JOSEPH O. CARTER, William F. Allen, William O. Smith, Samuel M. Damon, and Alfred W. Carter, Trustees under the Will of Bernice Pauahi Bishop, Deceased, Plffs. in Err., v. TERRITORY OF HAWAII.
200 U.S. 255
26 S.Ct. 248
50 L.Ed. 470
JOSEPH O. CARTER, William F. Allen, William O. Smith, Samuel M. Damon, and Alfred W. Carter, Trustees under the Will of Bernice Pauahi Bishop, Deceased, Plffs. in Err.,
TERRITORY OF HAWAII.
Argued and submitted December 13, 1905.
Decided January 8, 1906.
Messrs. Sidney M. Ballon, Benj. L. Marx, and J. J. Darlington for plaintiffs in error.
Messrs. Emil C. Peters and Fred W. Milverton for defendant in error.
Mr. Justice Holmes delivered the opinion of the court:
This is a proceeding to establish the plaintiffs' rights to a several fishery of the kind described in Damon v. Hawaii, 194 U. S. 154, 48 L. ed. 916, 24 Sup. Ct. Rep. 617, and comes here under the same circumstances as that case did. The fishery in question is a sea fishery within the reef in Waialae Iki, island of Oahu, and is claimed by metes and bounds in the complaint. The plaintiffs are owners of the adjacent land under a royal patent following upon an award of the Land Commission, and the only difference between this case and the former one is that in this, the fishery is not described in the royal patent, and that, apart from the question of prescription, upon which we shall say nothing, the plaintiffs have to rely upon the statutes alone. They offered evidence at the trial that, before the action of the King in 1839, those under whom the plaintiffs claim title had enjoyed, from time immemorial, rights similar to those set out in the statutes, and also that they had been in continuous, exclusive, and notorious possession of the konohiki right for sixty years. They offered, in short, to prove that their predecessor in title was within the statutes, and therefore owned the fishery, it not being disputed that if he did, the plaintiffs own it now. The judge rejected the evidence, and entered judgment for the defendant, and, on exceptions, this judgment and that in Damon v. Hawaii were sustained at the same time, in one opinion, by the supreme court. 14 Haw. 465.
We deem it unnecessary to repeat the ground of our intimation in the former case, that the statutes there referred to created vested rights. We simply repeat that, in our opinion, such was their effect. The fact that they neither identified the specific grantees nor established the boundaries is immaterial when their purport as a grant or confirmation is decided. It is enough that they afforded the means of identification, and that presumably the boundaries can be fixed by reference to existing facts, or the application of principles which have been laid down in cases of more or less similar kind.
The omission of the plaintiffs' predecessor in title to establish his right to the fishery before the Land Commission does not prejudice their case. See Kenoa v. Meek, 6 Haw. 63. That commission was established to determine the title to lands as against the Hawaiian government. In practice it treated the fisheries as not within its jurisdiction, and it would seem to have been right in its view. See Akeni v. Wong Ka Mau, 5 Haw. 91.
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