DocketNumber: No. 1812
Citation Numbers: 31 Haw. 118
Judges: Banks, Parsons, Perry
Filed Date: 10/7/1929
Status: Precedential
Modified Date: 6/26/2022
opinion of the court by
This case comes to this court on appeal from the decision of the commissioner of boundaries for the second judicial circuit, adjudicating the boundaries of the ahupuaa of Waikapu. After oral argument and the filing of briefs, both parties being represented by counsel, a decision was rendered by this court. Ante, p. 43. Subsequent to the filing of the decision, each of the parties jiresented a proposed form of decree. Each form is objected to by the opponent, the objection in each instance being that the proposed decree does not conform to the decision. More specifically the objection of the Territory to the form proposed by the petitioner is that in course eleven the description “fails to follow and conform to the line determined by said decision of said court herein as the correct line for course 11, to-wit, a straight line from the cross on rock to Napoli Spring,” and that by course twelve,
The present petition was for the adjudication of the boundaries of the ahupuaa of Waikapu. The description contained in the petition as a statement of the correct boundaries of Waikapu, and which the commissioner and this court were asked to adopt, set forth nineteen courses and distances and no more. It is a land said in the petition to contain an area of about 15,690 acres. Many of the claimed lines of the boundary were not disputed by the Territory, which appeared as a contestant. The controversy between the parties, as it developed at the trial before the commissioner, related only to two subjects, one being the location of a point on a hill and the other being the location of one or two points on or near the seashore. Both parties were agreed in this court that a decree of a commissioner of boundaries, who in 1883 determined the boundaries of the adjoining ahupuaa of Ukumehame, was.
In describing the aliupuaa of Ukumehame, a land of 11,010 acres, the commissioner, in the decree of 1883, began the description “at border of Ukumehame and Olo-Avalu at ocean,” that being the southwesterly corner of the land, and ran for tAventy-one courses and distances along the ocean. The tAventy-second course Avas “N. 18° 51' E. 27.76 ch. along ocean,” without otherwise stating Avhere that course ended. The twenty-third course Avas “N. 6° E. 111.90 ch. along Waikapu to S. bank of ravine N. W. of Puuhele to rock marked +.” The identity and the location of the rock marked Avith the cross Avere agreed upon by both parties. As stated in our opinion, Avliich it is sought to effectuate by the decree about to be entered, both parties were agreed before us that the bearing named in Alexander’s tAventy-third course was erroneous and should be discarded and that the monuments actually used by him in his survey when on the ground should be sought, one as the end of his tAventy-second course and the beginning of his tAventy-third course and the other as the end of his tAventy-fourth course.
The petitioners’ claim Avas that Alexander’s twenty-second course ended at a point at the seashore approximately four hundred feet, measured in a straight line, from Kapoli Spring in a southerly direction, that is, toAvards OloAvalu, and that thence (by an extra course)
In the opinion filed we did not adjudicate or find that the artificial well dug by Henry Cornwell was within the boundaries of the land of Waikapu. The statement having been made in petitioners’ brief that Napoli Spring “in the meantime seems to have become rather mythical and the only tangible thing remaining seems to be a man-made well” (record p. 115), this court referred to the testimony of living witnesses tending to show that the spring had had a real existence, between high water mark and low water mark, that it was well known to kamaainas who lived in the vicinity and that its location was at a point very near an artificial well which had been dug by Henry Cornwell, the owner of Waikapu “in order that Cornwell’s cattle might have water to drink at all stages of the tide.” Ante, p. 48. In this connection we referred to the testimony of one Moke Nalani to the effect that “when the digging of the well had commenced Henry Cornwell personally directed the laborers to change its location about two feet further southeast than it was being dug, giving as the reason for his orders that ‘he did not want to have the Avell dug on the Ukumeliame side.’ ” Ante, pp. 48, 49. While we did say that “no sufficient reason appears for disbelieving these Avitnesses,” that had reference to their testimony generally and Avas not a finding that Henry Cornwell finally succeeded in placing the Avell Avithin the boundaries of Waikapu.
We ruled against the insertion of an extra course not called for by Alexander’s description and held that his “twenty-third course,” a single course, began at Napoli Spring. It Avas admitted that it ended at the marked rock.
The form of decree submitted by the Territory conforms to the opinion and it Avill therefore be entered.