Dowsett v Maukeala

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Steve Laudig
A Paper and Dissertation Proposal Submitted in
Partial Fulfillment of the Requirements of 691 [31 hours] and
Fulfillment of the Requirements of 699 [1 hour]
Committee Members: TBA.
Koe na Kuleana o Kanaka- Subject Always to the Rights of Tenants: James I. Dowsett
v.
Maukeala (K), Naea (K), Kaumaea (K), Hina (W), Elikai (K), And Kaluahilo (K)2- An
“Occupational” Error Ejecting Hawaiians from the Resources of their Land and Seas.
The transfer of territory from one national community to another
gives rise to legal problems of a difficult and complex character.”3
The King's title to the Iliainas, …, was perfect. So were also the
titles of those chiefs, who had Iliainas in the same Ahupuaas
"maheled" to them, perfect so far as the King was concerned. They
had, of course, to follow the mahele up with an award, and were
entitled to Royal Patents on paying the Government Commutation.
When I say that both these classes of titles are "perfect," I must
always be understood as qualifying this by the statement that these
maheles4 and subsequent awards were subject to the rights of native
tenants.
1
I want to thank, in no particular order, Peter Kalawaia Moore, Kuhio Vogeler, Kamana Beamer,
and Keanu Sai for their permission to use their doctoral thesis proposals as models. Any similarity in
notions seems unavoidable. It is, in a sense, the Hawaiian Island project.
2
There are two reported decisions. Dowsett v. Maukeala, 9 Haw. 233 (1893), and Dowsett v.
Maukeala, 10 Hawai'i Reports 166 (1895). I will refer to them as Maukeala I and Maukeala II. They
are attached as Exhibit A and Exhibit B.
3
D.P. O'Connell, State Succession in Municipal Law and International Law (Cambridge: Cambridge
University Press, 1967). 3.
4
Harris v. Carter, 6 Haw. 195, 204-205; 1877 Haw. LEXIS 5 (1877).
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Table of Contents
Ejectment ......................................................................................................................14
Service of Process .................................................................................................................14
Answer..........................................................................................................................14
The First Trial ...............................................................................................................15
Plaintiff’s Case in Chief ........................................................................................................17
Defendants’ Case in Chief.....................................................................................................18
Plaintiff’s Rebuttal ........................................................................................................20
Closing Arguments........................................................................................................21
Jury Instructions....................................................................................................................21
Verdict ..................................................................................................................................24
Trial Court Level Post Verdict Proceedings...........................................................................24
Supreme Court Proceedings ..................................................................................................26
Plaintiff’s Brief On Exceptions Of Defendants To Ruling Of Mr. Justice Whiting
Granting A New Trial....................................................................................................27
Supreme Court Decision................................................................................................29
Dowsett II .....................................................................................................................32
Defendants Challenge to the Panel of the Jury ...............................................................32
Native................................................................................................................................34
Non-Native........................................................................................................................34
Plaintiff’s Case in Chief ........................................................................................................34
Jury Instructions ............................................................................................................35
Jury Result ....................................................................................................................37
Dowsett III ....................................................................................................................37
Supreme Court Opinion.................................................................................................45
Conclusions ...............................................................................................................47
Dissertation Proposal .................................................................................................47
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Introduction and Motivation:
This document intends to be an accurate historical narrative and legal analysis of the cases,
Dowsett v. Maukeala combined with a draft of a doctoral thesis.
In the course of preparing the paper the idea of a thesis took shape and began writing itself.
I look forward to suggested changes you may have. This work changes and grows with
each writing. I consider it a first draft, how “solid” it is will have to be judged by you.
My first recollection of my love for social justice that became the unavoidable center of my
professional life is from a boy’s club stream cleanup when my dad made me leave before the
stream was clean. His comment was there was work to be done at home. It seemed to me that the
stream, the social, was more important than anything at home, the merely personal. The arc of my
professional life has, with only the necessary detours into “making a living”, followed the need to
see that justice was done to the extent of my ability and resources to assure so. It is this that has led
me here, wherever “here” is.
The cases captioned “James I. Dowsett v. Maukeala (K)5, Naea (K), Kaumaea (K), Hina
(W), Elikai (K), and Kaluahilo (K)” captured my attention because it is one of and perhaps the
pivotal of a constellation of Hawaiian Islands Supreme Court decisions in the 1880s and 1890s in
which “judge” made laws created the legal structure for “ejecting” [to use the term from Maukeala]
hoa’ainas6 from access to the resources of their lands and seas. The case can serve as a panopticon
from which to observe that process in that using the case itself as the “central tower” one can see a
legal structure “divided into cells … [in which] the cells are … backlit … and subject [them] to
scrutiny both collectively and individually.”7 In this case one can examine the legal and political
revolution, suppression of Hawaiian knowledge and application of customary law through juries,
suppression of Hawaiian political and legal power, and the erection of a legal structure intended to
5
In case reports and pleadings of the era, and continuing till the present day, when a Hawaiian name
is used it is usually followed by an indicator (k) or (w) meaning “kane” or “wahine” the gender of
the person. No such designations are used for non-Hawaiian names.
6
The term “Hawaiian” needs careful definition and even more careful use. I will have to parse out
those of pure or part aboriginal blood from nationals.
7
Ben F. Barton and Marthalee S. Barton, "Modes of Power in Technical and Professional Visuals,"
Journal of Business and Technical Communication 7, no. 1 (1993). 138, 162.
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serve the objectives of its creators [the foreign8 haole planter cabal9] to “make” the situation in
Hawai'i a “better fit” for the United States by changing the developing Hawaiian Island Common
law of property to fit the U.S. model. It may even provide a viewpoint for changes in things as
mundane as office technology.10
The case has come to be seen a particular way by the current judiciary yet it has never been
extensively, and critically, examined at the level needed to see how it fits into what appears to be
overall dispossession plan aimed at separating Hawaiians from their resources. Subsequent courts
merely cite it for authority for the proposition that all the rights were lost.11
Unlike most, but not all, now working on the topic of the overthrow of the Hawaiian
Kingdom government and occupation of the Hawaiian Islands, I have no “Hawaiianness” about
me. But it is about doing essential work on a pivotal and, I suggest, erroneously, decided case. Any
“personal” struggle in this work is me versus injustice, however long ago, when it manifests itself
yet today in the residual resentments at ejections that took place long ago and continue in different
forms till today. Last week [end of April 2007], for example, a young man recently admitted to UH
law school was killed on a beach in Nanakuli at the end of his first [and last] day in Hawai'i. News
reports were that he had taken a picture of a “local” who took offense. Apparently the deceased’s
“apology” was insufficient and, if the reports are correct, one blow resulted in his death. The victim
was 33, the perpetrator, 21. For all we know the perpetrator’s ancestors were ejected from their
land as a result of Dowsett. Past injustices breed current troubles. Ask the Irish, ask the
Palestinians, ask all dispossessed peoples.
I will start by examining Maukeala itself attempting to present it as it was experienced by
the litigants at the time taking care to identify and describe the major and minor actors and the
8
I intend to use “foreign” as it was used under Kingdom Law as those who would be entitled to a
jury consisting of half Hawaiian and half foreigners.
9
For lack of a more “neutral” label.
10
Looking at the Maukeala physical file I noticed that there were no typed documents in it at the
beginning but by the end most important documents were being typed. It occurs to me that
comparing the type fonts of the Supreme Court with the type font of Dowsett’s lawyer might
establish they were using the same typewriter. How interesting that would be.
11
See, for example, Pioneer Mill Company, Limited, v. Dow, et al., 90 Haw. 289; 978 P.2d 727;
1999 Haw. LEXIS 72. But see also Public Access Shoreline Hawai'i v. Hawai'i County Planning
Commission,903 P.2d 1246 79 Hawai'i 425, 903 P.2d 1246 (1995)
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critical legal concepts, both procedural and substantive. This will be the meat of the paper. This will
set the stage for a more in depth examination of the elements in play and at play that, I hope,
blossom out under the tutelage of whatever committee I might be able to assemble.
How this case was brought, litigated, decided, cited and is presently understood is a canvas
for understanding the Hawaiian Revolution which “began” in the 1880s erupting in the misnamed
1887 “Bayonet”12 Constitution, for understanding how the death of a generation of the great landed
konohikis13 and the resulting placement of the control of their land and water rights in the hands of
foreigners14 by the upper levels of the Hawaiian Island judiciary. This resulted in “ejectment” and
what amounts to “legislation” from the bench which in combination with the end of representative
elections, meant that judicial decisions detrimental to Hawaiians were not reversed by the
Legislature since it too was under the domination of the foreign haole planter elite.
In one viewing Maukeala is a “law case” involving “land rights” of “native tenants”15 that
resulted in three trials, and two written opinions from the highest operating court in the Hawaiian
Islands. The opinions have since been cited for the proposition that certain “native tenant rights”
were “extinguished” before the “native tenant” was born. The final opinion of the Hawaiian
Supreme Court in Maukeala would terminate the rights of persons of pure or part aboriginal blood
to resources they had had a recognized right of access to under the old tenure. Another viewing,
shows the removal of Hawaiian power and authority and knowledge by excluding Hawaiians from
12
Bayonet gives the death threats a rather quaint, non-serious, tone. “Gunpoint” Constitution would
be more accurate or “Rifle Point”. Gavan Daws, usually so thorough, elides the physical threats to the
lawful monarch, to extort a signature but does relate a portion of a speech made by one of the
conspirators [Lorrin A. Thurston] when in discussing the cabinet changes made by King Kalakaua
prior to the Bayonet document, in which he said that “I remember reading somewhere of a man who
was going to shoot a coon and the coon said: ‘Don’t shoot; I’ll come down.’ The King is the coon
and this meeting is the gun.” Gavan Daws, Shoal of Time, a History of the Hawaiian Islands
(Honolulu: University of Hawai‘i Press, 1968). at 247. Perhaps Daws was unfamiliar with the racially
derogatory rhetoric of the late 19th Century. American listeners would not have missed the clear
racial slur.
13
A "konohiki" is the "headman of an ahupuaa land division under the chief[.]" Mary Kawena Pukui
& Samuel H. Elbert, Hawaiian Dictionary 166 (rev. ed. 1986). An "ahupuaa" is a "land division
usually extending from the uplands to the sea[.]" Id. at 9.
14
I propose to use the term “foreigner” as it was used in the Kingdom at the time-- one entitled to a
jury containing foreigners.
15
I intend to abandon this term as it frames things badly by simplifying a complicated system. It also
puts the persons claiming rights to the resources of land in a difficult to defend situation by
“defining” them as “tenants.” “Tenants” come in a limited number of varieties in Anglo-Saxon
common law none beneficial to the person labelled a “tenant.”
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juries and reversing the verdicts of ones they were on. These were verdicts that protected the
Hawaiians rights to resources. A third viewing is that it shows how the development of Hawaiian
Common law was aborted by the judicial revolutionary cabal led by the “trio of traitors” Judd16,
Bickerton, and Frear.
The “timing” of the case seems emblematic. Filed a week before the “overthrow” and
“occupation”17, the decision results in the “overthrow” of rights to access the resources of the land
and became precedent for the overthrow of rights to the access to the resources of the sea some
years later.
How is it that what is the single-most important “right” the right to access to resources to
live would have been extinguished so soon after its creation?
The complaint was filed on Monday 9 January 1893.18 One week later, Monday 16
January 1893, U.S. troops invaded the Hawaiian Islands capitol of Honolulu. Their presence
triggered the provisional transfer by the legitimate executive branch of its authority to the U.S.
government where it remains.
Portions of the Hawaiian Kingdom Government’s judiciary had become revolutionaries in
1887 and assisted in causing the suppression of the lawful legislature and the substitution of a
“foreign-elected” legislature and other governance structures described in the 1887 document. Thus
began a long slow progression of civil unrest with portions of the lawful constitutional government
falling to the advances of the revolutionists. First the Supreme Court turned revolutionary. I know
of no other instance where the judicial branch led a revolution. But compare the “revolutionary
effect” the United States’s Supreme Court with its Dred Scott decision had. It was the first
revolution to be led from the bench rather than the streets. These these domestic revolutionaries had
captured the apex of the judicial branch prior to 1887 by backing the play of their co-conspirators
in from the street. which, in turn, facilitated the capture of the legislative branch, in 1887.
16
Accessing Judd’s recently released files at the Bishop would figure in the research.
17
The first U.S. occupation of Hawai‘i was from 16 January 1893 until 24 May 1893. Ralph S.
Kuykendall, The Hawaiian Kingdom, 1874-1893, the Kalakaua Dynasty, 3 vols., vol. III (Honolulu:
University of Hawai‘i Press, 1967). fn. p. 624. The second began August 1898 and persists.
18
A working timeline showing events in the case and events in the Hawaiian Islands is attached as
Exhibit A.
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For the revolutionaries all that remained was the executive branch. That was beyond their
domestic reach and the resurgence of Hawaiians, a precursor of the 1970s Hawaiian Renaissance,
startled them into seeking foreign intervention in the form of troops. Domestic revolutionaries,
rather than fail, will almost always seek foreign intervention. The rebellious Americans sought and
obtained French assistance against the British. The Confederate States of America sought, but
didn’t obtain, British assistance against the Federals. But the “point” of the revolution is beyond the
scope of this paper but changing “law” particularly with regard to access to the resources of the
land and sea became part of the process.
In a move echoing King Kamehameha the III’s response to the British invasion and
occupation fifty years earlier, and in the face of the overwhelming United States military force, the
Queen provisionally ceded control to the United States Government not the fake revolutionaries.
This simple peaceful act preserved the status of the Kingdom by preventing belligerent conquest.
U.S. Consul Stevens, acting on behalf of the United States Government, further compounded is
lawless intervention into the domestic affairs of another sovereign state, by accepting the
provisional cession and “recognizing” the new “government.”19 Within 72 hours the puppet
government -- now calling itself a “provisional” government -- sent individuals to the United States
to negotiate annexation.20 Arriving in Washington, D.C., on 3 February, by 14 February, an
agreement --titled a “treaty” of annexation-- was signed between the “provisional” government and
the outgoing Harrison administration.
Deceit comes naturally to both the self-righteous and the greedy. In 1843 Alexander
Simpson had tried to deceive the British consul to about the British military occupation of the
Hawaiian Kingdom. In 1893, so to did the annexationists qua revolutionists attempt to deceive
19
“So long as the lawful government offers resistance which is not ostensibly hopeless or purely
nominal, the de jure recognition of a revolutionary party as a government constitutes premature
recognition which the lawful government is entitled to regard as an act of intervention contrary to
international law. For such recognition amounts to recognizing the rebels either as the government of
the entire State or as the government of a new State. An authority cannot be recognized, de jure, as a
government without being recognized as the government of a State. In either case recognition of the
revolutionary party as a de jure government constitutes a drastic interference with the independence
of the State concerned.” Sir Hersch Lauterpacht, Recognition in International Law (Cambridge:
Cambridge University Press, 1947). 94-95.
20
“. . . a disguised annexation aimed at destroying the independence of the occupied State represents
a clear violation of the rule preserving the continuity of the occupied State.” Krystina Marek, Identity
and Continuity of States in Public International Law (Geneva: Librarie Droz, 1968). 110.
