
    BOUNDARIES OF KAOHE.
    Appeal prom Boundary Commissioner.
    Hearing, March 9, 1892.
    Decision, May 31, 1892.
    Judd, C J., Bicicerton and Dole, JJ.
    Evidence, upon -which the boundary between the Crown Land of lumuula and the Government land of Kaohe was settled by the Commissioner of Boundaries for the Island of Hawaii, discussed.
    Where the oral testimony as to a boundary is conflicting, resort may be' had to intrinsic evidence. Where a gulch is conceded to be a boundary for a portion of the line between two lands, it is a natural inference that the main branch of the gulch continues to be the boundary as far as it goes.
    Where a voluntary relinquishment of a portion of a land is made by an owner, and it is not included in the Boyal Patent for the land, the portion belongs to the Government.
   Opinion op the Court, by

Judd, C.J.

On the 16th August, 1873, the Commissioners of Crown Lands made application to Hon. R. A. Lyman, Boundary Commissioner for the Island of Hawaii, for settlement of the boundaries of a number of lands belonging to the Crown situated in the District of Hilo, on the Island of Hawaii, and among them was the land of Humuula. It appeared that Humuula was bounded on the side of the mountain towards the town of Hilo (eastward) by a large number of lands, to wit, Waipunalei, Papaaloa, Maulua, Piha, Honohina, Hakalau, Makahanaloa, Papaikou, Paukaa and Piihoixua, etc. It appeared that the Government land of Kaohe is on the Hamakua or western side of Humuula. The Commissioner took a great deal of testimony respecting the boundaries of all these lands-and established the boundaries of those last mentioned, but did not complete the settlement of the boundaries of Humuula. :

After the lapse of some years, another Commissioner, Hon. F. S. Lyman, was appointed, and on the 14th August, 1891, the Hawaiian Government made application to him to “settle the boundaries between the Crown Lands of Humuula and the adjoining Government tract extending from Pohakuhanalei, on Maunaloa, to the head of Kaala in Hamakua, known principally as the Government land of Kaohe.”

Judge Lyman took such evidence as was presented, and on the 3d October, 1891, made a decision establishing the boundary between Kaohe and Humuula, locating it by reference to known places, and. stating that surveys were to be made and filed before the certificates of boundaries should be issued. From this decision the Commissioners of Crown Lands appealed to this Court. It was agreed that all the evidence taken by the two Commissioners of Boundaries should be received by the Court. In addition to this, the evidence of Mr. C. J. Lyons, of the Government Survey, and of Mr. James Gay, a surveyor, and of John Norton, was taken before the Court. The determination of the boundary of Kaohe will settle the boundary of Humuula where these lands adjoin.

Besides the interests of the contending parties, the Government and the Crown Land Commissioners, the determination of this boundary is a matter of public importance, as the western boundary of Humuula along the Kaula gulch, and thence on to near the summit of Maunaloa, is the division between- the districts of Hamakua and Hilo. It is established by the evidence that Humuula is a Hilo land, and that Kaohe is a Hamakua land. From the mass .of evidence taken we find that in ancient times the main value of the land of Kaohe was the “uwa’o,” a sea-bird, whose habitat was the dry, rocky and elevated portion of the mountain. The habitat of the bird “ oo,” whose feathers were valuable, was in the mamane of Humuula, So the bird-catchers, retainers of the chief to whom Humuula was assigned, were limited to this area on which to take the “ oo,” and could not take the uwa’o,” for those belonged to Kaohe.

All admit that the line where the dense forest ceased and the scattering mamane trees grew was the line of Humuula eastward, and on the westward the line was where the mamane trees ceased, above the limit of vegetation. This general view is not controverted, and the boundary line from Pohakuhanalei, on Maunaloa, to Kanakaleonui, as found by the Commissioner, is not seriously controverted by either party. It is agreed that the starting point of the western boundary of Humuula on the sea coast is where it joins the land of Ookala, and that the boundary runs along Ookala until it comes to the Kaula gulch, and follows this gulch up to the upper boundary of the land of Kaala near a place called Lahohina,” not far from “Ned Gurney’s” hut. From “Lahohina” inland (southward) up to “Kanakaleonui” the boundary is disputed. The appellants claim that Kaohe on the western side ends at a hill called “Iolehaehae,” and from thence runs south to Kanakaleonui, thus taking into Humuula a large block of land above the woods bounded northward of Iolehaehae by the land of Kukaiau, and on the makai or northerly side by the upper boundary of the land of Kaala close to the Government road leading from Hamakua to Laumaia and Kalaieha.

