Statistics: 64272 characters 10545 words
Kahua 2d Ahupuaa (Pepeekeo Sugar Co.), District of Hilo, Island of Hawaii, Boundary Commission, Hawaii, Volume D, No. 5; pps 658-661
In the Matter of the Boundaries of the Land Kahua 2d, District of Hilo, Island of Hawaii, Fourth Judicial Circuit, Territory of Hawaii
The application of A.B. Loebenstein, as Attorney for the Pepeekeo Sugar Company, Limited, having been filed with the Commissioner of Boundaries for the Third and Fourth Judicial Circuits, Territory of Hawaii on the 23d day of April, A.D. 1906, to settle the Boundaries of the remaining portions of the land of Kahua 2d, Hilo, Hawaii, belonging to the Pepeekeo Sugar Company: Notices of hearing said application were published for three successive weeks, in the Hilo Tribune, newspaper in English, May 1, 8, and 15, and in Hawaiian, in the Ku Okoa newspaper, May 4, 11, and 18, for a hearing at the Office of the Boundary Commissioner, in Hilo, Hawaii, on Thursday, the 31st day of May, A.D. 1906, at 9 a.m.
Written notices of the time and place of hearing were also sent by mail to the owners of the adjoining lands, viz.:
J.W. Pratt, Commissioner of Public Lands of the Territory of Hawaii, and to S. Kailimai for the owners of Royal Patent 1158.
(Application)
Hilo, Hawaii, April 18th 1906
Honorable F.S. Lyman, Commissioner of Boundaries, 3d & 4th Judicial Circuits, Territory of Hawaii
Sir:
In the matter of the boundaries of the Ahupuaa of Kahua 2nd, Land Commission Award 5663 to Kahonu, situate in the District of Hilo, Island of Hawaii, within the jurisdiction of your Honorable Court, and in accordance with the instructions given me by the owners of the said property, to wit, the Pepeekeo Sugar Co. I have the honor to request that you set apart a day for the taking of testimony and the issuance of a Boundary Certificate, of the remaining portions of the aforesaid land of Kahua 2d as yet uncertificated.
I have further to submit that the descriptions of Boundaries enclosed herewith, are of two distinct and non contiguous sections, defined respectively as Sections 2 and 3. [page 659]
Section 1, having previously been covered by certificate number 188, issued December 3rd, 1903
In further compliance with that provision of the statute calling for due notice to be given to owners of contiguous property, I submit the following list comprising the total of other than Pepeekeo Sugar Co. ownership.
1. Owners of Kawahine Subdivision, No. 2, portion of R.P. 1158, J. Pelham.
2. Owners of Hema Subdivision, No. 3, portion of R.P. 1158, J. Pelham.
3. Owners of Kaanana Subdivision, No. 3, portion of R.P. 1158, J. Pelham.
Tracing filed herewith is identical copy of office working sheet, showing full and correct topographical details, the boundaries established by this survey being in complete accordance with an earlier one by John M. Lydgate, Esquire, a number of whose monuments were found upon the ground and whose map of this section 1 I also file herewith to be made a part of the records in the case.
Awaiting your further action in the foregoing premises, I have the honor Sir, to remain,
Very respectfully Yours
A.B. Loebenstein
Attorney for Pepeekeo Sugar Co.
N.B. Please include in schedule of owners to contiguous property, an additional item, to wit: Government Remainder Kaupakuea, owned by Territory of Hawaii.
May 16th. Received from James W. Pratt, Commissioner of Public Lands, acknowledgement of Notice, and asking that the hearing of this case be postponed for thirty days.
The applicant was notified, and consented to a continuance of 4 weeks and a Notice was published in the Hilo Tribune May 22, 29, and June 5, and Ku Okoa, May 25, June 1, and 8, continuing the hearing until Thursday, June 28th.
The Commissioner of Public Lands, and S. Kailimai, were also notified by mail, of the continuance.
May 23d. Received from Commissioner of Public Lands, Pratt, acknowledgement of continuance to June 28, as being satisfactory.
