*1 Any with federal law. there will be conflict be supersedure pro- claim can the state preserved supersedure question And the can be de- ceedings. light impact specific termined order regulations of the the Federal Act or the agency state is followed Secretary Only procedure if that thereunder. be the whole state domain preserved can there intact harmoniously with the fed- actuality which functions with pregnant For even action which seems system. eral may, consummated, wholly conflict possibilities of barren of it.
Reversed. v. FULLARD-LEO STATES UNITED al. et May 12, February 12, Argued No. 429. —Decided *3 Bernays Frederick argued Wiener the cause for Acting With him on United States. the brief were So- Washington, Attorney licitor General Assistant General Bazelon, Roger Marquis P. Alvin 0. West.
A. M. cause and filed a brief argued G. Robertson respondents. Tavares, Attorney Hawaii, Nils of a C. General filed curiae, Territory Hawaii, sup- for the of as amicus brief port respondents.
Mr. the Court. opinion delivered the Reed Justice This writ of certiorari review a decree was allowed to Ninth Appeals United States Circuit Court of for the Circuit affirming decree of the District Court of United States for the S. 697. Hawaii, District of U. began present proceedings United States filed in the title in it to a petition, Court, quiet District group Pacific, Palmyra of islets in the known as long Hawaii Kingdom Island. was annexed to the February 26, 1862, claims the United States it remained a Hawaii part governmental of the lands passed to the United the Joint Resolu- States Congress tion of Hawaii July 7, which annexed accepted to the United States and all the United States public, Government or Crown all public lands and other property belonging then Republic to the of Hawaii.1 The sovereignty lands and Kingdom pre- of Hawaii viously passed directly had Republic Hawaii, through intervening Provisional Government.
Palmyra Island is around one thousand miles south of
main
Hawaiian group.
It is the
body
first considerable
of land in that direction and lies
Hawaiian
between the
Islands and Samoa. The Palmyra
is a coral
group
cov-
ered atoll of about fifty islets,
trees,
some with
and ex-
reefs, intervening water and land —5
sea miles
2/3
*4
tends —
in an easterly and westerly
1
direction and
sea miles
1/3
northwardly and southwardly. The
spot
observation
map
in the case is Latitude 5° 52' 18" N., Longitude
162° 05' 55" W. The British islands of Washington,
Fanning and Christmas lie within a 500-mile radius to the
Palmyra.
southeast of
Use of the
by
islands
the respond-
predecessors
ents and their
in title was intermittent.
question
important
The
of title became
in 1939 when Con-
gress authorized the
construction at
of naval
Mankichi,
Hawaii v.
aviation facilities re- Negotiations with these construction. Stat. 590. owners, were undertaken spondents, Navy Department for a lease were not property but completed. This suit was filed in 1939.
There have been two The trials this case. records of both us, are before as the record of the first trial was part made a of the second. Certain contemporaneous early written evidence of the produced. transactions was findings The fact the first trial show that two citizens, Hawaiian Bent, Johnson Wilkinson and Zenas representation made a concerning Palmyra Island to the King and the Cabinet The minutes of a meeting Council. place the Council which February took at Honolulu on 26, 1862, “representation” are extant. The has not been found. The Council following: minutes show the
“P. Kamehameha read a Z Representation from Mr Wilkinson, Bent & Palmyra, about the Island re- questing the Island should be considered a Ha- waiian & possession placed under the Hawaiian Flag
“After some pleased discussion it King to direct the Minister of Interior, what the Peti- apply tioners for, following precedent of the Reso- lution regarding the Island Cornwallis & without exceeding the same.” action the Council was communicated to Wilkin-
son and through Bent a letter the Minister of the In- terior 1,1862. on March In the letter it was said that the Hawaiian Government consented to taking possession of Palmyra purpose “for the of increasing the trade and commerce of this Kingdom as well protection as offering subjects.” interests of its Accompanying the letter was a commission empowering Bent “to take our name of Palmyra Island.” Explicit directions were *5 sign was to a in that Bent the commission contained at the foot of a and it a bottle buried declaration leave wrapped Hawaiian The commis- pole flag. with the Min- and the signed jointly by King was the sion reported Bent that he 16,1862, ister Interior. On June paper had carried out a as di- the commission left In the report rected. the Bent told the trees on same vegetables grow. and the He island kind of that would said that he had a on the island dwelling erected house curing de of edible sea mer, house for biche a kind slug that is prized in the Orient. It that he had said also left five men proposed on the island and return about days. Thereupon ten duly Minister of the Interior a proclamation issued June 18, as follows: 15th