No witness goes quite to the extent thus claimed. Some, however, take the line from Iolehaehae to Poopuaa or “Ahuapoopuaa,” and thence to the agreed point “ Lahohina.”1 One witness, Kahue, and Waiki following him, takes this line on from Poopuaa seaward to a hill called Puuloa, several miles seaward, and beyond the settled upper boundary of Kaala.

This same witness carries the line of Humuula to the ice pond “ Waiau” on the summit of Maunakea, and enlarges on both its sides to dimensions far beyond those testified to by other witnesses. Mr. Wiltze’s map of Humuula, made in 1862, agrees with this testimony in running the line from Iolehaehae to Poopuaa.

On the other hand, Simmons and others give the line as going from Iolehaehae direct to the Kaula gulch where it enters the woods. Opposed to either of these views is the testimony of Nakupuna, said to be 100 years old, who takes Kaohe to Iolehaehae, and says that at Waikulukulu Humuula joins Kaohe. This point, Waikulukulu, is a water-hole in a gulch into which ■water drips, as it name would indicate, not far from a hill called “ Puukalepa.” This hill is east of Iolehaehae about a mile distant. This last testimony would take all the disputed territory from Humuula.

This view is sustained by Mr. Lyon’s testimony. He says that in 1853, when he surveyed Kaala and Kaiwiki for Hon. John Ii, who was guardian of Leleiohoku 2d, he went through the woods following the Kaula gulch till he struck the main road, and the kamaainas pointed out to him two peaks as the boundary of Kaala. One was Iolehaehae and that he took a sight on, and the other was one to the east of it, whose name he cannot give. The inference is that it was Puukalepa. It could not be Poopuaa, for that is not eastward of Iolehaehae. Mr Lyons, in obedience to Mr. Ii’s instructions, ran the upper boundary of Kaala straight across just above the woods and did not take into Kaala the territory up to Iolehaehae and Puukalepa, Mr. Ii saying that above the line of forest on the mountain the land belonged to the Government, and Mr. Lyons marked it “ Kaohe,” knowing that there was a large Government land of that name there.

It is significant that the neighboring lands of Kukaiau and Koholalele have been established as running up beyond the woods to a line of three tufa cones or hills, Puukea, Puuoldhe and- Iolehaehae, and it would seem natural that Kaala originally took in its share of this territory, and ran from Iolehaehae to Puukalepa. These four hills or cones are conspicuous landmarks, and can be seen at a long distance. The kamaainas of forty years ago were less likely then to be mistaken as to the correct boundaries of lands than those of these days. They lived on the lands, pursuing their occupations under the chiefs of gathering feathers, canoe making and getting articles of various kinds from the mountains. It was such men that informed Mr. Lyons that the territory in question belonged to Kaala, and we are strongly impressed with the idea that it was Kaala. Now, if it was Kaala it was not Humuula, and if it was Kaala it is Government land, because it was voluntarily left out of the royal patent for Kaala, and may well be considered now as a part of Kaohe. Where the testimony is conflicting the Court may resort to intrinsic evidence. And a strong feature in this case is that as Kaula gulch is admitted to be the boundary up to the mauka limit of Kaala, it is natural to suppose that the main branch of this gulch continued to he the boundary as far as it went. This will undoubtedly carry the boundary up beyond the line of Poopuaa and very likely as far as Waikulukulu. Unfortunately no one has actually traced the gulch to this place, but we are not made aware of any other course which the storm water in Waikulukulu could take seaward except down through a gulch which must come out in the well known part of Kaula gulch.

W. A. Whiting, Attorney-General, for the Government.

F. M. Hatch, for Crown Land Commissioners.

The question is not easy to determine, but we think on a review of the whole case that the Commissioner’s decision should be sustained on this point. The only other point in dispute is whether Humuula, on the slope of Maunakea, extends to Omaokoili hills, or only goes as far as Puhuluhulu. The Omaokoili hills seem to us to be clearly established as a boundary between Humuula and Kaohe, and we therefore affirm the decision of the Commissioner, and decide the line between Humuula and Kaohe to be as found by him in his decision of October 3d, 1891.  