
    JANUARY TERM—1866.
    
      Allen, Ch. J., llobertson and Davis, J. J.
    In the matter of the petition of Kamakee and W. P. Kamakau her husband, for Settlement of the Boundaries of the Ili of Kewalo.
    A certificate of award issued by the Land Commission of an Ili of land, by name, is only prima facie evidence of the nature of the award made and may be contradicted by the original record. It appearing that by the record of the Land Commission, the Ili of “Kewalo” had been awarded by surveys attached to the award it was held that a certificate of boundaries by the Commission of Land Boundaries for the Island of Oahu, covering more than the said surveys is void.
   The judgment was rendered by

Justice Robertson.

This matter comes before the Court on appeal from the decision of the Commissioners of Land Boundaries for the Island of Oahu.

On the 22d of November, 1864, Madame Kamakee, and her husband W. P. Kamakau, Esq., filed a petition with the Commissioners of Land Boundaries, asking them to define, certify, and award the boundaries of that part of the Ili of Kewalo, situated on the southeast side of the city of Honolulu, claimed as belonging to Kamakee, but not awarded to her by survey, by the late Board of Land Commissioners.

Opposition was made to the petition before the Boundary Commissioners by tbe Attorney General, on bebalf of tbe Government.

After tbe presentation by tbe petitioners of a certificate showing that, in tbe Great Division of Lands in 1848, Kamakee received tbe Ili of Kewalo from His Majesty Kamebameba HI; together with a certificate of award by tbe Land Commission, to Kamakee, of tbe Ili of Kewalo, by name, dated tbe 28th of September, 1852, purporting to be issued under tbe Konohikis Act of 19th June, 1852 ; and after bearing such testimony as was offered touching tbe ancient boundaries of the Ili of Kewalo, and tbe arguments of counsel, on both sides, tbe Commissioners, on tbe 4th of December, 1865, granted to tbe petitioners a certificate of confirmation of boundaries as claimed by them, awarding to Kamakee all tbe lands claimed by tbe petitioners as forming part of tbe Ili of Kewalo. From this decision^ Mr. Harris, as Attorney General, took an appeal to tbe Supreme Court, on bebalf of the Government.

When tbe cause came on to be beard before this Court, counsel for tbe petitioners moved to dismiss tbe appeal filed by Mr. Harris, as Attorney General, on tbe ground that at tbe date of the filing of tbe said appeal, Mr. Harris had ceased to be Attorney General by having been transferred to tbe office of Minister of Finance. After considerable discussion Mr. Harris, at tbe suggestion of tbe Court, in order to save tbe trouble of an adjudication on this question, withdrew tbe appeal filed by him as Attorney General, saving tbe right of tbe Minister of tbe Interior to lodge an appeal on bebalf of tbe Government, which was accordingly done. An appeal was also lodged, in due form, by tbe Commissioners of Crown Lands.

Upon a question being raised as to tbe admission of fresh testimony, tbe Court decided to affirm and adopt tbe rule first laid down by tbe Circuit Court of tbe Island of Kauai, at tbe May term, 1865, that, in order to meet tbe ends of justice, in all cases of appeal from the Commissioners of Land Boundaries, either party is at liberty to introduce fresh evidence, although not newly discovered, provided such evidence is not merely cumulative.

It appears that after Madame Kamakee had obtained the Ili of Kewalo, in the Mahele of 1848, her claim for the same was presented to the Board of Land Commissioners, by her former husband, Mr. Joña Piikoi, to be awarded upon according to law. On the 28th of September, 1852, a certificate .of award was issued, signed by Mr. J. L. Nailiili, one of the clerks of the Land Commission, certifying that the Board had awarded the Ili of Kewalo to Kamakee, iy name, under the provisions of the Act passed on the 19th of June, 1852, which empowered the Land Commission, in certain specified cases, to dispense with the presentation of surveys, which was required in all other cases, and to issue awards for whole lands claimed by Konohikis, by their names only.

IJpon the documentary evidence thus presented by the petitioners, the foundation Of their petition to the Boundary Commissioners, is prima facie sufficiently clear, and the Commissioners appear to have been almost wholly controlled by this evidence in their adjudication of the matter. But as has been before ruled in this Court, (see Kalama vs. M. Kekuanaoa and John Ii, Hawaiian Rep., vol. 2, page 202), a certificate of award by the Land Commission, is only prima facie evidence of the nature of the award made, and may be contradicted by the original records of the Commission, if produced. .