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United States officials in Washington D.C. about the unlawful conduct of United States officials in
Honolulu by falsely representing the overthrow as a genuine and popular “revolution” rather than a
fake one that it was. The annexationists simply lied stating that no troops or officers of the United
States were present or took part in the invasion and overthrow.
On 15 February 1893, the “treaty” was submitted to the United States Senate for
ratification. Grover Cleveland, having defeated the incumbent President Benjamin Harrison in
November 1892, assumed the presidency on 4 March 1893 and in response to Her Majesty
Liliuokalani's protest and a fuller, and more truthful, understanding of the facts surrounding the
United States Government invasion, withdrew the treaty from consideration on 9 March 1893.
Cleveland then tasked James Blount to Hawai’i to investigate and report on the causes of the
United States Government’s invasion, overthrow and occupation.
Nine months later President Cleveland accepted and endorsed Blount’s findings and
admitted the direct culpability of the United States legation for the illegal overthrow of the
Hawaiian government.21 On 18 December 1893, Cleveland addressed the United States Congress
stipulating that the United States government’s actions were an "act of war, committed with the
participation of a diplomatic representative of the United States and without authority of Congress"
and that a "substantial wrong has thus been done which a due regard for our national character as
well as the rights of the injured people requires we should endeavor to repair" while calling for the
restoration of the lawful government of the Hawaiian Kingdom.22 Invasion is an act of war, and at
the time, under the United States Constitution, only Congress had the authority to declare war.23
Despite concluding that the United States Government’s actions in deposing the lawful government
were illegal under international law, Cleveland took no action to restore the status quo ante
bellum.24
21
James Blount, "Executive Documents of the United States House of Representatives, Appendix II,
Foreign Relations," (53rd Congress, 1894-95, 1894). 567.
22
See, President Cleveland’s Message, Executive Documents of the United States House of
Representatives, 53d Congress, 1894-95, Appendix ii, Foreign Relations, (1894), 456.
23
United States Constitution, Article 1, Section 8, clause 11.
24
Cleveland’s understanding of international law at the time was not contested and is correct. See,
Jennifer M.L. Chock, "One Hundred Years of Illegitimacy: International Legal Analysis of the Illegal
Overthrow of the Hawaiian Monarchy, Hawai'i's Annexation, and Possible Reparations," Hawaii Law
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Six months after Cleveland’s address, the puppet government installed by the invasion and
occupation renamed itself the Republic of Hawai’i on 4 July 1894. But it was a curious “Republic”
operating much of the time under “martial law” including show trials of the Queen and her
supporters.25 Sanford Dole, who had violated his oath of allegiance as a judge to work with Consul
Stevens in the invasion, overthrow and occupation personally selected 19 of the 37 delegates to the
“constitutional convention” so that the puppet government would have a majority and retain
control.26 More subjects were entitled to vote under the Monarchy than the “Republic.” For the
Republic’s constitution, Lorrin Thurston and William Smith of the “provisional government” drew
heavily upon the 1891 Mississippi Constitution with its poll tax and literacy test provisions that
were consciously designed to exclude non-whites and non-property holders from the franchise.27
Among the former Confederate states, Mississippi was a leader in disenfranchising African
Americans. The Mississippi Constitution of 1890 was filled with provisions designed "to obstruct
the exercise of the franchise by the Negro race."28 Thurston and Smith merely adopted the
provisions for application to the Hawaiian race.
In March 1897, the new United States president McKinley took office. On 16 June 1897, a
second annexation “treaty” was signed by the so-called “Republic” and the United States. It was
subject to ratification by two-thirds of the United States Senate.29 Within ten months, the United
States Government was at war with Spain and poised to violate Hawaiian neutrality again, this time
by waging war from its territory. The Kingdom was neutral in the war with Spain and using the
Review 17. 489. For a discussion of possible remedies for these violations of international law. See
Chock, id., 495-512.
25
Daws, Shoal of Time, a History of the Hawaiian Islands. 282-284.
26
See, Poka Laenui, "Hawaiian Independence: Its Legal Basis, Symposium on Native Hawaiian
Sovereignty" (Dec. 2-3, 1994). See also, Melody K. McKenzie, Native Hawaiian Rights Handbook,
ed. Melody K. McKenzie (Honolulu: Native Hawaiian Legal Corporation and Office of Hawaiian
Affairs, 1990).13. Thus participation in the “constitutional convention” was restricted to those
owning large amounts of property and it cannot be called a “democratic” revolution. The resulting
government was never what could fairly be called a “democracy” -- it never held a referendum on
whether to allow the annexation and it forbade public instruction in the Hawaiian language which
was the native language of more than 85% of its citizens. It forbade instructions in any language
other than English. See, Laws of the Republic of Hawai'i, School Laws of 1896, Section 30.
27
Daws, Shoal of Time, a History of the Hawaiian Islands. 280.
28
See, Ratliff v. Beale, 20 So. 865, 867 (Miss. 1896); see also, Cotton v. Fordice, 157 F.3d. 388 (5th
Cir. 1998).
29
See, United States Constitution, Article 2, Section 2, Clause 2.
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islands as a staging ground would have subjected the United States to claims identical to the claims
the United States had pressed against the British government after the Civil War.30 Indeed, the
United States Senate, in secret session on 31 May 1898, admitted to violating Hawaiian neutrality.
Senator Henry Cabot Lodge stated, in the secret session, that the McKinley administration “was
compelled to violate the neutrality of those islands, that protests from foreign representatives had
already been received and complications with other powers were threatened, that the annexation or
some action in regard to those islands had become a military necessity.”31 This admission came a
mere five weeks before the U.S. Congress voted to pass the annexation resolution on 6 July 1898.
A resolution became the annexation vehicle rather than treaty due to the inability of the McKinley
administration to obtain the necessary votes in the Senate.32 On 6 July 1898, the United States
Congress passed a joint resolution purporting to annex the Hawaiian State.33 President McKinley
30
See, Adrian Cook, The Alabama Claims: American Politics and Anglo-American Relations, 18651872 (Ithaca: Cornell University Press, 1975). and D. P. Crook, Diplomacy During the American
Civil War (New York: John Wiley & Sons, Inc., 1975).
31
See, Secret Session of the United States Senate, May 31, 1898, 55th Congress, 2nd Session, 156.
These transcripts were suppressed for more than seventy years and not made available to the public
until January 1969. Much of the suppressed discussion related to potential liability of the United
States Government for violating Hawaiian neutrality along the lines of the Alabama claims arbitration
against Great Britain following the War Between the States when Great Britain allowed Confederate
raiding ships to be built on her soil.
32
In addition to the international law flaws of the annexation, its constitutionality under United States
law was contested at the time and has yet to be tested to conclusion. See, Thomas M. Cooley, "Grave
Obstacles to Hawaiian Annexation," The Forum 15 (1893). 392 cited by Chock at 491-492. See,
Westel Willoughby, The Constitutional Law of the United States, 2nd ed. (New York: Baker,
Voorhis, 1929). Vol. 1, §239, “Only by means of treaties, it was asserted, can the relations between
States be governed, for a legislative act is necessarily without extraterritorial force -- confined in its
operation to the territory of the State by whose legislature it is enacted." p. 427. ). In 1988 the Office
of Legal Counsel questioned authority to annex the Hawaiian Islands by municipal legislation.
Douglas Kmiec, "Legal Issues Raised by Proposed Presidential Proclamation to Extend the Territorial
Sea," (1988). As recently as 1996, the Office of Legal Counsel for the U.S. Department of Justice
rejected the notion that congressional acts are superior to international law. See, Office of Legal
Counsel, "Validity of Congressional-Executive Agreements That Substantially Modify the United
States’ Obligation under an Existing Treaty” " (Department of Justice, 1966). Available at:
http://www.usdoj.gov/olc/treaty.top.htm (accessed 22 July 2004)
33
Newlands Resolution, 30 Stat. 750. There is a genuine question, under international law, as to
whether the “Republic” ever achieved statehood sufficient to be annexed. The “Republic” may have
looked like a state but was it? It “is of the very essence of a puppet State to preserve to the maximum
all the formal characteristics of a genuine State. In all cases which are prima facie suspect, the
question must therefore be much more critically examined from the point of view of “actual”
independence. Marek, 291. A “State must be genuine and not a puppet.” Id., 169. “A revolution is
legal under international law; a fake revolution, being a disguised form of suppression, is not. . . . in
the case of a successful fake revolution resulting in a fake government, the new basic norm comes
precisely from outside the State concerned, whatever the superficial appearances to the contrary. The
State concerned can no longer be considered identical with the one existing prior to the fake
revolution. Since its basic norm is in fact determined by a foreign State, it becomes a puppet State,
and therefore non-identical with its predecessor; its very character as State becomes doubtful.” Id.
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signed the resolution the following day and on 13 August 1898, United States Government troops
again occupied the Hawaiian Islands.34 On 30 April 1900, the puppet government renamed the
“Territorial Government” began enforcing the United States legal order throughout the Hawaiian
Islands.35 Finally, in March 1959, the puppet government was redesignated a “state” when the
United States Government Congress approved a statehood bill which was signed into law on 18
March 1959.36 A century after the invasion and overthrow, and nearly 100 years to the day after
Cleveland’s admissions of violation of international law, the United States Government reaffirmed
its guilt by renewing its admission in what has been popularly called the “Apology Law.37 In July,
1999, the Solicitor General for the United States noted his government's actions toward the
Hawaiian Kingdom under the international laws and customs of war on land by stating that:
"Between 1826 and 1893, the United States recognized the Kingdom as a sovereign nation and
signed several treaties with it. The United States has concluded that it. . . bears a responsibility for
the destruction of their (Hawaiian) government and the unconsented and uncompensated taking of
their lands."38
The Maukeala Case was part of that process of the unconsented to and uncompensated
taking of access to resources.
Research Question(s):
70. Using this analysis the Republic of Hawai'i is properly classified with post-Munich Slovakia and
Croatia, and the Empire of Japan’s puppety state, Manchukuo.
34
On 12 August, the day before, “Secretary of State William R. Day and the French ambassador,
Jules Cambon, who was acting for Spain, signed a protocol ending hostilities.” Calvin D. Davis, The
United States and the First Hague Peace Conference (Ithaca: Cornell University Press, 1962). 35.
35
An Act to Provide a Government for the Territory of Hawai’i, 31 Stat. 141.
36
Admissions Act of March 18, 1959, P.L. No. 86-3. The Admissions Act included provisions for a
plebiscite which some may point to as a vehicle for extinguishing the State. Marek notes, “It has been
said by an authority on plebiscites that no plebiscite can be taken seriously if it is held under thte
control of a State having an interest in the result; it could only be considered valied in the unlikely
event of a defeat of the controlling State. 65, citing, Sarah Wambaugh, Plebiscites since the World
War, (Washington, Carnegie Endowment for International Peace, 1933), Vol. I, 498.
37
107 Stat. 1510.
38
See, Brief for the United States as Amicus Curiae Supporting Respondent, Rice v. Cayetano, No.
98-818, U.S. Supreme Court.
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Through the proposed dissertation, but not in this paper, I intend to explore the interplay of
three legal systems, the “old tenure”39 system, the new Hawaiian system of the Hawaiian written
lawmaking beginning 1839 until 1887, and the occupation system and how they each defined,
recognized, and enforced rights to the resources provided by the land and sea. I will examine the
limits of the approaches of the three systems.
The sources for this paper consist of the entire court case files available at the Hawai'i State
Archives. I have digitally photographed the entire Maukeala file and have these photos. They are
assigned “Document Control Numbers” referenced as “DCN.”40 In addition, I photographed
various Indexes of Court filings available at the Hawai'i State Archives. These are individually
referred to in footnotes. I have created a database containing all Hawaiian Island Supreme Court
opinion up till 1900. There are more than 1600 cases. I have consulted those in preparing this
paper. Also sources will be the written opinions of the Supreme and Appellate Courts along with
any trial court case files. In the course of my initial investigation the existence of transcripts of trials
has been mentioned. I have not yet had the chance to locate them. This would be a wealth of
material as it allows people of the time to speak for themselves.
Dowsett I
Pleadings
Complaint
Most cases begin with a document called a “complaint.” Complaints are supposed to be a
short and concise statement of both the facts and theories upon which the Plaintiff believes himself
entitled to recover on.
On Monday 9 January 1893, James I. Dowsett41, after paying a filing fee of $2, evidenced
by the placing of two [2] One Dollar Duty Stamps, duly cancelled by the Supreme Court Clerk,
filed his two [2] page handwritten complaint for “Ejectment.” This “James I. Dowsett” is the
39
As the Maukeala Court labels it. Maukeala II at 166.
40
Photographs of all the documents are in the custody of the author. Documents will be described by
name and date with reference made to the Author’s Document Control Numbers. E.g. DCN 42664268.
41
Part of the dissertation will trace the individual histories of persons associated with the litigation.
See: Executive Documents of the United States House of Representatives, 53rd Congress, 1894-95,
Appendix II, Foreign Relations, (1894) at 796-803.
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Senior. There is also a James I. Dowsett, Junior who appears as a witness in the case. Dowsett
Senior is referenced in Blount as having been present at the 30 June 1887 “Mass Meeting”
[hereinafter “Mass Meeting”] that preceded the “Bayonet Constitution. Mr. Dowsett, Sr.’s lawyer
is Cecil Brown.42
In it he alleges, under oath witnessed by Charles L. Carter, notary public, that he was “a
foreigner by birth” and complained that
Maukeala, Naea,
Kaumaea, Hina, Elikai, and Kaluahilo residing at
Kapuaikaulai43 the Ahupuaa of Halawa… have unjustly and
contrary to law and the rights of the plaintiff taken into their
possession and converted to their use and occupation the following
described real property [description omitted]…”
Dowsett further alleges that this ten acres were a portion of “L.C.A.44 7712 and 8516B.
R.P.45 6717.” Dowsett claimed “an estate for years under lease.” He claimed $50046 as damages
and further requested “restitution of said property…”
The complaint is addressed to the “Hon. W.A. Whiting47 First Judge of the Circuit Court of
the First Circuit.”48 Receipt in the Court was acknowledged by “Henry Smith, Clerk.” It requested
that the case be heard during the February 1893 Term of the Court.
42
Also present at the “Great Mass Meeting” of 30 June 1887. Later in November 1892, the Queen
would ask Cecil Brown to form a cabinet. Blount at 900.
43
Kapuaikaula is mentioned once by Fornander as being near the site of the battle between
Kuamanuia and Kaihikapuamanuia in which Kuamanuia fell. Abraham Fornander, An Account of
the Polynesian Race, vol. II (London: Trubner & Co., 1880). 270-271. Hickam Air Force Base rests
on Kapuaikaula now having been seized via eminent domain during the construction of Pearl
Harbor.
44
Land Commission Award.
45
Royal Patent.
46
$500.00 in 1893 is worth:
$11,198.39
using the Consumer Price Index
$10,343.12
using the GDP deflator using the value of consumer bundle *
$56,956.52
using the unskilled wage. Source:
http://www.measuringworth.com/calculators/uscompare/result.php. Last accessed Monday, May 07,
2007.
