Dear Sir:
Your letter dated June 1, 1938, was
received, inquiring whether the Kapaakea and Alii fish ponds rightly
belong to the Hawaiian homes Commission, and therefore preclude the
Commissioner of Public Lands from entertaining any leases covering either
of the, and whether General Lease No. 1352 (Alexandria Desbian, Trustee,
present lessee), covering a portion of the land of Makakupaia (government)
should be cancelled, and lastly whether the Kalokoeli fish pond comes
under the control of the Commissioner of Public Lands and may be leased
accordingly. We shall take up the different questions, on; at a time, each
under its own heading.
General Lease No. 1353(?)This lease was
executed by the Coummissioner of Public Lands, July 1, 1921 to A.F. Cook
for a term of eighteen years, covering a strip of land containing four
acres situate in the ahupua'a of Makakupaia (government), and bounded by
the government road, Grant 2544 to Maunaloa, the shoreline, the Ali'i
fishpond and the konohiki land of Makakupaia (LCA. 7779-B to Kaleleiki,
R.P. 8139). Through various assignments Alexandria Desbian, Trustee,
became, on the 16th of November, 1936, the owner of and is the present
lessee. The ahupua'a of Makakupaia, (government), retained by the King in
the Mahele of 1848, was transferred by him to the Hawaiian government by
Act of June 7, 1848. This ahupua'a was turned over to the Hawaiian Homes
Commission under the Hawaiian Homes Commission Act of 1920, approved duly
9, 1921, and is at present being administered by the Homes Commission. See
See. 1662 (?), R. L. M. 1935. At the expiration of the present lease this
parcel of land will under Sec. 1665 R. L. M. 1935 assume the status of
Hawaiian Home land. You are therefore advised that the Commissioner of
Public Lands will have no jurisdiction or control over said parcel at the
expiration of the present lease. This is a valid lease and cannot be
cancelled except for legal cause.
Before taking up the remaining questions it
is well that we devote a few paragraphs, to the status of fish ponds. From
the earliest times all the land of the Kingdom was divided into many
parcels. Some were large and some small, and many parcels were included in
the larger divisions called ahupua'a and ili. Each division, however
small, was known by some name. In addition thereto the boundaries were
known to those who lived on the land or on adjoining lands. When private
ownership first began to be a reality before the middle of the previous
century, there were not sufficient surveyors to survey these different
divisions of land, many of which were to become privately owned. To
facilitate the granting of private titles it became necessary to deal with
these divisions by name and leave for a later date the matter of boundary
descriptions. This was true of the larger divisions called ahupua'a and
ili. See Act of June 19, 1853 (?). The grants of these divisions of land
carried with them, "whatever was included in such tract according to its
ancient boundaries as known and used from ancient times." In the Matter of
the boundaries Pulehunui, 4 Haw. 239, 240 (1879). Pursuant to the Act of
June 19, 1853, many awards were made referring to the land by name only. A
Commission of boundaries was set up by an Act passed August 23, 1868 (?),
to settle an ascertain boundaries of ahupua'a and ili awarded, patented or
conveyed by deed by name only, without designation of boundaries. "The
whole scheme of deciding and certifying boundaries in such proceeding as
that under consideration is peculiar to this jurisdiction and was created
by statute to meet a situation that had grown out of the manner in which
private ownership of lands originated in this country." In the Matter of
boundaries of Paunau (?),24 Haw. 546, 553 (1918). "The proceeding before
the Boundary Commissioner in the nature of a proceeding in rem. He
is to determine certain geographical lines -- that is, he is to ascertain
what in fact were the ancient boundaries of lands which have been awarded
by name only." Keelikolani v. Lunalilo Trustees. 4 Haw. 827, 830 (1883).
When the Commission adjudicated the boundary ,an ahupua'a or ili it was
really putting on record the boundaries of the land as known and
understood by the Kamaainas of the place. Where the boundary took in a
fish pond fronting on the sea, it was because kamaaina testimony regarded
the pond as part of he land and not the sea. The land of Kapaakea will be
discussed later in connection with this matter. The following examples
show that the Boundary Commissioner regarded a fish pond as part of the
ahupua'a or ili by including it within its description. Boundary
Certificate No. 53 for Oahu covering the ahupua'a of Hakipuu, L. C. Aw.
