Waihona Aina

Waikapu Ahupuaa, Wailuku District, Island of Maui, Boundary Commission, Maui, Volume 3, No. 1, pps. 87-97

Before the Commissioner of Boundaries in and for the Second Judicial Circuit, Territory of Hawaii.

In the Matter of the Application of the Wailuku Sugar Company, and the Hawaiian Commercial & Sugar Company, for a Certificate of Boundaries, for the Ahupuaa of Waikapu, located in the District of Wailuku, Island of Maui, Territory of Hawaii

Commissioner: Daniel H. Case.

Under date of June 30th, 1925, the Wailuku Sugar Company, an Hawaiian Corporation, and the Hawaiian Commercial and Sugar Company, a California Corporation, filed their Petition alleging that they are the owners of the Ahupuaa of Waikapu, in the District of Wailuku, Island of Maui, Territory of Hawaii, and applied, on behalf of said Wailuku Sugar Company and Hawaiian Commercial and Sugar Company, for a decision and certificate of boundaries of said Ahupuaa of Waikapu, according to the provisions of Chapter 42 of the Revised Laws of Hawaii, 1925.

Applicants further allege that the Ahupuaa of Waikapu, in the District of Wailuku aforesaid, was awarded, by name only, "to Henry Cornwell by Royal Patent (Grant) 3152.”

[page 88]
Also alleging that the following in a description by true azimuths of the outside boundaries of said Ahupuaa of Waikapu; that the said Ahupuaa of Waikapu is joined on all sides, with the exception of one side, by lands owned by the said Petitioners, the Wailuku Sugar Company and Hawaiian Commercial and Sugar Company.

That the only land joining same, owned by others, is the Ahupuaa of Ukumehame, joining on the west side, and owned by the Territory of Hawaii.

That no inquiry or determination as to the boundaries of kuleanas, etc., located within, or partly within this Ahupuaa of Waikapu, is sought by this petition.

A map was also attached to and submitted with the application, showing the location, natural topographical features, prominent and other marks along boundary lines, and more particularly described as follows:

Description of the Ahupuaa of Waikapu, Located On The Island Of Maui

Beginning at the northeast corner of this land, at a place called Kaopala, said point being the northwest corner of Pulehunui, and said point being azimuth and distance 115° 551 16,300 feet from a granite post marking the southeast corner of the Ahupuaa of Wailuku, and running by true azimuths:

1. 115° 55' 19,730.0 feet, along Wailuku to Pohakoi, marked rock, the coordinates of said Pohakoi rock, referred to Luke Trig. Station, (of the U. S. Coast and Geodetic Survey) are 4438.90 feet south and 3092.05 feet west;
2. 106° 15' 5,326.2 feet, Along Wailuku, up ridge;

[page 89]
3. 97° 30' 1,108.6 feet &long Wailuku, up ridge, to stone post on the crest of ridge, known as Kalapaokailio;
4. Thence along Wailuku, along up the center of the ridge, following the watershed, to the top of the ridge, forming the head of Ukumehame Valley;
5. Thence along Ukumehame, along the top of the ridge, along Ukumehame Valley to the top of the ridge, forming the southwest head of Waikapu Valley, and along the top of this ridge along Ukumehame Valley to the top of the ridge, forming the southeast head of Ukumehame Valley;
6. Thence along Ukumehame, along the top of the ridge forming the east side of Manaiwainui Valley, to a point on this ridge;
7. 314° 32' 3,570.0 feet, along Ukumehame;
8. 276° 51' 6,540.0 feet along Ukumehame;
9. 259° 40' 3,967.0 feet along Ukumehame, to a cross on large rock. The cross on large rock is located 85 feet mauka from the Present Government Road, and bears from Puu Hele Trig. Station by azimuth and distance 144° 15' 1238.2 feet;
10. 14° 45' 9,563.4 feet, along Ukumehame, Passing over three one inch pipes, set in concrete monuments, one at 8925.0 feet, located on the north side of the road to Lahaina, the second at 9308.2 feet, and the third at 9444.6 feet.

The azimuth 14° 45' is used on this line, as established by S. M. Kanakanui, for a Government Lease of a portion of Ukumehame to the Wailuku Sugar Company;
11. Thence down to the sea and along the sea to the boundary of Pulehunui;
12. 180° 24' 3,538.0 feet, along Pulehunui, to a stone marked thus [right arrow curving up];
13. 17° 08' 9,383.0 feet. along Pulehunui;
14. 191° 49, 4,312.0 feet, along Pulehunui, to a stone marked thus [right arrow curving up], amongst a lot of stones;
15. 229° 45: 5,147.0 feet, along Pulehunui;
16. 228° 51' 1,780.0 feet, along Pulehunui, to the point of beginning.
Containing an area of 15,374 acres, more or less)

[page 90]
Under date of February 4th, 1926, the Applicants filed an amended petition alleging that they are the owners of the Ahupuaa of Waikapu, in the District of Wailuku, Island of Maui, Territory of Hawaii, and applied, on behalf of said Wailuku Sugar Company and Hawaiian Commercial and Sugar Company, for a decision and certificate of boundaries of said Ahupuaa of Waikapu, according to the provisions of Chapter 42 of the Revised Laws of Hawaii, 1925.

In this amended petition the applicants state that the Ahupuaa of Waikapu, in the District of Wailuku aforesaid, was awarded, by name only, to Henry Cornwell, by Royal Patent (Grant) 3152.

