Honouliuli–Hoaeae Ahupua‘a Boundary

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.

Following the Mahele Aina, there was a growing movement to fence off the land areas and  control  access  to  resources  that  native  tenants  had  traditionally used. In the 1860s, foreign landowners and business interests petitioned the Crown to have the boundaries of their respective lands—which became the foundation for plantation and ranching interests—settled. In 1862, the king appointed a Commission of Boundaries, a.k.a. the Boundary Commission, and tasked them with collecting traditional knowledge of place, land boundaries, customary practices, and deciding the most equitable boundaries for each ahupua‘a that had been awarded to alii, konohiki, and foreigners during the Mahele. The commission proceedings were conducted under the courts and as formal actions under law. As the commissioners on the various islands undertook their work, the kingdom hired or contracted surveyors to begin the surveys, and in 1874, the Commissioners of Boundaries were authorized to certify the boundaries for lands brought before them.¹

Records from the Ewa District were recorded from 1868 to 1904, with the proceeding from Honouliuli being held between 1873 and 1874. The records include testimonies of elder kamaaina who were either recipients of kuleana in the Mahele, or who were the direct descendants of the original fee-simple title holders. The documentation includes the preliminary requests for establishing the boundaries; letters from the surveyors in the field; excerpts from surveyor’s field books (Register Books); the record of testimonies given by native residents of the lands; and the entire record of the Commission in certifying the boundaries of each ahupuaa cited. The resulting documentation offers descriptions of the land, extending from ocean fisheries to the mountain peaks; traditional and customary practices; land use; changes in the landscape witnessed over the informants’ lifetime; and various cultural features across the land.

The native witnesses usually spoke in Hawaiian, and in some instances, their testimony was translated into English and transcribed as the proceedings occurred. Other testimonies were transcribed in Hawaiian and remained untranslated, but have now been translated for inclusion in this study. Translations of the Hawaiian-language texts below were prepared by Kepa Maly.

The Boundary Commission proceedings documented many traditional place names and features along the boundaries of the ahupuaa, with locations extending from the sea—including fishponds and fisheries—to the mountain peaks. These names demonstrate Hawaiian familiarity with the resources, topography, sites, and features of the entire ahupuaa. Coulter observed that Hawaiians had place names for all manner of feature, ranging from “outstanding cliffs” to what he described as “trivial land marks” [6:10]. History tells us that named locations were significant in past times: “Names would not have been given to [or remembered if they were] mere worthless pieces of topography” [14:412].

In ancient times, named localities signified that a variety of uses and functions occurred:

•  triangulation points such as koa (land markers for fishing grounds and specific offshore fishing localities);
•  residences;
•  areas of planting;
•  water sources;
•  trails and trail-side resting places (oioina), such as a rock shelter or tree shaded spot;
•  heiau or other features of ceremonial importance;
•  may have been the source of a particular natural resource or any number of other features; or
•  the names may record a particular event or practice (e.g., use for burials, the making of koi or adzes, or designation as a fishery) that occurred in a given area.

As in the records of the Mahele, every place name cited in the Boundary Commission proceedings has been listed in the table below. A number of the place names remain in use on maps or among some residents, while others are no longer in use. Of particular note are several place names and their associated narratives which document wahi pana on the traditional landscape.

¹W. D. Alexander in Thrum’s Hawaiian Annual, 1891:117–118.