Waihona Aina

Keahialaka Ahupuaa, District of Puna, Island of Hawaii, Boundary Commission, Hawaii, Volume A, No. 1, pps. 175-181

The Ahupuaa of Keahialaka, District of Puna, Island of Hawaii, 3d Judicial Circuit

On this, the 2d day of June A.D. 1873, the Boundary Commissioner met at Court House, Hilo, Island of Hawaii, after due notice of the hearing of the application of C.R. Bishop for the settlement of the boundaries of Keahialaka in Puna by advertisement in the Hawaiian Gazette of May 7th 1873, and Kuokoa of May [left blank] 1873, and notice personally served on owners of adjoining lands, as far as known, for the hearing on this day.

Present: G.W. Akao for Honorable C.R. Bishop, W.P. Ragsdale for Crown Commission and estate of M. Kekuanaoa and others, Kealia Hookano Naeole for Hawaiian Government.

Royal Patent No. 2094 of portion of Malama, Ki and Kaukulau, for this evidence see a portion of boundaries and survey of Kapoho, filed for boundaries of Kapoho.
 
Petition read as follows

Honolulu, April 26th 1873

(Copy) R.A. Lyman, Esquire, Commissioner of Boundaries for Hawaii &c &c., Hilo

Dear Sir: Your letter of 14th instant was received this morning and in answer to your suggestion about settlement of the boundaries of His Majesty's lands in Hilo and Puna, I now apply in his behalf to you to settle and define the boundaries of the following named lands, viz.

Makahanaloa and Pepekeo in Hilo. They are bounded on the North by Kaupakuea belonging to Afong & Achuck and Hakalau belonging to W.L. Green, on the South by Piihonua belonging to the Crown, Papaiko [Papaikou] belonging to D.H. Hitchcock, E.G. Hitchcock & C.A. Castle; Onomea belonging to S.L. Austin; Kawainui belonging to the Hawaiian Government. [page 176]; Mauka by Humuula belonging to the Crown and makai by the sea.

Keaau in Hilo and Puna. This land is bounded on the east by Waiakea and Olaa, belonging to the Crown, on the west and mauka by Waikahekahe, belonging to Kaea wahine, and Kahaualea, belonging to the King and makai by the sea.

Keahialaka in Puna, Hawaii. This land is bounded on the North by Kapoho belonging to C. Kanaina, and Pohoiki, belonging to the Government, on the South by Malawa and Kaukulau, belonging to the Government and makai by the sea.

Honuapu, Kau, Hawaii, This land is bounded on the North by Kionaa belonging to the Government, and on the South by Kioloku, also belonging to the Government and makai by the sea.

Pakiniiki in Kau, Hawaii. This land is bounded on the West by Pakini nui belonging to Estate of M. Kekuanaoa, on the east by Keaa, belonging to the Government and by Kainaoa, belonging to R. Keelikolani, and makai by the sea.

Maps and notes of survey of each of these five lands, are enclosed herewith.

If any of my descriptions of adjoining lands or ownership are incorrect, please correct them.

If you should not have time to give the necessary notices, according to law, so as to have the settlement attended to while Mr. Judd is with you, you will please employ some suitable person to attend and protect the rights of His Majesty. Of course, all must be done according to law, so that it will stand forever.
Very truly Yours,
C.R. Bishop, Acting for the King
[page 177]

Testimony
Owiholu, kane, sworn, I was born at Keahialaka at the time of Ku o ka wai oka Lae, in Puna, Hawaii. Have always lived on said land and Pualaa. Am a kamaaina of the former. My father, Nohinohinu, showed me boundaries. It was at a time of famine, and we went into nahelehele to collect food, and it was then he showed them to me so as to keep me from trespassing on other lands, for if we were caught on other lands the people of that land took our food away from us. Kaukulau is the land on the southern boundary. It is at a place called Pokea, an old canoe landing; the boundary is a few rods on the south side; thence the line between these lands runs to a wall built by prisoners for Mr. Coneys. The boundary between Keahialaka and Kaukulau runs to Kalehuapaaeea, a mound in nahelehele and uluhala; thence to wall which is the mauka end of Kaukulau, and where Ki joins Keahialaka; thence mauka to Komo in uluhala - an oioina on old cultivating ground, where Malama cuts Ki off; there the boundary between Keahialaka and Malama runs to Puulena, a crater, passing the makai side toward Kau to Kanunu [Kamimi?], where the old road used to be in the ohia woods, thence to Kilohano. Malama ends at the crater and Kaaula joins Keahialaka there, and from thence these two lands run side and side to Kilohano, an oioina on the pahoehoe in the woods. Kilohano is a low[?] hill. Waikahina cuts off Keahialaka at Kilohano, and Kapoho joins said pl land Popolanahi, and old pahoehoe field where old road to Hilo used to go; thence the boundary between Kapoho and Keahialaka runs mauka to Papakoi, a pali covered with lava, on Kapoho, Keahialaka is at the foot of the pali. Thence makai to place called Punanaio where houses used to be and a cultivating ground was at the mauka side of it. Here Kapoho leaves Keahialaka and Pohoike joins and bounds it to the shore, ending at the pali on the Kau side of Pohoike landing, the beach and the cave belonging to Pohoike and said land belongs to King Lunalilo. I did not see Keahialaka survey. The land has ancient fishing rights.
[page 178]
Cross-examined

Kapai owns land on Kaukulau; thence to Keai's, Mrs. J.H. Coney 1st; thence to Naholo on Malama; thence to Mauu and Kamakau land; thence to Kalei (Kanoono) land; thence to Kaanalie's estate and thence to Kamakau ma.

Kamilo, kane, sworn, I was born at Keahialaka, at time of Aikapu. Am a kamaaina of said land and know the boundaries. My parents, now dead, showed them to me, and their parents showed them, as we lived on Keahialaka we could not go onto other lands, for if we did the people belonging to them would take our things away from us. 