The applicants, in their amended petition, stating that the following is the description by true azimuths, of the outside boundaries of said Ahupuaa of Waikapu; and that the said Ahupuaa of Waikapu is joined on all sides, with the exception of one side, by lands owned by said petitioners   the Wailuku Sugar Company and Hawaiian Commercial and Sugar Company;

That the only land adjoining same, owned by others, is the Ahupuaa of Ukumehame joining on the west sides and owned by the Territory of Hawaii.

That no inquiry or determination as to the boundaries of kuleanas, etc., located within or partly within the Ahupuaa of Waikapu, is sought by this petition,

[page 91]
An amended map was attached to and submitted with this amended Petition. Showing the location, natural topographical features, prominent and other marks along the boundary lines, and more particularly described as follows:

Amended Description of the Ahupuaa of Waikapu, Located in the District of Wailuku, Island of Maui.

Beginning at the northeast corner of this land at a place called Kaopala, said point being the northwest corner of Pulehunui, and said point being azimuth and distance 115° 551 16,300 feet from a granite Posts marked the southeast corner of the Ahupuaa of Wailuku. and running by true azimuths:

1. 115° 55, 19,730.0 feet, along Wailuku, to Pohakoi, marked rock, the coordinates of said Pohakoi rock, referred to Luke Trig. Station (of the U. S. Coast and Geodetic Survey), are 4438.90 feet South and 3092.05 feet West;
2. 106° 15' 5,326.2 feet, along Wailuku, up ridge;
3. 97° 30' 1,108.6 feet, along Wailuku, up ridge, to stone post, on the crest of ridge, known as Kalapaokailio;
4. Thence along Wailuku, along up on the top of this ridge, to a point on the main Iao Valley ridges, The direct azimuth and distance being 83° 30' 3,480.0 feet;
5. Thence along Wailuku, along up the center of the ridges following the watershed, to the top of the ridge, forming the head of Ukumehame Valley; the direct azimuth and distance being 67° 00' 12,460.0 feet;
6, Thence along Ukumehame, along the top of the ridges along Ukumehame Valley, to the top of the ridge, forming the Southeast head of Ukumehame Valley; the direct azimuth and distance being 336° 43' 30" 9917.5 feet;
7. Thence along Ukumehame, along down the top of the ridge [page 92] following the water shed, to the Forest Reserve monument, on top of Puu anu hill, the direct azimuth and distance being 326° 50' 0.095.0 feet;
8. Thence along Ukumehame, along down the top of the ridge, along the south side of Pohakea Gulch, to a 1 1/4 inch galvanized pipe on top of hill; the direct azimuth and distance being 313° 56' 30" 3,676.0 feet;
9. Thence along Ukumeheme, along down the ridge along the south side of Pohakea Gulch, to a 1 1/4 inch galvanized pipe on top of hill on the ridge, the direct azimuth and distance being 275° 02' 30” 6,891.0 feet;
10. 258° 37' 30" 4,216.8 feet, along Ukumehame, to a cross on large rock. The cross on large rock, is located 85 feet mauka from the present Government Road, and bears from Puu Hele Trig. Station, by azimuth and distance 144° 15' 1,238.2 feet;
11. 14° 45' 9,563.4 feet, along Ukumehame, passing over three one inch pipes, set in concrete monuments, one at 8,925.0 feet, located on the north side of the road to Lahaina, the second at 9,308.2 feet, and the third at 9,444.6 feet; The azimuth 14° 45' is used on this line, as established by S. M. Kanakanui, for a Government Lease of a portion of Ukumehame to the Wailuku Sugar Company;
12. Thence down the Pali to the sea coast, on azimuth 296° 20' 147.0 feet;
13. Thence along the sea, to a point, about 75 feet south of the old Maalaea Wharf, said point being azimuth and distance 338° 27' 135.0 feet, from a one inch pipe in concrete monument, located on the mauka side of the Government Road, near the bond of said road; the direct at azimuth and distance from end of course 12, being 226° 57; 1412.4 feet;
14. Thence along the sea, to the boundary of Pulehunui, the direct azimuth and distance being 279° 21' 15,368.5 feet;
[page 93]
15. 180° 24' 3,538.0 feet. along Pulehunui, to a stone marked thus [right arrow curving up]
16. 170° 08' 9,383.0 feet along Pulehunui;
17. 191° 49' 4,312.0 1 feet along Pulehunui, to a stone marked thus [right arrow curving up] , amongst a lot of stones;
18. 229° 45' 5,147.0 feet along Pulehunui;
19. 228° 51' 1,780.0 feet along Pulehunui to the point of beginning.
Containing an area of 15,690 Acres, (more or less).

Hearing on the above application was set, before the undersigned, as Commissioner of Boundaries for the Second Judicial Circuit, at Wailuku, Maui, Territory of Hawaii, on Tuesday, the 7th day of September, 1926, at 10:00 o'clock a.m., of said day.

Notices of hearing, specifying the time and place thereof, were published as follows:

In the 'Maui News', a newspaper published in the English language, In Wailuku, Maui, Territory of Hawaii, publication of said notice in said paper being under dates of August 18th 1926, August 25th, 1926, and September 1st, 1926; and

In the 'Nupepa Kuakoa', a weekly newspaper published in the Hawaiian Language, in Honolulu, City and County of Honolulu, Territory of Hawaii, publications of said notice in said paper being under dates of August 19th, 1926, August 26th, 1926, and September 2nd, 1926.

[page 94]
Written or printed notices of said hearing, specifying the time and place thereof, and signed by the Commissioner, were sent, by registered mail, long before the date set for hearing said application, to the Petitioners, (Wailuku Sugar Company and the Hawaiian Commercial and Sugar Company), and Mr. Charles T. Bailey, Commissioner of Public Lands, Honolulu, Territory of Hawaii.