47
W. Austin Whiting, one-time attorney general appointed by the Queen.
48
Dowsett v. Maukeala et. al. Hawai'i State Archives, Law Folder 3237.
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Ejectment
In “nearly all cases of a disputed title to property, recourse was had to the action of
ejectment.”49 One defense against which was “adverse possession.” Under Hawaiian Common
law, as well as English and American Common Law, after a statutory period of “undisturbed
possession, the right of possession, and consequently the title thereby acquired, is indisputable”.50
The State of the Law of Ejectment in the Hawaiian Islands as of 1893
Service of Process 51
On January 9th at 3:00 p.m., service of process of the complaint via a summons issued from
the Circuit Court announces that “Liliuokalani, By Grace of God of the Hawaiian Islands,
Queen”52 hereby instructs the Marshal of the Kingdom to “summon Maukeala (K), Naea (K),
Kaumaea (K), Hina (W), Elikai (K), and Kaluahilo (K)” to file a “written answer within twenty
days after service” and to appear on Monday 6 February 1893.
This summons is signed by “George Lucas” Deputy Clerk. Service of process by “D.
Manuel, Police Officer” is noted as having occurred 12 January 1893, a Thursday, on Maukeala,
Naea, Kaumaea, Hina, Elikai, and Kaluahilo with the executed Summons noted as being returned
on 14 January 1893 by “J.K, Nakuina for “Clerk.”53
Answer
Attorney for the Defendants Maukeala, Naea, Kaumaea, Hina, Elikai, and Kaluahilo, C.W.
Ashford filed the “Defendants Answer” in which they “deny each every [sic, presumably “each
49
Robert Malcolm Kerr, An Action at Law: Being an Outline of the Jurisdiction of the Superior
Courts of Common Law, with an Elementary View of the Proceedings in Personal Actions and in
Ejectment (Philadelphia: T. & J.W. Johnson, 1854). At 55. See also, Sir William Holdsworth, An
Historical Introduction to the Land Law (Oxford: Clarendon, 1927). At 166-188
50
Kerr, An Action at Law: Being an Outline of the Jurisdiction of the Superior Courts of Common
Law, with an Elementary View of the Proceedings in Personal Actions and in Ejectment. at 55.
51
“Service of process” is the term of art for the how a copy of the complaint and the summons,
which gives instructions to the persons being sued [the Defendants] is delivered to them.
52
The summons was a preprinted form left over from the reign of Kalakaua in which “Kalakaua”
and “King” is struck through and “Liliuokalani” and “Queen” is handwritten in.
53
DCN 4269-4270.
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and every” was intended] of the allegations contained in the Plaintiff’s declaration on file” on 26
January 1893.54
The First Trial
The trial of the matter was initially set for Monday 6 February 1893, but for reasons that do
not appear in the record, it was delayed until Tuesday 21 February 1893. With Judge Whiting
presiding, the trial commenced with the selection of jurors. Generally, though not universally, in
common law jurisdictions such as the Hawaiian Islands, during this process, oftentimes called by
Latin name “voir dire”,55 prospective jurors are questioned by the attorneys for the parties to
determine possible connection to the case or the parties and any possible bias and thus
disqualification. In what appears to be either the Room56 Clerk’s or Judge Whiting’s handwriting,
the names of potential jurors appear in a column with some names struck through.57
The names that are struck through are:
J. L. McLean
J.W. Ho?lf?? or Half??58
Sherwood
S.F. Graham
W. Lucas
C. N. Eld??
Frank Brown
?dsworth
J.O. Carter, Jr.59
E.S. Marshal 60
H. Wodehouse
54
DCN 4271-4272. Although hand-dated 26 January 1893, unaccountably, George Lucas, Deputy
Clerk file stamps the “Answer”, with an automated date stamp “25 January 1893.” In all likelihood
the Deputy Clerk neglected to advance the date on the auto stamp. Something I’ve experienced as an
attorney on occasion if a document is filed early in the day.
55
Voir dire is a phrase in law which derives from Middle French. In origin it refers to an oath to
speak the truth (Latin verum dicere) with "voir" meaning "truth" whereas the modern French word
"voir" derives from Latin videre ("to see"). It now generally refers to the process by which
prospective jurors are questioned about their backgrounds and potential biases before being invited
to sit on a jury.
56
A “room clerk” is the official notetaker for the court who is present in the court room.
57
DCN 4413.
58
The presence of a “?” means that despite my best efforts the author of the text’s handwriting has
defeated my efforts to decipher. The efforts are ongoing.
59
Possibly the “J.O. Carter” of the case captioned Charles R. Bishop, Saml. M. Damon, Charles M.
Hyde, Charles M. Cooke And Joseph O. Carter, Trustees Under The Will Of Mrs. B. P. Bishop,
Deceased, v. Kala (K.) and Makaoni (W.), Supreme Court Of Hawaii 7 Haw. 590; 1889 Haw.
LEXIS 39 March, 1889,
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The resulting jury consists of the following named individuals. The names that are not
struck through are the names of the jurors as they appear on the Clerk’s docket entry.61
They are:
K. Koloa
A. Lyle
K.S. Kinilau
Chas. Hammer63
D.K. Kaelipule
Jas L. McLain
J. Waiamau
J. McInerny64
S. Kalahiki
E.S. Cunha62
W. Paoo
W.W. Dimond
On DCN 4413 the penciled numbers 1, 2, 3, 4,5, and 6 appear adjacent to: Alex Lyle;
Charles Hammer; J.L. McClain; J. McInerny; E.S. Cunha; and W.W. Dimond, respectively which
I take to mean they are the “foreign”65 members of the jury. Since only “foreigners” appear on the
list on DCN 4413 with their names struck through I am presuming the others are “natives.” This
being a 12 person jury then it would seem that it had to be a jury evenly split among “natives” and
“foreigners.” Assuming this to be true, then we have the following breakdown:
Native
K. Koloa
D.K. Kaelipule
S. Kalahiki
K.S. Kinilau
J. Waiamau
W. Paoo
Non-Native
A. Lyle
Jas L. McLain
E.S. Cunha
Chas. Hammer
J. McInerny
W.W. Dimond
60
Possibly J. Hay Wodehouse or James H. Wodehouse the British Commissioner to the Hawaiian
Islands. As Dowsett was a “foreigner” the Commissioner, also being a foreigner might have been
qualified to sit on a jury. I cannot establish whether having a foreign governmental official be a juror
was allowed for.
61
DCN 4273.
62
An “E.S. Cunha” was present at the “Mass Meeting.”
63
A “C. Hammer” was present at the “Mass Meeting.”
64
Also likely present at the “Mass Meeting” but it could have been his brother. M. McInerny.
65
Foreign means a non-aboriginal resident of the Hawaiian Islands, not necessarily a “non-national”
of the Hawaiian Islands.
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Also appearing on DCN 4413 are the penciled numbers 3, 11, 19, 4, 21 and 7. I take these
to be the native jurors’ “juror number.” Potential jury members, in current practice, are assigned
numbers as a record keeping and time saving device to quickly establish identity.
It takes nine votes for a verdict to be reached. If nine cannot agree the jury will be
discharged.
Plaintiff’s Case in Chief
The trial opens with a series of exhibits offered by the Plaintiffs attorney Mr. Cecil Brown.
They Exhibits are numbered as follows:66
#A: R.P.67 6717, LCA68 7712 to M. Kekuanaoa6970and Kamaikui;
#B: Records of Estate of Grace Kamaikui Rooke , [P 1223];71
#C: Deed from Fanny Young to Emma Kaleleonalani; 72
#D: Deed of Partition E.R. Bishop to Alex J. Cartwright Trustee
for Emma Kaleleonalani;
73
#E: Records of Estate of Emma Kaleleonalani [Probate 1787];
#F: Lease from Trustee Cartwright to Plaintiff Dowsett.74
#G: a “Survey of lower portion of Halawa
Following the production of these documents intended to trace title from the Mahele to the
Estate of Emma Kaleleonalani and a resulting lease for a term of years from the Trustee for the
Estate, Alexander J. Cartwright, to the lessee James I. Dowsett, Sr. the testimony of the following
persons was given.
1.
M.D. Monsarrat;75
66
DCN 4273 and 4413.
67
Royal Patent
68
Land Commission Award
69
Presumably "Mataio Kekuanaoa” governor of O’ahu. born c1791, (son of Ki'ilaweau and Inaina),
Governor of Oahu 1834/1868, died 24th November 1868 in Honolulu.
70
Grace Kamaikui Rooke and her husband, Dr. Thomas Charles Byde Rooke adoptive parents of
Emma Na’ea Kaleleonalani.
71
“P” indicates “Probate Court” with the number indicating the Probate Court case number. Estate of
Grace K. Rooke, See, Hawai'i First Circuit Probate Index for Cases 1845-1900, at p 59.
72
An “A.J. Cartwright” was present at the “Mass Meeting.” Blount 796.
73
Estate of Kaleonalani, Queen Emma Dowager, deceased 25 April 1885, widow of Kamehameha
IV, See Hawai'i First Circuit Probate Index for Cases 1845-1900, at p 24.
74
Court Clerk’s DCN 4273.
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2.
3.
4.
5.
6.
James I. Dowsett, Jr.;
Kalaauimi [w];
Mele Lewai [w];
John I. Dowsett,
Sr.; and,
Lucy Peabody.76
Trial as adjourned after the sixth witness until the next day, Wednesday 22 February 1893.
The Plaintiff then rested.
Defendants’ Case in Chief
Naea
Defendants’ Counsel C.W. Ashford77 presents Defendant Naea78 as a witness. After
Naea’s direct examination is completed, the Plaintiff’s lawyer Cecil Brown during crossexamination asked Naea whether “had ever taken steps to kuleana [sic] their claims.” The use of
“kuleana” as a verb is a term of art asking whether the person being questioned has sought or
obtained title under the Kuleana Act. Ashford objects, although the grounds for objection, such as
“hearsay” or “irrelevant” were not provided.
Unfortunately, Mr. Ashford’s specific objection is not, at present, available. Presumably,
Cecil Brown’s question was intended to bring out that no claim under the Kuleana Act had been
made by any of the Defendants. In order to determine the legal admissibility of this evidence a
thoroughgoing analysis of the Kuleana Act and its operation is required.
A short digression into the Kuleana Act is called for here.79
It provides:
§1477. Where the landlords have obtained, or may hereafter obtain,
allodial titles to their lands, the people on each of their lands shall not
be deprived of the right to take firewood, house-timber, aho cord,
thatch, or ki leaf, from the land on which they live, for their own
private use, but they shall not have a right to take such articles to sell
for profit. The people shall also have a right to drinking water, and
75
A “M.D. Monsarrat” was present at the “Mass Meeting.” On 17 January 1894, a “M.D.
Monsarrat” and his wife would be at the first anniversary of the Provisional Government was
celebrated Wednesday, January 17, 1894. Blount at 1196.
76
There was, and perhaps still is, a transcript of this testimony which would have been taken by a
Court Reporter. The existence of a transcript is noted in DCN WAWA.
77
“Lieut. C. W. Ashford was the last speaker” at the “Mass Meeting.” Blount 802 , and the first
Attorney General under the 1887 Document. Blount at 803.
78
79
DCN 4273
A section that would be greatly expanded upon in the dissertation.
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running water, and the right of way. The springs of water, running
water, and roads shall be free to all, on all lands granted in fee
simple: provided, that this shall not be applicable to wells80and watercourses, which individuals have made for their own use.
The Kuleana Act, on its face, has no apparent application to an ejectment action except as
one possible, among many possible, defense in that an award was obtained.
Early Hawaiian Kingdom law shows the specific objective of preserving the rights of
native tenants during the transition to a different system of property. For example, before the
Mahele, the law "Respecting Water for Irrigation" assured native tenants "their equal proportion"
of water.81
Subsequently, the Kuleana Act provided, in relevant part, to all “tenants” on konohiki and
Crown lands, fee simple title, free of commutation was granted, provided that claims were
recognized by the Land Commission. Along with fee simple title “the people”, are not to “be
deprived of the right to take firewood, house timber, aho cord, thatch, or ti leaf, from the land on
which they live, for their private use… [and shall] have a right to drinking water, and running
water, and roads shall be free to all.” In granting individuals fee simple title to land in the Kuleana
Act, the kingdom expressly guaranteed: "The people shall . . . have a right to drinking water, and
running water . . . ."82 The Kuleana Act ensured tenants' rights to essential incidents of land beyond
their own kuleana, including water, in recognition that "a little bit of land even with allodial title, if
they be cut off from all other privileges would be of very little value,"83
However, the Kuleana Act cannot be read in a vacuum. The Declaration of Rights 1839
held that:
Protection is hereby secured to the persons of all the people, together
with their lands, their building lots, and all their property, while they
80
Available at: http://www.hawaiiankingdom.org/civilcode/CHAPTER_XXXIV.shtml. Last accessed
Monday, May 07, 2007.
81
See Laws of 1842, reprinted in Fundamental Laws of Hawaii 29 (1904).
82
Enactment of Further Principles of 1850 § 7, Laws of 1850 at 202.
83
3B Privy Council Records 713 (1850). Peck v. Bailey, 8 Haw. 658, 661 (1867) (recognizing
"appurtenant rights" to water based on "immemorial usage"). See generally Elizabeth Ann Hooipo
Klaenaauao Pa Martin, "Cultures in Conflict in Hawaii: The Law and Politics of Native Hawaiian
Water Rights," Hawaii Law Review 18 (1996). 147-79 (surveying various rights including postoccupation).
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conform to the laws of the kingdom, and nothing whatever shall be
taken from any individual except by express provision of the laws.
While later, it is made clear that the “landlord cannot causelessly dispossess his tenant.”84
I have been unable to locate any statute that expressly takes away the rights of an individual
to land created by the Declaration of Rights.
Elikai
After the questioning of Naea ends, Ashford calls Elikai as witness.85 Cecil Brown, on
cross-examination and over objection, asks whether the witness “pays taxes on the land” is
overruled. A sensible ruling since the defense to the ejectment was “adverse possession” and the
payment of taxes would be evidence as to one of the elements of adverse possession. An objection
was also made to the question as to whether “Elikai’s grandfather Kaholokahiki was the Konohiki
of the Halawa fishery”.86 Again, the specific objection is not preserved. Trial is adjourned after
Elikai, the eighth witness, finishes his testimony. It will resume on Thursday 23 February 2007.
Haaheo
Ashford calls Haaheo as witness.87 The Plaintiff’s lawyer, on cross-examination and over
objection, asks whether Kalaekao88 and Kapuaikaula were reserved for the use of the Ali’i. The
legal relevance of this question escapes me. The defense then rested.
Plaintiff’s Rebuttal
Plaintiff calls He [w] in rebuttal and rested.
84
Kingdom of Hawaii, Kanawai I Kauia E, Ka Moi, E Kamehameha III., Ke Alii O Ko Hawaii Pae
Aina (Honolulu: Mea Pai Palala A Na Misionari Amerika, 1847). at 85. See also, Jon J. Chinen, The
Great Mahele Hawaii's Land Division of 1848 (Honolulu: University of Hawaii Press, 1958). at 7.