The boundary between Keahialaka and Kaukulau is on the southern side of the landing called Pookea; thence run mauka to Kalehuapaee[?] a resting place on the old road that runs mauka; there Ki cuts Kaupulau off and bounds Keahialaka to Komo; here Malama cuts Ki off and runs side and side with Keahialaka to a big pit called Puulena, near a hill called Kapahuuai, the pit is on the makai side of the hill.

Kalehuapaee is a place on the pahoehoe; Coney's wall now runs there; Komo is a place where kukui and lauhala grow. The wall runs to Komo on the boundary, from Puulena the boundary runs to Pohakuhele, junction of Kauaea and Keahialaka, near hill of Kaloi[?]; thence mauka along Kauaea  to a place called Kilohano, on the pahoehoe where we used to have houses. Waikahiula joins Kauaea at this point and cuts off Keahialaka; thence Waikahiula and Keahialaka are side and side, the boundary running makai to Kaanamanu, on pahoehoe; thence along Kapoho to Puuananaio[?] (woods being on Kapoho), the mauka boundary of Pohoike; thence the land of Pohoike bounds Keahialaka to the sea. Tall ohia trees and kipuka pili on old cultivating ground are at Punanamaio; thence along Pohoike to grove of ohia trees. Kaumaumahooho on Keahialaka; thence makai to lae Hala called Kukuikuki, the middle of grove; thence makai to Government road to Keahupuaa the pali; cracks &c on the brow of the pali; thence to sea shore, to point called Paukaha on the [page 179] Puna side of Lae aka Huna on Puna side of Pohoike harbor. The land had ancient fishing rights extending out to sea.

I and Kapela, kane, now dead, pointed out the boundaries when the land was surveyed. The Haole surveyed the land as we pointed it out, did not go quite to the Mauka corner. We built piles of stones at some corners and Kapela marked some of the trees.
Cross-examined

There is a large rock called Pohakuhili - we went in sight of this rock, but did not go to it. The Haole sighted to it from the top of kahuwai [Kapuwai?] from which place we also sighted to Kilohano.

Kamilo, kane, Cross-examined
Kapapalanahi is on Keahialaka, the aa is on Kapoho, the pahoehoe on Keahaialaka. We chained across the land at Punananaio and some places below there, but not above.

Kaapaawahine, kane, sworn, I was born during the reign of Kamehameha I at the time of the making of unuke laau, at Keahialaka, Puna, Hawaii; Know the boundaries of said place. My father, Kapolani, now dead, pointed them out to me. Keahialaka is on the Kau side of Pohokea on the pahoehoe; thence mauka along Kaukulau, to Keheapau, at which place Ki cuts off cuts the land of Kaukulau off; thence along the land of Ki and Coney's wall to Komo where Malama cuts Ki off - in a lauhala grove; thence the boundary follows along Malama to Puulena, large pits or craters, on the makai side of said craters there is a hill called Kapuwai, a short distance from Puulena; thence to Kamimi [Kanunu?] on Keahialaka; thence to Kapahulu where Kauaea joins and from thence to Kilohano where Waikahiula cuts off the land of Keahialaka. Kilohano is a high mound or hill of rocks, thence Kahialaka turns makai along Waikahiaula; Kanehiku, an ili of Kapoho comes in here and Kapoho takes the woods and Keahialaka the pahoehoe, to Papalanahi where the old road from Keahialaka to Hilo [page 180] crosses into Kapoho, thence down to Kapakoi pali, the hill Honuaula being on top of the pali, Keahialaka comes to foot of this pali which is on Kapoho; thence makai to Punananaio where Pohoike joins Keahialaka and bounds it to the sea.

Thence makai to place called Kaahupuaa, an ahua, near the road; Keahialaka is on top of the ahua and Pohoike on the Hilo side of it. A point on the Hilo side of Pohoike awa named Kahuna is the boundary between these two lands.
Cross-examined

G.W. Akao Hapai, asked for an adjournment to Kapoho, Puna, as there are more witnesses to boundaries of Keahialaka.
Case adjourned to Kapoho, July 10th 1873
R.A. Lyman, Commissioner of Boundaries, 3d Judicial Circuit

Kapoho, July 16th 1873
Case came on to be heard, from adjournment of the 10th instant according to Public notice.

Present: T.E. Elderts, J.W. Kumahoa & others.

Pilopilo, kane, sworn, I was born at Kaukalu, Puna, Hawaii at time of Kiholo, and have always lived near here; know the land called Keahialaka and the boundary between there and Kauaea. Aoenoeula pointed out the boundaries to me, as it was kapu for us to take yams &c from Kauaea; Keahialaka and Kauaea join at Pakepakee, a small hill; thence follow up old road to Kamimi, thence to Kahoano, a oioina, on the pahoehoe with small ohia trees; thence to Laupapai, Waikahiula joins Keahialaka at this place & cuts it off; I do not know anything about the other boundaries; do not know where Kaoho joins Keahialaka.
Cross-examined
[page 181]
Piena, kane, sworn, I was born at Keahialaka, Puna, Hawaii at the time the Russians came to Kauai, and have lived there most of my life. Am kamaaina of the lands and know some of the boundaries near where I live.

Kahina is the boundary at shore between Keahialaka and Pohoike; this place is a rocky point; thence to a lai ulu lauhala kukui kukii; thence mauka in ohia woods to a small pali called Pokole; Keahialaka on the brow and Pohoike at the base; it is not very high; an ahua aa wale no.

