Aarona Hatton vs. Piopio: Fishery Rights

In the 1882 case of Aarona Hatton vs. Piopio, it was argued that tenants of the land have right to the fishery and to catch fish for their own use, as well as to sell. It was brought before the Intermediary Court of Oahu on May 26, Chief Justice Judd presiding.

The case comes up on appeal from the District Court of Ewa on the following agreed statement of facts:

This case was brought by plaintiff for an illegal trespass of Piopio in fishing and taking and selling fish caught in the fishery belonging to the Ahupuaa of Honouliuli, Ewa, Oahu, Piopio being a resident of Puuloa and a tenant of James I. Dowsett, under whom he (Piopio) justifies James I. Dowsett being the owner of Puuloa, a portion of the Ahupuaa of Honouliuli, and as such owner entitled to right of piscary, as appears by 2d Hawaiian Reports, page 62, Haalalea vs. Montgomery.

1    It is hereby admitted that James Campbell is the owner of the Ahupuaa of Honouliuli.
2    That he has leased to the plaintiff his, the Konohiki’s right, to take fish from Kalaeloa, or Barber’s Point, to Puuloa wharf.
3    That Dowsett, under whom Piopio justifies, is the owner of Puuloa.
4    That Puuloa is the lower portion, or a part of the Ahupuaa of Honouliuli.
5    That Piopio is a resident of Puuloa, but not in his own right, owning no Kuleana, but a tenant servant of J. I. Dowsett.
6     That the value of the fish taken and sold by Piopio was $31.00, and that this proceeds ($34.00) have been delivered to Dowsett.
7     That the fish were caught in the sea fronting Puuloa.

It is also admitted that Piopio (defendant) was born in the Ahupuaa of Honouliuli and has always lived there. The plaintiff contends that (1) Piopio is not a tenant (hoa-aina) within the statute; and that (2) though Dowsett is the owner of Puuloa may have the right to take fish in the sea adjoining his land he cannot delegate this right to Defendant; and that (3) though the tenant may fish for his own consumption, he cannot sell the fish taken by him.

The law regulating fisheries of these lands pertaining to this case is found in the following in sections of the Civil Code:-

Section 387 – “The fishing grounds from the reefs, and where there happen to be no reefs, from the distance of one geographical mile seaward to disc leads at low water mark, shall, in law, be considered the private property of the konohiki, whose lands by ancient regulation, belong to the same; in the possession of which private fisheries, the said konohikis shall not be molested,–except to the extent of the reservations and prohibitions hereafter set forth.”

Section 388 – “The konohikis shall be considered in law to hold said private fisheries for the equal use of themselves, and of the tenants on their respective lands; and the tenants shall be at liberty to use the fisheries of their konohikis subject to the restriction imposed by law.”

Section 380 – “The konohikis shall have power each year, to set apart for themselves any given species or variety of fish natural to their respective fisheries, giving public notice, by proclamation, and by at least three written or printed notices posted in conspicuous places on the land to their tenants and others residing on their lands, signifying the kind and description of fish which they have chosen to be set apart for themselves.”

I am of the opinion that any bona fide resident upon the land is a “tenant” within the terms of the statute.  Such was the opinion of the Court in Haalelea vs. Montgomery 2nd Hawaiian Rpt. (1848).

Says the Court, per Robertson J. “We understand the word tenant as used in this connection, to have lost its ancient restricted meaning, and to be almost synonymous, at the present time, with the word occupant or occupier and that every person occupying lawfully, any part of Honouliuli is a tenant within the meaning of the law.”

“These persons who formerly lived as tenants under the konohikis, but who have acquired fee simple titles to their Kuleanas, under the operation of the Land Commission, continue to enjoy the same rights of piscary that they had as hoaainas under the old system.”

Every resident on the land, whether he be an old hoaaina, a holder of Kuleana title, or a resident by household or any other lawful tenant, he has the right to fish in the sea apparent to the land as an incident of his tenancy. The seas above referred to clearly decides that the owner of Puuloa has a right of piscary in the sea of Puuloa, as a tenant of Honouliuli. I cannot justify the fishing of the defendant or any person not a bona fide tenant of the land by the permission of Dowsett, for Dowsett has no greater rights than any other tenant of Honouliuli. He has no Konohiki rights in the sea of Puuloa. These remain to the owner of the Ahupuaa of Honouliuli. This was so decided in the above cited case. But as Piopio is concluded to be an old resident or hoaaina of Honouliuli and living permanently at Puuloa, he has the undoubted right to fish in the sea of Honouliuli of which the sea of Puuloa is a part, as an incident to his tenancy. It is his domicile on Puuloa as a part of Honouliuli, that gives him the right to fish, and not by a delegation of Dowsett’s rights. I come now to the question of the right of the tenant to sell the fish so taken by him.

It is noticeable that in Sec. 1177 of the civil code where certain specific rights of the people are acquired, the people on the lands are allowed to take firewood, house timber, aho, thatch and Ki leaf from the land on which they live, “for their own private use, lest they shall not have a right to take such articles to sell for profit.” No such restrictions are made in the statute respecting the fisheries. The words granting the right are, “the tenants shall be at liberty to use the fisheries of their Konohikis, subject to the restrictions imposed by law.” What is the nature of that “use of the fisheries,” which the tenant may enjoy? Is it the right to take fish for his own consumption merely?

The argument is made that, as in ancient times no fish was accustomed to be sold and as the tenant has no greater rights now than he had then he cannot now sell fish. But in the primitive days of this country there was no trade of commerce and no currency. The business of the country was a system of exchange or barter, and at a comparatively recent day taxes were paid in kind. We are not to enquire what was the “use” to which the tenants in ancient times put the fish he caught, but what the words of our statute fairly comprehend. I do not think that the Konohiki is entitled to the fish caught by the tenant in excess of his own needs for consumption. There are no words of the law warranting the view and it would be oppressive for him then to appropriate the fruit of another man’s skill and labor.

