha III and one-half of said ili was set apart for said Paniani, the said Pani-ani being thereby authorized to present his claim to the said one-half of the ili to the commissioners appointed under the provisions of the act of the 10th day of December, 1845 * * *. (3) That on the 3d day of February, 1848, the said Paniani filed his petition with the commissioners aforesaid for the award to him, the said Paniani, of one-half of the said Ili of Koula, the said petition being numbered 5345; that no award was made as prayed for in said petition ⅜ *. (4) That thereafter Kamehameha III transferred to the chiefs and people the said one-half of the Ili of Koula so ‘maheled’ or set apart to him as aforesaid, the said transfer to the chiefs and people being accepted and adopted by the legislature of the Kingdom of Hawaii by said act of the 7th day of June,
Upon the disputed questions of fact the court found: “(1) * i:' * that the upper or northerly portion of the ahupuaa (of Hanapepe) (the parentheses found in the findings are ours) is comprised of two valleys, called respectively Manuwahi and Koula, which extend up into the mountainous part of the Island.' Those two valleys comprise the Ilis of Manuwahi and Koula, the latter, except the portion covered by Royal Patent Grant 1108, being the land in dispute in this case. (2) The ancient boundaries of the ili (of Koula) are set forth in Royal Patent 6998 and include the land in dispute. (3) * * ⅞ that no award was made as prayed for in said petition (Paniani’s petition before the land commission) and no
Upon these findings of fact the court found certain conclusions of law: “3. That no award having been made as prayed for in Paniani’s petition before the land commission * ⅜ ⅞ no appeal to the supreme court could have been * ⅞ taken ⅞ * 4. That Kaenaku was Paniani’s heir. “15. That on the 16th day of June,
Plaintiff has grouped its assignments of error under
“I. R. P. (Grant) 1108 was intended by the government, and accepted by Paniani and his heirs, as a conveyance of the whole of the Ili of Koula and forever' settled the rights of the parties.” (Assignments Nos. VII, IX, XI, XIII and XVI.) Assignments VII and IX allege as errors the findings of the trial court upon the status of the lands in dispute at the time of the issuance of Grant 1108 and are covered by the trial court’s findings of fact Nos. 1 and 9, respectively; assignment XI alleges error in finding 13 as to the intention of the parties to Grant 1108 and assignments XIII and XVI allege error in findings 15 and 18, respectively, in respect to the legal effect of the findings of fact referred to.
At the outset it is to be observed that the rights of the respective parties depend primarily upon the facts. There is little dispute as to the law involved. The trial court found what it believed the facts to be. However we might differ from those findings; whatever might be our opinion upon the credibility of the witnesses or the weight of the evidence, so long as the findings have more than a scintilla of evidence to support them they are binding upon this court on this appeal. Consequently we are concerned only with the application of the law involved to the facts found and not to the credibility of witnesses nor whether the judgment is against the weight of the evidence. The rule that findings of fact by the trial court, jury waived, are binding upon this court if supported by more than a scintilla of evidence is too firmly established in this jurisdiction to require citation of authority. Moreover, on writ of error there can be no reversal of any finding depending upon the credibility of witnesses or the weight of evidence. Sec.