Thence to lae aa he aapoho. Kaumaumahoohoo in a grove of ohia called Mokuola; thence the boundary runs mauka to old kauhale Kalanihale; thence along the old road to lua wai Kamahuwai; thence to Ohiahuli, a grove of ohia trees; thence to Punanaio, a lae ohia and pili &c. where Kapoho and Keahialaka join, cutting off Pohoike; thence the boundary between Kapoho and Keahialaka runs mauka to pali ahua Pakai. I have never been there or had this boundary pointed out to me; have only been told about it. I have been on the old road to Makuu, and was told Papalanahi was the boundary between these two lands; the aa being on Kapoho and the pahoehoe on Keahialaka. I have heard that Kananianu is on Kapoho and the pahoehoe is Keahialaka. The trees on Kapoho mauka of the old road to Malama; Laupapai is the boundary where Waikahiula cuts these lands off. Ohiakihili is covered up with the lava flow.
Cross-examined

Puulena is the boundary between Malama and Keahialaka, the lua and part of pali is on Keahi. Pohakuhili is near Pakepakee, and is boundary between Malama mauka corner, and boundary between Kauaea and Keahialaka; the hill of Kaliu is on Kauaea near Pohakuhili.
Cross-examined

Case continued until further notice to all parties interested.
R.A. Lyman, Commissioner of boundaries, 3d Judicial Circuit

See Book D 5, folio 39.
Costs Paid to date September 1, 1874
2 days hearing 20.-; traveling expenses to Puna 5.-; 23 folio testimony $.75 = $30.75


Keahialaka Ahupuaa, District of Puna, Island of Hawaii, Boundary Commission, Hawaii, Volume D, No. 5, pps. 20-21

Honolulu, Office of Government Lands
May 21st 1885
Mr. F.S. Lyman, Boundary Commissioner
Dear Sir:
I send herewith sketch pertaining to the lands of Keahialaka and Puua in Puna. Probably you already have all the information embodied in the sketch: if not it may be useful to you in settling Boundaries or making survey. As you are well acquainted with the locality and as the boundaries are to a large extent already settled, I do not see any necessity for the Government to be specially [page 21] represented, but rely on your good judgment for a correct settlement.

The sketch herewith, shows roughly the lines of Sleeper's Survey of 1850.

On the Pohoiki side I think Emerson's survey of the grant line the proper boundary. Above that you will be the judge.

As to Puua, one side being already settled by boundary Certificates I have only to say that if there be any strips of Government land of appreciable width, as for instance along Kaaiawaawa, I think they should not be included in Puua, but the line of Puua should be the actual boundary rather than that of the Grants.
Yours truly,
(Signed) J.F. Brown


Keahialaka Ahupuaa, District of Puna, Island of Hawaii, Boundary Commission, Hawaii, Volume D, No. 5, pps. 39-40

In Re Land of Keahialaka, District of Puna, Hawaii

See Book A, Folio 175-181.

The Boundary Commission met at the Court House, Pohoiki, Puna, Hawaii, June 6th 1885, according to Notice in the Hawaiian Gazette and Kuokoa of May 1885.

Present: R. Rycroft, J.E. Elderts, J.M. Kauwila, E. Kekoa, I.M. Naeole, and others.

Evidence
Piiana, kane, sworn (The evidence taken A.D. 1873 is read to witness, who confirms it, and repeated it over), I do not know much about the boundary on the South side of the land. I have not been on the Kaimu and Hilo road. When young I used to go up from here to the volcano, with my parents for sandalwood. Keahialaka joins Waiakahiula at the mauka end. I forget the name of the place. Puulena is on Keahialaka, and Malama is below the hill, and the boundary runs up to Kauaea. I have heard the boundary described, but do not know certainly; I have not been there. Kaukulau joins Keahaialaka at the sea shore. It is a government land, at a place called Loli, up along Kaukulau to a place called "Pohoiki," along the pahoehoe to "Holua," a pali, and on to "Kalehuapaee," and oioina "Kakapuhi," then along Malama to "Pahee" on Keahialaka, the road being the boundary, to ohia woods called "Pukakoolau," and on to Puulena. The old boundary makai was marked by a stone wall, partly broken down now. The land of Kaanehe ma joins Keahialaka. On the way up to the Volcano is pahoehoe where we travel, and aa also.

I.W. Kumahoa, sworn, When I was a boy I went with my parents, Nuhi, my father, who was a kamaaina here, for canoe sticks and trimmings. I was born and brought up on Kapoho, or Kaniahiku, What Piiena has said about the lower boundaries of Keahialaka, are correct. "Pakoi" is on Kapoho, and on the South side of that place is Keahialaka, and the boundary runs [page 40] along the edge of the pahoehoe which belongs to Keahialaka, and the trees to Kapoho, to "Kilohana" at the road from Kaimu to Hilo, there the land Kauaea cuts off Keahialaka. I asked my father what land the woods to the South of that belonged, and he said to Keahialaka; it is called "Kamimi," and at the oioina on Kaimu road is the mauka corner of the land on the South side. I do not remember the name of the oioina, but I think I could point it out, if it is not covered by the lava of 1840. I have not been there since then.

At the sea shore, "Loli" is the boundary between Keahialaka and Kaukulau, a rocky point in the sea. The boundary runs up to the Kapai Grant which joins Keahialaka, and along Grants to Kaanehe ma, Naholo ma & Hamakau; then along in the woods to the land of Makua, and along Makua's land; thence along the Kanono land to the pali. On top  of the pali is Keahialaka, and below is Malama, towards Kau, and from there on I do not know until we come to "Kamimi." I think I could point out all these places, but what are covered by the lava flow of 1840.

There is plenty of timber on the upper part of Keahialaka, and aa poho. "Kahuwai" is a hill below Puulena. Kapoho and Kaniahiku join Keahialaka at the mauka boundary to Kauaea. The Konohiki part of Kapoho joins it above "Puuoahana," which is in Kapoho. Kanamano is the boundary outside of that. Kapoho Konohiki and Kamahiku run up together to the Kaimu road, the konohiki part joining Kehaialaka. Waiakahiula does not join Keahialaka.

To be finished when a new survey is completed.
F.S. Lyman, commissioner of Boundaries
See Folio 99 of this book.


Keahialaka Ahupuaa, District of Puna, Island of Hawaii, Boundary Commission, Hawaii, Volume D, No. 5, pps. 99-204

The Ahupuaa of Keahialaka, District of Puna, Island of Hawaii

Commenced June 23d A.D. 1873

See Book A, 1, folio 175, 176, 177, 178, 179, 180 & 181 and folio 39 & 40 of this Book D, No. 5

Hilo, December 14th, 1896
Commission of Land Boundaries 3d & 4th Judicial Circuit, Island of Hawaii, Hawaiian Islands met at court House, South Hilo, Hawaii, after due notice of hearing published in Hawaiian Gazettes of November 17th, November 25th and December 1, 1896, and Kuokoa Hawaiian paper November 20, November 27th and December 4th, 1896.