[page 660]
June 25th, Received Wireless telegraph Message, from E.C. Peters, Attorney General, Honolulu, asking to have case set for June 28, continued until July 12th.
Reply was sent by Wireless the same day, granting a continuance until July 12th.
Notice of the continuance was published in the Hilo Tribune, July 3 and 10, and sent by mail to S. Kailimai, and to the applicant in person.
July 3d, p.m. Received letter from Governor Carter, requesting resignation as Commissioner of Boundaries and directing that the Records be turned over to Judge Charles F. Parsons.
July 5th delivered Record Books to Judge C.F. Parsons.
F.S. Lyman, Commissioner of Boundaries, 3d and 4th Judicial Circuits, Territory of Hawaii
Executive Chamber, Honolulu, Hawaii, July 2, 1906
F.S. Lyman, Esquire, Commissioner of Boundaries, Hilo, Hawaii
Dear Sir:
Under the authority vested in me by Section 348 of the Revised Laws, I desire your resignation as Commissioner of Boundaries for the third and fourth Judicial Circuits, to take effect upon receipt of this letter.
I also call your attention to Section 349, which requires each Commissioner of Boundaries to keep a record of his proceedings, and I will ask you to turn your records over to Judge Charles F. Parsons, taking his receipt therefore.
I am informed by the Commissioner of Public Lands that no books of your have ever been filed with him, so that I presume as a public servant you have the records of your official work in this capacity complete from your appointment through to this time, which will be turned over by you to Judge Parsons.
Very sincerely yours
G.R. Carter, Governor
(10 folio)
10 folio record of case before F.S. Lyman, Commissioner of Boundaries to July 3d, 1906 @ 25c, $2.50 due
Ku Okoa, Notices 8.50 paid
Hilo Tribune, Notices paid
[page 661]
(Copy of Commission)
Territory of Hawaii
G.R. Carter, Governor of the Territory of Hawaii, to all who shall see these presents
Greeting: Know ye, That reposing special trust and confidence in the patriotism, integrity and ability of Charles F. Parsons, Esquire, I, G.R. Carter, do appoint him Commissioner of Boundaries for the Third and Fourth Judicial Circuits, County of Hawaii, and do authorize and empower him to execute and fulfill the duties of that office according to law and to have and to hold the said office, with all the power and authorities thereto by law appertaining unto him the said Charles F. Parsons, Esquire, during the pleasure of the Governor.
In testimony whereof, I have caused these Letters made patent and the Seal of the Territory of Hawaii to be hereunto affixed.
Given under my hand at the City of Honolulu, the fifth day of July, in the year of our Lord, One thousand Nine Hundred and Six.
(Signed) G.R. Carter
(Seal of the Territory)
On Monday, July 9th 1906, Charles F. Parsons duly qualified as Commissioner of Boundaries of the Third and Fourth Judicial Circuits of the Territory of Hawaii, by taking the required oath of Office before A.L. LeBaron Gurney, Esquire, clerk of the Circuit Court of the Fourth Circuit of said Territory
Charles F. Parsons, Commissioner of Boundaries, 3rd & 4th Judicial circuits, of the Territory of Hawaii
(continued on page 664)
Kahua 2 & 3 Ahupuaa, District of Hilo, Island of Hawaii, Boundary Commission, Hawaii, Volume D, No. 5, pps 664-679
(Continued from page 661 anterior)
In the Matter of the boundaries of Sections 2 & 3 of Kahua 2nd, South Hilo, Hawaii
July 12th 1906
Cause continued until August 16th 1906 upon application of F.W. Milverton, Deputy Attorney General
Charles F. Parsons, Commissioner Boundaries 3rd & 4th Circuits
(Copy of Notice)
Notice is hereby given that the hearing of the application of the Pepeekeo Sugar Company for the settlement of certain boundaries of the Ahupuaa of Kahua 2nd, Land Commission Award 5663, situate in the District of South Hilo, Island and Territory of Hawaii, is hereby continued until Thursday, August 16th, 1906. At 10 o'clock a.m.