The fishing in that open area off our coasts does not tend materially to lessen the supply unless extraordinary means are used and the fish taken in spawning season. For fish in the open area are animals feral nature and go and come at will, unrestrained. If the ordinary means are employed in taking fish, the Konohikis opportunities to take all the fish he is able to capture are not diminished by whatever fishing the tenants may do.

It is unreasonable be held that the tenant must put the excess of fish beyond what he can eat, back into the sea to run off again. The case ap- pears stronger if the Konohiki exercise his opinion of taking the tabooed fish (ia hoomalu). These specific fish are set apart for the exclusive use of the Konohiki. His right being the commuted, he has no exclusive right to other varieties of fish, the tenants can sell the unreserved fish which they take.

I do not think the law intended to restrict the tenants to the right to take fish solely for their own use.

I am strengthened on this view by Sec. 392 of the Civil Code, whereby the Konohiki is allowed on consultation with his tenants, to prohibit during certain months in the year, all fishing upon their fisheries, and during the season to exact one third of the fish taken by the tenants as his share. Here, certainly, the Konohiki cannot take more than his one third.

Judgment for Defendant.

A. Francis Judd, Chief Justice Holding Intermediate Court of Oahu.
Cecil Brown for plaintiff; E. Preston for defendant.
Honolulu, June 2nd 1882.1

1Honouliuli/Puuloa Fishery Rights Case before Intermediary Court, Hawaiian Gazette, July 5, 1882, p. 5.


Related Documents

Levi Haalelea brought suit against Daniel Montgomery in 1858 in the matter of fishery rights at Honouliuli. The following argues that Montgomery does not own exclusive rights to the fishing grounds off Puuloa, and thus tenants of Honouliuli are entitled to fish in those waters.

By the laws of 1839, as subsequently amended by the organic acts of 1846, the entire fishing ground, lying between low water mark and the outer edge of the coral reef, or kuanalu, along the seaward front of an ahupuaa of land, is the private property of the landlord or konohiki, subject always to certain piscatorial rights of the tenants or hoaainas.

The defendant’s brother having received from the konohiki a conveyance of a portion of land of the ahupuaa of Honouliuli, by metes and bounds, but not including any portion of the fishing ground adjacent; it was held, that he acquired a common right of piscary as a tenant or occupant of the ahupuaa, appurtenant to the land purchased, and subject always to the rights of the grantor.

It would not have been in the power of the landlord to grant an exclusive right of fishery in the fishing ground, adjoining the land in question, and it was doubtful said landlord could, convey her rights therein, so as to divide the fishery into two or more parts, without infringing on the rights of the tenants.

Where the exact legal signification of the terms of a deed could not be expressed in Hawaiian without great deal of difficulty, recourse was had to the English original.

Justice Robertson delivered the decision of the Court as follows:

The plaintiff brings his action for the purpose, of determining certain rights of fishery, now in dispute between him and the defendant, and also to recover damages from the defendant for having prohibited and prevented the plaintiff and his people, and others occupying certain lands under him, from taking fish on the fishing ground lying to seaward of defendant’s land, at Puuloa, on this island.

It appears, from the evidence presented to the Court, that the land now held by the defendant, is a portion of the large ahupuaa of “Honouliuli,” and was purchased, in the year 1849, by defendant’s brother, Isaac Montgomery, from the late high chief, M. Kekauonohi, then a widow, who died in the year 1851, leaving the land of “Honouliuli,” together with other property by will, to her second husband, the plaintiff in this action. The conveyance from M. Kekauonohi to Isaac Montgomery, was executed in the Hawaiian and English languages, and reads as follows in English:

“Warranty Deed.

Know all men, by these presents, that I, Kekauonohi, of Honolulu, Island of Oahu, for and in consideration of the sum of eleven thousand dollars, to me this day paid in hand by Isaac Montgomery, also of Honolulu, Island of Oahu, the receipt of which is hereby acknowledged, do grant, bargain, sell, and by these presents convey unto him, the said Isaac Montgomery, and to his heirs, executors, administrators and assigns, forever, all that certain lot of land, situated in the Island of Oahu, aforesaid, and described as follows:

Commencing at mauka north corner or point of this land at place called Lae Kekaa, at bend of Pearl River, and running along edge of Pearl River, makai side, taking in three fish ponds called Pamoku, Okiokilipi and Paakule to open sea, thence following along the edge of the sea (reserving all the reef in front) to end of stone wall by sea, in land called Kupaka, at the makai west corner of this land, thence running north 25° E. 283, direct to place of commencement, including an area of acres 2,244 as per plot hereto annexed.

“To have and to hold, the above conveyed premises and all the tenements and hereditaments situate thereon, with this my covenant and warranty and lawful seizers, unto the said Isaac Montgomery, his-heirs, executors and administrators and assigns forever.

“In witness whereof, the said party, Kekauonohi, has hereunto set her hand and seal at Honolulu, this 7th day of September, A.D. 1849.

“M. Kekauonohi. [L. S.]

Executed in the presence of Frank Manini.”

It is admitted that defendant is now the owner of the property, originally conveyed to his brother by the foregoing deed. The Court also understood the defendant to admit that he had prohibited the plaintiff and his people from taking fish on the place in controversy. And it is admitted by the plaintiff that, from and after the execution of the deed by M. Kekauonohi, she withdrew her Luna from Puuloa, and ceased to take or taboo any fish on the reef opposite defendant’s land, up to the time of her death, and that, until recently, Haalelea never asserted, any right or claim to take fish on said reef.