Present: R. Rycroft and attorneys S.K. Wilder & F.S. Lyman for the Petitioner; J.F. Brown, Government Commissioner & Land Agent Hawaiian Islands, Hitchcock & Wise, Attorneys, and A.B. Loebenstein, Government Land Surveyor on part of Republic of Hawaii;

D.H. Hitchcock, attorney for Hawaiian government objected to any hearing in re Boundaries - Keahialaka, until a regular application for the settlement of the Boundaries is filed under Act 14, laws Provisisonal Government 1894, Republic of Hawaii.

J.F. Brown, The Government Commissioner & Land Agent was at Hilo in November 1896 and came before Commissioner of Boundaries, with R. Rycroft on or about November 6th 1896, and agreed that Commissioner of Boundaries should have a hearing for the Final Settlement of the boundaries of the Ahupuaa of Keahialaka, hearing to be at South Hilo on Monday, December 14th 1896. And on Monday, November 9, 1806 the commissioner of Boundaries wrote out notices for Hawaiian Gazette & Kuokoa, and dated them November 10, 1896, and forwarded notices for publication.

Ruled that letter of R. Rycroft to R.A. Lyman asking what to do to get boundaries settled up is not an application filed under Act 14 laws of 1894.

The question is whether boundaries can [page 100] be settled under old applications, and go on and settle up unfinished lands, or whether new applications must be filed, under the New law, and commence everything over, on every land that the boundaries were not settled before the time of Boundary Commission expired on August 23, 1894. Commissioner pointed out Section 11, Act 14, 1894.

Commission of Boundaries took recess on account of its being noon.

Hilo, December 14th 1896
Afternoon
The Commission of Boundaries 3d & 4th Judicial Circuits Hawaiian Islands, met at Court House, South Hilo, Hawaii.

G.K. Wilder, attorney for R. Rycroft asks to have a rehearing, claims that all applications filed previous to expiration of time allowed for filing applications for settlement of boundaries by the Law of June 22d 1868 have always[s] been, and have to be treated as unfinished, to be acted on by New Commissioner.

That the application for the settlement of Boundaries of Ahupuaa of Keahialaka was made in April 1873, under law of June 22d 1868, and that the five years allowed by law of 1868 for filing applications for settlement of boundaries expired August 23d 1874, but was extended by Act July 13, 1874, and again extended to 1886, and again extended August 7, 1888 to August 1892 by Act.  August 7th 1888 again extended to August 1892, and again extended to August 23d 1894, Act 14. The present law for Commission of Boundaries was passed and there was no Commission of Boundaries or Commissioner of Boundaries from August 23d 1894 until the present Commissioner of Boundaries was appointed under Act 14, 1894.

Reads Section 11 of Act 14, 1894.
"All applications on file with any Commissioner appointed under the Act to Facilitate the Settlement of Boundaries, approved on the 22d day of June 1868 and all records in the possession of any said Commissioner shall be immediately transferred to the [page 101] Commissioner having jurisdiction under this act."

Attorney for R. Rycroft claims that all applications on file under laws of 1868, and later laws, are in the Jurisdiction of present Commissioner of boundaries, and can be acted on by him, and carried on to completion, and that all evidence taken before present time, by Commissioner of Boundaries, can be used by present Commissioner, in making the final settlement of Boundaries of land.

Also that the original Petition can not be attached at present time, as being incomplete, as all parties accepted the Petition, and attended all the hearings held under that Petition; Also claims that the Notices published for this hearing today, is only for a continuation of the old hearings, and for final hearing of evidence.

Hitchcock & Wise, attorneys for Government.
Claim that notices are not correct, as they are under law of 1894, and not under law of 1868; that law has not been complied with, in giving notice to the owners of the adjoining lands of the time of this hearing; that the law provides how notice must be given: That notice must be published in Newspapers in English and Hawaiian language for three weeks, and these notices have been published three times in English in the Hawaiian Gazette, and that is not a publication of Notices for three weeks. That in the Hawaiian Gazette it is published as under Act 14, 1896, which is incorrect, and in Hawaiian in Kuokoa three times as under Act 14, 1894;

Note: Hitchcock & Wise admit that the Notice in English giving it as under Act 14, 1896, is a clerical error, as it is published correctly in Hawaiian.

Attorneys also claim that law for settlemen[t] of Boundaries ended August 23d 1894, and that from that time until October 27, 1894, there was no law for the settlement of Boundaries, until new law went into effect, and present Commissioner of Boundaries was appointed.; That section 11, Act 1894 does not apply to this case; That all old applications under Law of 1868 and all records kept by former commissioners of Boundaries, were to be given to Commissioner of Boundaries having jurisdiction under Act 14, 1894, to be used merely for refrence [sic] when new applications for settlement of Boundaries were filed under present law. That the boundaries that were being settled under applications filed [page 102] under the old laws, can not be taken up as unfinished business by present Commissioner of Boundaries, and completed under the old application, but New applications must be filed.

Another question is whether the Commissioner of Boundaries is eligible to settle Boundaries of this land, when he owns the adjoining land of Kapoho, and rents land of Kauaea. The attorneys' briefs are by Agreement to be filed this evening.

J.F. Brown, Commissioner for Public lands, states that he intends to introduce as evidence a certified copy of deed from Trustees under Will of William C. Lunalilo to Robert Rycroft, to show that Robert Rycroft purchased only 1277 acres, according to meets [sic metes] and bounds as given in the survey of J.H. Sleeper, and so that Trustees under the Will of William C. Lunalilo, might be interested in the hearing and asked him to act for them, and that he declined to act for them, and that the Commissioner of Boundaries might not be willing to Act in this matter, as the Trustees under the Will of William C. Lunalilo are not represented at this hearing.

Briefs of Petitioner filed by G.K. Wilder, Attorney, and marked Exhibit for Petitioner 1.

Hitchcock & Wise, attorneys for Republic of Hawaii filed Brief marked Government Exhibit 1.