In accordance with this rule, counsel for the appellants have laid before us the original award of the Land Commission, for the Ili of Kewalo, which is recorded at pages 60, 61 and 62, Award Book, Yolume 10. The heading of the award is in the ordinary brief form, stating that Kamakee had claimed her several pieces of land (or places), in the Ili of Kewalo, Ahupuaa of Honolulu, the same having been granted to her by King Kamehameha III, at the Division of 1848, and that she held the same without dispute ; that the Board had therefore awarded her a freehold title less than allodial, which might be converted into an allodial title, by payment of the Government commutation, and making the usual reservation of kuteana rights. Then follows a clause stating that the award was made iu accordance with the provisions of the Act of the 19th June, 1852, relating to Konohikis. But after the usual statement of the bill of costs, occurs the phrase which was- never used except when an award was made by survey, viz. : Ma na Patena, which means in English, Here follow the Boundaries. To this award are attached, accordingly, the surveys of four separate pieces of land, the three first made by the Rev. A. Bishop, and the last by Mr. S. P. Kalama. The first survey is that of a piece of land situated in Nuuanu, but belonging to Kewalo, containing 8 acres and 9 39-100 square chains ; the second survey is that of the portion of Kewalo, situated in Pauoa, comprising 50 1-10 acres ; the third survey is that of a disputed piece, also situated in Pauoa, measuring 1 acre and 4 2-100 square chains ; and the fourth survey is styled the‘survey of Kewalo, an Ili of Honolulu, containing an area of 270 84-100 acres. This last, which is the principal survey, is marked on the plan, “Ili of Kewalo,” the others appearing to be surveys of leles belonging to the Ili.

Thus stands the record of the Land Commission, and it is contended, on the part of the appellants, that this is not a case of an extraordinary award, by name, under the Act of 1852, but the ordinary case of an award by survey, final and complete as regards the boundaries as well as the title.

The appellants have also introduced evidence for the purpose of proving that, at the time the award was made, it was received and accepted by Kamakee and her former husband, Mr. Piikoi, as final and complete in every respect.

Dr. G. P. Judd has testified that he was intimately acquainted with Piikoi for many years ; that Piikoi, as is well known to every member of the Court, was a shrewd man of business, who looked well to his own interests and those of his wife, for whom he acted in all business matters; that Piikoi was a Luna or Land Agent for the King, and was also in the employment of the Government unden him, (Dr. Judd); that he advised Piikoi, as an example to some other chiefs who were dilatory in having their lands surveyed, to have all of his surveyed before they were awarded, and that Piikoi repeatedly told him he had done so, and that he had not accepted an award from the Land Commission for any land by name. Dr. Judd also testified that after Kamakee had obtained Kewalo in the Division, Piikoi wished to move the fence up to the public road, and he (Dr. Judd) on behalf of the Government, permitted him to do so. He further testified that the late Kuhina Nui, John Young, Piikoi and himself, were in the habit of consulting together in regard to lands; that he enquired of them to whom the plain of Kulaokahua ■ belonged, (which petitioners now claim as part of Kewalo) and they said it belonged to' the Government; that he advised that Kulaokahua should be surveyed and sold for house-lots, which was resolved upon by the Privy Council, of which Piikoi was a member, and that when the lots were sold Piikoi made no objection; also that on one occasion, Piikoi came to advise with him respecting a piece of land in Kulaokahua, occupied by a foreigner, which lot with a house upon it was purchased by Piikoi.

Mr. John Montgomery has testified that he purchased, from the' administrators of the estate of P. R. Vida, lots Nos. 95 and 96, in Kulaokahua, and re-sold them to Jona Piikoi ; that these lots are situated nearly opposite Kamakee’s gate ; that there was a two-story wooden house on the lots, which Piikoi removed within the wall of Kamakee’s place. It appears by the certificate of the Registrar of Conveyances that this sale to Piikoi was made on the 29th of April, 1852.

Mr. S. P. Kalama testified that lie was sent for by Piiboi to go and see Mm and Kamakee in relation to tbe survey of the Ili of Kewalo ; that be went and met them both at Kamakee’s bouse; that Piikoi and Kamakee consulted together, in bis presence, in regard to tbe survey, and that Kamakee told Piikoi to go with Kalama and have tbe land surveyed as be (Piikoi) thought was right; that Piiboi pointed out tbe boundaries to bim, and be made tbe survey accordingly; that when tbe plan and survey were completed he delivered tbe same to Piikoi, and tbe same are correctly copied on tbe Land .Commission boobs.