Upon this state of facts, the defendant claims to have, under a proper construction of the conveyance before recited, and the statutes of this Kingdom, an exclusive right of piscary, in the fishing ground lying opposite the land embraced in the deed; and the plaintiff on his part, claims the same exclusive right for himself and his tenants living on “Honouliuli” as against the defendant and all others living on the land covered by the conveyance, or in other words, that the defendant did not acquire by his purchase, a right to take fish anywhere outside of the boundaries of the land conveyed to him, and that the people living on that land after the date of the deed, ceased to be tenants of the Ahupuaa of “Honouliuli,” and so lost their rights to piscary, under the laws of the land.

In order to a right decision of this controversy it would seem to be necessary in the first place, to ascertain and define what were the rights of piscary possessed by M. Kekauonohi, as Konohiki of the Ahupuaa of “Honouliuli,” at the time she made the conveyance, to Isaac Montgomery. To do this it is unnecessary to inquire what were the respective rights of piscary enjoyed by the Konohiki and the common people, in ancient times, became since the year 1839 those rights have been regulated and defined by written laws,

At page thirty-six of the English version of the old laws, will be found an enactment on this subject, which commences in the following words: “His Majesty the King, hereby takes the fishing grounds from those who now possess them, from Hawaii to Kauai, and gives one portion of them to the common people, another portion to the landlords, and a portion he reserves to himself.

These are the fishing grounds which His Majesty the King takes and gives to the people: the fishing grounds without the coral reef, viz: the Kilohee grounds, the Luhee ground, the Malolo ground, together with the ocean beyond.

But the fishing grounds from the coral reefs to the sea beach are for the landlords, and for the tenants of their several lands, but not for others.”

This is the point at which the existing piscatory regulations of the Kingdom had their commencement, and since which, ancient custom ceased to govern the subject. His Majesty Kamehameha III, as supreme lord of the islands, and having in himself the allodium of all the lands in the Kingdom, did at that time, with the concurrence of the Chiefs, resume the possession of all the fishing grounds within his dominions, for the purpose of making a new distribution thereof, and of regulating the respective rights of all parties interested therein, according to written law.

The fishing rights of both the Konohikis and the hoaainas were defined and regulated by the law of 1839, which was at different times amended in some particulars, until the passage of the organic Acts in 1846, when those rights were again defined by article 5th, of chapter 6th, part first, of the Act to organize the Executive Departments. (See 1st Vol. Stat. Laws, pp. 90 to 92, Secs. 1 to 7.) The part of the law to which it is necessary to have reference more particularly in the present case, reads as follows:

“Section 2. The fishing grounds from the reefs, and where there happen to be no reefs from the distance of one geographical mile from the beach at low water mark, shall in law be considered the private property of the landlords whose lands, by ancient regulation, belong to the same, in the possession of which private fisheries, the said landlords shall not be molested except to the extent of the reservations and prohibitions hereinafter set forth.

“Section 3. The landholders shall be considered in law to hold said private fisheries for the equal use of themselves and of the tenants on their respective lands; and the tenants shall be at liberty to use the fisheries of the landlords, subject to the restrictions in this article imposed.”

The four succeeding sections of this law, which we deem it unnecessary to cite at length, define and guard the rights of the konohikis, in relation to their reserved or tabooed fish, and contain certain provisions to protect the rights of the tenants or hoaainas, from unjust restrictions and exactions.

Under this statute, as we, understand it, the entire fishing ground, lying between low water mark and the outer edge of the coral reef, (or Kuanalu, as it is called in the Hawaiian version) along the seaward front of the Ahupuaa of “Honouliuli,” was private property of M. Kekauonohi, possessed and held by her as such, subject to the piscatorial rights of the tenants living on that Ahupuaa. On this ground she had a common right of piscary with the tenants of “Honouliuli,” or she was at liberty, if she saw fit, to taboo or set apart annually, one particular species of fish for her own private benefit, as provided in section 4th, or in lieu of this, she might on consultation with the tenants, as provided in section 7th, make an arrangement whereby she would be entitled to receive one third part of all the fish caught on the ground.

Such were the rights of M. Kekauonohi in the premises at the time when she executed the deed to Isaac Montgomery, and the next question is, what portion, if any, of those rights did she thereby convey to him, or did he, by operation of law, acquire any rights of piscary on the ground in question, upon receiving that conveyance?

It is contended, on the part of the defendant, that by a fair construction of the descriptive part of the deed, it must be held to extend to deep water at the outer edge of the reef, thereby including all that part of the Konohiki’s fishing ground lying opposite to the land conveyed to Isaac Montgomery. It is said that the expression, “to open sea,” must be understood to mean, “to deep water outside of the reef,” in contradistinction to the shallow water upon the reef, between the breakers and low water mark, and that the expression, “following along edge of sea,” means following along the edge of deep water, outside of the reef. If this is correct, then unquestionably, the grantor conveyed away all her right and title to the fishing grounds, as well as to the dry land. But it seems very clear that this construction cannot stand without falsifying the obvious meaning of the descriptive language which follows. For if “open sea” means the deep water outside of the reef, and “edge of the sea” means the edge of such deep water, the stone wall which is described as being by sea, in land called Kupaka, must have extended out to the seaward edge of the reef, a proposition which has not been asserted in argument, and which, on reference to the plan annexed to the deed, appears to be conclusively negatived. So the expression “reserving all the reef in front,” would seem to be inconsistent with the idea that the line ran along the outer edge of the reef, for in that case there would be no reef in front of the line. That the line ran along the inside of the coral reef, seems to us clear from the language used in the Hawaiian version of the deed, which reads as follows: “Aole nae e hookomo ana i ka papa koa mawaho.” We should translate this expression, “not including, however, the coral reef outside.” Again, the last line of the survey is described as running from the end of the stone wall, north 25° east, by compass, 283 chains, to the place of commencement, and it is not pretended that this line extended out to the outer edge of the reef. If such is the case, it is a fact that could be readily ascertained by measurement. But the surveyor’s plan clearly indicates the reverse. It is very evident, then, that no part of the fishing ground is included within the surveyed metes and bounds of the property conveyed to Isaac Montgomery.