Decision reserved until 9 a.m. December 15th 1896.

Petitioner's brief, Petitioner Exhibit 1
"In the matter of the settlement of the boundaries of Keahialaka, Puna, Hawaii.
Point claimed by petitioner in re present hearing
1.    In this matter the original petition was filed May 1873 within the time limited by the act of 1868.
2.    Petitioner claims that under section 11 of the Act of 1894 the present proceeding may be heard under the original petition.
3.    Although several periods of time have occurred since the passage of the act of 1868, during which no Boundary Commission has existed, to wit, 1886 to 1888, 1892 and in [page 103] 1894, still each act has specifically concurred jurisdiction on each succeeding commission over pending matters, such as the matter in question.
4.    Original petition not being objected to at the time, and proceedings being held under the same, cannot now be attached.
5.    Notice under original petition must be presumed to have been accordance with law.
6.    Present notice must be considered as notice simply of rehearing.
7.    Commissioner is not disqualified by reason of fact that he is owner of lands adjacent, which he holds under lease or by purchase; when boundaries of said lands are already settled.
8.    Published notice is sufficient to all parties concerned.
9.    Lunalilo Estate have had notice, as evidenced by fact that Trustees requested Mr. J.F. Brown to act for them in the present proceedings.
Respectfully Submitted, Gardiner K. Wilder, Attorney for Petition

Brief for Republic of Hawaii, Government Exhibit 1.
"In the matter of the settlement of the boundaries of Keahialaka, Puna, Hawaii;["]
Points claimed by the Government as against the present hearing on the record as it now stands:
1st  The Petition filed in 1873, as well as all proceedings had under it, became and are invalid in this present case because of the interval in the year 1886-1888 and again in September and October 1894 when there was no such office or officer as Commissioner of Land Boundaries, The law having expired by reason of its own limitation.
2d  The pretended or attempted application on the part of petitioner for a settlement of the boundaries of his lands and the notice published thereunder show that petitioner Rycroft had abandoned the idea of proceeding to final decision of the Commissioner under the 1873 application.
3d  Section 11 of the Act of 1895, page 31, et seg. = [sic-] is clearly inoperative since, as we have shown, there was no such office or officer in existence at that time; The law under which such had existed, having expired.
4th  The pretended petition and notices are not sufficient [page 104] in that they do not give the names of adjacent lands and land owners.
5th  the present Honorable Commissioner of Boundaries admits that he is agent for the owners of, or otherwise interested in adjacent lands, which admission most certainly disqualifies him to sit in judgment in this cause
6th  Counsel for petitioner contends that each of the several "Boundary Commissioner" Acts have confered [sic] jurisdiction on appointees thereunder, of the unfinished business of the last preceding Commissioner even though such predecessors Term of office expired by reason of the expiration of the law by its own limitation. This we contend cannot be the case. The Theory would be true were the law amended or continued by Legislative enactment prior to its termination by limitation as was done with an Act relative to this same matter in 1888, and again in 1892. Where the source ceased to exist, necessarily that which came into existence by reason of it and depends upon it for its existence, must cease to exist.
7th  The Notice being one of the necessary and vital requirements of the law upon which a valid and binding decision could be reached, or based, is a necessary part of the record, and will not be presumed to have been given in accordance with law.
8th  We submit to counsels 6th point in his argument viz.: "Present notice must be considered as notice simply of rehearing" and upon it ask and confidently expect that the Honorable Commissioner of Boundaries will stay further proceedings herein.
9th  The required notice has not been given; it appearing that the notice has been published in three successive weekly publications of a newspaper, which in law is not three weeks notice, being in fact but fifteen days.
10th  Section 2 of the Act herein referred to, provides that "Any person may file an application with the Commissioner &c &c" There is no place a provision for him to take up a predecessor's unfinished work, for very certainly he had no predecessor.
Respectfully Submitted, Hitchcock & Wise, Attorneys for Respondent

[page 105]
Hilo, Hawaii, December 15th 1896
Commission of Boundaries for 3d and 4th Judicial Circuits met at Court House, South Hilo, Hawaii, according to adjournment from the 14th instant.

Present: R. Rycroft and Attorneys G.K. Wilder & F.S. Lyman on the part of the Petitioner; J.F. Brown, A.B. Loebenstien, Mr. W.S. Wise on part of Republic of Hawaii, also Captain J.E. Elderts

Commissioner of Boundaries read his decision as to having the hearing In re Boundaries of Ahupuaa of Keahialaka under the Application filed in 1873.
Decision
Hilo, December 15th 1896
"In the matter of the settlement of the boundaries of the Ahupuaa of Keahialaka, District of Puna, Hawaii, 4th Judicial Circuit, Hawaiian Islands["]
Ruling
1.    The law first creating Office of Commissioner of Land Boundaries was approved August 23d, 1862, making the Commission of Land Boundaries to consist of two persons for each Gubernatorial District, for five years for passage of Act, and time for filing applications four years from passage of act, July 27th 1866, Section 1, extended time of Commission of Land Boundaries until August 23d 1872, and time for filing applications for settlement of Boundaries until August 23d 1870.

Section 2d of this Act made the First Associate Judge of the Supreme Court the sole Commissioner of Land Boundaries for the Hawaiian Islands, in place of Commissioners of Boundaries appointed under Act approved August 23d 1862.

Section 5 of Act of 1866, directs that "Ona palapala hoopiiapau e waiho nei me na Komisina i hookohuia malalo o ke kanawai o ka la 23 o Aukake, M.H. 1862, a o na buke moolelo apau e waiho nei me lakou mahope o ka hooholoia ana o keia kananwai, e hoihoiia ae e lakou i ke Komisina hookahi e hookohuia nei."

Reads in English about as follows: All applications on file with the Commissioners appointed under the Act approved August 23d 1862, and all records in the possession of said Commissioners, at the time of the passage of this Act shall be transferred to the sole commissioner appointed by this act.