85
DCN 4273 and DCN 4414.
86
DCN 4274 and DCN 4414
87
DCN 4274 and DCN 4414.
88
“Queen Emma had a home at Kalaekao, near Ewa, where she entertained exclusively the members
of Hawaiian royalty and her friends of the British colony.” Albert Pierce Taylor, Under Hawaiian
Skies (Honolulu: Advertiser Publishing Company, 1922). At 225.
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Closing Arguments
Closing arguments are made by Ashford and then Brown, after which the Court then
instructs the jury.89
Jury Instructions
Instructions to the jury as supposed to be clear and concise statements of what law is
applicable based upon what evidence has been presented. They are intended to guide the jury in
applying the law have it has decided upon the facts. They are to be given with reference to legal
authority, either statutory or decisional. (“We have examined the cases cited on behalf of the
[instructions sought by the] plaintiff, but do not find that they support the instructions given and
excepted to. We are of opinion that the instructions as given cannot be sustained, and this view is
confirmed by numerous authorities…”)90 In this respect the jury instructions tendered or proposed
by the respective parties tell the Court and the Jury what the parties “Theory of the Case Is.”
What were the instructions that were given?
Dowsett requested nine instructions. The first was that the defendants91 “entry…must have
been made under a claim of right of ownership and not permissive occupation [from] the
Konohiki.”92 This instruction was given. The second was that if the jury concluded the Defendants
had consent to enter the property then the period of time for establishing adverse possession would
not begin.93 This instruction was given. The third instruction was that the period of time only
begins when the Defendants “refused to pay rent.”94 This instruction was refused. The fourth
instruction was that if the Defendants were “hoa’ainas” then the period of time for adverse
possession could not begin. This instruction was given. The fifth instruction was that “mere
89
DCN 4276-4280
90
J. S. Martin V. L. B. Kerr, 7 Haw. 346, 348 [H.I. 1888]].
91
Jury instructions are quite “technical” so whenever the “Defendants” are mentioned the phrase “or
the parties through whom they claim” also appears and should be understood to be present.
92
DCN 4276
93
DCN 4276
94
DCN 4277
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occupation” without more, such as fencing off the area, does not begin the period of time. This
instruction was given. The sixth instruction was that if the Defendants had not made a Kuleana
claim it could be implied that they recognized the right of the “landlord as paramount.” The Court
refused to give the jury this instruction noting that such an instruction would be “commenting on
the weight of evidence.”95 The seventh proposed instruction requested was that the “occupation of
defendants … to establish title by adverse possession must have been open, notorious and under a
claim of title. This instruction was given.96 The eight proposed instruction was that if the jury
found that the original occupation was “permissive” the time for establishing adverse possession
would not have begun.97 This instruction was given. The ninth proposed instruction was that the
statute of limitations only begins upon refusal to pay rent or when the plaintiff first had notice of
the adverse claim. This was refused.98
First trial
Given
The first was that the “defendants entry…must Yes
have been made under a claim of right of
ownership and not permissive occupation [from]
the Konohiki.”
The second was that if the jury concluded the Yes
Defendants had consent to enter the property
then the period of time for establishing adverse
possession would not begin.
The third instruction was that the period of time No
only begins when the Defendants “refused to pay
rent.”
The fourth instruction was that if the Defendants Yes
were “hoa’ainas” then the period of time for
adverse possession could not begin.
95
DCN 4277
96
DCN 4277-4278
97
DCN 4278
98
DCN 4280
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The fifth instruction was that “mere occupation” Yes
without more, such as fencing off the area, does
not begin the period of time.
The sixth instruction was that if the Defendants No
had not made a Kuleana claim it could be implied
that they recognized the right of the “landlord as
paramount.”
The seventh proposed instruction requested was Yes
that the “occupation of defendants … to establish
title by adverse possession must have been open,
notorious and under a claim of title.
The eight proposed instruction was that if the Yes
jury found that the original occupation was
“permissive” the time for establishing adverse
possession would not have begun.
The ninth proposed instruction was that the No
statute of limitations only begins upon refusal to
pay rent or when the plaintiff first had notice of
the adverse claim.
The Defendants submitted six proposed instructions.99 The first was that the Plaintiff had
shown no title to the land prior to 8 September 1888. There is no indication as to whether this was
given. The second was that “any negotiations” between the Plaintiff and the Defendants can not be
considered as the Defendants not denying the Plaintiffs title. This was refused. Third, that if the
jury was satisfied that the Defendants possession was “open and notorious claim of right” that
99
DCN 4379-4382
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“continued for at least twenty years” then judgment should be for the Defendants. Fourth it was not
necessary for a Defendant to have actually “lived upon the land” for the entire period to be
considered to be in possession. This instruction was refused. Fifth, if some, not all of the
Defendants must show “title by adverse possession” for the ones who did to be entitled to
judgment. This was refused as “not necessary.”100 Sixth, there was “no evidence to show the
specific areas occupied by any of the tenants.” This was refused.
The Defendants requested six instructions.
First Trial
The first was that the Plaintiff had shown no title to the land prior to 8
September 1888. There is no indication as to whether this was given.
The second was that “any negotiations” between the Plaintiff and the Defendants
can not be considered as the Defendants not denying the Plaintiffs title.
Third, that if the jury was satisfied that the Defendants possession was “open
and notorious claim of right” that “continued for at least twenty years” then
judgment should be for the Defendants.
Fourth it was not necessary for a Defendant to have actually “lived upon the
land” for the entire period to be considered to be in possession.
Fifth, if some, not all of the Defendants must show “title by adverse possession”
for the ones who did to be entitled to judgment.
Sixth, there was “no evidence to show the specific areas occupied by any of the
tenants.”
Given
No.
No
Yes
No
No
No
Mr. Brown notes exceptions to the refusal of the Court to give the instructions asked for by
the Plaintiff. Mr. Ashford notes exceptions to the refusal of the Court to give the instructions asked
for by the Defendants. Ashford objects to the charge “as a whole” which means that he objects to
all the instructions.
Verdict
Jury retires and returns with a verdict the same day [23 February 1893] for the Defendants
within 35 minutes with 3 dissents.101
Trial Court Level Post Verdict Proceedings
Upon the reading of the verdict, Dowsett’s lawyer verbally objects to verdict as being
contrary to the law and the weight of the evidence and orally requests a new trial.102 This oral
100
101
DCN 4380
DCN 4275
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request was followed up the next day by the “Plaintiff’s Motion for a New Trial” accompanied by
a $50 filing fee probably to cover the costs of a new trial. In the Motion, Dowsett argued that the
verdict was “contrary to the law and the weight of the evidence”, that the Judge erred in not giving
a jury instruction requested by the Plaintiff that “mere occupation of a part of an ahupua’a” is not
sufficient notification. Later, on 28 February, Dowsett filed his exception to the refusal to give
instruction but not which number.103
This motion to set aside the verdict and for a new trial is argued on 1 March 1893. The
parties were given 10 days to file their “exceptions” or objections to the ruling. In a typed threepage entry dated 13 April 1893104 the verdict was set aside and a new trial ordered.105
Entitled “Decision on Plaintiff’s Motion for New Trial” Judge Whiting noted that “record
title” in the Plaintiff was undisputed106 and that the Defendants “defence being adverse possession,
claim was made of such possession for a period even prior to the Land Commission.”107 Whiting
concluded that the jury “neglected properly to consider the facts and have overlooked prominent
and essential points in the evidence.” He noted that the “defendants… were on the land of Halawa
and the place …before the Land Commission… but no claim for a kuleana nor any claim
whatsoever was made… [and] the parcel in dispute … is not an ili, lele or ahupua’a of itself, nor a
lele or kuleana of the ahupua’a of Halawa … it was not a division of a land.”108
He further noted that the defendants were “living under the konohiki and were hoa’ainas
and kahus of the alii”, but failed to disclose the legal rights and duties of the various ranks. The
unspoken and implicit meaning was that this made hoa’ainas and kahus “at-will” tenants when that
may not have been the case. The conflict comes from what does “title” mean in terms of a
“landlord” or “alii” or “chief” to limit natives from resources. He concludes that they that they
102
DCN 4274
103
DCN 4281
104
DCN 4289-4291
105
DCN 4289. This appears to be the first typed document in the file by either the judge or a party
106
DCN 4289
107
Id.
108
DCN 4290
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“continued as such under” konohiki and lunas “until Queen Emma’s death in 1885”; there was no
claim until “after her death” and no “notice given … till after her death.” He felt the “original
holding” i.e. the Defendants going into possession, was “permissive. Holokahiki was the luna and
it is from him that the Defendants claim. So the trial judge granted Dowsett’s motion for a new trial
based upon its conclusion that the first ground i.e. that the “verdict is contrary to the law and the
evidence”109 while overruling the second ground i.e. that the jury instruction on notice was
deficient.
The next day the Defendants filed their “Notice of Exception.”110 This was followed, on 18
April 1893 with their “Bill of Exceptions” detailing their arguments.111 This bill was “allowed as of
April 22, 1893” by Judge Whiting.
Supreme Court Proceedings
The Hawaiian Islands Court system of 1893 had two levels: the trial court level and an
appellate level consisting of the Supreme Court of the Hawaiian Islands. Upon Judge Whiting’s
“allowing” the bill of exceptions, which amounts to permission to appeal to the Supreme Court of
the exceptions noted, the case would, after the preparation of the record, which itself consists of the
pleadings and the transcript of the trial testimony and evidence, come to be lodged with the
Supreme Court where briefs, or written arguments summarizing the facts and the law would be
made.
The appeal in Dowsett I presents the Plaintiffs appealing the overruling of the second
ground for a new trial, i.e. the refusal to give a jury instruction, while the Defendants were
appealing the granting of the new trial on the first ground, i.e. that the that the verdict was not
“contrary to the law and the evidence.” In the Supreme Court, there would normally be a Plaintiff’s
initial Brief, a Defendants’ initial Brief, an opportunity for a response brief by each and a reply to
the response brief. After the matter was fully briefed there would be oral argument.
However, the parties would only file their initial briefs.
109
DNC 4290
110
DCN 4287
111
DCN 4293-4294
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The Plaintiff’s submission titled “Plaintiff’s Brief on exceptions of Defendants to Ruling of
Mr. Justice Whiting granting a new trial” was filed 18 September 1893.112 The Defendants’
submission titled “Brief for Defendants on Exceptions” was filed 24 October 1893. 113
Plaintiff’s Brief On Exceptions Of Defendants To Ruling Of Mr. Justice Whiting Granting A New
Trial
In summary the Plaintiff, in summarizing the evidence admitted in the trial court, recited the
paper title which established that the Plaintiff was the lessee from the Estate of Queen Emma
Kaleleonalani and cited Trial Exhibits A-G and noted that only defense was “adverse possession.”
And that eight years ago Dowsett demanded payment of rent or the rendering of services.114 The
Defendants “each occupied a house.”115. The Defendants lived there under the chiefs of Kekaunoa
and Kamaikui and no claim for a land commission award was ever made.
The Defendants’ reliance on only this ground for defense can be criticized as there were
several English and American Common law defenses to ejectment that could have been raised and,
I suspect, an equal number of “new” Hawaiian Common law defenses that could have been created
under Hawaiian customary law, regarding the rights and duties of the alii, the konohiki, the
hoa’aina, the maka’inana, kahus and other statuses present in the “old” Hawaiian order. This area
of the “defenses” not raised would have to be examined intensively in the thesis, as it could well
provide a basis, using Hawaiian for undermining the precedential value of the Maukeala line of
cases. 116
The Plaintiff’s witnesses Lucy Peabody, Mary Lewai, and Kalauimi testified to acts of
attornment.117 The evidence was that the Defendants were hoa’aina. They entered with the
112
DCN 4324-4331
113
DCN 4332-4338
114
DCN 4325
115
Id. The potential legal significance of this was left unexamined by Defendants’ counsel.
116
For example, see, "Ejectment. Equitable Estoppel as a Defense at Common Law. Mistake," The
Yale Law Journal 36, no. 2 (1926), "Oral Gift as a Defense in an Action of Ejectment under the
Code," The Yale Law Journal 26, no. 8 (1917). rightful possession is a defense in ejectment. Sands v.
Wacaser, 149 Ill. 530, 533, 36 N. E. 960). Additionally the doctrine of unclean hands would apply
and the need for the office of konohiki to be filled could be examined. It seems clear that the
Defendants’ lawyer did not examine these, and other grounds, in preparing his defense.
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permission of the chiefs. The husband of Defendant Hina was appointed Konohiki by Kamaikui
and Queen Emma. The Land Commission awarded to Kekuanaoa and Kamaikui. The Defendants
did not deny the ownership of Queen Emma but did not recognize Dowsett. In what would become
an uncontested, but pivotal argument, the Plaintiff claimed that it “is submitted as a fact and taken
with the knowledge of the feudal system of ancient times in Hawai'i, that the residence and
occupation of every Hawaiian upon land previous to the enactment of the law authorizing the
issuing of award for Kuleana was permissive and as a tenant at will of the owner of the land…”118
The Plaintiff argues that since the tenant could “kuleana” their land and since “no steps
were taken b y the occupier to perfect his title”, as a matter of law they became tenants at will under
the Konohiki.119 This point was not contested by the Defendants’ lawyer who missed the point that
if one wishes to exert the “rights” of a konohiki one also assumes the duties of the konohiki. This
is a point that I would examine in the thesis.
The Plaintiff, in making the “tenant at will” argument. cites to … among others, on
Sedgwick and Waite (sic), A Treatise on the Trial of Title to Land: Including Ejectment, Trespass
to Try Title, Writs of Entry, and Statutory Remedies for the Recovery of Real Property, Embracing
Legal and Equitable Titles and Defenses120 and later Lawson.121 The Plaintiff also argues that the
holding in Lupong v. Akawai, 4 H.R. should apply in that a general claims by a Kohoniki to the
entire ahupua’a was not effective against a kuleana owner.
117
DCN 4325. Attorn or Attornment. To consent, implicitly or explicitly, to a transfer of a right.
Often used to describe a situation where a tenant, by staying on location after the sale of the leased
property, accepts to be a tenant of the new landlord; or where a person consents to ("attorns to") the
jurisdiction of a court which would not have otherwise had any authority over that person. Source:
http://www.duhaime.org/dictionary/dict-a.aspx.
118
DCN 4326. It is at this critical nexus of “old” order Hawaiian and “new” order Hawaiian and
English, American and Hawaiian common law that the Defendants’ lawyer failed. A failing that I
propose to examine theoretically and practically to establish what it would or could have been had
been argued.
119
DCN 4326. But there was no konohiki at the time of litigation to be a tenant at will of. Dowsett
never claims to be a konohiki only a lessee but he is afforded the apparent “rights” of a konohiki,
alii, chief etc. but none of the responsibilities. A Delegee can have no greater authority than the
delegor.