But, it is argued by defendants, counsel, that M. Kekauonohi’s right of piscary in the fishing ground in question, passed to Montgomery as an appurtenance to the land, by virtue of the clause which, in the Hawaiian version of the deed, reads thus: “A me na mea paa a pau e waiho ana maluna iho, a me na mea e pili pono ana,” and in the English version, thus: “And the tenements and hereditaments situate thereon.” It is said that the words, “a me na mea e pili pono ana,” are sufficiently broad in their signification to carry everything appurtenant to the land embraced in the conveyance, and that the Court ought to regard the Hawaiian version of the deed as controlling, wherever their appears a difference between that and the English for two reasons: First—Because the grantor herself was a native, and a person of intelligence, and must, therefore, be presumed, to have intended to convey whatever would pass under the words of the deed, as expressed in her own language; and, secondly, because the Court has decided in several previous cases that, in construing the statutes of the Kingdom, which are enacted in both languages, wherever an irreconcilable difference exists between the two versions, the Hawaiian must govern. On the other hand, it is argued that the grantee, who is an Englishman, received the deed in both languages, thus accepting the English version as the exact counterpart of the Hawaiian; and that, therefore, he and, those claiming under him, should be bound by the English version; that the deed in both versions form but one instrument, and that if the language of: the one is altogether inconsistent with that of the other, which, however, is not conceded, the proper course would be to declare the instrument void for uncertainty.

This involves a question of considerable magnitude, the decision of which may affect the rights and interests of many individuals throughout, the Kingdom. After careful reflection upon the point, we are of the opinion that it would be both unsafe and unreasonable, for the Court to hold that the Hawaiian, and not the English version, should control in this instance, if the difference contended for by the defendant does really exist, which, we think, is not clear. It is true this Court has repeatedly ruled, as stated by the defendant, that, in the case of an, irreconcilable difference between the Hawaiian and English versions of a statute, the former shall control (See Metcalf vs. Kahai, 1st Haw. Rep., p. 225; Hardy vs. Ruggles et als., ibid, p. 255.) But it seems to us that the same considerations which constrained the Court so to decide in that case, do not exist in the present instance. The deed before us, with the exception of those parts of it which are descriptive, consists of a printed formula, in the two languages, which has been extensively used here, in dealings between natives and foreigners, since the enactment of laws requiring conveyances of real estate to be made in writing. The English version of this formula is, of course, the original, and the Hawaiian merely a translation. There do not exist in the Hawaiian language, two words which would exactly represent the two English words tenements and hereditaments. The exact legal signification of those terms could not be expressed in Hawaiian without great difficulty, and therefore words, which if used in some other connection, or under other circumstances would convey a widely different meaning, have, when used in the printed formula of conveyance now before us, been accepted by the general consent of natives and foreigners using such formula, as meaning precisely the same things, and neither more or less than those two legal terms. So far then as purely legal phraseology, or words or technical import, are concerned, it would seem to us both unsafe and unreasonable, to hold that the Hawaiian translation, and not the English original, should govern, when a question arises, upon the construction of any part of the deed, where such legal or technical language is used. Such a course would unbar the door to endless litigation and fraud, and involve our courts in a maze of uncertainty.

It is contended, further, on the part of the defense, that the conduct of the grantor, in withdrawing her luna from Puuloa, at the time of her execution of the conveyance, and in subsequently, up to the time of her death, forbearing to take or taboo any fish on the reef opposite the land sold to Montgomery, and the like forbearance on the part of the plaintiff, for several years, afterwards, are strong evidence in favor of the defendant, and facts from which it may be fairly inferred that M. Kekauonohi intended to grant away tile fishing ground, or, at least, all her rights in the fishery. To this it is replied, that such a grant cannot be inferred from circumstances, or from the conduct of the grantor, but must be found, if at all, in the express language of the deed.

As to the fact of her withdrawing her luna from Puuloa, after the sale of that land to Isaac Montgomery, we consider it a natural consequence of the sale, and of slight significance as to any bearing it may be supposed to have upon the disputed question of the fishery. If, however, there was any doubt as to the grantor’s intentions, arising from the use of unusual or ambiguous language, then, the fact of her subsequent forbearance to take or taboo fish; upon the place in question, might be regarded as evidence tending to sustain the construction contended for by the defendant. But, it is clear to our minds, for the reasons already stated in remarking upon the descriptive part of the deed, that she did not intend to include therein, or to convey thereby, any part of the fishing ground to Montgomery; nor did she convey to him her individual rights of piscary, under the words, “tenements and hereditaments situate thereon.”

None of the rights of piscary possessed by M. Kekauonohi as owner of the fishery, could have passed as a mere appurtenance to the piece of land conveyed to Isaac Montgomery. She could have transferred the fishery, or her right therein, only by an express grant, eo nomine. Had she made a deed even of the whole Ahupuaa, by metes’ and bounds, not including the fishery, nor expressly naming it in the conveyance, it is doubtful if either the fishery or her right therein would have passed to the grantee.