(Signed) Charles F. Parsons, Commissioner of boundaries, Third & Fourth Judicial Circuits, Territory of Hawaii
Hilo, Hawaii, July 12th 1906
The foregoing notice was published in English in the "Hawaii Herald" on the following named dates, viz. 1906, July 12th, 19th & 26th respectively, and in Hawaiian upon the same dates in "Ka Hoku O Hawaii."
Similar notices were deposited in the Post office at Hilo, Hawaii, postage prepaid addressed to the following named persons and corporations.
The Pepeekeo Sugar Company, Pepeekeo, Hawaii
M.S. Kailimai, Pepeekeo, Hawaii.
Hilo, Hawaii, August 16th, 1906,
Cause continued until August 25th 1906 upon application of Fred W. Milverton, deputy Attorney General, Interested Parties notified.
Charles F. Parsons, Commissioner Boundaries, 3rd & 4th Circuits.
[page 665]
Hilo, Hawaii, August 25th, 1906
Cause came on for hearing & Mr. W.G. Wise announced his appearance for one of the interested parties, Mrs. Emily P. Kinney; F.S. Lyman appearing in behalf of the Pepeekeo Sugar Company, and Fred W. Milverton, Deputy Attorney General appearing for the Government.
Mr. Lyman requested a continuance on the ground that A.B. Lobenstein [sic] was unable to testify at the time, owing to sickness. Objections raised to a continuance by Messrs Wise and Milverton. Court allows Mr. Lyman until 11 o'clock a.m. to make a proper showing for continuance. No objections.
11.20 a.m. Mr. Lyman presents and reads the following motion and affidavit.
(Copy of Motion)
F.S. Lyman, being duly sworn, says that he is acting for the Pepeekeo Sugar Company, the applicants in the above entitled cause; that due notices have been issued and published, in said matter, that A.B. Loebenstein is a material witness in the case, but is at present unable to testimony, on account of ill heath, as shown by the certificate of the Physician, Dr. C.L. Stow, hereto attached, that the only other witness who can testify to the Survey of the land in question is his son, A.D. Loebenstein, who as we are informed made the survey of the land, and he is not now in the Territory, having gone to assist the Federal authorities in making a survey of the Harbor at Guam, or at Midway island, and is expected to return here in a few days.
Inasmuch as the correctness of said survey is objected to, it is necessary to have the testimony of said A.D. Loebenstein, wherefore the applicants hereby move to continue the hearing of this matter until Saturday, the 8th day of September, or until [page 666] such other time as the court may direct & after the return of said witness to Hilo.
The Pepeekeo Sugar Company
(Signed) by F.S. Lyman, attorney
Subscribed and sworn to before me this 25th day of August 1906
Seal
(Signed) A.L. LeBaron Gurney
Clerk 4th Circuit
(Copy of Affidavit)
Hilo, Hawaii, August 25, 1906
I hereby certify that A.B. Loebenstein has been under my care for the last few weeks, that he is mentally afflicted and quite unfit to give testimony in a court of law.
(Signed) C.L. Stow, M.R.C.S. L.RCP Etc. etc.
Subscribed and sworn to before me this 25th day of August 1906
(Seal) (Signed) A.L. Le Baron Gurney
Clerk 4th Circuit Court
Objection being made by Messrs Milverton and Wise as to the form of motion and affidavit Mr. Lyman requested a continuance until 2 o'clock p.m. to further prepare himself. No objection. Request granted.
2 p.m.
Carl S. Smith's name entered as assistant consul for Pepeekeo Sugar Company
Mr. Smith presents and reads following motion for continuance and affidavits.
[page 667]
(copy of Motion for Continuance)
Comes now the Pepeekeo Sugar Company Limited, the petition in the above entitled cause and moves that the Commissioner of Boundaries herein continue the hearing of the said cause until such time as the said petitioner can obtain the necessary evidence to sustain the petition now pending herein.
This motion is based upon the records and files in this cause together with the affidavit hereto attached.
(Signed) F.S. Lyman, Attorney for Petitioner
Hilo, Hawaii, August 25th 1906
(copy of James Webster' ....
[End of Top Preview]
This document has been trimmed for your preview.