“Whereas, day April, On the Island, longitude 5° 50' 161° North, latitude possession 53' with was taken the usual of, West, Captain formalities, by duly he Bent, being Zenas so, in IV, authorized to do the name Kamehameha King Therefore, of the This is to Hawaiian Islands. give notice, island, possession of, that the said so taken is henceforth to be considered and as respected part the Domain of King Islands.” Hawaiian A finding was that certain comments on the ex- made pedition published papers were between Honolulu representation proclamation to the Council and the only important present litigation which was as showing contemporaneous understanding being was taken of an island part of the Domain of the King of the Hawaiian Islands. Council,
As shown the minutes of the Cabinet appli- Minister of the Interior directed to precedent of Bent and “following cation Wilkinson the Island regarding Resolution Cornwallis & without exceeding meaning the same.” of these words is not *6 The United contends by made clear the record. States Palmyra Bent to “a any the limit of rights that words five-year guano,” to take that he never was right simple intended to a fee title.” “granted granted or thought purpose The trial the of the Council court that might reasonably authority have been to limit the of Bent possession and Wilkinson to islands that were “not in of any any people.” other or other The reason government lies in supposition for the fact that the commission of May 31, to Samuel discovered Allen, Clesson who possession Hawaii, Cornwallis Island for to take of the island the just quoted. day contained words On the same that the commission was a was made with issued, contract years Edward Adams for him five guano P. to take any acquired from Hawaii islands Allen the schooner, “Kalama.” request Adams’ for the n fee to interest in shown discovered, island so far as by the was record, upon by legis- not acted the Hawaiian lative body. possession
Allen took Cornwallis Island sub- report expedition July 12, 1858, mitted a of his on Thereupon meeting Minister of the Interior. at a of the Privy July 27, 1858, Council on the resolution following passed: Island
“Resolved that Cornwallis in latitude 16.43 longitude Greenwich, west from North, and 169.33 Island, longitude Kalama 16.44 latitude North and west, having possession of, 169.21 with been taken the formalities, usual on 14th and the 19th of June 1858, Allen Esquire, Samuel C. the name of Kame- IV, said hameha Islands are to be considered as part Majesty’s of His Domain.” substantially in It will be that this resolution is noted proclamation regard Palmyra. form of later The Island because annexation Cornwallis failed prior discovery by United States and later, October the con- 16, 1858, the the Interior cancelled Minister which had with tract been made Adams. it meaning
Thus will be seen minutes concerning following acquisition Palmyra, prece- dent of Cornwallis, annexing is uncertain. The resolution substantially proclamation is Cornwallis same as the concerning Palmyra. authorizing commission Bent substantially to take is same *7 the commission to Allen that resulted in the discovery of There no Cornwallis. is evidence of a contract with Bent Wilkinson to guano similar contract made with We nothing Adams. conclude that there in require- is acquisition that the Palmyra ment follow the prece- should dent of the anything Cornwallis resolution to indicate more that the sovereignty than over Palmyra acquired was to be Hawaii, as the proclamation stated in of possession. There is nothing to lead us to disagree with the trial as finding Palmyra, court’s to as follows: in “The words used annexation and formality of not and not proclamation likely need would have been it different whether was the that the act of intention vesting simple annexion should constitute the a fee merely title to the in the King, lands or extend sov- ereignty over the domain annexed.” or plan find no evidence consistent custom of the We relating Kingdom of Hawaii to title to lands on islands taken for in- Kingdom. when The to and Bent structions Wilkinson were: part Majesty’s “I am authorized to state of His they taking posses- consent to the that Government Palmyra, Longitude island of situated sion North, 53' 6° 4 161° west and Latitude as described by you memorial; purpose in said for the of increasing Kingdom and commerce of the trade as well offering protection to the interests of its sub- jects.” fact and conclusions findings its trial court ended words: first trial these on the
of law sovereignty is, that the controlling finding “My Palmyra Island was extended over the United States did not Republic of Hawaii Annexation, but the land at simple title to this in form assert fee fact or it is other annexation, any or at time, the time of only, as a say, sufficient
Conclusion
petitioner
that
[The
decidedly
opinion
I am
title which can
exhibit a
does not
United States]
States, and
the United
the Courts of
sustained
for.”