(Note by Commissioner: In re settlement and certificate of boundaries for a portion of the Ahupuaa of Waiehu; in re settlement and certificate of boundaries of the Ili of Kalua; and in re settlement and certificate of boundaries of Waikapu; these applications were present to the Commissioner on the same day.)

Present: Daniel H. Case, Commissioner of Boundaries; H. B. Penhallow, Manager, Wailuku Sugar Company Wailuku, Maui; E. D. Baldwin, Surveyor, Wailuku. Maui; J. H. Foss, Civil Engineer, Hamakuapoko, Maui; A. Garcia, Sub Agent, 4th Land District, Wailuku, Maui; Mrs. Sarah Kahalehu [Kahaleku]; Huakini Enos; and John V. Cockett, as Hawaii an Interpreter; Mrs. Edith L. Sinclair acted as stenographer for the Commissioner of Boundaries.

At the time and place set for hearing said application on its merits, to wit, Tuesday, September 7th 1926, at 10:00 o'clock a.m., in the Circuit Court Room of the Circuit Court of the Second Judicial Circuit, Wailuku, Maui, Territory of Hawaii, the following proceedings were had:

[page 95]
Commissioner: There is no one to call other than the applicant, is there?
Mr. Penhallow: Not unless there is come one to object.

Mr. Garcia: The Territory wants to enter an objection, and asks for a continuance for thirty (30) days.

The Commissioner: Have you any objection?
Mr. Penhallow: Thirty days is satisfactory.

Commissioner: Is the Hawaiian Commercial and Sugar Company represented?
Mr. Foss: They have no objection to a continuance.

Commissioner: On behalf of the Territory, Mr. Garcia, what is your authority?
Mr. Garcia: A letter from the Commissioner of Public Lands, and I am Sub land Agent.

Commissioner: Would you submit a copy of the letter – or the letter?
Mr. Garcia: Very well.

(The following is a copy of the letter referred to.)
Honolulu, T. H. September 4, 1926. Mr. Antonino Garcia, Sub Agent, 4th Land District, Wailuku, Maui.

Dear Sir: The Wailuku Sugar Company has made application to the Boundary Commissioner of Maui, Judge D. H. Case, for settlement of boundaries of the following lands:

(1) Ili of Kalua in the Ahupuaa of Wailuku,
(2) Portion of the Ahupuaa of Ahikuli and Pohakunui and Ili of Kuunahawelu, a lele of the ili of Ahikuli,
(3) Ahupuaa of Waikapu.

The descriptions submitted to the boundary commissioner by the applicant purporting to be the true boundaries of the lands named above, have been checked by the Survey office, and have been found correct with the exception of that of the Ahupuaa of Waikapu, the last named above.

[page 96]
The hearing by the Boundary Commissioner will be held at 10:00 o'clock a.m., Tuesday, September 6th, in Judge Case's Court Room, in Wailuku, and we ask that you appear at this hearing, and on behalf of the Government, to agree to the boundaries as submitted, of the lands named in the first two items above, but as to the boundaries of the third item, Ahupuaa of Waikapu, you will please enter an objection, and ask the Boundary Commissioner that an extension of thirty days be entered in this case. This extension is required to permit the Government to complete the title study that is being made in this case.

Mr. Merriam, of C. Brewer and Company, informs us that he is writing Mr. Penhallow, who will be at the hearing, representing the Wailuku Sugar Company, that this request is to be made by you on the part of the Territory, and that he will enter no objection to the request.

Please be sure to be at this hearing, and carry out the instructions herein contained.
Very truly yours, Office of the Commissioner of Pub. Lands,
by (Signed) A. A. Dunn, Chief Clerk, Sub Agent 5th Land District.”

Commissioner: The request of the Territory may be entered   the applicants not opposing the request   and the application of the Wailuku Sugar Company and the Hawaiian Commercial and Sugar Company for a certificate of boundaries, for the Ahupuaa of Waikapu, located in the District of Wailuku, Island of Maui, Territory of Hawaii, will be continued until Tuesday, October 12th, 1926, at 10:00 a.m., in these Chambers.

October 11th, 1926.

On October 11th, 1926. Mr. A. Garcia, Sub Agent, 4th Land District of Wailuku, Maui, appeared and asked for a continuance of the above matter on behalf Of the Territory, and presented the following letter:

"Mr. A. Garcia, Sub Agent, 4th Land District, Wailuku, Maui.
Dear Sir: You will recall that the hearing before the Boundary Commissioner in the matter of the boundaries of the Ahupuaa of Waikapu was postponed to October 12th, 1926. it appears advisable to ask for a further continuance of this hearing in order to secure additional data, and [page 97] you will please appear before the Boundary Commissioner on the above date and ask for a continuance to November 30, 1926.

We have discussed the matter with Mr. Merriam, of Brewer & Co., who is agreeable to this continuance and I believe has written Mr. Penhallow to appear and agree to continuance to above date.

I suggest that you get in touch with Mr. Penhallow before October 12th, 80 that there will be no misunderstanding in the matter.
Very truly yours, (Signed)
C.T. Bailey, Commissioner of Public Lands.”

There being no objection to the continuance the hearing was continued to November 30th, 1926.

November 27th, 1926.

On November 27th, 1926, Mr. A. Garcia, Sub Agent, 4th Land District, of Wailuku, Maui, appeared before the Commissioner of Boundaries, and asked for a continuance of the above matter on behalf of the Territory, and presented the following letter:

“Honolulu, November 26th, 1926. Mr. A. Garcia, Sub Agent, 4th Land District, Wailuku, Maui. Dear Sir:
The hearing before the Boundary Commissioner in the matter of the Boundaries in the Ahupuaa of Waikapu is set for Monday, November 30th.

