Waihona Aina

.... y according to the evidence and testimony of those two?
Answer: Well, we did not run the boundary line as that was not in question, it was simply to notice approximately in regard to the rental of the land, who to pay the rent in to, Waiakea being Crown land and Kukuau being private land, which Mr. Shipman held both at that time.

Question: Have you indicated on this plan the boundary line between Waiakea and Kukuau, approximately, as shown by the kamaaina?
Answer: It was shown me at the time approximately along Volcano Street, also at the head of the Waialama stream.
Question: Will you please indicate to the Commissioner the line on this plan if you have indicated by a line the approximate line between Kukuau and Waiakea
[Answer:] (makes a mark written in pencil, a dotted line showing the boundary of Waiakea and Kukuau.)
Question: this line that you identify as having made or plotted, according to the information given to you by kamaainas in 1884?
Answer: Yes

Question: Were any remonstrances made or any doubts then cast upon the location of that line [page 551], was there a difference of opinion, in other words?
Answer: No, not that I know of. We were not fixing the boundary, we simply wanted information to determine the line between Kukuau and Waiakea.
Question: Did you have an assistant from the Waiakea land or from the Kukuau land?
Answer: There was no disagreement.

Question: You show on this plan a double meander line in which you have written the words Kalanakamaa Gully, was this pointed out to you as the gully by that name?
Answer: Yes, it was known as the Kalamakaaa Gully, it was a deep narrow gully which almost always overflowed during a freshet, very dangerous and was impossible to cross when there was no bridge during a heavy rain.

Question: Have you ever, at any time, surveyed kuleanas originally owned in Haolepuoli?
Answer: No sir.

Question: Have you ever made a boundary of Waiakea nearer than where you show it.
Answer: Yes. I have made it up further towards Kukuau.
Question: How much further?
Answer: I should say about half way, or where it is indicated here.
Question: The scale on this map is 66'?
Answer: Yes, I would not say exactly half way, but somewhere near half way.
Question: You never heard of the boundary of Waiakea or Kukuau being almost at the extreme end of this line?
Answer: No, sir, I don't remember it being there.
Question: How long have you been a resident of Hilo Mr. Lyman?
Answer: I was born here. I lived away in Honolulu ten years, in Kauai eight or nine years.
Question: Kalanakamaa Gully, do you recognize the name from your early resident in Hilo or latterly?
Answer: I have always known it by that name.
Question: You have heard of no other Gully called Kalanakamaa Gully?
Answer: No sir.

Cross-examination
Mr. CS. Smith:
Question: You stated that you did not do any surveying [page 552] of any kuleanas in the immediate vicinity of this land surveyed by Exhibit "W"?
Answer: I said I never surveyed Haolepuoli.

Question: Did you survey any others?
Answer: the one above it, Aiona.
Question: that land was not adjoining the land of Waiakea was it?
Answer: No, it was on Kukuau.

Question: On the land which you have indicated here by a dotted line over which you have written in pencil "Boundary of Waiakea and Kukuau" was that the line which was pointed out to you by these native witnesses in '84?
Answer: Yes sir.
Question: Did they pretend to point out to you the exact line, or did they give you general information to give you the approximate line?
Answer: It was approximately. First they said it was the boundary on the road, then they went around the boundaries and came to the boundary at the beginning and said that was the boundary of Waiakea.

Question: This map was not one for the purpose of giving the exact boundary of Waiakea and Kukuau 1st?
Answer: No.
Question: Do you remember how many there were?
Answer: There were not more than two of them that professed to know, the others were assisting in the work of cutting the boush [sic].
Question: Do you mean to say that your witnesses to this line, kamaaina witnesses, were about two in number?
Answer: That is my recollection.
Question: You were not then surveying for any other purpose than to make the boundary for a Government Pound were you?
Answer: That was all.
Question: Have you ever surveyed any line of Kukuau and Waiakea between the north end of this dotted line and its other portions, in other words, have you ever done any other surveying on Kukuau and Waiakea boundary? [page 553]
Answer: Not as to the boundary.
Question: So this is the only time at which you ever surveyed the boundary between Kukuau and Waiakea?
Answer: Well, I cannot say positively as to that, because I have surveyed Kaihelua, which I believe touches the boundary part way, and also Kahui above, there are surveyed kuleanas above, but were not measured for the boundary. None of those boundaries but this.
Question: Then, Judge Lyman, your information concerning the boundary at the west indicated on Exhibit "W" was derived largely from the two or three kamaainas that you had at the time?
Answer: Entirely.