prayed
not entitled
relief
therefore, is
Appeals reversed. United
appeal,
On
the Court of
Fullard-Leo,
It said there find- support not a that the evidence would sovereign and grant. ing of a lost the first the trial court appeal,
On remand of this case on of law. findings further of fact and conclusions entered It held: that the case
“I and so hold evidence believe entirely reasonably consistent with but can only not is only upon logically presump- accounted and Wilkinson issued Bent that a tion with its parted government Hawaiian which the title.” opinion, in the trial court’s only
This can mean that acquired sovereignty over Kingdom of Hawaii ownership private Bent Wilkinson obtained the on United holding appeal. This was affirmed the islets. Fullard-Leo, Although only v. F. 2d States determi- certiorari, our questions presented one of the Appeals that is nation the action of the Circuit Court disposes correct entire case. United territory
Hawaii has been States since July Joint Resolution of Annexation 1898. 30 composing present Stat. 750. Before that the islands Territory of Hawaii had independent existed from the rest sovereign the world and far as back and local history tradition reaches.2 When American Christian mission- aries at the arrived Islands in 1820, the Hawaiian civiliza- merged tion with that of the rest of the known world. At time the principal present islands of the Territory had been united few years before into a monarchy under a strong leader, Kamehameha Notwithstanding I. his death, a short time before coming of the missionaries, the kingdom welded him from the several island com- munities as a recognized continued monarchy under his successors until its fall in 1893. A Provisional Govern- ment succeeded the monarchy and inwas turn followed by the Republic of Hawaii, foreign governmental author- ity mentioned in the Congressional Resolution of An- nexation as ceding Hawaii the United States. From *9 Kamehameha I annexation, to steady Hawaii made ad- economy vances in its and conforming laws to the manner of life of the other civilized nations of the world. Mankichi, v. 197, 216. Hawaii 190 U. S. by the of Island
At the time of the annexation monarchy pos- April 15, 1862, that Kingdom Hawaii, of land were system ownership of land and laws that sessed a proper record titles and maintain adequate to establish practices contemporaneous with the thereof accordance century law. The earlier nineteenth Anglo-American of into Kingdom laws of been codified a Civil Code had of the Interior was In code the Minister 1859. public power dispose given of the lands with supervision King them with the of the Cabinet Council. authority 1859, I. Islands, VII, Civil of the Hawaiian c. Art. Code with By XXVI, LI, Conveyances c. Art. a Bureau books L, registry required XXV, was and c. Art. adminis- 1241-48, provision probate was made and §§ nations, Hawaii foreign treaties with tration. Under aliens and permitted the of local lands of deceased sale Id,., pp. 461 proceeds by heirs. the withdrawal of the their and 471. recognized and I, King
Kamehameha Conqueror, by Hawaiian law as the of all the soil sole owner not too Through system tenures, of feudal Islands. defined, clearly large portions royal domains were chiefs I his among divided Kamehameha suc process cessors and this of infeudation continued lowest class of created system tenants. This of tenures among the people dissatisfaction chiefs and because produce burdens of service and owed inferior the superior. Consequently by legis a series of royal steps, King lative Rep and the House of Nobles provided system for a land which finally resentatives separation ain into resulted the lands lands of the Gov ernment, the and the This People.3 purpose Crown finally Rights, Declaration 1839. Organize Departments
Act Executive Resolution, and Joint April Hawaii, Laws, 1845-46, I, pp. 99, Statute vol.
267 act, By 1848.4 7, the Act of June by manifested was the between much of the land of Hawaii allocated be of lands and Government. This division Crown the 5 been Nothing came known as “The Great Mahele.” has limiting King called of the power to our attention prior January 3, Crown Lands6 1865. Act of Government, Jover Insular Compare 623, v. 221 U. 633. S. requirement The main the Minister of Interior royal grants only tain record all refers those enact government Code, By land. Civil 44. 1859, § ment King Legislative and Assembly 1865, the Crown except by leg Lands inalienable became future islative action. See Lands,” “Crown Revised Laws Hawaii, pp. 1905, private King 1226-30. lands of the Lands, 7, or Crown him by confirmed to the Act of June 1848, were taken over Government 1895 thus government lands, became also.
In order private to establish title lands former tenants, Quiet a Board of Commissioners to Land Titles was created in 1846.7 This “Prin- adopted Commission ciples” adjudication of claims. These were approved by the Legislative year Council same strong throw light system the Hawaiian land shortly the an- before Palmyra.8 nexation of This Commission dealt only not with lands included the Great Mahele but also with 4 1905, p. seq. Hawaii, Revised 1197 et Laws Bishop, Thurston v. 421, dissent, Haw. n. at 454. The domain covered term only seems to be not the lands private declared to King by be lands of the Act of June unassigned but also other by legislative lands later declared authority to Crown Laws, Hawaii, Lands. Rev. 1905, p. 1227; 14, 1890, Laws, Act of Hawaii, 1890, November 75; Laws, c. Rev. Hawaii, 1905, p. 1229. 7 Hawaii, Laws, 1845-46, I, p. Statute vol. 8Hawaii, Laws, 1847, II, pp. 81-94; Laws, Statute vol. Revised seq. 1164 et Hawaii, 1905, p. that act established not mentioned that were
lands continued until apparently It lands. titles for such *11 work, the end of the Commission’s 31,1855.9 After March in Cabinet Coun- King the Interior and the Minister of for responsibility with charged May 17, 1859, were cil all records for government lands and the maintenance of the Hawaiian land royal conveyances.10 summary This of brings laws before Palmyra at time of annexation pattern ownership system us the land and the of recor- titles, stemming royal grants dation of both those from government private lands and transactions. from adjudicated claim of with respondents Palmyra to must be ex- dealing this situation mind. with an We are not plorer’s savage claim of title to of a tribe or that of lands a discoverer of a hitherto unknown islet. Crown and Govern- distinguish
Whether we between ap- No record ment seems immaterial. however, lands, land pears any conveyance King any from or Minister to Palmyra. required public We assume the law record any conveyance pos- such from either from the time was taken for Hawaii. It is clear that both the session King and the Minister of the Interior with the authority of Bishop, 421, 429, 437. Thurston v. 7 Haw. was authorized Commission to consider of land “The. acquired by gift I., high chiefs, oral of Kamehameha or one of his sufficient evidence title to authorize an award therefor to the This we must consider claimant. as the foundation of all titles to Kingdom, except King, land in this such as come from the to lands, excepting part of his reserved also the lists of Government dispute reserved. The land in in this case is not one and Fort lands King, III., specifically Kamehameha to those reserved being successors, specially himself and his and not the lists of lands lands, apart as Government or Fort must be one of those over set jurisdiction the Land Commission had to award the claim- which to P.429. ant.” seq. Code, 1859, p. 14 et Haw. Civil King power convey the Cabinet Council had to 39-48; lands to citizens. Act private Code, Civil §§ January 3, 1865, Rev. Laws, Hawaii, 1905, p. 3. § Palmyra We assume further that claim the formal to Kingdom the Hawaiian Bent, pursuant made to his commission, gave only Hawaii sovereignty not over power but also to the lands of the newly part annexed islets as of its public private lands owners.