Again, if the grantor had conveyed the fishery, or her individual rights therein, by name, to Isaac Montgomery, that would not have conferred upon him the exclusive right which is now set up by the defendant, because M. Kekauonohi herself was not possessed of an exclusive right. It may even be doubted whether she could have conveyed away the portion of the fishing ground lying opposite to Puuloa, or her special rights therein, so as to divide the fishery, without infringing on the rights of the tenants living on “Honouliuli.” Certainly if her grantee had tabooed one kind of fish, on his part of the ground, while she tabooed another kind upon the other part, the rights of the tenants would have been violated. And if she could have divided the fishing ground into two parts she could have divided into twenty, and so have rendered the rights of the tenants worthless.

But, while we are clearly of the opinion that M. Kekauonohi did not convey any part of the fishing ground, or of her individual rights therein, to Isaac Montgomery, we are also of opinion that, when he received a conveyance of a portion of the Ahupuaa of “Honouliuli,” he acquired along with it a common right of piscary in the fishing ground adjacent. That is to say, he became, for the purposes of the law, governing this subject, a tenant of the Ahupuaa, and as such entitled to take fish in the sea adjoining. We understand the word tenant, as used in this connection, to have lost its ancient restricted meaning, and to be almost synonymous, at the present time, with the word occupant, or occupier, and, that every person occupying lawfully, any part of “Honouliuli,” is a tenant within the meaning of the law. Those persons who formerly lived as tenants under the Konohikis but who have acquired fee simple title to their kuleanas, under the operation of the Land Commission, continue to enjoy the same rights of piscary that they had as hoaainas under the old system. (See Joint Resolution on the subject of rights in lands, etc., Vol. 2, Statute Laws, p. 70.) If any person who has acquired & kuleana on the Ahupuaa of “Honouliuli,” should sell and convey his land, or even a part of it, to another, a common right of piscary would pass to the grantee, as an appurtenance to the land. In that case it would not be necessary, we apprehend, to mention the right of piscary in the conveyance—it would pass as an incident. (See Kent’s Com., Vol. 4, p. 517; Comyns’s Digest, Vol. 4, title Grant E. 11,) Here, we think, is the great distinction between the rights of the Konohiki, and those of the tenant or occupant, for, while the former holds the fishery as his private property, the latter has only a right of piscary therein, as an incident to his tenancy. This marked distinction in their respective rights must create a corresponding difference in regard to the transfer of those rights.

As the conveyance, by the owner of a kuleana, of a part of his land to another, would create such a tenancy in the grantee as would entitle him to a common right of piscary, so, in our opinion, the conveyance to Isaac Montgomery, by M. Kekauonohi, of a part of the Ahupuaa, created such a tenancy, as carries with it, as an appurtenance thereto, under our laws, a common right of piscary; subject, always, to the rights of the grantor, and her legal representatives.

No specific damage having been proved by the plaintiff we think he is only entitled to recover nominal damages.

Let judgment be entered for the plaintiff, as of the last day of term, in the sum of five dollars damages, together with the costs of suit.

A. B. Bates, Esq., for the plaintiff.
J. Montgomery, Esq., for the defendant.
January, 1858.107

1The Puuloa Fishery of Honouliuli, Supreme Court—In Banco, January Term—1858, Levi Haalelea vs. Daniel Montgomery.

Below is a Hawaiian-language report on the Haalelea vs. Montgomery proceedings entitled “Olelo Hooholo a ka Ahakiekie. O Levi Haalelea kue Daniel Montgomery” that was published in the newspaper Ka Hae Hawaii.

Hoakaka ae la ka Lunakanawai o Robertson i ka manao hooholo o ka Aha, penei:

Ke hoopii mai nei o Haalelea, i mea e maopopo ai ke kuleana o ka honu ia ana i hoopaapaaia e ka mea kue e D. Montgomery, a e loaa paha ia ia kona poino no kona hoole ia aole make hopu ia ma kauwahi o Montgomery, ma Puuloa i Oahu nei.

Mamuli o ka hoike ana, o ka aina o D. Montgomery, ka mea kue, he wahi apana ia o ka ahupuaa o “Honouliuli,” a ua kuaiia e Isaac Montgomery ke kaikuana o ka mea kue, i ka makahiki 1849, no M. Kekauonohi mai, ia manawa, he wahine kane make oia. A mahope iho, i ka makahiki 1851, make oia, me ka waiho ana i ka aina o “Honouliuli” a me na waiwai e ae i kana kane mare hou a oia ka mea hoopii ma keia hookolokolo ana, O ka palapala hoolilo aina a M. Kekauonohi ia lsaac Montgomery, ua kakauia ma na olelo Hawaii a me ka Beritania, a o Frank Manini ka hoike.

Eia na mea i aeia e na aoao elua:

Ua aeia o D. Montgomery, oia ka mea nona ka aina i keia wa e noho nei.

Ua ae mai hoi o D. Montgomery, ua hookapu oia ia Haalelea a me kona poe, aole make hopu i ka ia ma kahi i hoopaapaaia.

Ua ae mai noi o Haalelea, mai ka wa i kakauia‘i ka palapala hoolilo aina e M. Kekauonohi, ua pau ka noho ana o kona luna ma Puuloa, a hooki hoi i ka lawaia a e hookapu ia ma ke kohola e ku pono ana i ka aina o D. Montgomery , a make o M. Kekauonohi. A o Haalelea hoi, aole oia i hoike mai i kona manao e hopu i ka ia ma ia wahi, a i keia manawa iho nei.