Question: So if they were incorrect regarding their location of the boundary between Kukuau and Waiakea you were also incorrect.
Answer: Yes sir. I did not regard fixing the boundary at that time.
Question: You stated in your direct examination that you heard from other sources that the boundary between Kukuau and Waiakea lay at the point on the Hilo side of your dotted line as indicated here?
Answer: Yes.
Question: Do you recall where you heard that that you base your information regarding the boundary of Waiakea and Kukuau?
Answer: Well, I have been shown it on the ground at sometime by one or more natives. I do not remember how many natives professed to know the boundary.
Question: And they located it, the boundary, as you have indicated it here?
Answer: Not one [on?] the Road?

Question: Do you recall how far on the Hilo side those witnesses stated to you that the boundary lay?
Answer: No, I cannot say. I have never measured it.
Question: Could you give the Boundary Commissioner a general impression?
Answer: I should say it was half way, or the dotted line to the northwestern limit.
Question: Will you out[?] a mark on Exhibit "W" showing where that boundary cut the makai edge of [page 554] Volcano Street as you recall it, for identification purposes, approximately
[Answer:] (makes a mark on the map)
Question: Now the mark that you have indicated with a circle around it was about the place where the Waiakea and Kukuau boundary cut Volcano street according to the other kamaaina witnesses at another time, was it?
Answer: Yes, I don't know whether they were witnesses.

Question: What do you understand by kamaaina witnesses in survey?
Answer: People who were acquainted with the locality and could know of the boundaries in some way, through their ancestors.
Question: would you class men who had told you of the location of the boundaries of Kukuau and Waiakea, knew the point passing through the mark in a circle as that class of witnesses / viz.: kamaaina witnesses?
Answer: Yes, I considered at the time just as reliable as one who knew about that property.

Question: Do you know of another Gully in the immediate vicinity of this land crossing Volcano Street, but which gully runs along the Hilo side of what you have described as the Kalanakamaa Gully, a somewhat smaller gully?
Answer: Yes, there is a much smaller gully on the Hilo side.
Question: About how far was this smaller gully in the point that you have indicated on the Exhibit "W" with the line surrounded by a circle?
Answer: I think it was between that and the western corner of the point.

Question: Now this gully which you have indicted here by a parallel line as Kalanakamaa Gully is simply a small depression in the land which is sometimes filled with water and sometimes dry?
Answer: It was a sharp, deep, gully, kept scoured out by each freshet during the heavy rains, but would dry up when there was no rain, and finally the supply of water was shut off in some way [page 555] after the flow of '81, as there has been no water in it since that time. [Continued Part 10, Page 555 continued]
[Kukuau 1, Part 10, page 555 continued]
Question: What happened to if [sic it] after the flow of '81?
Answer: The supply of water seemed to be shut off in the smaller gully which runs on the Hilo side.
Question: The water in both Gullys has it ceases since the flow of '81?
Answer: Yes. This Kalanakamaa Gully here was usually filled with water, and was very dangerous, and the Waiakea Mill Co. built a stone wall to keep the water from flowing over, the remains can be seen there yet, after a time they had a bridge, occasionally it would be washed away and you could not cross it.

Question: You said that you were born in Hilo, Judge Lyman?
Answer: Yes sir.
Question: In your lifetime you have become familiar with the language so that you are employed by the Court in cases where accurate interpretation of the Hawaiian language is required, translating papers and other documents, you profess to have more than an ordinary knowledge and familiarity with the Hawaiian language more than most haoles, now, you are also familiar with the Hawaiian customs and habits?
Answer: Yes sir, to a certain extent.
Question: Do you know of any reason why this Gully should have been called Kalanakamaa Gully, Judge Lyman?
Answer: I do not think I ever had any reason explained to me.
Question: Does anything suggest to you why it was?
Answer: One thing, not exactly on that line there is a line between the rocky line and the good soil of Hilo town.