In the circumstances
described,
heretofore
were the dis-
justified
quieting
circuit courts
title
trict
Palmyra in respondents
theory
grant?
on the
of a lost
judicial
prior
We take
notice of the laws of Hawaii
a part
its annexation as
of our domestic laws.11 The rules
*12
which
Hawaiian
people
under
lived under
mon-
archy
define,
or republic
sovereign
today,
for the
of
rights acquired during those
While in matters
periods.
local
of
law the federal courts defer to the decisions of the
courts,12
dealing
problem
territorial
we are
here with a
of federal law—the United
seeks
its title
quiet
States
to
land
by
to
now claimed
virtue Hawaiian
The
of
cession.
rights
federal
Hawaiian
partly dependent upon
are
prior
law
to annexation.
while the Hawaiian
Therefore
law,
Territory,
as it
before the annexation
existed
controlling
rights
is
land that are claimed to have
their
then
beginnings
had
the federal courts construe that
law for
The
themselves.
federal
cannot
fore-
courts
closed
determinations of
Hawaiian law the Ha-
They
heavily
waiian courts.
will lean
Hawaiian
upon the
but they
decisions as to the Hawaiian law
are not bound
public
follow those decisions where
claimed title to
11
Perot,
428, 430;
Chaves,
United
v.
98
S.
United
v.
States
U.
States
452,
U. S.
459.
159
12
Christy
Comm’rs,
451,
De
459;
Castro v. Board
322 U. S.
v.
of
Pridgeon,
270 re- of The roots involved.13 is United States
lands of the their law. As Hawaiian from spring claim spondents’ ac- the United States after Palmyra continued claim to then rights Hawaii had, in 1898 whatever quired in the judged, also, must be claim validity respondents’ law of the United States. public land light land has received of a lost presumption long quiet pos- means to recognition appropriate as an recognizes lapse may It of time cure the session. title, neglect proper or failure to secure muniments grant may not have been in fact exe- though the lost even appeared first the field of incor- cuted.14 The doctrine realty.15 poreal hereditaments but has been extended to claims to land held applies adversely The rule sovereign.16 The from most is case this Court often cited 13 City York, Appleby New Clear 380; 364, compare v. 271 S. U. States, Trust Co. v. United United States 363, 366; 318 v. U. S. field Allegheny County, A., Minnesota, S. R. 174, 183; 322 U. S. Inc. v. 327 558, 564. U. S. 14 Fuller, Fletcher v. United States 534, 545, 547; v. 120 U. S. Chavez, 175 U. S. History Williams, Holdsworth, A 59, 109. See Ricard v. 7 Wheat. seq.; Greenleaf, (12th et Evidence English Law, VII, p. vol. Ed.), §17. (16th Greenleaf, Ed.), 45a: Evidence § itself, though lapse not, furnish a con- “Thus, also, time does *13 sovereign, agreeably maxim, legal to the the title of the clusive bar to regi;’ yet, tempus if the adverse claim could have 'nullum occurrit juries presume legal commencement, a instructed or advised to had are many years uninterrupted commencement, adverse such after grants possession enjoyment. Accordingly, royal have been thus or peaceable by indefinitely long-continued jury, found after an ownership. So, after enjoyment, accompanied by the usual acts of land, proof and a years’ tract of forty less of a than survey lot, and of an actual prior of the order of council for properly jury were survey held that accordingly, it was thereof duly regard, In issued. been presume patent had instructed to that a generally lapse has longer of time however, public grants, a to crown or Chaves, United States v. case, S. 452. In U. that there prior evidence of the grant. existence of the lost title of the claimants was upheld but this Court then stated, at p. 464, Fuller, conformably to Fletcher v. supra: going length
“Without at subject, into the may it be safely by said that weight authority, as well preponderance as the opinion, general it is the rule of American law grant that a will be presumed upon proof an adverse, exclusive, uninterrupted and pos- session for twenty and years, that such rule will be applied presumptio juris as a jure, et de wherever, by possibility, right a may acquired manner known to the law.” Pendell,
See United States v. 189, 185 U. S. 200-201. years Chavez, A few later, States United U. S. v. 509, problem grant In again lost arose. this as to case, tract, one case 38 at No. the existence of Joaquin Sedillo was not shown except January 11, statement of conveyed the tract acquired by “was his in part by grant father [affiant’s] in the Majesty name of His King Spain] . . .” [The In referring recognition P. to the of title the pri- owners, vate said, this Court at 520:
“Succeeding power obligations and of those Governments, must the United States do so? This counsel, yet they is insisted their have felt expressed equities which arise from the cir- equities? cumstances of the case. Whence arise those may That which establishes them establish title. long Upon uninterrupted possession, the law presumptions legal bases judgment, sufficient for necessary, justify presumption, been deemed in order to than is presumption considered sufficient to authorize the like in the case grants private persons.” from *14 272 circumstances, as formal rebutting
in absence of Not testimony. instruments, records, or or articulate unnecessary, or records are that formal instruments they once existed will be that presumed but it recurs, do inquiry The then such have been lost. solve they in case and do arise presumptions questions?” its long possession 524, referred to the Court,