Assignments of error Nos. VII, IX and XI will be discussed together. That the land in dispute, while situate within the Ahupuaa of Hanapepe, was never in fact a part of the ahupuaa but was a part of the Ili of Koula and with the portion thereof covered by R. P. (Grant) 1108 comprised the ili according to its ancient-boundaries, is so overwhelmingly supported by the evidence that it hardly requires discussion. Kamaaina evidence was adduced upon the trial tending to show that the land described in R. P. 6998 comprised the Ili of Koula as known by its ancient boundaries. Learned counsel for plaintiff agreed that in the event that' the trial court held the evidence of the ancient boundaries of the Ili of Koula was admissible the plaintiff would admit that such boundaries were as testified to and as set forth in R. P. 6998. The court held the evidence admissible and its ruling in that regard Avas correct. G. F. Wright, a surveyor, whose qualifications Avere admitted by the Territory, testified that the Ili of Koula is divided into tAvo parts,—Grant 1108 representing the government’s half sold to Paniani, and Mahele Award 55 representing Paniani’s share; that R. P. 6998 covers the Avhole of the Ili of Koula, such patents always including titles within the boundaries described. The same Avitness identified, and there was admitted in evidence, a map prepared by him Avhereon was delineated the premises involved, those described in R. P. (Grant) 1108; those described in the certificate of Duncan McBryde, the boundary commissioner of the Island of Kauai; those described in R. P. 6998, and those in dispute. He further testified that the actual area of the land described in Grant 1108 is 620 acres; that the area of Koula outside of Grant 1108 is about 4900 acres, and that the Ilis of
One-half of Koula on February 1, 1848, was maheled to Paniani. The remaining one-half vested in the government pursuant to the provisions of the act of June 7, 1848. Paniani on February 3, 1848, made an application to the commission, to quiet land titles for an award of the one-half so maheled to him. The land commission continued in session until March 31, 1855. It was in session at the time of Paniani’s death. Upon her father’s death Kaenaku as his heir had the sole vested right to prosecute her father’s application before the land commission, or, conceding for the time being that the ma-hele to her father conferred “rights” upon him, which after his death vested in her, to apply to the minister, of the interior under the provisions of section 7 of the joint resolution of November 7, 1846, and have such one-half set off to her according to such “rights” that she might procure an allodial title therefor. The land commission never acted upon the application made by Paniani. There is no evidence of any application made by Kaenaku to the land commission to have an ■ award issued. There is no evidence that she at any time applied to the minister of the interior to have a portion of the Ili of Koula set off to her according to her “rights” in the same that she might procure an allodial title therefor. She was not a party to the negotiations culminating in R. P. (Grant) 1108. Paniani had some time between February 3 and ■February 11, 1848, made application to the minister of the interior for the purchase of the government’s half and the settlement of the government’s commutation in his one-half, the latter being made no doubt in the hope of the early favorable action by the land commission upon his application for an award on his half. But the notice
That the government was dealing with only its one-half of Koula is clear. And in the absence of any showing of fraud it is to be presumed that the government did •exactly what it intended to do. It is equally clear that Waialoe Paniani understood that the negotiations covered only the government’s one-half. Not only was the finding supported by the evidence but we fail to see how the trial court could have come to any different conclusion.
As to assignments of error XIII and XYI. The court by its findings identified by ascertained boundaries the area and extent of the Ili of Koula; determined the subject-matter of the negotiations between the minister of the interior and Waialoe Paniani to be the government’s half of the ili; decided that the government by Grant
Other phases of these findings and the law involved will be further enlarged upon in the discussion of other assignments.
“II. Kaenaku, daughter and heir of Paniani, took title to the land described in R. P. (Grant) 1108 and to no part of the Ahupuaa of Hanapepe.” (Assignments of error Nos. X, XII and XIV.) Assignment X refers to the trial court’s finding of fact covered by paragraph 12 to the effect that Kaenaku was not a party to the action of the privy council of May 30, 1853, nor to the issuance of R. P. (Grant) 1108; assignment XII refers to paragraph 14 of the trial court’s findings on the failure of the Territory to show that Kaenaku had waived, etc., or forfeited her right as the heir of Paniani to receive Mahele Award 55, and assignment XIV refers to finding-16 as to the legal effect of the deed of Kaenaku and husband to Elizabeth Sinclair.
Assignments X and XII will be considered together. Counsel’s contention is a little awkwardly stated but evolves from the theory of the Territory that Grant 1108 settled the rights of the respective parties and hence
“If a konohild who had by the mahele been given an undivided one-half interest in an ili settled the government’s commutation in his half and at the same time purchased the government’s half and accepted a patent for the whole ili in which the land was described by metes and bounds as ascertained by a survey made for the purpose of carrying out his transaction with the government we do not think he could afterwards be heard to say that the description did not embrace the whole of the land. This last'is what the plaintiff says in his traverse was done as to the ili of Koula; that is, that Paniani settled the government’s commutation in his half and purchased the government’s half, the government issuing to him a patent by surveyed description for the whole of the said ili.”