The Deputy Attorney General, who was to appear for the Territory at this hearing is ill, and you will please appear before the Boundary Commissioner on the date set for hearing and ask for a continuance to January 11th 1927.
Very truly yours,
(Signed)  C.T. Bailey. Commissioner of Public Land.”

There being no objection to the continuance the hearing was continued to January 11th, 1927, (Tuesday.)
(This case continued on page 358 of Boundary Commissioner's Record.)


Waikapu Ahupuaa, Wailuku District, Island of Maui, Boundary Commission, Maui, Volume 3, No. 2, pps. 358-495

Note this case continued from page 97 of Boundary Commissioner's Record.

Before the Commissioner of Boundaries in and for the Second Judicial Circuit, Territory of Hawaii

In the Matter of the Application of the Wailuku Sugar Company, and the Hawaiian Commercial & Sugar Company for a Certificate of Boundaries, for the Ahupuaa of Waikapu, located in the District of Wailuku, Island of Maui.

Commissioner: Daniel H. Case.

Continued from Page ninety (97) seven. Hearing on above was set for January 11th, 1927; and from that date was continued without day; later was set for February 15th, 1927; continued to April 19th, 1927; continued from the latter date to June 21st, 1927, and then again to July 8th, 1927.

On Friday, the 8th day of July 1927, the Commissioner proceeded with the hearing, (upon. its merits), of the application for the Settlement and Certification of the Boundaries of the Ahupuaa of Waikapu. At this time the following persons were present: Daniel H. Case, Commissioner; H. B. Penhallow, Manager, of Wailuku Sugar Company; J. H. Foss, Surveyor, representing the Hawaiian Commercial and Sugar Company; Chas. H. Merriam, representing the Wailuku Sugar Company and Hawaiian Commercial and Sugar Company at this hearing; Harry R. Hewitt, Deputy [page 359] Attorney General, for the Territory of Hawaii; Herbert E. Newton, Chief Assistant Surveyor, of the Territorial Survey Department; Francis Kanahele, with the Territorial Survey Department; Erdmann D. Baldwin, Surveyor; Mrs. Edith L. Sinclair, Stenographer, and John Ferreira, as Hawaiian Interpreter.

Later in the hearing - portion of July 11th, 1927, and all of July 12th, 1927, (pages 438 to 489, both inclusive, of Boundary Commissioners Record), Mrs. Iwa Betts acted as Stenographer.
Proceedings were then had, the oral testimony of witnesses taken, and numerous exhibits offered in evidence by the Applicants, and the Territory of Hawaii, contestant, as follows:

[page 360]
Mr. Merriam: The first statement that we would like to make, which I take it the Representative of the Government will agree to, is that the land in question is owned in part by the Hawaiian Commercial and Sugar Company and Wailuku Sugar Company. We have here the exchange deed, which covers the land in question, and which I can file if you wish.

The Commissioner: If it is admitted it is all sufficient.
Mr. Hewitt: We raise no question as to title.

Mr. Merriam: We would then state that we are prepared to prove that the Applicants are in possession of all of the land that this application covers; the map here is part of the application - as called for by law; we now state we would like to use the blue print of this tracing for the purpose of this hearing.

Commissioner: Any objection, Mr. Hewitt?    .
Mr. Hewitt: No objection.

Commissioner: The Territory raises no objection to the blue print being used.
Mr. Merriam:    Perhaps it would clarify matters if a general statement was made as to the manner in which it comes up. first the land - called the Ahupuaa of Waikapu - was claimed by the government in the early days, although this land was not listed as government land in the great division made by Kamehameha III by Act of June 7th, 1848, it was not classed as government land, it is in the category of unassigned land, which is always claimed by the Government. The Ahupuaa of Waikapu was, in early days, according to records, an unassigned government land; then, under date of November 18th, 1875, Royal Grant No. 3152 was issued by the Government to Henry Cornwell; this Grant carries for a description of the land a reference to the name of the land only, there are no metes and bounds showing just where the land [page 362] is; in other words, the proof of where this land is would rest with kamaaina evidence, if there had been no boundary certificates issued on the adjoining lands. There have, however, been boundary certificates issued on all the adjoining lands, except the Lahaina border by the ocean, which is a natural monument and possible of reproduction at any time. This land came down by various ways, but no accurate survey has been made prior to our application for the settlement of the boundaries. As stated before - all the boundary lines of the adjoining lands have heretofore been settled by boundary certificates issued.

Commissioner: Where is this land on the map?
Mr. Merriam: This is representing the land - this is on the North, the land of Wailuku - portion of the land of Waikapu and of Wailuku. On March 2nd, 1871, there was issued Maui Boundary Certificate No. 1, thereby determining the boundary line from the point at the corner of the land Pulehunui to the land of Ukumehame - that settled that boundary line permanently and for ever. Second - The land bounding Waikapu on the East Pulehunui was settled by certificate issued May 3rd, 1879, being Maui No. 47, thereby settling that down to the ocean side for all time. Third - The land bounding Waikapu, partly on the South and partly on the West, being the land of Ukumehame, was settled by Boundary Certificate No. 68, issued April 11th, 1883. That leaves in an unsettled condition the line or extreme southerly boundary of the land of Waikapu only. The sea coast [...]

Commissioner: What sea coast?
Mr. Merriam: Down Maalaea Bay to a point way over. Perhaps Mr. Foss will point it out.

Mr. Baldwin: This side of Kihei Landing some where coming down to over here.

Commissioner: Roughly speaking from Kihei to Maalaea Bay?
Mr. Foss: Yes.
[page 362]
Mr. Merriam:    We contend that that boundary line has not been settled by a certificate - except that it was a settlement by name. This line here carries to the ocean and that means to the high tide mark.