A mamuli o keia mau mea, manao ae la o D. Montgomery ia ia ponoi wale iho no ke kuleana hopu ia ma kahi e ku pono ana i kona aina. A manao ae la hoi o Haalelea ia ia ponoi wale iho no a me kona poe e noho ana ma “Honouliuli” ke kuleana e hopu ia ma ia wahi ; no ka mea, i kona manao, aole i loaa ia D. Montgomery ke kuleani hopu ia mawaho ae o na mokuna o ka aina ana i kuai ai me Kekauonohi.

I ko kakou hoomaopopo ana i ka mea nona ka pono a me ke kuleana o ka hopu ia ana. He pono ke heluhelu i ke kanawai.

Ma ka aoao 36 o ka buke Kanawai mua, olelo Beritania, penei ke kakauia ana : “Ke lawe nei ka Moi o ke Alii nui i na wahi ia noloko ae o ka lima o ka poe i loaa, mai Hawaii a Kauai, a. Ke haawi hou aku i kekahi hapa na na kanaka, a i kekahi hapa na na konohiki, a i kekahi apa hoi nana ponoi no.

Eia na wahi ia a ka Moi e haawi nei na na kanaka, o na wahi mawaho ae o ka Puukoa, penei, o na wahi Kilohee, o na wahi Luhee o na wahi Malolo, a me ka moana mawaho ae.

A o na wahi ia mawaena ae o ka Puukoa a me ke kahakai, na na konohiki ia a me na kanaka o ko lakou aina aole no na mea e ae. “

A mai ia wa mai o ke kuleana hopu ia o ka wa kahiko, ua pau I keia manawa he kanawai i kakauia.

Ma ke kanawai o ka makahiki 1839, o ke kuleana o na konohiki a me na hoaaina ua hooponoponoia ma kauwahi, a pela no a hiki i ka makahiki 1846, a malaila ua hooponopono hou ia. E nana i ka buke mua aoao 90 a hiki 92. pauku 1 a hiki 7. Eia na pauku pili pono:

“PAUKU 2 O na wah ia, no na puukoa aku, a ina aohe puukoa, hookahi no mile no ke kahakai aku, ma ke hapawai, oia no ke kuleana ponoi no o na konohiki no na ka aina e pili ana ma ke ano kahiko, aole e mea ia i na konoliiki i ko lakou kuleana hopu ia, aia mamuli o na kanawai e kau ia mahope.

“PAUKU 3. I ka mamio o ke kanawai, no na konohiki no ka hopu ia ana no lakou iho a me na hoaaina ma ko lakou aina iho; a e hopu no na hoaaina i ka ia o na konohiki malalo nae o na mea i oleloia ma keia kanawai.”

Mamuli o keia kanawai, o na wahi hopu ia a pau, e moe ana mawaena o kahakai a me kuanalu makai aku o ka ahupuaa o “Honouliuli,” oia no ke kuleana ponoi o M. Kekauonohi, nona no malalo nae o na kuleana o na hoaaina e noho ana ma ia ahapuaa

Oia na kuleana o M. Kekauonohi i kona wa i kekauia‘i ka palapala hoolilo aina ia Isaac Montgomery; a eia ka ninau ua loaa anei ia ia, ia L Montgomery, kahi kuleana hopu ia ma ia wahi, i kela palapala hoolilo aina?

Ma ka aoao o ka mea kue, o D. Montgomery, manao oia e holo ana kona aina a i ke kai hohonu mawaho ae o ka papakoa e hookomo ana i kauwahi ia a pau o ke konohiki e kupono ana i ka aina i lilo ia Isaac Montgomery. Ua oleloia, okoa ke kai hohonu, okoa hoi ke kai papau mawaena o ke kuanalu a me kahakai. Aka, ua maopopo aia ka mokuna oia aoao, aia no maloko ae o ka papakoa; no ka mea, penei ka olelo ana: “aole nae e hookomo ana i ka papakoa mawaho.” Nolaila, ua maopopo ia makou aole i komo kauwahi hopu ia iloko o ka aina i ana ia a i hooliloia ia Isaac Montgomery.

A olelo mai la ka loio o D. Montgomery. Ua lilo ae la ke kuleana ia o

M. Kekauonohi ia D. Montgomery me he mea apana la o ka aina ma keia olelo ana, a me na mea paa a pau e waiho ana. Maluna iho, a me na mea e pili pono ana, aka, a ko‘u manao, aole e pili pono kela mau huaolelo i kauwahi o ke kai.

Ua olelo ia hoi, o ka hoopau ana o M. Kekauonohi i kona luna ma Puuloa i ka wa i lilo ai ka aina a hiki i ka manawa i make ai, aole i hopu i ka ia, ma ka puu koa kupono i ka aina i lilo ia Montgomery, a pela no kana kane o Haalelea no kekahi mau makahiki, oia na mea e maopopo ai ka manao o M. Kekauonohi, a o kona manao ia e hoolilo loa aku i kela wahi ia, a i kona kuleana a pau iloko olaila. Aka, aole e pono ke manao wale aku ma ia mea, i ole e kakauia ma ka palapala hoolilo, aole e maopopo.

Aole i lilo kekahi kuleana ia o M. Kekauonohi me he mea apana la o ka aina i kuai ia ia Isaac Montgonery. Ma ka olelo maoli wale no i lilo ai. Ina paha ma ka palapala hoolilo, i hoohlilo ai oia i ka ahupuaa a pau ma na mokuna i anaia a puni me ke komo olelo kauwahi ia ma ka olelo, aohe maopopo ka lilo ana o kauwahi ia a o kona kuleana malaila.