we are not now concerned. The trial court found the facts to the contrary and these findings are amply sustained by the evidence. To the conclusion:
“If this is true, and on demurrer the allegations are accepted as true, the whole of the Ili of Koula was included in Royal Patent 1108 and the area and extent of said ili was officially determined by said survey and patent. All of the land within the boundaries of the ahupuaa not now included within some ili or kuleana is a part of the ahupuaa and when the boundaries of the ilis and kuleanas within the ahupuaa have been officially and finally determined the remainder of the land within the boundaries of the ahupuaa is part of the ahupuaa regardless of what may have theretofore been • claimed as to the ancient boundaries of the lesser tracts within it,”
Ave cannot noAv subscribe. The mere act of the parties cannot change the legal status of unassigned public lands. Nothing that Paniani or his heir might do could change
The plaintiff failed to sustain its claim that by the issuance of Grant 1108 the rights of Paniani in the one-half of Koula maheled to him were settled and determined. The trial court found to the contrary. With the failure of the plaintiff to sustain its claim the theory of the change in status from an unassigned portion of the Ili of Koula to a portion of the Ahupuaa of Hana-pepe falls to the ground. And Kaenalcu, if a stranger to the negotiations that culminated in the issuance of R. P. (Grant)- 1108, was not estopped by anything that occurred on those negotiations. The court found that she was not a party to the negotiations that culminated in the issuance of R. P. (Grant) 1108 and learned counsel for plaintiff has failed to point out any evidence that even inclines in that direction. On the contrary the evidence shows that her mother and her mother alone, after Paniani’s death, was the only one that dealt with the government. Nor has the plaintiff pointed out how Kaenaku in any way waived, released or surrendered her right to receive a mahele award of one-half of the Ili of Koula by act of hers or by operation of law. The burden rested upon the plaintiff to show these things and it failed to sustain that burden.
It was incumbent upon the plaintiff to sustain the allegations of its complaint, the particulars of which
Tbe award of tbe minister of tbe interior under tbe Konobiki Act of August 24, 1860, is entitled to equal weight. “In this class of cases, tbe respect due to a patent, tbe presumptions that all tbe preceding steps required by tbe law bad been observed before its issue, tbe immense importance and necessity of tbe stability of titles dependent upon these official instruments, demand that tbe effort to set them aside, to annul them, or to correct mistakes in them should only be successful when tbe allegations on which this is attempted are clearly stated and fully sustained by proof.” Maxwell Land-Grant Case, 121 U. S. 325-381.
Moreover, tbe recognition of Mabele Award 55 by tbe commissioner of boundaries of tbe Island of Kauai upon tbe settlement of tbe boundaries of Koula and by tbe minister of tbe interior upon tbe issuance of R. P. 6998 raises a strong presumption in favor of tbe award. Public officers are presumed to act honestly. Tbe presumption operates in favor of tbe regularity and validity of their official acts. “While acting within tbe scope of their official duties, upon any subject-matter over which they have control and are empowered to act, tbe presumption is that they do not exceed their authority. They are not presumed to disregard tbe law, or to exercise their power and authority in opposition to it, to act officially in a different mode from that prescribed.” Gillette-Herzog Mfg. Co. v. Board of Commissioners, 69
Assignment IY. What the deed of July 7, 1865, “conveyed” is a mixed question of law and fact. The execution of the deed is .undisputed. Its legal effect is sustained by the findings of fact upon which it is predicated.
“III. Waialoe, wife of Paniani, did not purchase or acquire any interest in Koula other than her right of dower.” (Assignment of error No. XVII.) This proposition' involves the court’s findings of fact and conclusions of law in paragraph 19. First as to the facts.