Mr. Hewitt: Mr. Merriam, I think you might explain a little more fully what it is that is in dispute.
Mr. Merriam: I am coming to that. I am getting fundamentals first.
Mr. Hewitt: Oh, pardon me.

Mr. Merriam: Now, the problem that the surveyor for the applicants had before him was that all the bounding lands, which means all the lines of those lands - except the ocean side line - had theretofore been settled by boundary certificates, and it was considered that he had an apparently simple problem before him to reproduce those where they touched Waikapu. However, Section 558 of the Revised Laws of Hawaii, 1925, says that "A boundary commissioner 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." All of these three adjoining lands have been issued boundary certificates on which patents have also been issued, that, therefore, places the condition on the surveyor that he reproduce those lines in the various boundary certificates that have heretofore been issued and stand on those for his lines of the land of Waikapu.    We then come to a point where the re-establishment of these lines only affect the applicants themselves, that is, of this line of the land of Wailuku - a land owned by Wailuku Sugar Company. There is no objection on the part of the owner of Wailuku to this line - that seems to eliminate trouble on that line, or boundary, along the other boundary. On the East is the land of Pulehunui - land owned by Hawaiian Commercial and [page 363] Sugar Company - and they, in turn, were in satisfactory accord with the line made by our Mr. Baldwin. The coast line is there and can be reproduced by any one without any question, and the manner of handling that was to take his point from the boundary line and come across here to a well known point and take his bearing and distance, and, in general, that represents the method in which that was handled. Then coming to the last, land of Ukumehame - we have there a condition, a similarity in so far as concerns the issuance of the certificate, the ownership of which is in the government, and there is where the difficulty arises that necessitates a hearing and production of evidence for there is a contest, or disagreement, with respect to the line of Ukumehame from the last point of Alexander's survey which started at the land of Olowalu - all of those courses way over from Olowalu to the last point are said to run along the ocean side. He then comes to a point marked on a large boulder, this point is admitted, not only by the applicants, but by the contestants, to be readily seen and reproduced. This is the first line, or, perhaps better be said, a double line - two lines are drawn - to which objection is raised; objection is also raised to the next line running from the established rock point to a ridge point on the hillside. So far as I am aware no other lines than these three are contested, although you may wish to go further up in the hills - possibly four points - four lines.

Commissioner: I thought you spoke of two - and you say 'these three.'
Mr. Merriam: There is a small distance here - 147 feet - from the ocean side to a point, and then from that point to a rock and then on up the hill. The survey of the land of Ukumehame which is the boundary of a land that we contend we must adhere to because it was previously surveyed by James M. Alexander in 1874, and a boundary certificate issued April 11th, 1883, nine years afterwards. I think the government will admit that Mr. Alexander [page 364] in making his survey, which, I would remind you, started on the ocean side at the Olowalu end and came along the ocean to a point along Maalaea Bay section, ran his courses on traverses hitting a bluff point and not going directly to the ocean side, which was a common practice then, and even now, to some extent, of surveyors, it being considered perfectly proper to do so. Is that admitted?

Mr. Hewitt: Yes.
Mr. Merriam: That is what we have assumed in all of our study of the preliminaries so that the survey, as made by Mr. Baldwin, could fit the established lines of a land which in 1883 had its boundaries perfected. Mr. Alexander, in addition to running his survey in what might be termed to be an Olowalu-Maalaea Bay direction, for that is the direction he came in, gave at each point what surveyors call a reverse bearing so that its bearings, while not altogether in agreement on each line, show that he tried to check back on his work so that the line could be run either one way or the reverse way. In other words, it is practically a double description for the courses. Now, our contention is, primarily, we hope to support it by evidence, that Mr. Alexander in his survey of the land of Ukumehame took these bluff points to the line itself which is said to run along the ocean side - perhaps if I use the exact words it would be clearer. I will now read course 20 to and including 24. (Reads at length) Now, I will point out to you that the lines first read - courses 20 and 21 - come along the ocean side and yet have a bluff point for the bearing until they get to the last point before they run inland away from the ocean, and that inland point is a point that is marked by a [sic] X on a rock. In other words, we have a point on a rock which can readily be established, and have another natural monument which also ought to be re-established by a reverse bearing from a rock - a point we can easily go to - and it is well recognized, when there is a doubt about a point that can be re-established without doubt, a surveyor will go to that point to try and run [page 365] the survey from a known fixed point, and that is what we have tried to do. The second line that is in controversy is course 24 which starts at the same fixed point that we can go to - the X on the rock; that line also goes from a natural monument to what is another fixed monument - the ridge point plainly observable today, and that line we have tried, through Mr. Baldwin's survey, to reproduce taking our point from the definite fixed point on the rock which no one can question; furthermore, this point on the hillside here must be a point that the next line of Mr. Alexander's survey can be viewed from, and we have reached such a point. Now, in support of what has been said by way of a preliminary statement, if you have no objection, I will call Mr. Baldwin for certain information.

Commissioner: Would you like to make a statement, Mr. Hewitt?
Mr. Hewitt: No.

Commissioner: Could you point out just where each of you claim the land to be?
Mr. Merriam: It is difficult because we don't know what the government is going to claim - we have just a general idea. I might propose that Mr. Newton help give you a rough outline. (All examine map)

Mr. Hewitt: I wonder, Mr. Merriam, if, right at this point, it would not be well to adjourn to the spot in question and look it over - the Commissioner, myself and yourself. In view of the evidence that will come up it will be much easier for the Commissioner if he has seen the evidence on the ground.