120
See, Arthur G. Sedgwick and Frederick S. Wait, A Treatise on the Trial of Title to Land: Including
Ejectment, Trespass to Try Title, Writs of Entry, and Statutory Remedies for the Recovery of Real
Property, Embracing Legal and Equitable Titles and Defenses (New York: Baker, Voorhis, 1886).
121
See, John Davison Lawson, Rights, Remedies, and Practice, at Law, in Equity, and under the
Codes. A Treatise on American Law in Civil Causes; with a Digest of Illustrative Cases, 7 vols. (San
Francisco: Bancroft and Whitney, 1890).
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Defendants’ “Brief for Defendants on Exceptions.”
The Defendants’ brief submitted on 24 October 1893122 confuses me. It begins with a
rather snide aside, stating the “sole ground for the ruling of the trial court in setting aside the verdict
(as I understand it)…”123 Its tone borders on impertinence or resignation. As if the Defendant’s
lawyer knows he will lose and can only take pleasure in being mildly insulting.
The Defendants then, dangerously it seems to me, agrees that the “sole defence” (sic) was
“adverse possession.” It is unsound strategy in legal argument to accept one’s opponent’s frame of
the issue.
If you accept the frame you have probably lost. On appeal, if defending a verdict, counsel
should strive to find any legal basis in the record as there is generally, in non-revolutionary times
anyway, a respect for juries as the finders of fact. Ashford did not do this. In an ill-structured rant,
for lack of a better term, he shotguns for the entire six pages of written argument, when the
essential argument is that the jury is to be left to decide the facts when witnesses give evidence that
is open to two interpretations which is the province of the jury. With one example being that the
“giving of fish” that was that they may attornments and could simply have been hookupus or
gifts.124 That was for the jury to decide. Defendants denied all allegations and were specific in their
testimony.
Supreme Court Decision
It raises suspicion that two days after the Defendants submitted their brief the Court
(Tuesday 24 October 1893), consisting of A.F. Judd, C.J.; Bickerton and Frear, on Thursday 26
October 1893 handed down its four [4] page decision. Other aspects of the Court raise additional
questions. A.F. Judd had been Dowsett’s lawyer in at least one prior matter.125 But Dowsett was a
person well known the Court. He appears, or is mentioned, in the opinions of the Court, as either a
122
DCN 4338
123
DCN 4332.
124
DCN 4335
125
J. I. Dowsett v. W. O. Smith, Administrator of A. White, Deceased, 6 Haw. 60; 1871 Haw. Lexis 1
(H.I. Supreme Court, 1871).
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litigant or a witness, twenty two times between 1860 and 1893.126 He is oftentimes a leasing agent
of one of the large landed estates.
The Supreme Court, after reciting the procedural posture of the case, recites, nearly in toto
and verbatim, Judge Whiting’s ruling. It is clear the court had access to a transcript of the trial as it
quotes witnesses.127 I have been unable to locate this record as yet.128
In upholding the trial court’s decision the Court refers to a case that it believes is directly on
point, Bishop, et al. v. Kala and Makaoni, 7 Hawai'i 590.129 It bears discussing this case.
The Bishop Estate Trustees consisting of Charles R. Bishop, Saml. M. Damon, Charles M.
Hyde, Charles M. Cooke and Joseph O. Carter, brought an action against Kala (K.) and Makaoni
(W.). Paul Neumann and J.L. Kaulukou represented the Bishop Estate while C. Creighton and S.
K. Kane represented Kala and Makaoni. The property being disputed was 242/1000s of an acre in
Kakaako “near the Immigration Depot.” In other words a quarter of an acre.
As the Court noted it:
was proved as claimed in the declaration, and is not denied by
defendants, that this lot of land is a part of the land of Kaakaukukui,
granted to Victoria Kamamalu by Royal Patent number 4483. It was
also proved, and it is not disputed by defendants, that the paper title
to the land sued for is in the plaintiffs by descent from Victoria
Kamamalu, to her father, M. Kekuanaoa, thence to his children,
Kamehameha V. and Ruth Keelikolani, and by the death of
126
See: Kapaakea, K; Keohokalole, A; and Kalakaua, David v. Morrison, Joseph H and Keohohiwa,
His Wife, 2 H.R. 272, 1860 Haw. Lexis 012; Dowsett, J.I, Smith, W.O, v. 6 H.R. 060, 1871 Haw.
Lexis 1; Lipoa, Elizabeth v. Dowsett, J.I, 3 H.R. 623, 1875 Haw. Lexis 19; Kauwa, Elizabeth by John
Robinson, Guardian v. Dowsett, 3 H.R. 615, 1875 Haw. Lexis 18; Williams, J.R, v. Gulick, C.T, 6
H.R. 16, 1875 Haw. Lexis 5; Coney, John v. Dowsett, James I, 3 H.R. 685, 1876 Haw. Lexis 31;
James I. Dowsett et al, v.Kapilau, 3 H.R. 709, 1876 Haw. Lexis 24; John H. Coney v. James I.
Dowsett 3 H.R. 740, 1876 Haw. Lexis 14; John H. Coney v. James I. Dowsett 3 H.R. 740, 1876 Haw.
Lexis 13; J. M. Kaaihue, (K.) Haalipo and Kailianu (W.) Lizabeth M. Crabbe And H. G. Crabbe, 3
H.R. 768, 1877 Haw. Lexis 25; James I. Dowsett v. Godfrey Brown, 3 H.R. 815, 1877 Haw. Lexis
19; Chave, R.B, v. Dowsett, J.I, 6 H.R. 221, 1878 Haw. Lexis 4; Kahonu v. Pamahoa, 4 H.R. 436,
1881 Haw. Lexis 27; A. Hatton v. Piopio, 6 H.R. 334, 1882 Haw. Lexis 13; Apahu v. Sophia Feary,
6 H.R. 523, 1884 Haw. Lexis 9; The Waianae Company v. Hawaiian Bell Telephone Company, 6
H.R. 589, 1885 Haw. Lexis 8; George Trask, David Trask, Kamai, Kanalulu, Palahu, Panui,
Waianuhea And Albert Trask v. J. W. Pakiko, 7 H.R. 45, 1887 Haw. Lexis 41; Ursolda Sherman v. F.
Harrison, 7 H.R. 663, 1889 Haw. Lexis 28; Charles R. Bishop, Saml. M. Damon, Charles M. Hyde,
Charles M. Cooke And Joseph O. Carter, v. Kala (K.) and Makaoni, 7 H.R. 590, 1889 Haw. Lexis
39.
I would like to examine whether there is a overarching legal strategy in this litigation.
127
DCN 4301.
128
Finding the trial transcript of this or similar cases would be a wonderful addition to our
knowledge of the period and the process of ejecting Native Hawaiians from access to resources and,
perhaps, customary law.
129
Dowsett was a witness and lease agent in this case.
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Kamehameha V. it all passed to Ruth Keelikolani and from her by
descent and devise to Mrs. B. P. Bishop, whose trustees under her
will the plaintiffs are.
Id. 591
Similar to Dowsett the defense was title by prescription with the defendants offering
evidence tending to show that Keau took possession of this lot as an invader and continued to live
upon it as his own for a period of over thirty years. A mixed jury favored the defendants. The
plaintiffs excepted to the verdict as being contrary to the law and the weight of evidence, and
moved for a new trial, which was denied and the denial appealed.
There was similar evidence that the ancestors of the defendants held under the “old” order
or as it was described that they “live[d] under the chiefs.” Id. at 592. Similarly the Court felt that
the “weight of the whole evidence is so clearly and decidedly in favor of the plaintiffs that we feel
that the jury must either have misunderstood its effect or have acted, when they returned [*594] a
verdict for defendants, from some bias or prejudice.” Id. at 593-594.
Here we are viewing Hawaiian assets, the large landed trusts, being manipulated against
natives. There is no mention of the old order which had both rights and duties. It is only the newer
rights of landlordism.
An alternative never raised is that the mixed juries were establishing Hawaiian Common
law defenses as to adverse possession and were being thwarted in a couple of ways. First by
unimaginative attorneys that were not exploring Hawaiian customs as sources for law and secondly
by a higher court that was reversing the traditional effective law recognized and enforced by mixed
juries that, necessarily contained Native Hawaiians and their knowledge that they were able to give
the force of law to.130 Mixed juries would have allowed Native Hawaiians to explain their
customary law to foreigners.
Using the Bishop case as authority the Dowsett v. Maukeala, Naea, Kaumaea, Hina, Elikai
and Kaluahilo, 9 Hawai'i Reports 233 upheld the setting aside of a Native Hawaiian jury verdict
that protected native tenants. The triumvirate of Judd, Bickerton and Frear, speaking through
Bickerton, held, at 235-236: “The trial of the case occupied several days, and the evidence adduced
130
A study that needs to be done is look at all jury verdicts in access to resources cases in which
verdicts of mixed juries were reversed. This would entail examining the scores, perhaps hundreds of
trials that never went to appeal.
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was very voluminous. We have carefully examined and considered all this testimony131, and we are
of the opinion that the findings of the trial Judge and the grounds upon which he granted a new
trial are well sustained by the evidence. It is clearly a case of permissive holding on the part of the
defendants and not one of adverse possession.” The Court concludes that the jury was either stupid
or bigoted. “the weight of the whole evidence is so clearly and decidedly in favor of the plaintiffs,
that we feel that the jury must either have misunderstood its effect or have acted, when they
returned a verdict for defendants, from some bias or prejudice."
Generally, when a matter is remanded for trial an order issues quickly. However, it is not
until 5 February 1894 that the Court remands the matter to the Circuit Court for trial.132
Dowsett II
Another long gap in activity lasts until 28 May 1894 when the parties agree to continue the
trial until the next term of Court which would be the November 1894 Term.133 Judge H.E. Cooper,
the 2nd Judge of the First Circuit is presiding. 134
Defendants Challenge to the Panel of the Jury
The next filing is the “Defendants Challenge to the Panel of the Jury.” It recites that “a
number: to wit: nine of the Hawaiian Jurors drawn for service at this Court and term have since
131
132
The opinion was handed down two days after it was argued.
DCN 4307
133
DCN 4308
134
H.E. Cooper was one of the signers of the following letter to Minister Stevens.
“HAWAIIAN ISLANDS, Honolulu, January 16, 1893.
SIR: We, the undersigned citizens and residents of Honolulu, respectfully represent that, in view of
recent public events in this Kingdom, culminating in the revolutionary acts of Queen Liliuokalani
on Saturday last, the public safety is menaced, and lives and property are in peril, and we appeal to
you and the United States forces at your command for assistance. The Queen, with the aid of armed
force, and accompanied by threats of violence and bloodshed from those with whom she was acting,
attempted to proclaim a new constitution; and, while prevented for the time from accomplishing her
object, declared publicly that she would only defer her action. This conduct and action was upon an
occasion and under circumstances which have created general alarm and terror. We are unable to
protect ourselves without aid and therefore pray for the protection of the United States forces.
HENRY E. COOPER, … Blount at 501.
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being so drawn and since reporting for duty… been dismissed from future service … without legal
cause … [and] are not now in the box135 or among the list from which [jurors are drawn].
That something is going on becomes evident from other filings in the folder. No subpoenas
were present in the first trial. A subpoena is a court order to appear, usually to testify. Friendly
witnesses generally don’t need one. It is an order from the court, served by the police. One uses it
when one cannot rely on the witness to attend. It is also given to a “friendly” witness who may be
in an “unfriendly” situation. Like a friendly witness who works for an enemy. It gives the friendly
witness an excuse to attend.
The Plaintiff causes subpoenas to be issued upon issued for Kalaauimi (w), Mele Luvan
(w), Lucy Peabody, He-u (k), A.K. Kunuiakea, Lolekaua to appear and testify for Plaintiffs Signed
by Whiting Judge. Served by William Ringer Police Officer.136
On 23 November 1894, the Defendants cause to be issued a subpoena for S.W Makelona
of Puuhele and Haaheo of Aiea. This subpoena is served on the 23rd by William Ringer, Police
Officer.137
These subpoenas appear on the new forms of the “Republic of Hawai'i.”
Thursday 23 November 1894 the case is called. Mr. Ashford objects to the panel,
presumably
his
written
The motion
J.M Tracy
E.M. Marshall
F. Philip
J.M Webb
W.H. Smith
W.L. Hopper
J. Hao
J.S. Kalakula
J. Crowell
Wm. Kaapa
J.A. Nobles
G.R. Keomaka
relying on the same reasons as
motion of a few days before.
is overruled by Judge H.E.
Cooper.
The Clerk draws the following jurors:
135
136
137
Jury box meaning available for selection as a juror.
DCN 4417-4418
DCN 4416
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J.L. Quinn
J. Hao
J.M. E.M. Marshall
J.S. Kalakiela
and replaced by J.L. Quinn is
Fred Philip W.H. Smith
J. Crowell J.A. Nobles
J.M. Webb W.G. Webb Tracy is excused by the Defendants
Wm Kaapa J. Paaniani
drawn. L. Hopper is excused by the Defendants and replaced by
W.G. Wooten. G.R. Keomaka is excused for cause and replaced by E. Kaaumoa. E. Kaaumoa is
excused for cause and replaced by J. Paanianai.
The resulting jury is:138
Presumably the breakdown is as follows:
Native
Wm. Kaapa
J. Hao
J.S. Kalakula
G.R. Keomaka
Non-Native
J.M. Tracy
J. Crowell
W.H. Smith
E.M. Marshall
W.L. Hopper
F. Philip
J.A. Nobles
J.M. Webb
It takes nine for a verdict.139
Plaintiff’s Case in Chief
Mr. Brown offers the same documentary as in the first trial. He then calls as witnesses:
James I. Dowsett;
J. Defries;140
Keahuna;
Kalaauimi; and,
Mrs. Lucy Peabody.
At 3:30 p.m. the Court adjourns and resumes Friday 24 Nov 1894.
The Plaintiff offers:
Mary Levi,
A.K. Kunuiakea,
Lolekaua.
138
139
DCN 4312
This needs confirmation by reference to a statute.
140
DCN 4313
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And the Plaintiff offers the lease from Trustee J.L. Cartwright to Dowsett of 8 Sep 1898
and rests.
Defendants’ Case in Chief
Defense offers:
Elikai,
Naea,
S.W. Mahelona,
Haaheo,
Kaluahilo.
And rests.
There is then argument by counsel and the Court gives the jury instructions which are the
except for the following the same as the first trial:
Jury Instructions
Dowsett requested twelve instructions compared to nine in Dowsett I.
First trial
The first was that the “defendants
entry…must have been made under a claim
of right of ownership and not permissive
occupation [from] the Konohiki.”
The second was that if the jury concluded the
Defendants had consent to enter the property
then the period of time for establishing
adverse possession would not begin.
The third instruction was that the period of
time only begins when the Defendants
“refused to pay rent.”
The fourth instruction was that if the
Defendants were “hoa’ainas” then the period
of time for adverse possession could not
begin.
The fifth instruction was that “mere
occupation” without more, such as fencing
off the area, does not begin the period of
time.
Given Second Trial
Yes
Same141
Given
Refused
Yes
Modified to include “until they have Yes
declared that their holding is hostile
and such notice brought to (?) owner.
No
Same
No.