To view and download this record, add to your document tray by clicking on the button.
Add to Document Tray
[End of Preview]
.... s of Sections 2 and 3 of Kahua second to be as alleged by the petitioner by the Territory or by Emily P. Kinney.
A Preponderance of the evidence shows that the Ahupuaa of Kahua, awarded in 1852 to Kahonu, extended in a westerly direction to Huinawai, as alleged by the petitioner; but the Commissioner will not adjudge its boundary to be as claimed in the application, for the reason that the petitioner's interest therein is not disclosed by the evidence; no title having been proved, by the introduction of the deeds or otherwise to any portion of the said konohiki land. The mission is fatal, for the right to apply for certification of boundaries is conferred, by Section 353 of the Revised Laws, only upon owner's of the land, and proof of such ownership is indispensable.
The Territory has introduced kamaaina testimony, a portion of which has been discredited, tending to show that Kahua 2nd extends in a westerly direction only as far as Kananaka and that the land lying between that point and Huinawai is known as Kahua 3rd; the Territory's claim that the line runs from Kananaka to the northern boundary by [page 699] course and distance as alleged in the answer is based chiefly upon the map attached to the Pelham patent, and upon Kanakanui's testimony as to the meaning of a dotted line, show [shown] thereon beyond the limits of the land conveyed by said patent. There is nothing to show who made the map or upon what authority the words "Kananaka end of Kahua 2nd. The dotted line is not straight. Kanakanui has estimated the angle which it makes with the Pelham boundary and has calculated the distance represented by the extended line to Makea stream. Upon this and similar testimony the Commissioner is asked to fix definitely the western boundary of Kahua 2nd. The testimony is insufficient.
As to the boundaries of section 2 of Kahua second the answer of the Territory does not set forth its claims nor does the answer prove that the boundaries of said second section be established otherwise than as asked by the petitioner.
The extent to which Emily P. Kinney is interested in the boundaries of Section 2 does not appear in her answer or in the evidence. The transcript (page 420) shows that her counsel offered what purported to be a deed to his client from Mrs.[?] Jordai & about one acre of land, touched by the disputed boundaries, but this offer was withdrawn upon petitioner's admission of record that the said Emily P. Kinney had some interest in the land.
Nowhere in the pleadings or proof is there any statement of the boundaries of her own land and the court in this proceeding brought upon the application of another, will not fix for her the boundaries of the entire tract described as Section 2.
The Territory and Emily P. Kinney have filed [page 700] no briefs in the case and their specific claims, based upon the evidence, have not been made known to the Commissioner, except by inadequate oral argument at the time of the hearing.
For reasons herein above set forth the petition is dismissed without prejudice at the petitioner's costs.
Judgment in accordance with this decision will be signed when presented by counsel.
State ofHawaii, June 21 1910
(Signed)Charles F. Parsons, Commissioner of Boundaries, 4th Circuit, Territory of Hawaii
Decision of which the foregoing is a copy was filed herein June 2nd 1910
Charles F. Parsons, Commissioner of Boundaries, 4th Circuit, Territory of Hawaii
[page 701]
(Copy)
Before the Commission of Boundaries of the Fourth Judicial Circuit, Territory of Hawaii
In the Matter of the Boundary of Sections 2 and 3 of Kahua Second, District of Hawaii, upon the petition of the Pepeekeo Sugar Company, a corporation
Decree
In the above entitled cause the Petition is dismissed without prejudice at the petitioner's costs, herein taxed at $516.10 pursuant to the decision filed June 2, 1910
Dated at Hilo, June 8th, 1910
(Signed)Charles F. Parsons, Commissioner of Boundaries, 4th Circuit, Territory of Hawaii
[Margin note:] OK, Kinney, Ballon, Prosser & Anderson, Attorneys for Emily P. Kinney
Filed June 8, 1910
Decree of which the foregoing is a copy was filed herein June 8th, 1910
Charles F. Parsons, Commissioner of Boundaries, 4th Circuit, Territory of Hawaii
[page 702]
(Copy)
Before the Commission of Boundaries of the Fourth Judicial Circuit, Territory of Hawaii
In the Matter of the Boundary of Sections 2 and 3 of Kahua Second, District of Hawaii, upon the petition of the Pepeekeo Sugar Company, a corporation
Notice of Appeal and Appeal
Now comes Emily P. Kinney, one of the parties in the above entitled cause and deeming herselfaggrieved by the decision of Honorable Charles F. Parsons, Commissioner of Boundaries for the Fourth Judicial Circuit, Territory of Hawaii, made, entered and filed in said cause on the 2nd day of June, A.D. 1910, and hereby gives notice of appeal and does hereby appeal to the Supreme Court of the Territory of Hawaii from said decision and from the decree entered thereon by said Commissioner of Boundaries, dated June 8, 1910, Honolulu, June 8, 1910.