Mr. Merriam: It might be well except that we, as Applicants, should state our case before we go to the ground.
Commissioner: It would be helpful to me to have it just before me.

Mr. Hewitt: Would you prefer to bring out some other matters first from Mr. Baldwin?
Mr. Merriam: I don't think it is important - we can call him after. (recess)
[page 366]
(1:33 p.m. - reconvened)

Commissioner: You may proceed.
Mr. Merriam: Now that we have seen the location of the premises it seems to be in order to ascertain from the surveyor, on behalf of the applicants, how he arrived at his 'lay out' of the land.

Direct Examination of E.D. Baldwin (E. D. Baldwin is sworn by Commissioner)

Mr. Merriam: Mr. Baldwin, you are a Civil Engineer and Surveyor by profession?
Answer: Yes, I have a license.

Question: You have been employed, at various times, by the Wailuku Sugar Company to do their work over the lands?
Answer: Yes.

Question: You surveyed the Ahupuaa of Waikapu for and on behalf of the Applicants - Wailuku Sugar Company and Hawaiian Commercial and Sugar Company?
Answer: Yes. I did.
Question: Have you made a careful study of the boundary certificates of the adjoining lines of the land of Waikapu in an effort to determine what the proper boundary lines of Waikapu really
are?
Answer: Yes. I have.
Question: Do you consider that it is your duty, as a surveyor, to confine your description of the land of Waikapu to the same lines as the adjoining lines given in the certificates of boundaries?
Answer: Yes.

Question: That is what you endeavored to do?
Answer: Yes.

Question: Have you made any effort to gain evidence from kamaaina sources regarding the boundaries of the lands?
[page 367]
Answer: No. They were definitely stated in the certificate of boundaries, that is, Ukumehame, determining that.

Question: Will you state - in a general way - how you arrived at the 'lay out' of this land of Waikapu as you have, making such reference as you wish to the plan, where did you start and how did you go about it?

Answer: I took my description - it starts at a point Kaopala given on the map, it is a point given by Mr. M. D. Monsarrat in his survey of both Pulehunui and the boundary of Wailuku, and this point referred to a monument - to a concrete monument. I simply took his bearing of Wailuku, that is, of the Spreckles Grant, running that up as far as the monument he has on the ridge above, and from that point [...]

Commissioner: Indicate it on the map.
Mr. Baldwin: Kaopala is here, and this is a straight line to Pohakoi, and from Pohakoi up to this stone post - as Monsarrat calls it - up on the mountain ridge there; further Monsarrat simply says along the ridge to high tide; and then this is a definite point at the south east corner of Ukumehame, and from there the boundary along Ukumehame to a well known hill; we have a forest monument here called Puu Anu, and from there it runs along the ridge to another large hill - a well known point - and from there along down the ridge to this ridge point that we were looking at with the two flags on, it, and from there down to the rock and from there to the monument.
That is just giving the general way it was taken. These points above are undisputed and this hill is well known as an old boundary point. I might state that the first work I did there was before 1923 - Wailuku Sugar Company wished to know whether they should renew this government lease and [...]

Commissioner: Mr. Baldwin, for my information, where is the point where those two flags were?
Answer: Right there.
[page 368]
Question: And where is the stone with a X?
Answer: Right there.

Mr. Hewitt: May I mark that a, b, c? The two flags 'A'; ‘B' marks the rock which we viewed this morning.
Mr. Baldwin: I was going to state how I got that line. They wished me to ascertain where their railway went and the nature of the land, so I went down there and made a study of the lease.
I also sighted - I didn't set up any flags - I noticed that the hill that Kanakanui had was practically Alexander's angle, so I took his line. So the next work I did was when Wailuku Sugar Company and Hawaiian Commercial & Sugar Company met there; I again went into that line and I accepted Kanakanui's line. In this latter survey as they went up I sighted a pipe on the high point of the hill, and when I went up on the hill I studied it, and there was something like this prominent pile of rock there, and at the point I took there was indication of a pile of rock which a surveyor could have had, but wind blew it down; but there were other prominent piles and I considered I was not a good enough guesser to say which he used; I studied the hill very carefully and took the highest point. It is an immense big hill, I have known it since a boy, and that was on eight, and especially at night time when you got eight of it. For that reason, with all those piles of rock there - no one could do it - it may have been surveyors, and it may not have been - but there was only one thing to do - take the highest point on the hill. Then I tested the angle, taking Alexander's magnetic bearing to the hill and take the bearing down this way and I got practically the same angle that Kanakanui ran his line on. I took the same line and the distance as given in the certificate of boundaries. Alexander's distance, this distance, is short, it is 250 feet short there; where I am this distance is short, and this distance from this hill is very close, and there was no [page 369] chance of having that short; what is given in the certificate, if anything, it is longer.

Mr. Merriam: With reference to this so called Kanakanui line, it had better be explained, and can be. explained in this manner - the occasion for that was at the time of the issuance of a lease by the Government to the Wailuku Sugar Company of some of the lands well away this side of Maalaea Bay shore line, and, in order to arrive at the description of the land to be put in the lease, he was sent over to survey that line between Waikapu and Ukumehame and determine what sort of description should to into the lease to the Company of the Ukumehame land, and he ran the line from the crossed rock down not taking the full distance that the Alexander line calls for – am I right?
Answer: The lease didn't call for the full length of the line.

Mr. Penhallow: Make a line at the end here ‘C'.
Commissioner: the makai end of the line ran by Kanakanui.