Yes
Same
No
Yes
Same
No
The sixth instruction was that if the No
Defendants had not made a Kuleana claim it
could be implied that they recognized the
right of the “landlord as paramount.”
The seventh proposed instruction requested Yes
was that the “occupation of defendants … to
establish title by adverse possession must
have been open, notorious and under a claim
of title.
Same
No
141
Modified to include “or to have been Yes
such as to raise the presumption that
the owner knew the occupation was
hostile.
DCN 4389
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The eight proposed instruction was that if the Yes
jury found that the original occupation was
“permissive” the time for establishing
adverse possession would not have begun.
Same
No
The ninth proposed instruction was that the No
statute of limitations only begins upon refusal
to pay rent or when the plaintiff first had
notice of the adverse claim.
Same
No
If Defendants went into the land No.
under the Konohiki or chief or owner
it was permissive occupation
If a party did not perfect his title as Unclear
provided by the Land Act, his
possession was permissive until
notice of adverse intent was given.
If the Defendants were ahuas or No
[illegible] of the owner then their
entry was permissive and not open
and notorious until brought to the
owner.
The Defendants requested nine instructions.
First Trial
Given Second Trial
The first was that the Plaintiff had No.
#6
shown no title to the land prior to 8
September 1888. There is no indication
as to whether this was given.
Given
No
The second was that “any negotiations”
between the Plaintiff and the Defendants
can not be considered as the Defendants
not denying the Plaintiffs title.
Third, that if the jury was satisfied that
the Defendants possession was “open
and notorious claim of right” that
“continued for at least twenty years”
then judgment should be for the
Defendants.
Fourth it was not necessary for a
Defendant to have actually “lived upon
the land” for the entire period to be
considered to be in possession.
Fifth, if some, not all of the Defendants
must show “title by adverse possession”
for the ones who did to be entitled to
judgment.
Sixth, there was “no evidence to show
the specific areas occupied by any of the
tenants.”
142
No
#7
No.
Yes
Combined into #1 and #2
Yes
No
#4142
Yes
No
#3
Yes
No
#10 There is no evidence to show the No
respective areas occupied by the
Defendants thus the jury cannot find
against any specific defendant with
reference to any specific area.
There is no Defendants’ Instruction #5. They are misnumbered.
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#8. The payment of rent by one Yes
defendant cannot be considered an
admission by other defendants.
#9 The Plaintiff sues each Defendant, No
in order to find against any Defendant,
the jury must find the possession each
Defendant must be against the Plaintiff
and coextensive with the area claimed.
Mr. Brown notes exceptions to the refusal of the Court to give the instructions asked for by
the Plaintiff. Mr. Ashford notes exceptions to the refusal of the Court to give the instructions asked
for by the Defendants.
Jury Result
The jury retires to deliberate at 4:00 p.m. and except for one 10 minute break deliberates
until 6:10 p.m. when it informs the court it “disagrees” and thus cannot reach a verdict. It is
discharged from further service.143 The jury was unable to render a verdict.144
Dowsett III
The Trial
The third and final trial began 21 May 1895 before H.E. Cooper.
The course of the trial appears in the Clerk’s typed Minutes.145 The Plaintiff and
Defendants and the Plaintiffs lawyers, had remained unchanged from the prior two trials. Judge
Cooper remains from the second trial. Ashford has left as the Defendants’ lawyer with no reason
being given for his departure. He has been replaced by A. Rosa146 and W.S. Edings.147 Cecil
Brown representing the Plaintiffs along with A. Rosa and W.S. Edings for the Defendants.
143
DCN 4314.
144
DCN 4423
145
DCN 4315-4320. These are the first Clerk’s minutes that are typed. The previous having been
handwritten.
146
Antone Rosa who appears as a witness or lawyer in 17 cases before 1893 and a total of 24 by
1900.
147
A “W. S. Edings” appears as a witness or lawyer in 16 cases up by 1900.
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A reading of the document indicates immediate contentiousness between Rosa and Judge
Cooper.148 When the case is called the Defendants are not present, the entire “foreign jury panel” is
not present. Rosa does not want to proceed with jury selection without the entire foreign panel or
his clients. Judge Cooper does. And overrules Rosa’s objection to the jury being drawn. Mr.
Edings claiming that he hasn’t been paid and hasn’t been given any “papers” moves to withdraw as
Defendants’ attorney. That motion is granted.
Mr. Brown begins to examine the Hawaiian jurors for cause and draws an objection that
the Court should wait for the foreign jurors. The Court orders the parties to wait. The foreign
jurors arrive and are examined.
“Foreign” jurors are drawn.
Name
Member
Jury
Foreign
James L.
Torbert149
J. Lucas150
J.M. Tracy
Yes
Yes
Defendant peremptory of J.M. Tracy, S.F. Graham
substituted
S.F. Graham
James L.
McLean
C.J.
McCarthy
W.W. Hall
N.P.
Jacobsen
C.A. Brown
Yes
Not found Jacobson substituted
Yes
Defendant peremptory of W.W. Hall, H.A. McInerny
substituted.
Sub.
Yes
Sub. Not found. J.A. McCandless drawn and excused. E.A.
McInerny substituted
E.A.
McInerny
Hawaiian
M.P.
Robinson
of
Yes
Plaintiff peremptory challenge. C.A. Long substituted.
148
It seems clear, after examining other sources, why. U.S. Minister Stevens, in a letter of 1 February
1893 had described Mr. Rosa as “a half-white lawyer, with a doubtful reputation.” Blount at 403. In
1889 he had co-chaired a mass meeting of Native Hawaiians concerned about proposed revisions in
the U.S.-Hawaiian Islands Treaty. Blount at 293. He was aligned with the lawful government during
at least January 1893. Blount 1006-1007.
149
A “James L. Torbert” was present, as was M.D. Monsarrat et ux,, at the first anniversary of the
Provisional Government celebrated Wednesday, January 17, 1894. Blount at 1196.
150
A “J. Lucas” was present at the first anniversary of the Provisional Government was celebrated
Wednesday, January 17, 1894. Blount at 1197.
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C.A. Long
C.L. Hopkins
Yes
At Plaintiff’s request excused for cause.
J. Paaniani substituted. Paaniani excused for cause.
J.U. Kawainui drawn.
Excused for cause. J.U. Kawainui substituted.
J. Paaniani
J.U.
Kawainui
J.W.
Mahelona
J. Kapali
Hiram Kaaha
T.R.
Mossman
Yes
Yes
Yes
Yes
Yes
Rosa objected that the jurors should have been drawn alternatively. The objection was
overruled.
Plaintiff’s Case in Chief
Brown tenders every Exhibit from the first two trials and Rosa objects. The objections are
overruled.
Summons had been issued for M.D. Monsarratt, Lucy Peabody, Mary Luwai, He-u, Kea,
Lolakana, Kehehuna, Lolekaua by A.L. Ricard, Police Officer. Charles F. Peterson, Clerk.151
Also issued was summons to James H. Boyd, to bring all papers in “LCA 7712 and
8516B.”
John Defries
Mary Liwai
Adjourned till 22 May 1895.
Witnesses called.
Timoteo He-u
Lucy Peabody
Kaaumoana
James I. Dowsett, Jr. testimony from 21 February 1893 trial read
Keahuna
M.D. Monsarrat
James I. Dowsett, Sr.
Ulaula
Plaintiff rests.
Defense, after moving for a non-suit calls the following as witnesses:
Kaluahilo
151
DCN 4419-4420
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Kanaea
Haaheo
Maukeala
Court is adjourned till 23 May 1895.152
Defense, calls the following as witnesses:
Elikai
Jas. H. Boyd
Helen Kaumaea
And rests.
There is no final argument and the Court charges the jury.
The Plaintiff tendered twelve jury instructions.
Dowsett requested twelve instructions as he did in Dowsett II153 compared to nine in
Dowsett I.
First trial
Given Second Trial
The first was that the “defendants
entry…must have been made
under a claim of right of
ownership and not permissive
occupation [from] the Konohiki.”
The second was that if the jury
concluded the Defendants had
consent to enter the property then
the period of time for establishing
adverse possession would not
begin.
The third instruction was that the
period of time only begins when
the Defendants “refused to pay
rent.”
The fourth instruction was that if
the Defendants were “hoa’ainas”
then the period of time for adverse
possession could not begin.
The fifth instruction was that
“mere occupation” without more,
such as fencing off the area, does
not begin the period of time.
Yes
Same154
Yes
Modified to include “until Yes
they have declared that their
holding is hostile and such
notice brought to (?) owner.
Same
No
Same
No.
Same
Yes
Same
No
Same
Yes
Same
No
Same
152
Given
Third
Trial
Refused Same
Given
DCN 4318
153
DCN 4394-4398. Indeed the tendered instructions appear to be a copy of the November 1894
instructions as that date is struck through and May 23, 1895 is handwritten in in what appears to be
Cecil Brown’s handwriting. DCN 4397
154
DCN 4389
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The sixth instruction was that if the No
Defendants had not made a
Kuleana claim it could be implied
that they recognized the right of the
“landlord as paramount.”
The seventh proposed instruction Yes
requested was that the “occupation
of defendants … to establish title
by adverse possession must have
been open, notorious and under a
claim of title.
The eight proposed instruction was Yes
that if the jury found that the
original
occupation
was
“permissive”
the
time
for
establishing adverse possession
would not have begun.
Same
The ninth proposed instruction No
was that the statute of limitations
only begins upon refusal to pay
rent or when the plaintiff first had
notice of the adverse claim.
No
Same
Modified to include “or to Yes
have been such as to raise the
presumption that the owner
knew the occupation was
hostile.
Same
Same
No
Same
Same
No
Same
If Defendants went into the No.
land under the Konohiki or
chief or owner it was
permissive occupation
If a party did not perfect his Unclear
title as provided by the Land
Act, his possession was
permissive until notice of
adverse intent was given.
If the Defendants were ahuas No
or [illegible] of the owner
then
their
entry
was
permissive and not open and
notorious until brought to the
owner.
Same
Same
Same
The Defendants in Dowsett III requested the same instructions as those given in Dowsett I
and Dowsett II along with four additional instruction.155
First Trial
Given Second Trial
The first was that the No.
#6
Plaintiff had shown no
title to the land prior to 8
September 1888. There is
no indication as to
whether this was given.
Given Third Trial
No
The second was that “any No
negotiations” between the
No.
155
#7
Given
DCN 4399-4403
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Plaintiff
and
the
Defendants can not be
considered
as
the
Defendants not denying
the Plaintiffs title.
Third, that if the jury was
satisfied
that
the
Defendants
possession
was “open and notorious
claim of right” that
“continued for at least
twenty
years”
then
judgment should be for
the Defendants.
Fourth it was not
necessary for a Defendant
to have actually “lived
upon the land” for the
entire period to be
considered to be in
possession.
Fifth, if some, not all of
the Defendants must
show “title by adverse
possession” for the ones
who did to be entitled to
judgment.
Sixth, there was “no
evidence to show the
specific areas occupied by
any of the tenants.”
Yes
Combined into #1 and Yes
#2
No
#4156
Yes
No
#3
Yes
No
#10 There is no evidence No
to show the respective
areas occupied by the
Defendants thus the jury
cannot find against any
specific defendant with
reference to any specific
area.
#8. The payment of rent Yes
by one defendant cannot
be
considered
an
admission by other
defendants.
#9 The Plaintiff sues No
each Defendant, in order
to find against any
Defendant, the jury must
find the possession each
Defendant must be
against the Plaintiff and
coextensive with the area
claimed.
A
person No
claiming title to
land
in
an
ahupuaa has the
same rights as a
kuleana holder.
No need to notify No.
156
There is no Defendants’ Instruction #5.
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a Konohiki of
intent to hold
adversely.
Notice may be No
established where
and intervening
tenancy has been
admitted
as
adverse.
A hoa’aina in its No
true meaning is a
tenant under the
konohiki and is
not necessarily a
Kuleana holder.
Mr. Brown notes exceptions to the refusal of the Court to give the instructions asked for by
the Plaintiff.
However, the Court read no instructions to the jury. Instead it read a “charge”157 in which
the judge, rather than directing the jury to use the jury instructions, as a guide to reaching a
decision, ordered them to reach a decision stating:
I feel compelled to instruct you as a matter of law, that the evidence
has shown that the entry of these persons or their ancestors was a
permissive one; that they held subject to the chief or konakihi (sic)
and that there is no evidence to establish adverse possession in this
case, the defendants having failed to occupy the land notoriously ad
completely, continuously for the requisite
period of twenty years
adversely to the claim of the plaintiff.158
The jury “rendered” the decision they were ordered to but they did not deliberate.159
Defendants “excepts to the verdict as being contrary to law and evidence and gives notice
of motion for a new trial.”160 Defendants, represented by their new attorney Carter Kinney, filed a
“notice of exceptions” on 31 May 1895161 which promised to be followed by a more detailed “Bill
of Exceptions.”162 The “notice” argued that, contrary to the Court’s instructions, “direct notice” if
157
DCN 4406-4408
158
DCN 4407
159
DCN 4321-4322
160
Id.
161
DCN 4409-4410,
162
DCN 4342-4346
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entry was permissive was not needed.163 The more detailed “Bill of Exceptions” is not in the file.
Its contents can only be determined by references made to it by the Plaintiffs Brief and the Supreme
Court’s decision. However the bill of exceptions was allowed on 15 June 1895.164 Judgment was
duly entered on 18 June 1895, awarding title to the Plaintiffs165 along with “costs” of the litigation
in the amount of $59.85.166
The next step would be the appeal to the Supreme Court. Due to Justice Bickerton’s illness,
on 1 October 1895, J.A. Magoon167 was appointed by A.F. Judd and W.F. Frear to sit on and hear
the case.168
On 3 October 1895, the Plaintiff submitted his brief.169 It argued that the Defendants “first
exception”170 was lost through procedural default in that it was not “property before the court”, nor
“certified” nor “allowed”, nor “properly taken or allowed.”171 But, arguing that should the court
nevertheless consider the “first exception”, the Defendant failed to raise the exception in the proper
manner and has shown no “prejudice” by the procedure of selecting the jury in the way it did.172
Likewise, the Plaintiff argues that the “second” exception was not properly raised as it was
not specific enough.
With regard to the “third” exception, (the legal consequences on presenting adverse
possession if one, having continued to reside, claims under the old order of having been under the
Chief or Konohiki and having the opportunity to perfect fee through the Land Commission) which
163
DCN 4344
164
DCN 4345
165
DCN 4339-4341
166
DCN 4404-4405
167
Magoon and Edings would appear as partners in several cases before the Supreme Court
168
DCN 4347-4348
169
DCN 4358-4363
170
Having to do with the procedure by which the jury was selected, first all foreigners, then all
Hawaiians, rather than foreigner, Hawaiian, foreigner, Hawaiian, etc.