The Act approved June 22d 1868, extended the term of the continuance of Commission of Boundaries to twenty-third day of August 1874, and was again extended to August 23d 1880 by an act approved July 13th 1874, and again extended to August 23d 1886, by an amendment, Chapter 44, laws 1880.

Section 4 of Act approved June 22d 1868, extended the time for the [page 106] owners of Ahupuaa, Ili aina, &c, &c, to file applications for settlement of Boundaries to August 23d A.D. 1872.  Section 13 of said Act provides that "All applications on file with the commissioner appointed under the Act to ammend [sic] the law relating to Commission of Boundaries, approved the 27th day of July A.D. 1866, and all records in the possession of the said commissioner under said Act, at the time of his decease, shall immediately after the passage of this Act, be transfered [sic] to the commissioner having Jurisdiction under this Act."

The time of This Act of August 23d 1862, as ammended [sic] by Act approved June 22d 1868, and by Act approved July 13th 1874, and by Chapter 44, approved August 13th 1880, having expired August 23d 1886, was re-enacted by chapter 40 approved August 7th 1888, after a period of two years during which there was no Commission of Boundaries or Commissioner of Boundaries, as the law had expired, and said re-enactment of law for Commission of Boundaries reads "and the term during which such Commission shall continue to act is hereby extended until August 23d 1892."

And by act approved November 17th 1892, Chapter 53, the Act of 1862 as ammended [sic] by act of 1868, and extended to 23d day of August 1892, by Chapter 40, approved 7th day of August 1888, "is hereby re-enacted, and the term during which such Commissioners shall continue to act is hereby extended to August 23d 1894."

On the 27th day of October 1894, act 14 of the Republic of Hawaii was approved, authorising the President of the Republic with the approval of the Cabinet to appoint one or more Commissioners of Boundaries, &c.

Section 11 of said Act provides "All applications on file with any Commissioner appointed under the Act to Facilitate the settlement of Boundaries approved on the 22d day of June 1868 and all records in the possession of any said Commissioner, shall be immediately transfered [sic] to the Commissioner having Jurisdiction under this Act."

Under law of 1866 July 27, all applications on file with the commission appointed under law of August 23d 1862 were passed with records to the Sole commission of Boundaries, and the law approved July 27th 1868, directs that all applications on file with Commissioner appointed under Act of July 27, 1866 and records in possession of Commissioner at time of his decease, were to be passed to Commissioners under law of 1868 to be acted on, and unfinished [page 107] applications were to be brought up for settlement and Boundaries be decided, without forcing land Owners to file new applications for settlement of boundaries of their lands, and be at the expense of new hearings to take evidence, that had already been taken under applications before Commissioners of Boundaries under former laws.

Act 14 of the Republic of Hawaii approved October 24th 1894, is virtually a re-enactment of former laws in refrence to the settlement of Boundaries in all its principal points, and this law Act 14 Relating to the settlement of Boundaries of Lands, and providing for the appointment of Commissioner of Boundaries, and to define their duties, was intended for relief of parties holding Lands under Awards or Royal Patents by name only, so that they could get their Land Boundaries defined by survey and obtain Royal [crossed out?] Patents for their lands, with metes and bounds described by survey, in the same way as the first law creating Commission of Boundaries was enacted so that land owners holding Land Commission Awards or Royal Patents by name only, could obtain royal patents having boundaries of lands described in them by survey, and the time of Commission of Boundaries was extended and re-enacted from time to time, after the Commission of Boundaries had expired to give relief to Land Owners;

And I am of the opinion that Section 11 of act 14, laws 1894 clearly recognizes the fact that there were a large number of lands with their boundaries unsettled, for which proper applications had been filed under former laws, and on which hearing had been held at different times by different Commissioners of Boundaries, on some of which the Boundaries had been decided, and were waiting for notes of survey in accordance with the decisions given to be filed so that the certificate of Boundaries could be issued, and through the death of the owners of the lands, and lands changing ownership, the surveys had not been made and in other cases preliminary decisions had not been given, and for various causes the owners of lands had not proceeded to get land boundaries completely settled; and that said Section 11 was put into this Act, so that "all applications on file with any Commissioner appointed under the Act to Facilitate the Settlement of Boundaries approved on the 22d day of June 1868, and all records in the possession of any said Commissioner, shall be immediately [page 108] transferred to the Commissioner having jurisdiction under this Act"

In my opinion, so that Commissioners of Boundaries having jurisdiction under this Act, could go on and finish up uncompleted business, under the original applications, without forcing everyone to file new applications, and commence anew, in matters that were almost completed, at the expiration of the old lay August 23d, 1894.

In the same manner that when a Judge's term of Office ends, in a Court of Record, he or the Clerk of Court holds the old Petitions and records, until a Judge is appointed, who has jurisdiction over those matters, then the Court goes on and finished up business, that has been commenced before a former Judge.

The original Petition was not attached at time of first hearing, or at time of hearing before F.S. Lyman, Commissioner of Boundaries at Pohoiki, Puna, Hawaii, June 6th 1885, after notice of the time and place of hearing had been published in Hawaiian Gazette and Kuokoa during month of May 1885.

The Record shows that for first hearing on June 2d 1873, notice was personally served on the owners of adjoining lands, as far as known, and also published in English, Hawaiian Gazette, and in Hawaiian in Kuokoa, That the Hawaiian Government had a party to represent them at those hearings; and that the hearings were continued by adjournment; Also that Notice of the hearing June 6th 1885, was published in May 1885, in Hawaiian Gazette and Kuokoa, and continued for new survey to be finished.

It has been held by the Supreme Court That this is a question of Boundaries, which is a proceeding in rem, the Deft. [definition?] is estopped. It differs from an ordinary case in law or equity 4th Hawaiian Repts, folio 627, Ruth Keelikolani vs Trustees under the Will of William C. Lunalilo (or Lunalilo Trustees).