The record shows that Waialoe Paniani subsequently to the death of her husband addressed the privy council; that her communication was referred to as “the letter of Paniani;” that the privy council used the name “Paniani” in connection with the personal pronoun “her;” that Waialoe after her husband’s death carried on the negotiations; that her daughter took no part in the negotiations. From the letter of Pease of October 17, 1851, it would also appear that the privy council was advised of Paniani’s'death. In its minutes of April 25, 1853, it refers to the “late husband of Waialoe Paniani.” Moreover it is unreasonable to suppose that the privy council with the knowledge of Paniani’s decease before it Avould, in the absence of any enabling act authorizing it so to do, issue a grant to or in the name of a dead man. At common law a grant to a deceased person passed no estate to his heirs. Dougherty v. Edmiston, 7 Fed. Cas. No. 4025. No grant can take effect unless there be 'a sufficient grantee then in existence. 5 Enc. U. S. Rep. 255; 10 Enc. U. S. Rep. 118, 119; Davenport v. Lamb, 13
Plaintiff contends tbat Smith v. Hamakua Mill Co., 15 Haw. 648, is authority in this jurisdiction for the issuance of a grant to an heir-in the name of an ancestor. That case held, however, that under the Konohiki’s Act of 1860 mahele awards could be issued in the names of dead konohikis for the benefit of the heirs. But it was not until 1872 that any statutory authority existed for the issuance of patents and awards in the name of the awardee even though he be dead. Sec. 459 R. L. 1915; Brunz v. Minister of the Interior, 3 Haw. 783, 787. Neither of these statutes, however, authorized the issuance of grants in the names of deceased persons.
Nor had the negotiations which terminated at Paniani’s death assumed the dignity of a contract between the government and Paniani capable of enforcement whether at the instance of the government or Paniani’s heir or personal representative.
The reference to the dower interest of Waialoe Paniani is beside the point. A widow’s interest in realty extends only to such of which the husband was owner during coverture. It does not accrue in lands by virtue of a mahele. The mahele of February 1, 1848, did not convey title.
As to the legal effect of these findings: Paniani having-died, his negotiations with the privy council terminated. The court found that the subsequent negotiations were between the minister of the interior and his widow Waialoe and that the purchase of the government’s half was made by Waialoe by grant 1108. That disposed of the government’s one-half. Hence was vested in Kaenaku, as heir of her mother Waialoe, at the time of her conveyance to
“IV. Mahele Award No. 55 was issued in contravention of law and was void.” (Assignments of error Nos. I to VI, both inclusive; XIII and XIV.)
The findings complained of involve the conclusions of law of the trial court upon the facts found. With these conclusions we concur.
Mahele Award 55 has ample authority for its. issuance under the provisions of the Konohiki Act of August 24, 1860. The prerequisites (1) a mahele shown by the Mahele Book and (2) the failure of the land commission to issue an award upon it, are shown to have existed. By that act the right to present claims was extended to konohikis, their heirs, executors and administrators. Under the ruling of Smith v. Hamakua Mill Co. (supra) awards were properly issued to the heirs of deceased konohikis. Presumably Kaenaku pursuant to this act made a claim. The minister of the interior issued an award thereon. Whether or not she was destitute we are not now concerned. If being destitute was a prerequisite to her receiving an award we must presume that the minister of the interior so found and his finding is conclusive. The issuance of a grant is evidence that all conditions precedent have been fulfilled. Minter v. Crommelin, 18 How. 87, 89; St. Louis Smelting Co. v. Kemp, 104 U. S. 636, 646; United States v. Marshall
Tbe award when issued accrued to tbe benefit of Kae-naku tbe sole beir of ber father Paniani.
That tbe award described tbe land by name only does not avail tbe plaintiff. Section 4 of tbe Konobiki Act of 1860 provides that in mahele awards tbe land “may be described by survey or by natural boundaries” in accordance with tbe act of June 19, 1852. Tbe provision is permissive. Section 1' of tbe act of June 19, 1852, obviously, if in force in June 1862, does not apply. In tbe first place it refers to awards by tbe land commission and in tbe second place it was not an undivided' land because it bad been previously divided by tbe Pease survey and tbe issuance of Grant 1108 dividing tbe government balf from tbe balf issued to Paniani. Prom an examination of tbe records of tbe public land office it appears that tbe minister of tbe interior followed tbe invariable practice (with but a single exception) of issuing a mabele award describing tbe land by name only.
Tbe trial court having found that Grant 1108 conveyed, and was intended to convey, tbe government’s one-half of tbe Ili of Koula and not tbe whole; that Waialoe Paniani was tbe purchaser; that tbe transaction was free from fraud and that Kaenaku bad done nothing to waive, release, surrender or forfeit ber rights as Pani-ani’s beir, it inevitably follows as a matter of law that she was entitled to receive a mabele award upon ber father’s mabele of one-balf of tbe Ili of Koula. An award by name covers all that is included within its ancient boundaries. Boundaries of Pulehunui, 4 Haw. 239; Boundaries of Paunau, 24 Haw. 546, 554.