(signed) Emily P. Kinney
by Kinney, Ballon Prosser & Anderson, Her attorneys
[Margin note:] filed June 8, 1910
Notice of Appeal and Appeal of which the foregoing is a copy was filed herein June 8th, 1910.
Charles F. Parsons, Commissioner of Boundaries, 4th Circuit, Territory of Hawaii
[page 703]
Before the Commission of Boundaries of the Fourth Judicial Circuit, Territory of Hawaii
In the Matter of the Boundary of Sections 2 and 3 of Kahua Second, District of Hawaii, upon the petition of the Pepeekeo Sugar Company, a corporation
Appeal and Notice of Appeal
Now comes the Territory of Hawaii, one of the parties in the above entitled matter, deeming itself aggrieved by the decision of Honorable Charles F. Parsons, Commissioner of Boundaries for the Fourth Judicial Circuit, Territory of Hawaii, made, entered and filed in said cause on the Second day of June, A.D. 1910, and does hereby give notice of appeal to the Supreme Court of the Territory of Hawaii from the said decision and from the decree pursuant thereto made and entered June 8, 1910.
Dated at Hilo, June 8, 1910.
Territory of Hawaii
(Signed)by William B. Lymer, Deputy Attorney General
[margin note:] filed June 8, 1910
Appeal and notice of Appeal of which the foregoing is a copy was filed herein June 8th 1910.
Charles F. Parsons, Commissioner of Boundaries, 4th Circuit, Territory of Hawaii
[page 704]
Before the Commission of Boundaries of the Fourth Judicial Circuit, Territory of Hawaii
In the Matter of the Boundary of Sections 2 and 3 of Kahua Second, District of Hawaii, upon the petition of the Pepeekeo Sugar Company, a corporation
Certificate of Appeal
I hereby certify that the Territory of Hawaii has duly perfected an appeal from my decision in the above entitled matter as Commissioner of boundaries for the Fourth Judicial Circuit, Territory of Hawaii, mace, entered and filed on the 2nd[?] day of June 1910
Dated, Hilo, June 9th[?] 1910
(Signed)Charles F. Parsons, Commissioner of Boundaries, Fourth Circuit, Territory of Hawaii
[margin note:] filed June 8th 1910
Certificate of appeal of which the foregoing is a copy field June 8th 1910.
Charles F. Parsons, Commissioner of Boundaries, 4th Judicial Circuit, Territory of Hawaii
[page 705]
Before the Commission of Boundaries of the Fourth Judicial Circuit, Territory of Hawaii
In the Matter of the Boundary of Sections 2 and 3 of Kahua Second, District of Hawaii, upon the petition of the Pepeekeo Sugar Company, a corporation
Order
Costs herein are hereby taxed against the petitioner as follow:
15 days settling boundaries $150.00; Record Testimony 1350 folio 337.50;Interpreter's fees 15.00; Notice in Hilo Tribune 1.80; Notice in Hawaiian herald 6.00; Notice in Ka Hoku o Hawaii 5.75; [total] $516.75Corrected 516.10 [should be 516.05]
Let judgment issue for said amount.
(Signed)Charles F. Parsons, Commissioner of Boundaries, 4th Judicial Circuit, Territory of Hawaii
[margin note:] filed June 8th 1910
Order of which the foregoing is a copy filed herein June 8th, 1910.