"the Statute does not point out how parties shall be notified, or proof of notification made or recorded." Over twenty-three years have elapsed since first hearing, and over eleven years since last hearing, and Government is now too late in attacking original Petition. R. Rycroft, the reputed owner and occupier of Ahupuaa of Keahialaka, and J.F. Brown, the Government Land Commissioner and Agent came before the Commissioner of Boundaries for 3d and 4th Judicial Circuit at Court House in South Hilo, November 5th or 6th 1896, and verbally agreed that a hearing [page 109] for the Final settlement of the Boundaries of the Ahupuaa of Keahialaka, Puna, Hawaii, should be set for Monday December 14th 1896, and that all the evidence taken at the former hearings for settlement of boundaries of lands joining Keahialaka, or supposed to join Keahialaka, should be introduced at the new hearing, in addition to evidence taken at former hearings for settlement of Boundaries of Keahialaka.

Mr. J.F. Brown, Government Commissioner Land Agent &c, further stated that no further notice of time of hearing would need to be served on him as Government Commission & Land Agent.

Mr. R. Rycroft & Mr. J.F. Brown failed to agree to submit the boundaries to the Commissioner of Boundaries, for him to give him decision on evidence already taken, without introducing new witnesses.

The notice for present hearing was published in English in Hawaiian Gazette of November 17th, November 24th and December 1st, 1896, and in Hawaiian in the weekly Kuokoa of November 20th, November 22d & December 4th 1896. Having been published in English language in one number of each week for three different weeks, and in three weekly issues in the Hawaiian language;

And was published with the idea that settlement of boundaries of Keahialaka could be brought on for a final settlement under the former application, and that the Commissioner of Boundaries received his authority to act by Act 14 approved October 27th 1894.

Section 3d of Act 14 of Republic of Hawaii, approved October 27th 1894, provides that the Commissioner of Boundaries, "shall in no case alter any boundary described by survey in any patent or deed from the King or government, or in any Land Commission Award." The same thing is forbidden in all the former laws relating to Commissioners of Land Boundaries, and it has been decided by Supreme Court In re Boundaries of Kewalo 3d Hawaiian Reports folio 9. "that a person having accepted a Patent for a Land by metes and bounds described in a Royal Patent [?], would be precluded from claiming anything more as belonging to his land, and also in other Decisions of Supreme Court, the same thing has been affirmed.

That any land left out of metes and bounds described in Royal Patent can not be claimed by owner of land, but become[s] the Property of the Government, and so the adjoining land of Kapoho, owned by the present Commissioner [page 110] of boundaries, having had its Boundaries Certified to by F.S. Lyman, a former Commissioner of Boundaries, and having had its boundaries described by metes and bounds, in a Royal Patent are not in question now, as Right or Wrong, they have to remain as they are Patented, and can not be altered by any Commissioner of Boundaries of Lands, and the same thing applies to the Boundaries of Land of Kauaea owned by Estate of B.P. Bishop, and leased to R.A. Lyman, the present Commissioner of Boundaries as the Boundaries of Kauaea were certified to by R.A. Lyman, Commissioner of Boundaries 3d Judicial Circuit in #88,  February 29, 1876 and described by metes and bounds in a Royal Patent taken out on Certificate of Boundaries #88.

And it has been further decided by the Supreme Court, Hawaiian Islands, in case of Ruth Keliikolani vs Lunalilo Trustees, 4th Hawaiian Reports, folio 621-631. That a Commissioner of Boundaries can not alter the Boundaries of a land, that have been decided by a Commissioner of Boundaries, folio 630 of same "If boundaries of such conterminous land have been &c, or by a judgment of a Boundary Commissioner, such lines cannot be varied &c."

And as the boundaries of these lands Kapoho and Kauaea have been already settled, and can not be altered in any way by the present Commissioner of Boundaries of land, he is not disqualified to sit in Judgement in this case.

In regard to questions raised by J.F. Brown, Government Land Commissioner & Land Agent, as to whether Commissioner of Boundaries, will be willing to settle the boundaries of the Ahupuaa of Keahialaka, as he intends to introduce a certified copy of a deed from J. Mott-Smith, Edwin, O Hall, and Sanford B. Dole, Trustees under the Will of William C. Lunalilo, that land was sold by metes and bounds as surveyed by J.H. Sleeper in 1859.

On examining the certified copy of said deed, I find that the Trustees under the Will of William C. Lunalilo sold to "Robert Rycroft a certain piece of land situate in said Puna, and known as the ahupuaa of Keahialaka," then gives metes and bounds by survey "including an area of 1276 acres more or less, according to the survey of J.H. Sleeper in 1859." Being the premises that were awarded to the said William C. Lunalilo by Land Commission Award 8559B, Apana 15" and only "excepting and reserving, however, all kuleana titles included within the said [page 111] boundaries." Deed was signed January 11th, 1892.

It has been decided by Supreme Court, In the Matter of the boundaries of Pulehunui, 4th Hawaiian Reports, folio 239 "An award of the Land Commission of a land by name is intended to assign whatever was included in such land according to the boundaries as known and used from ancient times." And the same thing has been held by the Supreme Court in a number of other cases.

It was also decided in above case Boundaries of Pulehunui, 4th Hawaiian Reports, folio 239, that see folio 240 "A survey made ex-parte and not supplemented by evidence is of no more value as evidence than the opinion of the surveyor as to the boundaries of the land."

And also "In re Boundaries of Kapahulu, 5th Hawaiian, Reports folio 94 & 95, also folio 95, the Full Bench of Supreme Court decided "Exparte surveys, not followed by possession have little force as evidence of boundaries."

In the case just cited, the contestants present maps made by William Webster bearing date June 7th, 1851, and copy of description of Waialaeiki, dated April 26, 1856, against Mr. Webster's map present an old map made by W.H. Pease, 5th Hawaiian Report, folio 94, 95. At the hearings for settlement of Boundaries of Ahupuaa of Keahialaka, held by the present Commissioner of Boundaries in 1873, when I held the Office of Commissioner of Boundaries for the island of Hawaii, then called the 3d Judicial Circuit, I was satisfied by the kamaaina who went with the surveyor, and others, that the survey of J.H. Sleeper of the Ahupuaa of Keahialaka did not include near all the land known as the Ahupuaa  of Keahialaka, and I returned Sleeper's survey of Keahialaka, with all the other surveys made by J.H. Sleeper of the other lands mentioned in the original application to Charles R. Bishop, Agent for his Majesty, William C. Lunalilo, as I felt that I would be doing an injustice to the Owner of these lands to decide and Certify the boundaries of this land, and the other lands to be according to surveys, that the evidence showed did not include all the land known as the Ahupuaa of Keahialaka, and known as the Ahupuaa included in the original petition of applicant. New surveys were subsequently made for several of these lands, and boundaries decided and certificate of Boundaries issued on the new surveys, [page 112].