Mr. Merriam: So. at the time of the lease it was assumed that the Government adopted it as a satisfactory boundary line - they stood on it for the purpose of giving the Company tenancy of of [sic] the land - later on planted in cane - and I think Mr. Baldwin will state that he is now running his line in a similar fashion – to the Kanakanui one, he is right on top of the Kanakanui line but taking the distance allowed by Ukumehame to the coast. Now, Mr. Baldwin, in your study of the situation at the hill side here, you were coming down?
Answer: Yes - in the description.

Question: And you must hit the rock, of course, that is a point that is identifiable today?
Answer: Yes.

Question: When you got to the rock did you shoot back to see that you were in a right position?
Answer: My points are triangular.
[page 370]
Question: Would you indicate the position as you would understand it at the time Alexander made the survey of the land of Ukumehame, which never had before that been surveyed; well, he finally gets to the rock - what would be his method?
Answer: Oh, Alexander was surveying it for the first time and he had to go up and find a point, and he went up and did that. I went up there first and set my flags on these hills and afterwards I went with the instrument and triangulated them.

Question: You feel that the surveyor, after he established this point on the rock in going up the hill side, would have the highest point on the knoll?
Answer: That is the only point he would take and did take.

Question: And his next point here - up the hill side?
Answer: Yes.

Question: Does your point enable you to see both the rear and advance points?
Answer: Yes. I went down there this morning.

Question: Now, having a definite fixed point here at the rock, and assuming, as you believe you had a right to do, that all of the ocean survey by Alexander was a traverse survey - had points that were intervisible, and knowing what the Government had previously done by establishing the line by Kanakanui's survey, and knowing that the course you took there was the course that was practically identical with Alexander's survey, you landed at a point which was a bluff point, did you not?
Answer: Yes.

Question: And, in your assumption, at the time Alexander made this survey that bluff point would have enabled Alexander to see to the rock point that now is agreed upon as a corner?
Answer: Yes. I think so with a flag set up.

Question: Also enable him to see back to a far point along the ocean side?
Answer: Yes.

Question: In other words, prior to the growth of Keawe Trees, that survey [page 371] of Alexanders would have reproduced itself with accuracy and each point on the ocean side would be intervisible?
Answer: Yes.

Mr. Merriam: That in short was the method used in reproducing the lines of the land of Waikapu by an up to date survey; it simply carries out what we thought was fundamentally required of us - to stand by and on the lines of the lands adjoining, all of which boundary lines were settled many years before this survey was made. I think, so far as the examination of Mr. Baldwin is concerned, we are finished.

Cross Examination of E.D. Baldwin

Mr. Hewitt: Mr. Baldwin, you have only taken us down to point marked 'C' there in this detailed journey we have had. Will you take us on from ‘C' down to the sea coast and explain how you arrived at this?
Answer: We did, but I think you must have overlooked it.

Question: Would you go over that once more from point ‘C' until you hit the sea shore?
Answer: What did you want?

Question: I stated clearly that that line is run down to the end of the distance given in the certificate of boundaries and that carries you some where short of the sea?
Answer: It carries you to the points as Alexander took them along the sea on the bluff.

Question: I mean the line running from ‘B' toward ‘C' and through ‘C' - according to Alexander's survey must land you at the sea shore, is that right?
[page 372]
Answer: Not the way I understand his survey; he says the ocean is the boundary.
Mr. Hewitt: Have you a copy of the Ukumehame certificate, Mr. Merriam? Would you mind introducing this in evidence?

Mr. Merriam: We offer in evidence a certified copy of the Boundary Certificate of Ukumehame, No. 68, Maui, which contains a full description by metes and bounds of the land of Ukumehame, before L. Aholo, Commissioner, dated April 24th, 1883.

Commissioner: It is allowed in evidence as Applicants' Exhibit 'A'?

Mr. Hewitt: Will you please point out to the Commissioner the course that you are talking of - that survey by Alexander - from the sea up to the point marked 'B' or the marked rock?
Answer: The course marked 23 is the one from the sea to the rock.

Question: Well, now, what is the course just preceding the one from the sea shore to the marked rock - that is 22?
Answer: 22.

Question: And that takes you along the sea shore?
Mr. Merriam: Along the ocean.

Mr. Hewitt: Along the ocean to a certain point that is right near it?
Answer: In fact his points are not at the ocean side.

Question: He said the ocean was the boundary?
Answer: The ocean was the boundary.

Question: Then that line runs along the ocean?
Answer: That is the true boundary.

Question: His points are all shown from up above - he was describing the points along the ocean?
Answer: Yes.

Question: Is it on course 22 that you come to the last point on the ocean?
Answer: Yes - here is what he gave.
[page 372]
Question: Then how does it lead from the next course to there?
Answer: Here - north - it is 6° 144.90 along Waikapu to bank of ravine.

Question: From that point, which you reached by 22, there is just one course to the marked rock?
Answer: Yes.

Question: Whereas in your description you have used two courses, have you not, you have inserted an extra course?
Answer: I turned it off at right angles to the sea.

Question: By what authority?
Answer: None - when I ran that line I ran it through to the sea - I felt  - I didn't have any authority and I didn't know how much authority I did have.

Question: What I want you to do is explain fully to the Commissioner how you got that extra course in there of 147 feet, if you have based your description upon this survey of Alexanders?
Answer: I took the absolute angle from that known point, turned it up and ran it in the given description; I ran it straight to the sea, but when I was making out the description for the certificates I didn't know whether I had that right; but that is the point given in the certificate of Alexander's survey; that is all we got, it is short, and we haven't got anything else.

Question: It seems clear to you that the last point on the ocean is not the point Alexander had in mind?
Answer: So far as we know it is his survey, and in the certificate, and is the point given in the certificate of boundaries and I can't make it any different.

Question: This survey of Alexander's is rather indefinite, isn't it?
Answer: Not on those two lines - the line running to the ridge above is short, and this one here is short - it is short in distance.