Thereafter the claimants in their title. and sustained the was de- Government, 212 U. S. Cariño v. Insular Philip- Supreme cided on a writ of error to the Court his register pine Igorot sought Islands. An chieftain Under family. long by held his Benguet Province, land Treaty of rights by the Spanish claim of succession exception July 1,1902, providing the Act of Paris and an in the temporary government administration of civil public purposes land had been taken for Philippines,17 the by Philippine the United States and the Government. Objection governments and sustained by made two ground Supreme Philippines Court of' the sovereign. grant from did not show applicant that the circumstances, to re- unjust, thought This it Court title. quire paper a native to have say and sufficient perhaps, proper “It might, goes, the testimony memory far or when, as back as claim of individuals under a land has been held presumed will be to have been private ownership, it Spanish con- way held the same from before the quest, public and never to have been land.” U. S. at 460. Philippine judgment was reversed. Territory recognizes of Hawaii and has
The law of the
applied
the doctrine of the lost
be-
controversies
claimant to Government
land and the Territory.
tween a
Stat.
§
*15
in-
In
(1920),
re Title Kioloku
“Under rule of it, necessary appellee we find it was not that fact prove grant that a did in probability should to one of in interest. It predecessors issue its think there enough as we it was that shown, show, legal Territory was a possibility grant.” of a Sugar Co., Hawaii v. F. Hutchinson Plantation 272 860. here, as opinion where, We are therefore of the in King Kingdom there was or power the officials during to convey Palmyra18 years of Hawaii a title to immediately following Kingdom its annexation prior Hawaii here- many private conveyances inafter referred lost be to, grant may the doctrine of a pre- applied, circumstances, suitable and its existence predecessors sumed in favor of the re- title of these spondents. In order a lost grant doctrine of a applicable, right, must be under claim of A is actual, open conveyances exclusive.19 chain important. So is the A payment of taxes.20 claim lands government upon no different principle stands 18 Greenleaf, (16th Ed.), 1 Evidence 45a. § Fuller, 551; v. supra, Chavez, supra, Fletcher United States v. 464; Chavez, supra, United States v. 520. Whitney Fuller, supra, 552; States, v. v. United Fletcher 546; Government, supra, Jover v. Insular U. S. officials
theory authority government so exists long As conveyance. practi- patent, to execute the or because of requires higher degree proof matter it cal difficulty from protect for a state to its lands use right. then those without We turn to the circumstances sustaining upon by respondents’ relied the lower courts as occupation of respect contentions in to their claim to and Palmyra.
In have part opinion, the earlier we set out *16 existing governmental proceedings the record of the detail Palmyra by Kingdom the leading up to the annexation of produced 1862. No evidence was positive of Hawaii the any grant Palmyra by of Hawaii to latter’s prior in 1898. Nor does the by annexation the United States governmental show direct au- any record the exercise of thority Palmyra. 1905, upon request over In of the opinion concerning jurisdiction for an Governor the of Kauai, Hawaii over islands to northwest At- the of the torney General answered that Hawaii had lease power to them. It will be noted the opinion from short in the that margin Palmyra, though over miles to the south- of Kauai, Nothing appears east included. as to or subsequent by former a power exercise Hawaii of Palmyra.21 lease No were collected from taxes those who
21 “OPINIONBOOK Attorney Department General’s Pages 598-600 Opinion No. 18 Honolulu, H., 11,1905 T. Feb. Excellency Carter, To His Geo. R. Territory of the Hawaii,
Governor of Honolulu, H.T.
Sra: request your 15th, opinion
In answer to of December for an jurisdiction Territory the the as to of of Hawaii over the various small guano Kauai, reply I islands to the north-west of as follows: would investigation of of the records the office the Secre-
After a careful Foreign Office, Territory, formerly tary from other of Pacific Navi- prior be owners to 1885 when the claimed to Palmyra Company paid taxes to Hawaii on gation annually made since years. three Assessments have been paid regularly by 1911 and taxes since then have been At of property. by claimants the time annexation information, authority Territory sources of I find that the of Hawaii over these islands is as follows: appears report King, Interior,
It of J. A. Minister of the dated day June, 1894, Dole, the 2nd to Sanford B. President of the Republic Hawaii, possession that formal was taken of Necker King, Hawaii, representing Republic Island the said J. A. 1894; May 22, appears by report government it also that that the Captain Paty of the Hawaiian Islands had sent John to take 1857; appears pos- about of said island it also that he did take such session at that time. reign
Palmyra Island, acquired during been seems to have him, IV, by proclamation signed by dated the 15th Kamehameha day June, 1862.