Question: Just a little farther on that line, Judge Lyman, you say that there is, near here, a dividing line between the rocky line and the earthen soil of Hilo town?
Answer: Yes.
Question: Towards which portion of the country does the rocky soil lay.
Answer: On the Waiakea, also on the Puna. [page 556]
Question: and the earth soil is on the Hilo side, is it not?
Answer: Yes.
Question: This was the line of the old trail from Hilo to Puna was it not?
Answer: No, the old trail to Puna is along the beach through Waiakea.
Question: Was there not, however, in former days a road near what is known as the Volcano Road now coming in from Puna?
Answer: Yes, that was the mauka trail to Puna.
Question: Parties coming from Puna over this trial would they not have to cross the rock path for a considerable distance before arriving at this point on Kalanakamaa Gully?
Answer: Yes sir.
Question: how would they walk, in their bare feet or with sandals?
Answer: In their sandals?
Question: What is the Hawaiian word for sandals?
Answer: Kamaa.
Question: Upon arriving at the point where the rocky path terminated and the soft soil began, what would they do?
Answer: Take off their sandals and probably take a rest there.

Question: You are familiar with the topography of that land?
Answer: Yes sir, somewhat.
Question: Do you know of a little eminence in the rise of the ground, just about at the end of the rocky path and the soft earth going from the town out?
Answer: Yes, sir.
Question: How much of a rise is that, Judge?
Answer: It is twelve or fifteen feet.
Question: You knew that in old times, did you not?
Answer: Yes sir.
Question: Do you know whether or not there was a Puhala tree there?
Answer: Yes sir, there are a number extending right up mauka on that rocky land.
Question: this tree that I refer to being on this little rise of ground was a good sized Puhala tree many years ago?
Answer: Not an unusually large one, a common sized Puhala tree.
Question: Do you know of any reason why that point [page 557] should be called Kalanakamaa if it was called Kalanakamaa, could you give nay explanation which would be consonant with the facts that we have elicited?
Answer: Not know from knowledge. I could guess.
Question: I mean from a consistent reason for calling that point Kalanakamaa?
Answer: I have no special reason from my own knowledge.
 
Question: could you give a reason from the nature of an exact surmise from the nature of the land?
Answer: It would be a natural place for people to take off their sandals coming from Puna or the Volcano where they would leave the rocks.
Question: would that, or would that not be a very natural name to that particular spot that I have indicated where the Puhala trees are?
Answer: I do not think that it is confined to that exact spot, the name includes also that gully and all that region.
Question: Is there any other reason why they should give that name to the Gully except that it is near that point?
Answer: Except being near that locality.
Question: Have you any idea, either from your own mind or your own knowledge, or any knowledge that you have gained at all, how much of that spot the word Kalanakamaa is intended to denote?
Answer: I could not define the boundaries.
Question: And that word would mean to the natives that it was a place for rest, where they would sit down and eat sugar cane, and do you know of any other names that were given to other localities by reason of some particular thing that was done by the natives other than Kalanakamaa?

Answer: There is but I do not recall them at the minute.
Question: Do you know whether or not Judge Lyman, from this small emminence [sic] that we have indicated before, you could, while sitting there see the surrounding country around Hilo to advantage because it is high?
Answer: Yes sir.
Question: Was it a natural resting place for persons who were coming from Puna?
Answer: Yes sir.
Question: Will you indicate on this map with a [page 558] pencil by a mark about where the rise in the ground is located, as near as you can from the western point from the Pound above the road? Will you put a figure two (2) with a circle around it to indicate about what you have pointed out on the map as being the top of that mound?
Answer: Its top is along here (making a mark). You come up on a sharp rise of ground and come up here almost level.

Question: What one is the sharp rise of ground, Mr. Lyman?
[Answer:] (points out) there is house near there.
Question: Is that house on the Aiona kuleana on top of the rise on in the hollow towards Hilo?
Answer: There is a house down in the hollow and also on the top of the rise, one is a new house on the Aiona land, the old house is down in the hollow near Volcano Street.

Question: The place where the top is not here? Running up does it make a point here or makai of Hilo?
Answer: Practically runs up along here.
Question: You stated that the land or this high portion which begins at figure two in the circle continued at about level?
Answer: Yes, I think it rises a little from there makai side right to the Gully on the Hilo side of the point marked circle two.