Tbe act of August 24, 1860, provided that mabele awards shall be equally valid with those of tbe land commission and tbe conclusiveness of awards of tbe land
“V. R. P. 6998 was issued in contravention of law and was void.” (Assignments of error Nos. VIII, XY and XVIII.) Having determined that Mahele Award No. 55 was properly issued R. P. 6998 was properly issued upon payment of the government’s commutation. It was issued on a certificate of boundaries of the boundary commissioner of the Island of Kauai and appears in all respects correct except the complaint is made that it includes the premises covered by R. P. (Grant) 1108. That is something, however, of which the government cannot complain. If this can be considered as an irregularity the defendants alone can complain. Curtner v. United States, 149 U. S. 662, 671; United States v. Allen, 171 Fed. 907, 912; United States v. Conklin, 177 Fed. 55-60.
“VI. The motion to strike the evidence relating to the ancient boundaries of Koula should have been granted.” The motion to strike was properly denied. The issues involved a determination of the ancient boundaries of Koula and the acts of the government subsequent to the issuance of Grant 1108. The evidence was properly admitted.
“VII. The court erred in ordering judgment for defendants.” (Assignment of error No. XX.)
“VIII. The court erred in entering judgment for defendants.” (Assignment of error No. XXI.)
The assignments of error to the order for judgment and entry of judgment are disposed of by what has been said heretofore on the main issues.
In arriving at the foregoing conclusions we have conceded the correctness of the holding of this court upon the reserved questions to the effect that under the.
From an examination of the history of the legislation prior to, and attendant upon, the adoption of the joint resolution of June 7, 1846, recited in Oni v. Meek, 2 Haw. 87 at 92, and in Estate of His Majesty Kamehameha IV, 2 Haw. 715 at 721, it is clear that whatever expediency section 7 of the resolution was sought to effect at the time of its adoption, that upon the mahele of 1848 it became incumbent upon the konohiki whose “rights” had been recognized by the mahele of the King to present his mahele to the land commission (Kenoa v. Meek, 6 Haw. 67; Kanaina v. Long, 3 Haw. 335) to whom had been delegated the sole and exclusive executive and judicial powers of investigating, and by its award quieting, claims to land. Thurston v. Bishop, 7 Haw. 431; Atcherley v. Lewers & Cooke, 18 Haw. 639. The mahele of 1848 was in recognition of “rights.” It created, however, no estate in lands. It was “evidence of title.” “By the mahele His Majesty the King consented that Pahoe (the mahelee)
The joint resolution of November 7, 1846, must be interpreted in the light of the plain and unambiguous terms of the act creating the land commission which went into effect in February, 1846; the principles of the land commission adopted by the legislature in August of the same year, and the mahele itself, which was not finally undertaken and completed until February of 1848. To ascertain the law as it existed after the “mahele” it is necessary to examine and consider together the several enactments in pari materia. To appreciate the effect of that law we must also consider the conditions existing at that time and the objects and purposes which those laws were designed to accomplish. We cannot consider the situation as it existed in November, 1846, but must consider it from the standpoint of conditions as they existed in February, 1848, when the division was made.
Upon the mahele of February, 1848, and thereafter until its repeal the joint resolution of November 7, 1846, by section 7 thereof, operated only in respect to, and in settlement of, “rights” that had by the confirmation and award of the land commission become estates in land and provided the method of settlement in kind of the commutation due the government upon the issuance of a patent upon a land commission award. The reference in the section to the act of April 27, 1846, becomes directory merely and the general laws in respect to the issuance
Hence we unqualifiedly hold that the mahele to Pani-ani of one-half of the Ili of Koula ripened into a “right,” as contemplated by the joint resolution of June 7, 1846, only upon an award by the land commission and that it was not operative to authorize the minister of the interior to convey an estate in lands but only to settle by patent the government’s commutation in kind upon and after the issuance of an award and that it was only upon the passage of the act of August, 1860, for the relief of konohikis that the minister of the interior had any authority in respect to land previously maheled to konohikis, when there was conferred upon him authority to issue awards upon maheles to konohikis who had failed to receive the same from the land commission.
The judgment appealed from is affirmed.