Lisiansky government of the Hawaiian Island was taken day May, through Capt. Paty Islands John on the 10th Byer taken for Morell Island and Patrocinio or Island were both Wilcox, Republic 1898, by Hawaii in a Commissioner G. N. appointed. purpose *17 acquisition unable find official records While I was to many years, government has, assumed islands, for the other the made, following been from jurisdiction leases have over them. undisputed: time, to and have been time June, 1904, Island, day of to A. H. C. dated the 2nd Lease of Necker twenty-five years. per annum, Lovekin, $25.00 term at Interior, Pacific King, to the North Lease of J. A. Minister of the reef, Morell, Ocean, Pearl and Hermes Phosphate & Fertilizer Co. of Midway Frigate Shoals, twenty-five years from the 15th French day February, 1894. 17th, Freeth, April 1893. Lisiansky D.
Laysan Islands to G. foreign officeare regretted of our be that the records it is to While might find search possibly a more exhaustive complete, more not foreign office, which, present of the old in the state documents other records that from these impossible me to find. I believe it was thereon, islands, any privileges right or government’s lease the to the your The fact same, suggested in letter. clear; also to lease is thereunder, taking possession leases, making and the lessees such prima the landlord would Territory of Hawaii as recognizing the made commissioners States, was provision the United Ha- concerning Congress legislation to recommend report A full made 30 Stat. waiian Islands. Congress the Pesident De- which was transmitted 16, S. Senate Document No. 55th 6, 1898. U. cember dealt with the Sess. It Public Domain and Cong., 3d Lands the Crown had been taken over shows that 1894, p. seq. in et In 1894, Hawaiian Government in 971,463 Lands were area acres. There were no Crown shown on the smaller islands. 102. An Crown Lands P. September lands appendix shows Government as of 1897, and lists acres and those of principal values group. Pp. They amounted, islands of 47-51. In acres, 1,744,713. though in- recapitulation, not public lands, cluded the lists of there is an item that may Palmyra. reads, include It “Laysan, islands, etc., Acres-, $40,000.” At point, p. 4, Value another under Population” “Area and appears only reference to Palmyra. The reference in setting appears its in the margin.22
facie right evidence international law of our to the same and government would be the best evidence the could make of its claim question. to the various islands truly,
Yours (Sgd) LORRIN ANDREWS Attorney General.” Cong., Sess., p. S. Doc. No. 55th 3d 4: group “The Hawaiian numbers seven inhabited and eleven islands rocky sandy reefs, or twelve small or shoals or with total area 6,740 square They miles. are described as follows:
Population, 1896. Hawaii, 4,210 square 33,285 area miles. square Maui, 17,726 miles. *18 square Oahu, 40,205 600 miles. (rich lands).... Kauai, square farming grazing 15,228 590 miles and (agricultural Molokai, square grazing). 2,307 270 miles Lanai, square (devoted raising). sheep 150 miles 105 to (leased sheep raisers). Niihau, square 97 miles to 164
277 series in consistent claim of title exists Respondents’ to Wilkin- in with a deed beginning transactions Registry in the deed was recorded from Bent. The son conveyed all Bent’s in It Conveyances of Hawaii of what- in and to all “right, property title and interest Palmyra Island description lying now or situated on ever aby proclamation in the Pacific Ocean which Island belongs to the Majesty present His Kamehameha IV at in- And title and Kingdom. my right, Hawaiian also all in I may have any partnership property terest an in co-partner interest as with the said Johnson Wilkin- an in- language, think, son.” we is consistent with realty “lying tention to claimed convey a interest or situated on Palmyra any partner- Island” as well ship personal property. Thereafter died Wilkinson New Zealand devising 1866 and left a will -wife, his Kalama:
“And also all landed freehold and leasehold Es- my tates Province of aforesaid, Auckland at Hono- Kahoolawe, square miles.
Molokini, small size.
Lehua, small size.
Nihoa, (about), precipitous high (244 500 acres rock, 400 feet miles Honolulu).
northwest from Laysan, 2,000 guano (about), island, sandy, acres low and 30 feet
high (800 Honolulu). miles northwest from Island, Gardeners rocks, high, 1,000 two inaccessible 200 feet about long (607 feet Honolulu). miles northwest of Liscansky Island, (about), sandy, 500 acres low feet high (920 Honolulu). miles northwest from Island, (about), Ocean 500 acres sandy (1,800 low and miles north- Honolulu). west from Island, (about), precipitous rock, high 400 acres Necker 300 feet (400 Honolulu). miles northwest from
Palmyra Island, islets, a cluster low in circumference, about 10 miles center; lagoon
with has a few (1,100 coeoanut trees miles Honolulu). southwest of
Kaula, rocky small, island, fewa miles southwest of Niihau. Frigate Shoal, scattered shoals or
French reefs.”
lulu in in Palmyra the Sandwich Islands the Island of in the South Sea Islands and wheresoever the same may in Colony be situated and whether the said New Zealand or To elsewhere hold suach real and personal estate unto said Kalama absolutely forever.” registered will in proven was New Zealand and probate admitted to in in later Hawaii 1898. In Kalama, after the death of two of her heirs trans- “right,
ferred all their title and interest as heirs at law of said in otherwise, Kalama or and to the Island of Palmyra” one conveyed who Wilcox, Pacific Nav- igation Company. By a series of some four mesne con- veyances between 1888 and 1911 the interest of Pacific Navigation Company in eventually the island was trans- Henry ferred to one A Cooper. third heir of Kalama’s rights transferred his in the island to one whose Ringer, children transferred rights their in Henry the Island to Cooper Ringer’s 1912. widow in 1912 sold all right, her title, and interest the island to Maui and Clarke.