Charles F. Parsons, Commissioner of Boundaries, 4th Circuit, Territory of Hawaii
[page 706]
Before the Commission of Boundaries of the Fourth Judicial Circuit, Territory of Hawaii
In the Matter of the Boundary of Sections 2 and 3 of Kahua Second, District of Hawaii, upon the petition of the Pepeekeo Sugar Company, a corporation
Stipulation
It is hereby stipulated and agreed by and between the parties hereto that the two missing exhibits in the record in the above entitled matter may be replaced in the manner following:
Applicant's Exhibit "E" (being an extension of Government Lease No. 441) shall be replaced by the Attorney General's department securing a copy of said extension of lease from the record office in Honolulu and forwarding such copy to the Honorable Charles F. parsons, Boundary commission, at Hilo, to be filed by him and forwarded to the clerk of the Supreme Court at Honolulu.
Territory's exhibit "I" (being plat of Pelam [Pelham] Grant made by witness, S.N. Kanakanui during course of trial) shall be replaced by S.N. Kanakanui re-drafting such plat, such re-drafted plat to be first submitted to Carl S. Smith, Counsel for applicant herein, and upon his approval to be delivered to Honorable Charles F. Parsons, Boundary Commission, as aforesaid, for(see next page) [page 707] filing and forwarding to the clerk of the Supreme Court in Honolulu.
Dated at Hilo, June 9th A.D. 1910
Territory of Hawaii
(signed) by William B. Lymer, Deputy Attorney General
(Signed) Carl S. S. Smith, Counsel for applicant
[margin note:] filed June 10, 1910
Stipulation of which the foregoing is a copy was filed herein June 10th, 1910.
Charles F. Parsons, Commissioner of Boundaries, 4th Circuit, Territory of Hawaii
[page 708]
Before the Commission of Boundaries of the Fourth Judicial Circuit, Territory of Hawaii
In the Matter of the Boundary of Sections 2 and 3 of Kahua Second, District of Hawaii, upon the petition of the Pepeekeo Sugar Company, a corporation
Thursday, June 9th, 1910, Hearing on Cert [Certification?] Bill, etc.
Present: Honorable Charles F. Parsons, sitting as Boundary Commissioner; Carl S. Smith, Attorney for Applicant; Wm. B. Lymer, Deputy Attorney General appearing for Territory of Hawaii
The Court: Is there any objection to the cost bill?
Mr. Smith. No objection.
The Court: If there is no objection the order will be signed as of yesterday.
Mr. Smith: No objection
(Signed & filed as of June 8th, no objection)
The Court: Is there any objection to the decree in the form presented?
Mr. Smith: that is all right. No objection.
Mr. Lymer argued to submit written stipulation in re two exhibits missing from files (See pages 706-707)
[page 709)
Counsel agree that the record shall be forwarded to Supreme Court by steamer of Friday June 17th.
C.F.P. The Court:: Is there any objection to the originals being sent instead of copies to the Supreme Court.
Mr. Lymer: no objection whatever.
Hilo, Hawaii, April 22nd 1911
In the Matter of the Boundary of Sections 2 and 3 of Kahua Second
Five Hundred and Sixteen and 10/100 Dollars ($516.10) Costs in full in the above entitled matter paid by Carl S. Smith, attorney for the Pepeekeo Sugar Company, Petitioner
Charles F. Parsons, Commissioner of Boundaries
Hilo, April 24th 1911
Honorable Walter F. Frear, Governor of the Territory of Hawaii, Honolulu, Hawaii
Dear Sir:
I herewith tender my resignation as Commissioner of Boundaries of the Fourth Judicial Circuit of the Territory of Hawaii
Respectfully
(Signed) Charles F. Parsons
a true copy, Charles F. Parsons, Commissioner of Boundaries, 4th Circuit, Territory of Hawaii
[No. 191, Kahua 2 Ahupuaa, District of Hilo, Island of Hawaii, Boundary Commission, (portion to Pepeekeo) 1110 acres, 1911]