171
DCN 4358
172
DCN 4359
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the Plaintiff concedes is “properly brought before the Court”,173 the Plaintiff contends that the
Dowsett I opinion specifically authorized such a charge. The Plaintiff makes the specific argument
that where the Chief or Konohiki,
who has allowed natives to remain, who did not apply for or obtain
an award, without the payment or rent and not demanding any
acknowledgements of title other than those incidental between
Chiefs and their hoa ainas or servants (such as the giving of fish,
hookupu, etc.) when the land has passed into other hands and those
then holding demand and a acknowledgment of title or rent,
immediately at the instigation of some one, set up title by reason of
adverse possession notwithstanding the original entry and
possession was permissive.
The “Brief of Defendants”, consisting of three pages, was filed on 9 October 1895. The
first exception argues that the Court erred in drawing the “jury alternately.”174 The argument takes
all of two sentences. The second exception is that the Court entered a “joint judgment” against
Defendants who “lived separate and apart… not claiming jointly.”175
This presents a more serious problem as neither the trial court nor the Supreme Court
addresses the unfairness of entering a judgment against all which should only have been entered
against some and the essential wrongness of group judgments.
The third exception “original permissive entry” as a matter of law, impairing the Defendants
from establishing adverse possession. Here the Defendants’ argument is simply that the original
[Dowsett I] jury verdict should prevent the trial court from directing a verdict.
Supreme Court Opinion
On Tuesday, November 12, 1895, the Supreme Court handed down the opinion in James I.
Dowsett v. Maukeala, Naea, Kaumaea, Hina, Elikai and Kaluahilo, 10 Haw. 166; 1895 Haw.
LEXIS 3. It confirmed the position it had held 18 months later in Dowsett I. Entry under the old
order was permissive as a matter of law.
The Court held that the:
173
DCN 4359
174
DCN 4370
175
Id.
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Land Commission was a court and had full jurisdiction to settle all
claims to land, whether by claimants of the larger divisions of land
as divided in ancient times by name, or by the hoaainas or natives
living on the lands under the chiefs. If the Land Commission expired
and the hoaainas or native tenants neglected to present their claims
for the parcels of the land which they desired, and for which they
would ordinarily be awarded a kuleana title, showing merely their
occupation of the same as a foundation for it, we think they must be
considered as content with their prior status as tenants by permission
of the land owner. Such tenancy would therefore, in law, be
considered as continuing until some act of theirs changed their
holding from the permissive nature to one of an adverse or hostile
nature. The evidence shows that the defendants thought they had a
right to the land because they had lived on it so long.
The legislation in behalf of the native tenants was extremely liberal.
We call especial attention to an Act passed on the 6th August, 1850,
where fee simple titles free of commutation were authorized to be
granted to all native tenants or hoaainas for the land occupied and
improved by them, whether the same were portions of government
lands or land held by the king or any chief or konohiki. House lots,
not in Honolulu, Lahaina or Hilo, not exceeding one-quarter of an
acre, were authorized to be granted, and the cultivated ground or
kalo lands were limited to those actually cultivated by the applicant.
In Oni v. Meek, 2 Haw. 87, this court held that the Act repealed the
former legislation and the ancient tenure, but in the 7th section
preserved to the people, whether hoaainas by ancient custom or
kuleana holders, certain specific rights, as to take firewood, house
timber, thatch, etc., for their own use. Judge Robertson says that this
Act had for one of its purposes "the protecting the hoaainas in the
enjoyment of certain rights therein enumerated as against the
sweeping operation of the konohikis' allodial titles." In Haalelea v.
Montgomery, 2 Haw. 62, the court held that the sale of a portion of
an ahupuaa gave to the grantee as a tenant or hoaaina of the ahupuaa
a common right of piscary in the fishing ground adjacent; and that in
the meaning of the law regulating fisheries a tenant was any one
occupying "lawfully" any portion of the ahupuaa.
The argument might be made that the grant of these specific rights,
attached to all persons living on any ahupuaa, whether kuleana
holders or not, was inconsistent with their holding as tenants at will
of the land owner.
This use of the word "lawful" shows that the court did not intend to
hold that any person living without right on the ahupuaa, whether a
kuleana holder or not, had the specific rights granted to the people.
To entitle a person to such rights he must be a "lawful" occupier;
that is, have some title, whether by being the holder of a kuleana or
having purchased a portion of the ahupuaa, as was the case before
the court, or by some other lawful tenure. Now, if the hoaaina, socalled, without paper title by kuleana, remains on the land after his
permissive occupancy has ceased either by notice to quit or by his
own act of refusing to attorn, he cannot be considered as being a
"lawful occupier" and entitled to the specific rights of the people
[*171] above set forth. It seems to us that these specific rights on an
ahupuaa must be confined to those who have lawful right to reside
there, whether upon kuleanas or by the will of the owner. To say
that the old tenancy by will of the chief or konohiki became an
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adverse holding as soon as the chief or konohiki received his title to
the land, and this without notice on the tenant's part that he held
henceforth adversely, would give such person holding thereafter for
twenty years, to all intents and purposes, as perfect a title to the land
he held as if he had applied for and received a fee simple title
therefor, and he thus be saved the expense of procuring such title.
The law did not intend thus to favor those who slept upon their
rights.
With this, the process begun in 1839 to protect native tenants’ access to the resouces of the
land was aborted.
Conclusions
My conclusion regarding the Maukeala opinions is that they were wrongly decided and are
vulnerable to being revisited dispassionately with fatal results to its progeny. It has been in the
investigation and writing of this paper that an idea for a proposed doctoral thesis began developing.
Dissertation Proposal
Hypothesis
Maukeala was erroneously decided and is fatally flawed as being based on false assertion
of facts and falsification of law.
Theory
To use the Maukeala case, what led up to it and what led away from it as the vehicle for
examining the critical issues surrounding Hawaiians access to the resources of the land and sea.
My Theory is that Maukeala was erroneously decided and with proper historical and legal research
an argument or set of arguments based upon uncontestable facts can be created which would
provide the basis for reversing Maukeala and its insidious consequences.
Areas of Interest
Role of Courts in the Planter Revolution
Role of Legislature in the Planter Revolution
Role of Unlawful Foreign Intervention in the Planter Revolution
Old, pre-statutory, Hawaiian Order regarding Access to Resources of the Land and Sea
New, statutory, Hawaiian Order regarding Access to Resources of the Land and Sea
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Occupation Legal Order regarding Access to Resources of the Land and Sea
Methodology:
Research and examine old Order Hawaiian cultural practices having the force of law
regarding access to resources of land and sea.
Research and examine new Order Hawaiian political and legal practices regarding access to
resources of land and sea.
Research and examine Occupation political and legal practices regarding access to resources
of land and sea.
Chapter Overview:
Chapter One would be the political setting in which Maukeala was litigated beginning with
the 1887 partial revolution which created a new legislature and go through.
Chapter Two would be on the old Hawaiian order regarding access to resources of the land
and sea of pre-1839.
Chapter Three would be on the new Hawaiian order regarding access to the resources of
the land and sea post-1839 until 1893.
Chapter Four would be a chapter on the occupation order regarding access to the resources
of the land and sea and include an analysis of the cases relying on the Maukeala decisions. And on
what “legal principles” law Maukeala is presently treated as “standing for.”
Chapter Five would be a discussion of the law of occupation.
Chapter Six would be on the Maukeala litigation itself including the pertinent legal
principles of adverse possession and konohiki rights and responsibilities towards “native tenants.”
Chapter Seven would be a chapter “replaying” Maukeala as it could have been replayed.
Timeline
Yet to be determined
Respectfully Submitted,
Stephen Laudig
SL/hst
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Index
A.F. Judd
Judd, A.F., 76, 86
Ashford, 68, 77
Ashford, C.W., 67
Bernice Pauahi Bishop
Bishop, Bernice Pauahi, 62, 72
Bickerton, 76, 86
Cartwright, 63, 67, 72, 77, 81
Cecil Brown, 63, 65, 81
Charles L. Brown, 65
Cooper, 77, 80, 81
Crowell, 77
Cunha, 63, 67
Dimond, 67, 70
Dowsett, 62, 63, 65, 67, 68, 72, 74, 77, 81
Edings, 81
Elikai, 68, 77, 81
Emma Kaleleonalani, 67
Kaleleonalani, Emma, 67, 72
Fanny Young
Young, Fanny, 67, 72
Frear, 76, 86
Grace Kamaikui Rooke
Rooke, Grace Kamaikui, 67
Hall, 63, 81
Hammer, 63, 67
Hina, 65, 72
Holokahiki, 62, 63, 71
Hopped, 77
Kaapa, 77
Kaelipule, 67
Kalahihi, 67
Kaluahilo, 77, 81
Kamaikui, 67, 72
Kaumaea, 65, 81
Kekauanoa, 72
Kekuanaoa, 67, 72
Kinilau, 67
Kinney, 63, 86, 88
Koloa, 67
Lewai, 67
Likai, 65
Lucas, 66, 80, 81
Luwai, 68, 72, 80
Lyle, 67
Magoon, 86
Marshall, 66, 77
Maukeala, 62, 65, 72, 81
McCarthy, 81
McInerny, 63, 67, 81
McLain, 67
McLean, 81
Monsarrat, 63, 67, 81
Monserratt, 80
Naea, 65, 68, 74
Nakuina, 66
Paoo, 67
Peabody, 67, 68, 72, 77, 80, 81
Queen Emma
Emma, Queen, 71, 72
Smith, 62, 66, 77
Smith, Henry, 65, 86
Torbert, 81
Tracy, 77, 81
Waiamau, 67
Wooten, 77
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Carpenter, Edmund Janes. America in Hawaii Boston: Small, Maynard & Company, 1899.
Chinen, Jon J. The Great Mahele Hawaii's Land Division of 1848. Honolulu: University of
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Chock, Jennifer M.L. "One Hundred Years of Illegitimacy: International Legal Analysis of the
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Cook, Adrian. The Alabama Claims: American Politics and Anglo-American Relations, 18651872. Ithaca: Cornell University Press, 1975.
Cooley, Thomas M. "Grave Obstacles to Hawaiian Annexation." The Forum 15 (1893): 389-406.
Counsel, Office of Legal. "Validity of Congressional-Executive Agreements That Substantially
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Crook, D. P. Diplomacy During the American Civil War. New York: John Wiley & Sons, Inc.,
1975.
Davis, Calvin D. The United States and the First Hague Peace Conference. Ithaca: Cornell
University Press, 1962.
Daws, Gavan. Shoal of Time, a History of the Hawaiian Islands. Honolulu: University of
Hawai‘i Press, 1968.
"Ejectment. Equitable Estoppel as a Defense at Common Law. Mistake." The Yale Law Journal
36, no. 2 (1926): 281-82.
Fornander, Abraham. An Account of the Polynesian Race. Vol. II. London: Trubner & Co., 1880.
Hawaii, Kingdom of. Kanawai I Kauia E, Ka Moi, E Kamehameha III., Ke Alii O Ko Hawaii
Pae Aina. Honolulu: Mea Pai Palala A Na Misionari Amerika, 1847.
Holdsworth, Sir William. An Historical Introduction to the Land Law. Oxford: Clarendon, 1927.
Kerr, Robert Malcolm. An Action at Law: Being an Outline of the Jurisdiction of the Superior
Courts of Common Law, with an Elementary View of the Proceedings in Personal
Actions and in Ejectment. Philadelphia: T. & J.W. Johnson, 1854.
Kmiec, Douglas. "Legal Issues Raised by Proposed Presidential Proclamation to Extend the
Territorial Sea." 238, 1988.
Kuykendall, Ralph S. The Hawaiian Kingdom, 1874-1893, the Kalakaua Dynasty. 3 vols. Vol.
III. Honolulu: University of Hawai‘i Press, 1967.
Laenui, Poka. "Hawaiian Independence: Its Legal Basis, Symposium on Native Hawaiian
Sovereignty." Dec. 2-3, 1994.
Lauterpacht, Sir Hersch. Recognition in International Law. Cambridge: Cambridge University
Press, 1947.
Lawson, John Davison. Rights, Remedies, and Practice, at Law, in Equity, and under the Codes.
A Treatise on American Law in Civil Causes; with a Digest of Illustrative Cases. 7 vols.
San Francisco: Bancroft and Whitney, 1890.
Loomis, Albertine. For Whom Are the Stars? Honolulu: University of Hawai'i Press, 1976.
Marek, Krystina. Identity and Continuity of States in Public International Law. Geneva: Librarie
Droz, 1968.
Martin, Elizabeth Ann Hooipo Klaenaauao Pa. "Cultures in Conflict in Hawaii: The Law and
Politics of Native Hawaiian Water Rights." Hawaii Law Review 18 (1996): 71-179.
McKenzie, Melody K. Native Hawaiian Rights Handbook. Edited by Melody K. McKenzie.
Honolulu: Native Hawaiian Legal Corporation and Office of Hawaiian Affairs, 1990.
O'Connell, D.P. State Succession in Municipal Law and International Law. Cambridge:
Cambridge University Press, 1967.
"Oral Gift as a Defense in an Action of Ejectment under the Code." The Yale Law Journal 26,
no. 8 (1917): 592-98.
Taylor, Albert Pierce. Under Hawaiian Skies. Honolulu: Advertiser Publishing Company, 1922.
Wait, Arthur G. Sedgwick and Frederick S. A Treatise on the Trial of Title to Land: Including
Ejectment, Trespass to Try Title, Writs of Entry, and Statutory Remedies for the Recovery
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Exhibit A
JAMES I. DOWSETT v. MAUKEALA (k), NAEA (k), KAUMAEA (k), HINA (w),
ELIKAI (k), and KALUAHILO (k)
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF HAWAII
9 Haw. 233; 1893 Haw. LEXIS 52
September 18, 1893, Hearing
October 26, 1893, Decision
PRIOR HISTORY: [**1] Ejectment. Exceptions.
HEADNOTES:
The Court declines to reverse the decision of the Circuit Court setting aside the verdict
and ordering a new trial on the ground that the verdict is contrary to law and the
evidence.
COUNSEL: C. Brown, for plaintiff.
C. W. Ashford, for defendants.
JUDGES: Judd, C.J., Bickerton and Frear, JJ. Opinion of the Court, by Bickerton, J.
OPINION BY: BICKERTON
OPINION
[*233] OPINION OF THE COURT, BY BICKERTON, J.
This cause came on for hearing at the February Term, 1893, of the Circuit Court of the
First Circuit before a mixed jury, and resulted in a verdict for the defendants, to which
the plaintiff noted an exception on the ground of its being contrary to law and the
evidence, and gave notice of a motion for a new trial, which motion was duly filed and
argued, and the trial Judge rendered and filed his decision ordering that the verdict be
set aside and a new trial had. Whereupon defendants filed their exception to said
decision and order. The matter now comes here on a duly allowed bill of exceptions.
The decision of Judge Whiting on the motion for a new trial and now appealed from, is
as follows:
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Trial of the above action was had at the February Term, 1893, of this Court, [**2] and a
verdict rendered by the jury for the defendants. The plaintiff claimed title by mesne
conveyance from the patentee; the defendants claimed by right of adverse possession.
The parcel of land in dispute is situate at Ewa, Oahu, called "Kapuaikaula," being a
portion [*234] of the ahupuaa of Halawa. The record title of the plaintiff was proved
without dispute direct from the patentee by mesne conveyance to himself who claimed
as lessee from the trustee of the estate of Emma Kaleleonalani of one half of the
ahupuaa of Halawa. The defense being adverse possession, claim was made of such
possession for a period even prior to the Land Commission.