4452, Apana 14 to Kalama, R. P. 7482, awarded by name only May 20, 1854,
describes the seaward boundary as follows: "Thence along the big fishpond
wall an, seashore to initial point." The adjudicated boundaries of the
land of Makakupaia LCA . 7779-B, R. P. 8139, takes in a fish pond in front
of it by the 9th description of the survey reading, "Thence along fish
pond sea wall and sea coast to initial point, direct bearing and true
distance being N. 31 23Õ W. true 2030 feet."
The Board of Commissioners to Quiet Land
Titles (short title "Land Commission") set up under Part I, Ch. Vii, Art.
IV of the Second Act of Kamehameha III were constituted "...to be a board
for the investigation and final ascertainment or rejection of all clams of
private individuals, whether natives or foreigners, to any landed property
required anterior to the passage of this Act. Sec. 3 provides that "All
persons are required to file with the board specifications of their claims
to land, and to adduce the evidence upon which they claim title to any
land in the Hawaiian Islands..." Sec. 8 forfeits "all claims to land"
which are not presented in accordance with the Act. The very title of the
Act and the various sections there under show that the Commissioners were
concerned only with landed property. A find numerous instances where the
Land Commissioner in awarding and the Minister of the Interior in
patenting land under the Act included fish ponds within the award or
patent. This indicated that those dealing with land in the early days
regarded fish pond as part of th land which it fronted. The ahupua'a of
Niu, Oahu, LCA .908 to Adams, R.P.32, was awarded in 1849. The fish pond
was not mentioned in the award itself, but the map accompanying and made
part of the award shows a fish pond. The ili of Mikiola in the ahupua'a of
Kaneohe, Oahu, LCA. 10606, R.P. 3 to Piikoi was awarded by survey on
September 21, 1852. The accompanying map made part of the award shows the
inclusion of two fish ponds. The lands of Ahaino 2, LCA. 8660, Rp.2 to
Kuakamauna,R.P.1829); Kupeke.
··· LCA. 8524-B, Part 1, Ap.1 to Peke,
R.P.5672; the ahupua'a of Wawaia, Kapulei and Kumueli, all covered by LCA
. 11216, Rp. 13, to Kekauonohi,R.P.8184 awarded in 1855, all on the Island
of Molokai; and the ili of Apili, LCA .803 to Adamas, R.P. 604 (awarded
1850) and Mokauea, LCA. 6450 (awarded 1851) on the island of Maui, all
were awarded by descriptions and either the description or accompanying
map or both showed fishponds as part of the award.
The Appropriation Act of 1866 earmarked
$3,0000.00 for "Government Survey" was not used. The Session Laws of 1870
appropriated the sum of $5,000.00 also for "Government Surveying". Under
this appropriation the Minister of the Interior appointed Alexander, as
Surveyor General. This marked the beginning of the surveying of government
lands. Late in 1865 M. D. Monsarratt was commissioned to survey the entire
island of Molokai. His word in connection with the various ahupua'a under
consideration where fish ponds were included in his surveys will be later
noted.
When the government by Act of May 15, 1851,
approved by the King on July 11,1861,granted to the people the right of
piscary to lands belonging to the government, it especially excluded ponds
from the operation of the statute. The pertinent portion of the act reads,
as follows:
"All fishing grounds
appertaining to any government land, or otherwise belonging to the
government, excepting only ponds, shall be, and are, hereby, for ever,
granting to the people for the free and equal use of all persons provided,
however, that, for the protection of such fishing grounds, the minister of
the interior may taboo the taking of fish thereon, at certain seasons of
the years ."
The legislature wanted to make it clear and
distinct that in divesting of its fishing grounds, fish ponds were not
included in this grant. The ponds were to remain part of the government
land. From the foregoing it may be seen that the Land Commission, the
Boundary Commission and government surveys all treated fish ponds as part
of the land they fronted. In the light of the above discussions, we now
proceed with the balance of the questions presented. The status of ancient
fish ponds fronting on the sea of various ahupua'a and ili have not been
decided as yet by our highest court.
BACK TO TOP
"Alii" Fish Pond.