In Cooper petitioned the Land Court of Hawaii to confirm in him. title Maui and Clarke contested the petition, claiming to own a dower interest an “undi- vided one-third of the Island.” Through Attorney its General, Territory of Hawaii answered petition and disclaimed “any interest in, concerning” to or Palmyra. The court decreed that Cooper was the owner simple subject fee of the island to the dower interest Ringer of Annie held Maui and In 1920, Clarke.23 questions The United States the effect on title of the United Palmyra by States to of the disclaimer of interest in Hawaii. public passed The United States asserts all lands of Hawaii July 7, 1898, the United States Joint Resolution of and the September 9,1897. Laws, Resolution of the Hawaii Senate of Rev. Hawaii, 1905, pp. 36, Thereafter, it is said that Con- Cooper leased Meng the Island to and White assigned who the lease to the Palmyra Copra Company. In 1922 sold Cooper $15,000.00 all but two of the islets to Mr. *20 and Mrs. Fullard-Leo, respondents here, who had taken over the lease. From foregoing, it will apparent that from 1862 negotiations to the breakdown of a paper in title existed respondents and their in predecessors title, except for the Kingdom, from the and that there has been record of conveyances in Hawaii since 1885. was, There during these years, right a claim of to exclusive possession. claim right
That only manifested not by trans- fers of paper title but also actual user of property. sufficiency open actual and possession of property to be in judged light is of its character and location.24 gress provision disposition made for the of such lands. Hawaiian Organic Act, 141; Organic Act, Stat. of the as in amended §73 1910, 5, 444; Laws, Haw., Stat. position Rev. 1905. The § § power United States is that there was no in Hawaii to disclaim any might interest Palmyra United States have in 1912. We need not resolve this issue. The Land Court record is referred to as another respondent instance of the claims of adverse to the ownership claim of predecessors United States and its public in title to the lands of Hawaii. 24A statement of Pendell, this Court in United v. States 185 U. S. 197, pertinent: at is
“There are no question, adverse claimants to the land in and the proof possession, nature, satisfactory exclusive in its has been the court possession large below. What constitutes such of a tract of depends land upon to some circumstances, varying extent the fact conditions, with different general surrounding such state of the country, customarily whether similar land pasturage is devoted to raising crops; growth or to the mining, of timber or to or purposes. might other That which possession, show substantial ex- character, grazing clusive its where land was devoted to the cattle, might of numerous be insufficient to show the same kind of possession large popu- where the land was situated the midst of a country devoted, instance, manufacturing pur- lation and the land than isolated piece conceive of a more It is hard to continuous possession which need be less Palmyra, one of Pacific, tiny of a claim. This atoll to form the basis lands and claimed far removed from other however, valueless, sovereignty wholly until 1862 was not by no airways over commercially, prior to the establishment of the ocean. might be some- thought men there time,
From time to "representa- thing gained exploitation. from its Bent’s an acquaint- tion” in preceded annexation was locality years. ance with the When he for a number melons, planted vegetables take he went to sought The Pacific Navi- products. built a house sea gation during had men on 1885 and Company the island Cooper visited the island 1913 and 1914. He *21 Cooper’s sug- was then the owner of record. In at requested the then Governor of Hawaii the Sec- gestion, retary of the Interior of the United States to send an Palmyra American vessel to to confirm American sover- eignty. Cooper The stated that Mr. was then Governor private the owner and that the title to had been In in citizens of Hawaii since 1862. 1920 and 1921 the Palmyra Copra Company actively engaged on the island under a lease from The Cooper. Fullard-Leos, who acquired title to all but two of the islands Cooper, from the island in 1924 again visited and many On during occasions interim, gave the they permission to persons various to visit the island. possession
From these evidences of claim of title and the were District Court and the Appeals Circuit Court of familiarity general poses. country with the Personal character of the lands, knowledge and of its and also of the nature and manner the vicinity given most of lands in put, use which the the same are have judges correctly judging the court below unusual readiness for appreciating weight upon and value to be accorded evidence subject possession of such lands as are here involved.” justified simple a decree that the fee title entering Palmyra is vested in respondents? dissent Circuit Appeals points apply- Court of out that our cases ing grant the lost doctrine required “uninterrupted and long continuing possession indicating kind of a the owner- ship of the fee.” This is the rule. we But, as have indi- above, uninterrupted cated long-continued possession require does not constant, occupancy actual where the character the property does not lend itself to such use.25 private No other owner any rights claims in Palmyra. From the possession evidence of title and shown record, we say cannot the decrees below are incor- rect.
