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- Type
- Circuit Court of Appeals, Ninth Circuit
- Information
- Copyright
- Copyright © by the American Society of International Law 1943
Footnotes
*
133 F. 2d 743. Certiorari denied by the Supreme Court of the United States May 10, 1943.
References
* 133 F. 2d 743. Certiorari denied by the Supreme Court of the United States May 10, 1943.
1 United States v. Pennsylvania & Erie Dock Co., 6 Cir., 272 F. 839, 842; United States v. Stinson, 197 U. S. 200, 205, 25 S. Ct. 426, 49 L. Ed. 724; Harrison v. Davis, 22 Haw. 465, 466; Kaluhiwa v. Miguel, 25 Haw. 246, 250.
2 Bettman v. Harness, 42 W. Va. 433,26 S. E. 271,273, 36 L.R.A. 566; Llewellyn v. Cauffiel, 215 Pa. 23, 64 A. 388, 392; Powhatan Coal Co. v. Ritz, 60 W. Va. 395, 56 S.E. 257, 261, 9 L.R.A., N.S., 1225; Swift v. Agnes, 33 Wis. 228.
3 Smith v. Royal Insurance Co.. 9 Cir., 125 F. 2d 222, 224.
4 Cooper was the immediate grantor of appellees Fullard-Leo. He had acquired the island by purchase in 1911 and was one of the intermediate holders in the chain of title from Bent and Wilkinson.
5 The Americana, Volume 12, page 29.
6 For convenience, the language of the commission is here repeated: “To all whom it may concern greeting: Know ye, that we have authorized and empowered our faithful subject Zenas Bent and by these presents, do hereby empower the said Zenas Bent to take possession in our name of Palmyra Island . . . , not having been taken possession of by any other government or any other people, by erecting thereon a short pole, with the Hawaiian flag wrapped round it and interring at the foot thereof, a bottle well corked containing a paper signed by him in the following form, viz.: ‘Visited and taken possession of by order of his majesty King Kamehameha IV, for him and his Successors on the Hawaiian throne, by the undersigned in the Schooner Louisa this day of 186—’.”
7 Webster defines “domain” as meaning an estate held in possession, or as “the territory over which dominion or authority is exerted; the possession of a sovereign or commonwealth, or the like.”
8 Four years and four months after the granting of the petition of Bent and Wilkinson the latter made his will devising to his wife his interest in Palmyra. It is somewhat unlikely that Wilkinson would have been at pains to mention the island if he had no more than a license so soon to expire, and which would in any event expire before distribution could be had. Distribution did not in fact occur prior to June, 1867.
9 The “Great Mahale” took place in 1845. At that time all individually occupied Hawaiian lands were held in feudal tenure. The Mahale substituted fee ownership. See Resolution of Oct. 26,1846, 2 Hawaii, Kingdom Statutes, pp. 81–94. In 1848 the king transferred to the government most of his privately owned lands, those so transferred being thereafter held and disposed of as public lands.
10 “In answer to your request of December 15th, 1904, for an opinion as to the jurisdiction of the Territory of Hawaii over the various small guano islands to the north-west of Kauai. I would reply as follows:
“After a careful investigation of the records in the office of the Secretary of the Territory, formerly the Foreign Office, and from other sources of information, I find that the authority of the Territory of Hawaii over these islands is as follows:
“It appears in the report of J. A. King, Minister of the Interior, dated the 2nd day of June, 1894, to Sanford B. Dole, President of the Republic of Hawaii, that formal possession was taken of Necker Island by the said J. A. King, representing the Republic of Hawaii, on May 22, 1894; it also appears by that report that the government of the Hawaiian Islands had sent Captain John Paty to take possession of said island about 1857; it also appears that he did take such possession at that time.
“Palmyra Island, seems to have been acquired during the reign of Kamehameha IV, by a proclamation signed by him, dated the 15th day of June, 1862.
“Lisiansky Island was taken by the government of the Hawaiian Islands through Capt. John Paty on the 10th day of May, 1857.
“Morell Island and Patrocinio or Byer Island were both taken for the Republic of Hawaii in 1898, by G. N. Wilcox, a Commissioner for that purpose appointed.
“While I was unable to find any official records of the acquisition of the other islands, the government has, for many years, assumed jurisdiction over them. The following leases have been made, from time to time, and have been undisputed:
“Lease of Necker Island, dated the 2nd day of June, 1904, to A. H. C. Lovekin, at $25.00 per annum, term twenty-five years.
“Lease of J. A. King, Minister of the Interior, to the North Pacific Phosphate & Fertilizer Co. of Morell, Ocean, Pearl and Hermes reef, Midway and French Frigate Shoals, twenty-five years from the 15th day of February, 1894.
“Laysan and Lisiansky Islands to G. D. Freeth, April 17th, 1893.
“While it is to be regretted that the records of our foreign office are not more complete, possibly a more exhaustive search might find other documents which, in the present state of the old foreign office, it was impossible for me to find. I believe that from these records the government’s right to lease the islands, or any privileges thereon, is clear; also to lease the same, as suggested in your letter. The fact of making such leases, and the lessees taking possession thereunder, recognizing the Territory of Hawaii as the landlord would be prima facie evidence in international law of our right to the same and would be the best evidence the government could make of its claim to the various islands in question.”
11 Waialua Co. v. Christian, 365 U. S. 91, 107, 39 S. Ct. 21, 83 L. Ed. 60.
12 Concerning the jurisdiction and power of the Land Court, see In re Rosenbledt, 24 Haw. 896,307.
13 Section 73 of the Organic Act, 48 U.S.C.A. § 664, continued in force the laws of Hawaii relating to public lands, the settlement of boundaries, etc. See 24 Op. Atty. Gen. 600.