The hearing held at Pohoiki, Puna, Hawaii, June 6th 1885 was continued as follows "To be finished when a new survey is completed (Signed) F.S. Lyman, Commissioner of Boundaries," See Folio 40 of this Volume D, No. 5.

The Trustees under Will of William C. Lunalilo, who sold the Ahupuaa of Keahialaka, were not kamaaina to the District of Puna, Hawaii, and probably knew noth[ing] about what had been done about the settling of boundaries of the land, or that survey had been returned for correction, and sold by metes and bounds of the rejected Sleeper survey, 1276 acres more or less "Being the premises that were awarded to the said William C. Lunalilo by Land Commission Award 8559b, Apana 15." I regret that a copy of the original Award is not here, but from my knowledge of these Awards , it is an Award by name only, of the whole Ahupuaa of Keahialaka. The index of Land Commission Awards reads "Ahupuaa Keahialaka."

The Boundary Commission does not settle the Title to lands, but is to settle Boundaries of lands, so that persons claiming lands, that have been awarded or patented by name only, can take out patents with lands described by Metes and Bounds, in the name of the person holding the original Land Commission (Award) or Royal Patent by name only, and the Minister of Interior is directed by law to issue no Patent from and after the passage of this Act, in confirmation of an Award by name, made by the Commissioner to Quiet Land Titles, without the boundaries being defined in such patent, according to the decision of a Commissioner of Boundaries, or the Supreme Court on appeal
Sec. 7, Act 14, laws of 1894.

The Supreme Court decided in case of Bruns vs. Minister of Interior, 3d Hawaiian Reports, folio 783, "The Minister of Interior may lawfully issue a Royal Patent for a Royal Patent for a portion of a parcel of land granted by kuleana award, but it must appear by the literal agreements of the metes, bounds, and description of the survey of the portion applied for, with that in the award, that it is a portion of such award."

Also, "Royal Patents based on awards do not confer or confirm title." Ib. [Ibid?] [page 113] The former laws relating to duties of Commissioners of Boundaries, prescribe that "The Commissioner shall receive at such hearing all the testimony offered; shall go on the ground when requested by either party, and shall endeavor otherwise to obtain all information possible to enable him to arrive at a just decision as to the boundaries of said land."

This clause is re-enacted in Section 3d of Act 14 laws 1894. And all the essential points of the former Boundary Laws, are contained in Act 14, laws 1894.

It has been decided by Supreme Court of Hawaiian Islands that the Commissioner of Boundaries is not held down to the same rules as ordinary Courts of law and equity, that the questions of Boundaries is a proceeding in rem, and differs from an ordinary case in law or equity, one of these cases is Keelikolani vs Lunalilo Trustees 4th Hawaiian Reports folio 627 and folio 630 Ib. [Ibid?] "We discriminate between a matter for the settlement of land boundaries and an ordinary case at law, or in equity. The proceeding before the Boundary Commissioner is in the nature of a proceeding in rem. He is to determine certain geographical lines - that is, he is to ascertain what in fact were the ancient boundaries of lands which have been awarded by name only." &c. &c.

This law Act 14 of 1894 being essentially the same law, as the former laws, that these decisions of the Supreme Court were given on, these decisions of Supreme Court will apply equally well to the present Boundary law.

Mr. J.F. Brown, Government commissioner re-stating that the Trustees under will of William C. Lunalilo asked him to act for them at the present hearing, and he declined to do so, shows that Trustees under will of William C. Lunalilo had received notice of this hearing, and could be present if they wished to. Therefore I decide to go on with the hearing for the Final settlement of the Boundaries of the Land known as the Ahupuaa of Keahialaka, District of Puna, Hawaii, under the original application of Charles R. Bishop acting for the King. W.C. Lunalilo being The King at that time.
Rufus A. Lyman, Commissioner of Boundaries, 3d & 4th Judicial Circuits, Hawaiian Islands. [page 114]

Hitchcock & Wise note exceptions to Ruling of (Court) Commissioner of Boundaries.
Exceptions to be filed
Court adjourned until 2 p.m.

Hilo, Hawaii, 2 p.m. December 15th 1896
Commission of Boundaries for 4th Judicial Circuit met at Hilo Court house according to adjournment.
Evidence given at former hearings at to Boundaries of Keahialaka are part of this case.

S.K. Wilder & F.S. Lyman, attorneys for applicant ask to have evidence of Pake Elemakule taken February 29th 1876, at hearing for settlement of Boundaries of land of Kauaea, Book B, page 410, evidence taken previous to the issuing of Certificate of Boundaries, taken as part of the evidence of this hearing.

Granted, to be copied after finish the evidence of new witnesses.

Hitchcock & Wise, attorneys for Government object to the Commissioner of Boundaries hearing any evidence, as original maps & notes of survey filed with the Original Application have been returned to the original Petitioner, so that it vitiates the whole Petition, and can not be acted on.

Commissioner of Boundaries states that the maps and notes of survey were returned by Commissioner of Boundaries, when he held Office of Commission of Boundaries, 3d Judicial Circuit after the hearings in 1873, for the original Petitioner to have them corrected. And that, unfortunately, the Press [?] Letter book, that would show copy of letter written when maps &c were returned was probably lost with the Commission original field notes of testimony and other papers, when the Schooner Caroline Mills owned by W.H. Reed was wrecked at Honokaa, Hamakua in 1878.

Hitchcock & Wise, also claim that Petitioner must put in some description of what he claims as boundaries of Keahialaka, before evidence can be taken, attorneys for Petitioner state that they have not got the original map, and notes of survey, and have never had the ....