18 Haw. 649 | Haw. | 1908
OPINION OF THE COURT BY
The plaintiff brought ejectment to recover possession of certain lands upon the Island of Oahu alleged in its amended complaint to be part of the public lands of the Territory which
The demurrer being overruled the defendants filed their answer denying all the allegations in the amended complaint. The cause was thereupon tried by the court, jury being waived. The defendants admitted that the land sued for was reserved by Kamehameha III. for his private use and ownership by act of June I, 1848, relating to the lands of His Majesty, the King, and of the government, and that it had not been aliened by Kamehameha III. or by any of his heirs or successors in title or by the commissioners of crown lands, the Provisional Government, Republic of Hawaii, the United States or the Territory.
It was agreed that the value of the land exceeds the sum of $5,000, the plaintiff, however, waiving any claim for damages. The plaintiff introduced evidence which, as stated in the bill of exceptions, ivas sufficient to identify the land and to show that at the commencement of the action it was in the possession of the defendants Lizzie Puahi and Tam Pong, but adduced no evidence of occupancy at that time by the defendant Moses Puahi or to show title in the plaintiff other than by the defendants’ admissions above stated.
The defendants’ motion for judgment upon the ground that the plaintiff had not shown title being denied they offered to prove that as early as 1863 one Paalcai was living on the land in open, notorious and exclusive possession, claiming title against all the world and that he continued so to hold until May 19, 1870; that the defendant Moses Puahi was born on the land
It is stated in the defendants’ brief that the refusal to order judgment for the defendants, as well as the judgment for the plaintiff, was based upon the proposition that the title had accrued to the United States under the constitution of the Republic of Hawaii, Art. 95, and the ISTewlands’ Resolution of Annexation, and that the right of the Territory to maintain the action was established by the Org. Act, Secs. 91, 99. While admitting that “it would doubtless he too much to expect the circuit courts of this Territory to pass upon the constitutionality of the joint resolution and acts of the federal congress, and however much the Uewlands’ Resolution and sections 91 and 99 of the Organic Act may infringe the Constitution of the United States, the circuit courts of this Territory are. not unjustly reluctant to declare such unconstitutionality,” the defendants say that “whether this court would he willing to venture upon such inquiry and determination we can only for the present surmise.”
We held in Territory v. Kapiolani Estate, 18 Haw 640, that a judicial question is not presented by a claim requiring a ruling that Art. 95 of the constitution of the Republic of Hawaii is unconstitutional, and neither in that case nor in this was any reason suggested for holding the subsequent transfer of title to the United States invalid or unconstitutional.
’“The evidence as to actual possession or occupancy of these Ilis was not laid fully before me, except in the case of the Ili of ‘Keaahala,’ for which a lease of Kamehameha IV. is shown, dating in 1856, which would rebut the claim of plaintiff’s title by adverse possession of this Ili.
“If plaintiff can show that Queen Kalama or her heirs or assigns have had, during twenty years last past, adverse, uninterrupted and undisputed possession of any or all of the Ilis in'question, this would be a complete bar to an action by the defendants to recover them.”
•' In spite of-the language of the majority of the court in discussing this paragraph in Kapiolani Estate v. Cleghorn, 14 Haw. 330, 335, wo cannot find in the pleadings in Harris v.
Under these circumstances we cannot consider the court’s statement as to what would happen if the plaintiffs could show certain facts in an action which might be brought by the defendants against them as anything more than obiter dictum, though it was doubtless relied upon by the commissioners in agreeing to a compromise judgment. It is also to be observed that though the period in question covered time subsequent to the act of January 3, 1863, as well as prior thereto, no consideration was given by the court to the effect of that act declaring the crown lands to be the property of the king in his sovereign capacity, to be thenceforth alienable, and to descend with the crown. In Galt v. Waianuhea, 16 Haw. 652, the court overruled this dictum in Harris v. Carter in so far as the statute running after 1865 was concerned, but did not comment on the discussion of the latter case in Kapiolani Estate v. Cleghorn, 14 Haw. 330, as it did not consider that discussion necessary
The remaining question sought to be presented by the defendants in their exceptions is whether, in the absence of evidence that the defendant Hoses Puahi had taken the land into his possession to his own use, judgment could properly be rendered against him, or, the action being against the defendants jointly, against any of them.
The defendants’ motion for judgment at the close of the plaintiff’s case, on the ground that the plaintiff had not shown title, did not present the question now for the first time raised by the defendant Hoses Puahi that there was no evidence to show that he was in possession at the time of the institution of the action. Me made no motion on this ground. If he had done so the evidence could readily have been supplied, particularly in view of his subsequent offer to prove this very fact. Hor did the general exception by the defendants to the decision as contrary to law and the evidence present this question.
‘‘The object of an exception as contemplated by the statute is to bring to this court a specific question of law upon which the trial court has erroneoxisly ruled to the prejudice of the party excepting, and not to enable a party to cast the entire case upon the court for review. Such a loose method of practice is unfair to both the opposite party and the court.” Fraga v. Portuguese Mut. Ben. Soc., 10 Haw. 129.
Exceptions overruled.