Question: There is a sharp decline, sharp depression?
Answer: Yes sir.
Question: That is not a Gully?
Answer: Not a Gully, but it is hollow on the Waiakea side towards Kukuau down the lava flow.
Question: On the Hilo side there was no rise beginning at the same level, was there?
Answer: The land was lower, the land on the Hilo side was approximately lower. That is all.

Re-Direct Examination.
By Mr. Loebenstein:
Question: You stated in your cross-examination that from this point which you have indicated here; two in a circle, that the ground gradually rose coming out toward Waiakea?
Answer: I think it is makai. I did not mean on the road, very [page 559] little, if any.
Question: Still it rises?
Answer: A very little but not as much.
Question: Do you remember having stated that a person could look out toward Puna on that point for a considerable distance?
Answer: I think I could as far as the Gully, but no farther.
Question: Consequently, the Gully is the highest point, you could see some trails toward Kalepolepo point?
Answer: Yes sir.

Question: Then at the Gully it is at its highest rise? And not the point that you have indicated as circle two that is not the highest point?
Answer: No.
Question: the old Puna trail and old Volcano road did it follow the present volcano Street, or did it meander a little towards what is now the Government Pound?
Answer: Yes, I think it did a little.
Question: It is practically just the same?
Answer: Yes sir.
Question: then within the Pound is the Gully higher than it is on the road? Or in other words, is there not a little mound just below the road just a little bit higher itself?
Answer: From there over to the Gulch it is pretty nearly level.
R.A. Lyman: You spoke of there being several Puhala trees, do you know what kind of Puhala trees they were?
Answer: Nothing more than the ordinary tree.
Question: Do you know who exercised ownership over them?
Answer: No, I do not, I never had charge of them.

Testimony of W.H. Shipman
W.H. Shipman being first duly sworn testified as follows:
By Mr. A.B. Loebenstein:
Question: Mr. Shipman you are by occupation a rancher are you not?
Answer: Yes sir.

Question: As such have you had anything to do with the land of Waiakea?
Answer: Yes.
Question: As lessee?
Answer: Yes.
Question: Since when?
Answer: Since 1877.
Question: and you had possession of that land as [page 560] lessee continuously until when?
Answer: About two years ago, I think, 1899, 1900, somewhere along there.
Question: Do you remember exactly?
Answer: No.
Question: did you obtain the lease directly from the Government Crown Lands?
Answer: No, it was transferred to me.
Question: By whom?
Answer: Hawaiian Agricultural Co.
Question: did the Hawaiian Agricultural Co. have a representative there managing their ranch?
Answer: Mr. Lyman.
Question: Which Mr. Lyman?
Answer: Mr. Rufus A. Lyman.
Question: Upon obtaining possession of the land did you familiarize yourself with the boundary or boundaries of the lands held, especially at or by the present Volcano road?
Answer: Well, I inquired about it, yes.
Question: You inquired of whom?
Answer: A man by the name of Kaukini, a man that was living on Waiakea.
Question: Was he a kamaaina?
Answer: Kamaaina as far as I know, he had been working on the place before. I got it, and [he] worked for me afterwards, after I got it.

Question: Did he indicate to you where the boundary of Waiakea and Kukuau adjoined the Volcano road?
Answer: Yes sir.
Question: Could you describe about where it was?
Answer: He told me the boundary at Kalanakamaa Gulch.
Question: What gulch is that?
Answer: It is the Gulch joining onto the road down to Kaihenui's, right by the road, at the road that leads down to Kaihenui's. there was a bridge across it at the time it was called by that name.
Question: Was there water running in the gulch at that time?
Answer: When there was a freshet up to the time of the '81 flow.
Question: Did you ever know or hear of any other Gulch or Gully being called Kalanakamaa?
Answer: No.
Question: Did you ever hear of any other point but the one shown you by Kaukini in 1877 as being the point at or by the Volcano road where the boundary [page 561] of Kukuau and Waiakea joined at that time?
Answer: No.
Question: As a matter of fact, when did you first hear that any other point on the volcano Road was claimed as the boundary of Kukuau and Waiakea?
Answer: In the first place Mr. Fred Lyman surveyed it he made the point a little Hilo, toward town when he made the survey of the Pound.
Question: who made the survey of the pound?
Answer: Mr. Fred Lyman.
Question: At whose request?
Answer: By the Government, he was looking around for different places.
Question: Were you Lessee of Waiakea at the time?
Answer: I was.
Question: Then he fixed the Boundary between the two lands at the Pound different at that time?
Answer: A few feet different from what I had been told.
Question: Upon what land did you consider the site of the pound to be located up to the time Mr. Fred Lyman surveyed it?
Answer: Well, the Pond was not located at that time.
Question: Were you led to believe by his plan that the boundary was a little further this way?
Answer: Yes sir.