Tbe appellants have also presented in evidence a certificate from tbe Interior Department, showing that between tbe 5th of September, 1846, and tbe 16th of January, 1851, tbe Government sold and patented sixty-two pieces or parcels of land, in Kulaokahua, to nearly as many different purchasers. And lastly, it appears that Jona Piikoi, by bis will, devised to Madame Kamakee tbe lots purchased by bim from Mr. Montgomery, and that she has accepted tbe devise.

Upon this evidence we regard it as conclusively proven, that Madame Kamakee was well aware, at tbe time she obtained tbe Ili of Kewalo from tbe King, that tbe Government held possession of Kulaokahua, and bad caused tbe same to be surveyed and publicly offered for sale in building lots, to which she offered no opposition ; that Mr. Jona Piikoi, acting for Kamakee, by her authority and consent, required tbe Land Commission to award her land in tbe Ili of Kewalo by survey ; that be laid before tbe Board, for that purpose, tbe four surveys which are recorded in tbe Award Book; that all tbe land claimed by Kamakee, under her grant of tbe Ili of Kewalo from tbe King, was awarded to her by tbe Land Commission, according to tbe surveys presented on her behalf, without abatement; and that tbe award was accepted by her as final.

In our opinion, therefore, tbe clause in tbe formal part of the award, to the effect that the same was made in accordance with the Act of 19th June, 1852, must, on the ground of manifest inconsistency, be treated as void ; and the claim now set up by the petitioners, must be regarded as resting solely upon a clerical error committed by Mr. J. L. Nailiili, tbe occurrence of wbicb error may be accounted for in either of two ways. Tbe Court is familiar with tbe modus operandi pursued in tbe Land Commission office, and we are aware that it was usual for tbe clerks to have tbe headings of awards prepared, sometimes • for months before tbe awards were finally settled and signed. When Mr. Nailiili wrote tbe beading of this award, be may not have been aware that tbe land was to be awarded by survey. It appears by a note attached to tbe award, that tbe dispute touching tbe smaller piece of land in Pauoa, was beard and decided only on tbe same day that tbe award is dated, wbicb leads us to conclude that tbe surveys bad been but recently presented. But another, and more probable hypothesis is this : that Mr. Nailiili understood tbe Act of the 19th June, 1852, in tbe same sense in wbicb it appears to be understood by tbe counsel for tbe petitioners, who contends that after tbe passage of said Act, tbe Land Commission was required to grant awards, by name only, for all whole Konohiki lands, and was not then at liberty to award any abupuaa or ili of land, by survey. But this is clearly a misapprehension of tbe meaning of the Act, tbe effect of wbicb was merely to relax tbe previous law on tbe subject, so far as to permit tbe Land Commission to grant awards for whole ahupuaas and ilis, by their proper names, in those cases where surveys were not presented. That Mr. Nailiili misconstrued tbe Act is by no means improbable, as it bad been but recently promulgated, and this supposition is strengthened by tbe fact, that all tbe seven awards, of wbicb this is tbe last, under claim No. 10,605, comprising lands belonging to both Kamakee and Piikoi, and wbicb are recorded in close proximity, and all worded alike, although, they are all accompanied by their appropriate surveys, showing that Mr. Nailiili supposed at that time, that notwithstanding the accompanying surveys, the awards were issued under the Konohikis Act; and the error he made in the formal part of the awards being in the Hawaiian language, the more easily escaped detection at the time the awards were signed.

Mr. Stanley, for the Petitioners.

Messrs. Harris,' Montgomery and Thompson, for the Government and Crown Land Commissioners.

Honolulu, 14th March, 1866.

It appears that the Boundary Commissioners have likewise fallen into error, and misunderstood this point, although not in exactly, the same way as counsel. They seem to have regarded the award for Kewalo, as an award made partly by survey and partly by name. That this also is a mistaken view is ‘perfectly clear, for the Land Commission was only authorized to issue awards, either with surveys attached to and made a part of the award, which was the ordinary way ; or, by name only, without any survey whatever, which could only be done in the comparatively few cases coming within the Konohikis Act. Any award made by the Land Commission in contrariety to this, must have been made in a manner at variance with the laws governing its proceedings ; and so far as we are advised no such award was ever made.

Our decision is that the award of the Boundary Commissioners should be set aside, and the petition dismissed ; and that each party pay their own costs. Let judgment be entered accordingly, as of the last day of the January Term.  