The jury found a verdict for the defendants and the plaintiff moved for a new trial on
the ground that the verdict is contrary to the law and the evidence; and also that the
Judge erred in refusing to charge the jury "that a mere occupation of a portion of the
ahupuaa without fencing the same off, or positive acts of ownership, is not a sufficient
notification of a claim of title so that the statute of limitation may run in favor of the
occupier; the landlord must have notice of the adverse claim before the statute
commences."
I have [**3] carefully reviewed the evidence and charge to the jury, and I am of the
opinion that the verdict is contrary to the law and the evidence, and that a new trial
should be granted, as the jury neglected properly to consider the facts and have
overlooked prominent and essential points in the evidence. There are many such points
in this case, viz., that defendants' ancestors and a part of defendants were on the land of
Halawa and the place in dispute before the Land Commission, and remained there from
that time, but no claim for a kuleana nor any claim whatsoever was made by them or
any one on their behalf or for the ancestors before the Land Commission; and that the
parcel of land in dispute, "Kapuaikaula," is not an ili, lele or ahupuaa of itself, nor a lele
or kuleana of the ahupuaa of Halawa, but was merely a portion of the ahupuaa as of a
whole land; it was not a division of a land.
That this portion of the ahupuaa of Halawa was occupied by the fishermen and the
hoaainas of the konohiki, and that neither the defendants nor their ancestors were
kuleana men or konohikis.
That defendants and their ancestors were living under the [*235] konohiki, and were
hoaainas and kahus of the [**4] alii, and the defendants continued as such under the
different konohikis and their lunas of the land until Queen Emma's death in 1885; and
no claim of adverse title was made until after her death; and no notice given to any
konohiki or luna of the land that defendants were claiming this parcel of the land as
their own till after her death.
That the original holding of defendants was permissive and with the consent of the
konohiki.
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That Holokahiki, who died in 1872, from whom the defendants claim, was the luna of
the konohiki, and he was succeeded by others.
That defendants paid rent to Dowsett, who had charge of the land within twenty years
last, and otherwise attorned to him.
That the premises were unfenced, not definite in area or boundaries, and not in
continuous possession, and that defendants' possession was not exclusive.
That defendants' living on this piece of land was consistent with the owner's rights,
originally being permissive, until direct notice was brought to the owner of an adverse
claim.
I am of the opinion that the jury did not properly consider the question of the time
when the defendants set up a claim adverse to the owner, nor did they properly
consider [**5] the question of notoriety of adverse possession by defendants so as to
bring it to the notice of the owner, nor that the claim of defendants was distinct and
hostile to the rightful paper title, nor the points above stated.
The second point of plaintiff's motion I overrule.
The motion for a new trial is granted, and the verdict set aside.
BY THE COURT.
The trial of the case occupied several days, and the evidence adduced was very
voluminous. We have carefully examined and considered all this testimony, and we are
of the opinion that the findings of the trial Judge and the [*236] grounds upon which
he granted a new trial are well sustained by the evidence. It is clearly a case of
permissive holding on the part of the defendants and not one of adverse possession.
Elikai, one of the defendants, says, "The first time that I publicly stated to anybody that
I owned the land and would not pay rent, was when Mr. Dowsett, junior, came there
and asked, and I was the only man, the one man of the whole lot that refused to pay
rent, and said that the reason was that the land was mine;" and when asked how long
ago that was, he says, "Not very long ago; I don't remember what year it was, [**6] but
not very long ago." The evidence of other witnesses would indicate that this visit of
Dowsett, junior, took place about six or seven years ago.
This case seems to us to be almost a parallel one to the case of C. R. Bishop, et al.,
trustees, vs. Kala et al., 7th Haw. 590. In that case the verdict was set aside and a new
trial ordered, the Court saying, "The weight of the whole evidence is so clearly and
decidedly in favor of the plaintiffs, that we feel that the jury must either have
misunderstood its effect or have acted, when they returned a verdict for defendants,
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from some bias or prejudice." We feel that this language is applicable to the case at bar.
We have before us the charge of the Court to the jury in this case, and the law was well
laid down and explained, as to what constituted adverse possession, and what
constituted only permissive occupation or possession. This must have been disregarded
by the jury, for if they had applied the law as given by the Court to the evidence, they
could not have found the verdict they did.
The decision and order of the Circuit Court setting aside the verdict and ordering a new
trial is sustained.
Exceptions overruled.
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Exhibit B
JAMES I. DOWSETT v. MAUKEALA, NAEA, KAUMAEA, HINA, ELIKAI and
KALUAHILO
SUPREME COURT OF HAWAII
10 Haw. 166; 1895 Haw. LEXIS 3
October 1, 1895, Submitted
November 12, 1895, Decided
PRIOR HISTORY: [**1] Exceptions from Circuit Court, First Circuit.
HEADNOTES:
A new trial will not be granted on the ground that a mixed jury was not drawn
alternately, as directed by the statute, no objection having been taken to the method of
drawing until after the jurors had been examined on their voir dire and accepted, and
the party afterwards objecting to such drawing not having been prejudiced thereby.
Tenants were living on an ahupuaa of land by permission of the chief or konohiki,
under the old tenure, previous to the Land Commission. Such possession is presumed
to continue to be permissive after the award of title to the owner of the ahupuaa, unless
acts are shown which would render the possession adverse.
The defendants contend that the record disclosed a joint judgment against them,
whereas their occupation was separate.
Held, as the point did not come to the Appellate Court in the bill of exceptions, it cannot
be considered.
COUNSEL: C. Brown, for plaintiff.
W. A. Kinney, for defendants.
JUDGES: Judd, C.J., Frear, J., and J. A. Magoon, Esq., a member of the Bar, in place of
Bickerton, J., absent from illness. Opinion of the Court, by Judd, C.J.
OPINION BY: JUDD
OPINION
[*166] OPINION OF THE COURT, [**2] BY JUDD, C.J.
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For a statement of the plaintiff's title, see Dowsett v. Maukeala et al., 9 Haw. 233. On the
last trial of this case the Circuit Judge presiding charged the jury that the evidence
[*167] showed that the entry of the defendants or their ancestors was a permissive one,
they holding subject to the chief or konohiki, and that there was no evidence to establish
their possession as adverse to the plaintiff, and the jury returned a verdict for plaintiff
without leaving their seats. The case comes to us on a bill of exceptions. The first part of
the bill is objectionable because not exhibiting in detail the various exceptions taken
during the trial, but referring to them as to appear in the stenographer's notes when
prepared. See our decision on such a bill of exceptions in Kapuakela v. Iaea, filed July
26, 1895 (10 Haw. 99), and in De Fraga v. Portuguese Mutual Ben. Soc., filed October 18,
1895 (10 Haw. 128).
As this bill was allowed before a decision of this court upon this question, we consider
the only point raised in this connection. The case called for a mixed jury. The
defendants' counsel claims that the trial court erred in not drawing the [**3] names of
the Hawaiian and foreign jurors alternately from the box. The clerk's minutes do not
agree in every respect with the notes of the stenographer. We account for this from the
omission of the stenographer to note in the discussion between the court and the
counsel for defendants, Mr. Rosa, all that transpired. The best conclusion we can come
to is that the objection to the court's allowing the jury to be drawn as it was, that is, all
the six Hawaiians first and then six foreigners, was not formally made until after they
had been sworn on their voir dire and accepted. Without deciding whether the statute
which prescribes that the mixed jury must be drawn alternately (Compiled Laws, p.
359) is mandatory or directory, we hold that the objection was waived by accepting the
jury. Counsel, if he insisted upon the objection, should have moved that the jury be
discharged and a new jury drawn. We cannot find that the method pursued by the
court prejudiced the defendants in any way, and we overrule the exception on this
point.
The Judge's charge is as follows:
"Gentlemen of the jury, this is the third trial of this case, the first trial being before Judge
Whiting, for which a verdict [**4] [*168] for the defendants was rendered. A new trial
was granted by Judge Whiting and his order was sustained by the Supreme Court, and
the decision of the Supreme Court in that case has now become the law in this case. The
trial which took place before myself in November resulted in a disagreement; at that
time the plaintiff asked for instructions which practically amounted to the statement of
the law of the case as rendered by the Supreme Court, but for fear that there had been
evidence different from the trial upon which the decision of the Supreme Court had
been based, I declined to give the instructions asked for, and sent the case to the jury.
After a more careful review of the evidence in the former cases, and strict attention to
the evidence as given in this case, I am inclined to the opinion that my giving the case to
the jury in the former trial was error under the instructions which I did give.
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"The plaintiff in this case has shown you by a direct chain of paper title that he is the
owner of this portion of the ahupuaa of Halawa; those documents are prima facie
evidence of their contents, and would vest the title in the plaintiff subject to any adverse
possession [**5] which the defendants might have shown you.
"Adverse possession is of two or three qualities; first, where a man goes into possession
under a paper title with a claim of title; second, by oral agreement; third, as a mere
usurper. Where the occupation has been with the permission of the owner of the land,
in order that adverse possession may begin to run it is necessary that some direct notice
be given to the owner that the occupier is holding hostile to himself.
"The statute of limitations which is the basis of adverse claims, is in the nature of a
penalty, and is never enforced unless it is shown that the owners of the land have slept
upon their rights for the period of twenty years.
"I feel compelled to instruct you as a matter of law that the evidence has shown that the
entry of these persons or their ancestors was a permissive one; that they held subject to
the chief or konohiki, and that there is no evidence to establish adverse possession in
this case, the defendants having failed to [*169] occupy the land notoriously and
completely, continuously for the requisite period of twenty years adversely to the claim
of the plaintiff."
The defendants claim that the court erred [**6] in relying upon the original permissive
entry of the defendants' ancestors, such permissive entry ante-dating the award of the
Land Commission under which the plaintiff claims. The argument is made that an
adverse possession prior to an award of the Land Commission cannot be tacked on to
adverse possession subsequent to that date in order to make out the full period of
twenty years (Kanaina v. Long, 3 Haw. 332), so the adverse possession cannot be
defeated by permissive acts or possession or entries ante-dating the award. In other
words, the possession of a person living on land by permission of the chief before he
obtained a paper title to the land cannot be considered in law as continuing to have this
permissive nature.
We cannot agree with this contention. The Land Commission was a court and had full
jurisdiction to settle all claims to land, whether by claimants of the larger divisions of
land as divided in ancient times by name, or by the hoaainas or natives living on the
lands under the chiefs. If the Land Commission expired and the hoaainas or native
tenants neglected to present their claims for the parcels of the land which they desired,
and for which they would ordinarily [**7] be awarded a kuleana title, showing merely
their occupation of the same as a foundation for it, we think they must be considered as
content with their prior status as tenants by permission of the land owner. Such tenancy
would therefore, in law, be considered as continuing until some act of theirs changed
their holding from the permissive nature to one of an adverse or hostile nature. The
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evidence shows that the defendants thought they had a right to the land because they
had lived on it so long.
The legislation in behalf of the native tenants was extremely liberal. We call especial
attention to an Act passed on the 6th August, 1850, where fee simple titles free of
commutation were authorized to be granted to all native tenants or hoaainas [*170] for
the land occupied and improved by them, whether the same were portions of
government lands or land held by the king or any chief or konohiki. House lots, not in
Honolulu, Lahaina or Hilo, not exceeding one-quarter of an acre, were authorized to be
granted, and the cultivated ground or kalo lands were limited to those actually
cultivated by the applicant. In Oni v. Meek, 2 Haw. 87, this court held that the Act
repealed the former [**8] legislation and the ancient tenure, but in the 7th section
preserved to the people, whether hoaainas by ancient custom or kuleana holders,
certain specific rights, as to take firewood, house timber, thatch, etc., for their own use.
Judge Robertson says that this Act had for one of its purposes "the protecting the
hoaainas in the enjoyment of certain rights therein enumerated as against the sweeping
operation of the konohikis' allodial titles." In Haalelea v. Montgomery, 2 Haw. 62, the
court held that the sale of a portion of an ahupuaa gave to the grantee as a tenant or
hoaaina of the ahupuaa a common right of piscary in the fishing ground adjacent; and
that in the meaning of the law regulating fisheries a tenant was any one occupying
"lawfully" any portion of the ahupuaa.
The argument might be made that the grant of these specific rights, attached to all
persons living on any ahupuaa, whether kuleana holders or not, was inconsistent with
their holding as tenants at will of the land owner.
This use of the word "lawful" shows that the court did not intend to hold that any
person living without right on the ahupuaa, whether a kuleana holder or not, had the
specific rights granted [**9] to the people. To entitle a person to such rights he must be
a "lawful" occupier; that is, have some title, whether by being the holder of a kuleana or
having purchased a portion of the ahupuaa, as was the case before the court, or by some
other lawful tenure. Now, if the hoaaina, so-called, without paper title by kuleana,
remains on the land after his permissive occupancy has ceased either by notice to quit
or by his own act of refusing to attorn, he cannot be considered as being a "lawful
occupier" and entitled to the specific rights of the people [*171] above set forth. It
seems to us that these specific rights on an ahupuaa must be confined to those who
have lawful right to reside there, whether upon kuleanas or by the will of the owner. To
say that the old tenancy by will of the chief or konohiki became an adverse holding as
soon as the chief or konohiki received his title to the land, and this without notice on the
tenant's part that he held henceforth adversely, would give such person holding
thereafter for twenty years, to all intents and purposes, as perfect a title to the land he
held as if he had applied for and received a fee simple title therefor, and he thus be
saved [**10] the expense of procuring such title. The law did not intend thus to favor
those who slept upon their rights.
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By the evidence the holding of these defendants became adverse in 1885 when they
refused to pay rent. The statute began to run then. This suit interrupts it. We think the
Judge's charge was right and was warranted by the evidence.
The last point to be considered is that the record discloses that a joint judgment has
been obtained against defendants who lived separate and apart from each other upon
the same ahupuaa not claiming jointly or as tenants in common; but each for himself on
a distinct portion of the ahupuaa acquired by him, it may be of the same grantor, but at
different times and under different circumstances.
This point, not having been raised at the trial below and not being certified to us in the
bill of exceptions, we do not feel at liberty to consider.
We overrule the exceptions.
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Cast of Characters:
Ashford, C.W.
Bickerton
Brown, FNU
Carter, Charles L
Cooper, H.E
Dowsett, Sr. James I.
Elikai
Frear, W.F..
Hina
Judd, A.F.
Kalualhilo
Kaumaea
Kupihea
Lucas, George
Manuel, D.
Maukeala
Naea
Smith, Henry
Whiting, W.A.
Maukeala’s First Lawyer
Supreme Court Justice
Dowsett’s Lawyer at trial
Dowsett’s Lawyer for preparation of complaint
Judge of the First Circuit on the second trial
Plaintiff
Defendant
Supreme Court Justice
Defendant
Supreme Court Justice
Defendant
Defendant
Defendant
Deputy Clerk
Police Officer accomplishing service
Defendant
Defendant
Clerk
Judge of the First Circuit on first trial
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