This
pond is located in the sea fronting the ahupua'a of Makakupaia
(government), evidently this is the same fish pond which is referred to as
the ......? Fish Pond in General Lease #1008(?) which lease was executed
an June 15,1918 to ...Cook. By various assignments Otto Gertz on October
11, 1933 became the present lessee...This ahupua'a was surveyed by
Monsarratt in 1886. the last course of this...reads as follows: W9.
Thence along, seashore and around fish pond wall to initial point. The
direct bearing and distance being [9]. 59 [or 7] 51' E. true 2440.
feet."
This survey was an official government
survey and can be found on pages 28 to 30 inclusive of "Book of Molokai
Surveys" on file in the office of the Hawaii Territory Survey. This survey
clearly shows that the fish pond was considered, and properly so, a part
of the ahupua'a. As we have already seen Makakupaia (government) is now
Hawaiian Home land. You are therefore advised that at the expiration of
General Lease No. 1906 covering this fish pond you will have no further
Jurisdiction or control over the same.
Kapeakea Fish Pond.
This
fish pond is a landlocked pond within the ahupua'a of Kapaakea and at
present covered by General Lease No. 1006 in the name of Otto Gertz as
present lessee. The ahupua'a of Kapaakea was one of the lands omitted from
the Mahele of 1846. By Act of the legislature, passed November 14, 1890,
Kapaakea was made Crown land. Under the Hawaiian Homes Commission Act,
1920, this land was turned over to that body for disposition in accordance
with the terms of that Act. The boundaries of Kapaakea were determined by
the Commission of Boundaries of February 16, 1889 (Boundary Certificate 83
[?]). The 13th and last course of said survey is as follows: "13. S 36
21Õ W. true 1037.5 feet along Kaimiloloa to a stone marked thus at sea
beach at a place called Anahaki."
Thense following along the sea shore and
around fish pond and sea shore to initial point, the direct bearing
and distance being N 58 57Õ W. true 3690 This description shows that
this fish pond was included as part of the ahupua'a. You are therefore
advised that at the expiration of the present lease covering this pond it
assumes the status of Hawaiian Home land and you are without authority to
deal further with it.
Kalokoelei Fish Pond
This
pond fronts on ths seashore of the ahupua'a of Kamiloloa (government).
Before the enactment of the Hawaiian Homes Commission Act of 1920 the
Minister of the Interior in 1892 homesteaded nine parcels out to various
individuals taking up the whole sea frontage or the ahupua'a. None of
these nine Grants by the descriptions of the terms of any of them have the
grantees any right to the pond in question, so that when, this ahupua'a,
to either with the adjoining unawarded Kamiloloa were made Hawaiian Home
lands by the Hawaiian Homes Act the only land than had been alienated (?)
were the parcels covered by these nine Grants. M. D. Monsarratt was
commissioned by the Hawaiian government to make a survey on Kamiloloa
(government) which survey was completed September 7, 1886.
This is an official government survey and
may be found on pages 46 to 48 of the Book of Molokai Surveys" on file in
the office of Hawaiian Territory Survey. The l5th and last course of said
survey reads as follows: Thence along seashore and around fish pond wall
and along shore to initial point. "The direct bearing and distance
being S.74 54' E. true 3186 feet."
The survey takes in the fish pond and
includes it as part of the ahupua'a. No record of any boundary certificate
can be found covering this land.
General Lease No. 1006 refers to a "Kamiloloa
Fish Pond". It may be taken that this is the same pond as designated "Kalokoeli"
pond on the various maps on file with the Survey Department of the
territory. You are advised that if "Kalokoeli" pond is covered at present
by General Lease No. 1005, then at the expiration of said lease said pond
will assume the status of Hawaiian Home land with the rest of the
ahupua'a.
If the Commissioner of Public Lands desires
to deal with anyone in the aforementioned ponds by way of lease or
otherwise we suggest that application be made therefore to the Hawaiian
Homes Commission for the return of the pond or ponds for leasing purposes.
We feel that Sec. 1663, R. 1. M. 1935, Sub sec. 2, is sufficiently broad
to cover fish ponds.
Respectfully,
Edward N. Sylva
Deputy Attorney General
Approved:
?
Hodgson.
Attorney General
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