I ko makou manao, aole i hoolilo o M. Kekauonohi i kekahi apana o kahi ia, a i kekahi o kona kuleana ponoi ia Isaac Montgomery; a eia hoi ko makou manao, i ka wa i loaa‘i ia I. Monthomerv ke kuleana o kauwahi o ka ahupuaa o “Honouliuli,” ua loaa ia ia no hoi kekahi kuleana hopu ia me he hoaaina la, e like me na kanaka e ae e noho ana ma ia ahupuaa. (E nana i na Olelo ae Like, Vol 2, Statute Laws, pahe 70).

No ka maopopo ole o ka poino i loaa ia Haalelea, nolaila, o ka poino i manao wale ia ka pono.

E hooholoia na ka mea hoopii ke ko i ka la hope o ke kau hookolokolo.

Elima dala ka poino me ke koina.

A. B. Bates, loio no L. Haalelea.
J. Montgomery, loio no D. Montgomery.1

1Ka Hae Hawaii, April 14, 1858, p. 6.

The following dispute concerning Honouliuli fishery rights was brought before the Supreme Court of the Hawaiian Islands during a special banco term in December, 1883.

This case came to the Supreme Court by appeal from the Intermediary Court of Oahu. The original controversy is as to the line dividing the fishing grounds respectively of the lands of Honouliuli and Waipio in Pearl River, an extensive loch in this island of Oahu. The exceptions relate to the ruling of the Court upon the effect of certain proceedings had before the Boundary Commissioner of Oahu. The following are the instructions asked for by the defendant and refused, and the instructions given by the Court.

1.     That the plaintiff’s lessors are stopped from now disputing the fishing right of Honouliuli being present and assenting thereto and the right of Waipio being then passed upon.
2.     That if the jury are satisfied that J. Komoikeehuehu was present, he being the co-executor of the Chief Justice and assenting, or either of them, that such assent to the finding is binding between the owners of Waipio and Honouliuli.
3.     That if the jury find that either of them was present, it is strong evidence in favor of the defendants.

Which directions the presiding Judge declined to give but directed the jury that the lessors of the plaintiff were not bound by the proceedings before the Boundary Commissioner so far as regarded the fishing rights claimed. And that the case must be decided according to the law governing prescription in this country as no grant is shown.

A copy of the record of the Boundary Commissioner is attached to the Bill of Exceptions and we cite from it as follows:-

“The present case is a claim of right of piscary over navigable bay or loch perhaps unlike any other in the Kingdom, and is a claim of exclusive fishing right as to the whole of a certain branch of the part lying outside of a line “chin deep” opposite the other lands situated on this branch. It is distinguishable from the right claimed and by statute given to Konohiki with certain reservations Civil Code Sec. 387–92 being a claim as a private and exclusive fishing right as completely as that within his “chin deep” line is claimed for the lands adjacent.”

“I find in repeated instances that the Board declined to award and define piscary rights, leaving parties to their rights under general statutes e. g. in the award to Kiahua vol. 10 p. 50 where the fishing right was surveyed and included in the land asked for, the Board expressly refused to award this portion of the survey remitting the claimant to the law, enduring the refusal both on the notes of survey in the award and on the accompanying plot and no instances of a contrary practice are shown to me.”

“Upon one consideration of the premises, I decline to award the fishery of Honouliuli as a right or as territory but deeming it of importance that all rights depending on Kamaaina testimony be now settled as far as may be, and knowing of no better place than the records of the Boundary Commissioner for the preservation of such claims, I take the testimony offered on the subject and make such a supplementary finding as such testimony warrants.”

“Fishing Rights of Honouliuli in Pearl Loch.”

“For reasons set forth at large in the record of the Commissioner, the Fishing Right is not awarded in the body of the certificate of boundaries, but the finding of the Commissioner on the testimony presented as well as by the assent of parties adjacent and in interest is set forth in this supplement to wit.”

We think there is but one sentence in the above citation which colorably supports the proposition of the defendant, viz the latter part of the last quoted sentence, these words, “the finding of the Commissioner on the testimony presented as well as by the assent of parties adjacent and in interest be set forth in this supplement as follows.” But these words even taken by themselves, fall short of a claim to jurisdiction. The finding is called a supplement and is excluded from that which the Commissioner considered himself authorized to make. The assent of all parties must be taken to mean their assent to taking the testimony, ex parte for preservation which the owner of Honouliuli wished to present for preservation. But the determination of the Commissioner to take testimony must be considered in view of what he had above expressed. Nothing can be more explicit and void of uncertainty than these words, “upon due consideration of the premises I decline to award the fishery as a right or as territory.” He gives the authorities and reasoning by which he arrives at this conclusion. How can it be now claimed that a right or territorial line has been awarded by an officer when he has positively declined to make it? And how could the presence of the representatives of Waipio be held to give assent to something which was not done at all?

We therefore overrule the exceptions.

S. H. Dole for plaintiff; E. Preston and Cecil Brown for defendants.1

1Honouliuli Fishery Rights before the Supreme Court, Daily Bulletin, February 13, 1884, p. 11.

There are thousands of references contributing to the history of Honouliuli Ahupuaa. From those references are found classes of information covering such topics as

•  Residency: land ownership and access;
•  Paakai: salt making;
•  Kai lawaia: fisheries and access;
•  Ranches and the land development programs in Honouliuli;
•  Water development, railroads, and the Ewa Plantation; and
•  Military condemnation of Honouliuli lands and offshore waters.

The selected narratives categorized as Land Use: Development Period provide eyewitness accounts to historic events. While there are few identifiable references for the immediate area of the Hoakalei program, the narratives give us an historical context for understanding changes on the land since western Contact.