Question: A great deal of stress has been laid by Mr. Merriam on the fact that by following literally and as a guide this Alexander survey of Ukumehame it appears that in order to reconcile your theory [page 374] with Alexander's you found it necessary to insert an entirely new and additional course?
Answer: it is his survey along the coast, and if you want to go along the coast you have got to follow it.

Question: Suppose we wanted to know the next point way up in here some where – how do you get that?
Answer: it would be the same way.

Question: The description carries you along the ocean - doesn't it?
Answer: Not the way he showed it; he states the ocean is the boundary, and when he hits that point he runs in.

Question: And from that one point to the X here?
Answer: Yes.

Question: Where you added a new course - 147' - at right angles to the sea?
Answer: No - you have to get the sea some way or another.

Question: Well, there is some doubt as to just how you got to the sea - even in Alexander's survey?
Answer: No - you have to go up this way.

Question: By what authority do you cut up off at right angles?
Answer: The only way I can think of is where it runs along the valley.

Question: And yet they are running along the boundary?
Answer: Well, I haven't run across any accretion.

Question: That is a departure fixed by law and not survey?
Answer: No.

Question: In accretion you run at right angles - it is merely to conform with what the law says?
Answer: I haven't run across any law on it - it may be so. It is the law ordinarily that where accretion forms the line is either line carried in a continued line, or, if impossible, at right angles to the sea.

Question: But that has nothing to do with this situation. That is the only authorization that you know of for adding the extra course, is it not?
[page 375]
Answer: No. That is his point given in this certificate by both bearings and distances, and that is the end of my authority. I may not have any authority to do it, but I ran it off into the sea.

Question:  What is your honest opinion as to the correctness of the line as laid by Kanakanui from the rock toward the sea shore?
Answer: Practically correct in my final studies of the land – except it can go a little further that way 9 or 10 ft, but not amount to much.
Question: What do you mean?

Answer: Not the exact angle - in all my surveying I find you can't lead the magnetic needle closer than 15', the circle is marked in half minutes, and if you work up the needle it will never come right - I have always taken 15'. For instance, if it is 14 you take 14.50 or 14.35; that is probably what Kanakanui did, and as he did it that way I took it. We didn't want to differ from the government.

Question: Then your own honest opinion is that the line ran by Kanakanui is not exactly correct?
Answer: It is exactly correct.

Question: Exactly?
Answer: I just explained why we take 15' - 49.30 the exact difference between my line and that - the nearest is 45'.

Question: Well, you have changed your opinion since 1925 on that point, have you not?
Answer: Not that I know of.

Question: Didn't you, in 1925, have the belief that the, line was incorrectly laid by Kanakanui?
Answer: That is something new to me.

Question: Didn't you, on August 1st, 1925, write to the Territorial Surveyor as follows: "On the Waikapu line, which I went into most thoroughly over a year ago, for the deed from the Hawaiian Commercial and Sugar Company to Wailuku Sugar Company, [page 376] it seemed that the line from the well known X on the large rock mauka of Pulehunui to the sea coast ran a little further inland or north west"?
Answer: Kanakanui's sea coast is too small on this line - as you know Alexander gave a magnetic bearing; but after both Mr. Foss and I had gone carefully into the matter we concluded as the Government Survey Department had established this line; it would be better to accept their line rather than have any trouble over same later, so that the deed from the Hawaiian Commercial and Sugar Company to Wailuku Sugar Company was described as 'Along the Kanakanui line.' For instance, if you go to the rock and set up a transit today it will run way inside - it will run way in here.

Question: Well, did you write what I have just read?
Answer: I must have if it is written there. I told Mr. Penhallow - I made reports of that.

Question: You did write that to Mr. Wall?
Answer: That was in discussing that [...]

Question: Did you?
Answer: Yes.

Question: You still have the same opinion?
Answer: No. In this case we found it exactly where we went up the ridge - his definite point.

Question: I would like to show you a tracing of a sketch plan entitled 'Portion of Government land of Ukumehame, Maui, [...]

Mr. Merriam: Prepared by whom?
Mr. Hewitt: I will connect it up later on; this connects with Mr. Baldwin's testimony.

Mr. Merriam: We have no objection to it.
Answer [sic. Question]: Have you ever seen that before?
Answer: Not this one, but we have it in that lease you have.
[page 377]
Question: You have a similar one?
Answer: Yes.

Question: Would you say, from that sketch plan, Kanakanui believed that this line, from this point up here, near the words 'to Wailuku', ended on the lower end?
Answer: I am not sure; he leaves it indefinite, but the line here shows it just as I had it.

Question: It doesn't show that, if continued, it would run into Kapoli Spring?
Answer: No, you take these bearings here, and that is the exact line I ran.

Question: If you knew nothing of the case previously, and were shown that plan, where would you, as a surveyor, say that line, if extended, would end?
Answer: I can't answer that because the plan looks incomplete here; he was not surveying up here.

Question: Would you say that Kapoli Spring had any significance of that?
Answer: In what way?

Question: Any way as marking boundaries or determining boundaries?
Answer: No. I don't think so.

Question: What would you say it was inserted for?
Answer: This flat here is called Kapoli, and the Springs run there, would it be liable to be called Kapoli Spring?

Question: Why didn't the surveyor simply say 'Kapoli' instead of 'Kapoli Spring?'
Answer: I don't know.

Mr. Merriam: I think I will object to your line of questioning for this reason - you are now considering a survey which has no bearing on the land in question as against your original boundary certificate, which you are bound, under the provisions of law, to go by; a subsequent survey to the boundary certificate has no standin ....