Judgment affirmed. Rutledge, Mr. Justice with whom The Chief Jus- Murphy tice, Mr. Justice Black Mr. Justice concur, dissenting.
I agree with judges dissenting the Circuit Court of Appeals that respond- shown on behalf of ents is not presumption sufficient to establish lost grant, even if acquired title can be from Govern- According my understanding, ment in that manner. possession, effect, actual, open, to have that must be notorious, adverse and from continuous the time when presumed place.1 long is to have taken Here *22 25 Fuller, 534, Fletcher v. 120 See U. S. hence, general rule, only possession “And as a it is where has the actual, open period prescribed by been .for the exclusive recovery land, statute of limitations to bar an action added.) presumption (Emphasis that the of deed can a be invoked.” Fuller, 534, Fletcher v. U. be possession S. 551. “The must adverse, exclusive, uninterrupted, with and inconsistent the exist Peabody added.) (Emphasis in v. United ence of title another.” States, 546, authorities that 175 U. S. 550. The statement only possession uninterrupted qualified has been to the must be not most, at the was constructive
periods possession I do was not continuous.2 the same token it By actual. basis expand the established think this Court should not instances, prop- may , presumption in some extent that “This ... exercised, long al- proprietary right has been erly a invoked where property, to which the though possession of the whole the exclusive during occasionally interrupted, right asserted, may is been have by possession, if in addition period necessary title adverse to create a ownership.” open possession were other acts to the actual there added.) Fuller, supra, pre- And (Emphasis at 552. Fletcher v. continuing possession exists “in the absence sumption of which 202, 204, contrary,” Phelps, even Lazarus v. 156 U. S. evidence to the presumption of a competent for the further if to furnish the basis grant, by introduced. lost is here rebutted the evidence which has been See note 2. given, with history island’s was following summary dissenting opinion, 156 supporting references, in note 3 of the record J., agreed, Bone, 756, 760, by Denman, J., C. F. filed C. with whom 2d Appeals: in the Circuit Court of 1862, men there. April, and left five “Zenas Bent visited the island appear how does not formally proclaimed. It
In June annexation of the same in December long island but the five men remained on the died Wilkinson year Bent all his interest Wilkinson. transferred rights giving his probated in Zealand in 1866 and his will was New Nothing until wife, further occurred Kalama. to his Navigation supposed to the Pacific 1885 when the title was transferred heirs and Company, conveyance being two of Kalama’s executed Thus, years its execution. being acknowledged, 23 after Bent’s deed to make the except Bent order for the five men left on the island any posses- there was effective, is no indication that annexation there following years annexation. sion or even visits to the island for the 23 acknowledged until contrary, that Bent’s deed was not On the the fact that, clearly in the 1885, conveyance by heirs, indicates after Kalama’s by anyone. meantime, no or was asserted claim title occupied island Navigation Company “Employees of the Pacific paid company taxes year in 1886and the approximately 1885and Territory. not to the United States but 1886 and many rolls and in cases (The placed lands on the tax claimant lands.) company’s project apparently paid public This taxes were long period the island was when failed and there followed another *23 to to include acquiring government title lands so as acquisition by possession, adverse as in effect the Court’s I opinion Accordingly, does. dissent.
vacant. Some time between 1897 a visited 1889 and British vessel finding country. uninhabited, the island and it claimed it for that In instigation Henry acquired 1912 at the Cooper just who had supposed proceeding register title and whose Land Court to it was Navy pending, a vessel of visited in order the United States the island country’s occupants confirm to this claim to it. No found on the were Cooper island. In 1913 short or and made visits of two three However, and weeks the island built a thereon. the island house permanently occupied not was and in 1914 evidence found that was Japanese poachers since 1913 visit bird had been there. attempt commercially develop
“In 1920 was another made by Cooper; corporation, island. It was leased a The Island Company, group’ Copra organized; and was a ‘settlement project sent to the island. This not successful its activi- was was and year. bought Cooper’s terminated after about a ties Fullard-Leos rights only twice, in 1922 visited but the island once in 1924 twelve days again day. and in 1935 for one Between 1922 the time commenced, on the suit was no one lived island. It was most this frequently Navy United States or Coast vessels visited Guard neighborhood. fact, In which were Fullard-Leo went ‘Itasca’ when he the island in 1935. Coast Guard vessel visited Oc- casionally, or made short vacationists scientists visits to island. During period an unnamed man lived there for or three two (1936) party months. On another occasion a from Tahiti went there attempt cargo in an to find a of button shells which rumored were jettisoned unseaworthy By 1938, have been an boat. the house Cooper collapsed which built in had all the various visitors they occupation did see testified not evidence of in recent times.” From dissenting judges years these facts the concluded: “In the 77 royal taking proclamation filing from the in 1862 to the 1939, occupancy instant case in of the island has been less than two years. year years one-half Of this 1885-86 and year interim, 1920. In the from 1862 to was no one there residing there under a claim of occasional visitors’ —the stays being purposes.” 765; brief for other 156 F. 2d and see id. at note 3.