Native Hawaiian historian Samuel M. Kamakau observed

The Hawaiian people were a race of expert fishermen. The art had been handed down from their ancestors. Agriculture and fishing were the two main professions always passed on by the grandparents … The fishing profession was an important one, and one that could not be undertaken without supplies of canoes, nets, and fishing lines. If a fisherman were a landholder or a chief, or a descendant of a fisherman, or a son in a family which had aumakua of fishing, then he could be a true fisherman with no lack of long canoes, short canoes, light, swift canoes, large and small nets, and long and short fishing lines. He would have everything he needed, and there would be nothing to stop him.

Some kinds of fishing required a fleet of canoes, many nets, and many men; other kinds needed only two, three, or four men, and some, only one man. Some ways of fishing were much work, and some were very easy. Fish was obtained in greatest quantity with nets. Other main ways of fishing were, with basket traps; with hook and line; by prodding about with a stick; by feeling about and grasping by hand or ensnaring between the fingers; by striking loose with stones [the opihi]; and by drugging fish. A man could also fish with his hands, or with crab or shrimp nets, or with a pole from a ledge or the seashore, or catch fish in tide pools with a scoop net, or go along the seashore with a net, or set a fish line; or search for fish with a small basket trap; or draw a net over sandy spots in the sea or up onto the shore; or drive fish into nets by splashing; or with a pole. [17:59]

The fisheries—those along the shore of the open ocean and in Keawalau o Puuloa (now Pearl Harbor), and along the shoreline—were among the highly valued resources of Honouliuli Ahupuaa. With the transitions in land tenure and land use that occurred following 1848, native residents of Honouliuli were steadily denied access to the traditional fisheries. The narratives below are selections from the historical record on the conflicts that arose between the customary practices of Hawaiians with the new landowners and system of access.

Mose, a native of Honouliuli, presented a public account of the distress that he, Isaaka, and Makahanohano endured in being denied access to the shore along Ke Awalau o Puuloa by a foreign tenant of the land, and asked the king if this action was authorized by him. The English translation following it is not complete, but is a summary.


E ka Hae Hawaii e. Aloha oe:— Ka mea e holo ana ma na kihi eha o ke aupuni Hawaii, he hoa kuili oe o ka poe imi noonoo, he ipo manuahi oe o ka poe ike. He wahi mea ka‘u e hai aku nei ia oe, a nau ia e hai aku i ka poe imi noonoo a pau o ke aupuni Hawaii.

Eia ua wahi mea la. Ia makou i hoomaka ai e holo maluna o ka waapa mai Honouliuli aku a hiki i kahi i kapaia o Keawalau o Puuloa, pa mai la kahi makani ma kai mai, he maunuunu ko ke kaha, he olauniu ko Waikiki, he kukalahale ko Honolulu, hoohuli pono ae la makou i ka ihu o ka waapa me ka manao e holo aku i Honolulu i ke kuai ia, loaa iho la makou i ka poino. Eia no ia, ninau mai la kekahi haole ia makou, o Aigate kona inoa, Owai keia waapa? Hai aku la makou, O makou no. Ninau hou kela ia makou, Owai ka inoa? Hai hou aku la makou, O Mose, Isaaka, Makahanohano. Pane hou mai kela ia makou, Go way; be off kanaka. O ke kani koke mai la no ia o ka pu, a pee iho la makou i ka waha o ka waapa, helelei iho la ka lu iluna o makou, kani hou mai la ka pu, helelei hou iho la ka lu. Kena aku la au i kou mau hoa e hoe aku i ka waapa, aka, aole e hiki; no ka mea, ua loaa makou i ka pilikia; aka, no ka ikaika ana mai o ka makani ma kai mai, huki pono mai la makou i ke kaula, pei mai la i ka pei, poho aku la ka pea i ka makani, o ka holo aku la no ia o makou, a pakele makou i keia pilikia.

E! nani ke aloha o ko kakou Haku i ka lani, ka mea kokua i ka poe poino, nana no i hoopakele mai ia makou mai loko mai o keia popilikia.

Ina ua ae ia e ka Moi a me kona lalo iho, a i ole ia, e na makaainana paha e noho ana malalo iho o ka Moi, kona ki wale ana aku i kela kanaka keia kanaka, alaila ua pono; aka, ina aole, e hiki no ia‘u ke hoopii e like me ke kanawai o ka aina.

Honouliuli, Ewa, 18 Nov. 18571

A summary translation of the preceding is below.


We departed from Honouliuli in our boat and arrived at the place called Keawalau o Puuloa, when a wind arose from the shore. It was the maunuunu of the coastal region — the olauniu is of Waikiki, and the kukalahale is of Honolulu. We turned the bow of our boat, intending to go to Honolulu to sell our fish, that is when we ran into trouble. A foreigner came up to us and asked whose boat is this, his name was Isaac.2 We told him it was ours. He then asked our names and we told him, Mose, Isaaka and Makahanohano. He then told us, “Go away, be off, Hawaiians. He then shot at us, and we quickly tried to hide in the bow of our boat. We tried to push off, but because of the wind from the sea, we had a difficult time. We finally got the sail up and we were able to get away from the trouble.

Say, the love of our Lord is beautiful, the one who helps those in need, and who rescues us from our troubles.

Did the King agree to this being done by those below him, or not. The commoners live below the King, and it is he who determines what is right for each man. I will seek to prosecute this pursuant to the law of the land.

Honouliuli, ‘Ewa. Nov. 18, 18573

1Ka Hae Hawaii, Nowemapa 25, 1857, p. 139.

2Isaac Montgomery purchased the ili of Puuloa from Chiefess M. Kekauonohi in 1849. Later, in 1858, Levi Haalelea brought suit against Daniel Montgomery, brother of Isaac, in the matter of fishery rights at Honouliuli (Hawaiian Supreme Court Report, 1857–1865:62).

3Translated by Maly.