Question: Do you recognize this plan Mr. Shipman? (showing him Exhibit "W")
Answer: I would not say that this is the one he drew or not. He drew one and I had a plan of it. I had it in my possession sometime just the same as that.
Question: As a matter of fact, do you ever remember giving that plan to any one, myself for instance?
Answer: I think I gave it to you some years ago.
Question: some years ago?
Answer: Yes.
Question: then as a matter of fact, until recent years you always had believed that the boundary of Waiakea and Kukuau was at that Gully, Kalanakamaa?
Answer: Yes.
Question: Did Mr. Kaukini also point out to you Kalanakamaa Gully, above the road as being the boundary between Waiakea and Kukuau?
Answer: No, he just said that this was the boundary of Waiakea and Kukuau at that point. [page 562]

Question: Was the boundary higher there at the point where he pointed the boundary out?
Answer: It was higher on the flow - pahoehoe flow.
Question: You were also Lessee of Kukuau were you not?
Answer: Yes.
Question: Were you also Lessee of Kukuau in 1877?
Answer: I think I was.
Question: You never heard of a controversy, or none at least came to your ears that Kalanakamaa gully being the boundary between the two lands Kukuau and Waiakea at that time?
Answer: No, I never heard of anything different for years.
Question: For years?
Answer: No.
Question: When did you first hear of any other point?
Answer: Some three or four years ago.
Question: And then what did you hear?
Answer: It was pointed out tome by some natives at Kukuau at a little gully.
Question: That was three or four years ago?
Answer: Yes, I think so.
Question: But before that you never heard of anything different?
Answer: No.

Question: Did Kaukini show you any other points on the boundary of Kukuau and Waiakea, as for instance, Kaununumoa?
[Answer:] Well he showed me marks at different places.
Question: And you found marks on the points made on the places he pointed out?
Answer: Yes.
Question: Then you had reason to believe him to be a good kamaaina?
Answer: I suppose so, he always lived on the land.
Question: He pointed out the old marks?
Answer: Only that far.

Cross-examination
By C.S. Smith:
Question: this boundary that he pointed out to you was pointed out to you by this man alone? This Kaukini whom you have mentioned?
Answer: Yes.
Question: You say you believed him to be a good kamaaina?
Answer: I suppose he was. He always lived on the land as far as I know. [page 563]
Question: Did you ever ask him?
Answer: No.
Question: He is dead now?
Answer: Yes.
Question: How old was he when he died?
Answer: When he died he was a man somewhere between forty and fifty years.
Question: You do not know where he was born?
Answer: I do not know.
Question: What part of Waiakea did he live?
Answer: He lived just above the cut by Mr. Kennedy's.
Question: how far from this boundary?
Answer: I do not know exactly.
Question: One half mile or one mile?
Answer: More than that.
Question: How long did he live at this place, after you knew him?
Answer: I think he lived there up to the time he died, I am not sure.
Question: Had probably lived there sometime before that, as long as you had known him?
Answer: Yes.
Question: About a mile on the Puna side?
Answer: By Mr. C.C. Kennedy's.

Question: Was he the kamaaina who pointed out the Kalanakamaa Gully as the boundary of Kukuau and Waiakea?
Answer: Yes.
Question: You stated, I think, that no one else had pointed out any other point except two or three years ago?
Answer: Except when Fred Lyman surveyed it, he made it a little different.

Question: As a matter of fact, Mr. Shipman, at the time that you have mentioned that Kaukini pointed this boundary out to you land was not particularly valuable in that particular portion, was it, in 1877?
Answer: Not as valuable as it is now.
Question: Or as valuable as it has been for the last ten years?
Answer: No.

Question: Any cane grown on that land?
Answer: Yes.
Question: In 1877 was the Waiakea Mill Co. growing cane there?
Answer: What land do you refer to?
Question: I am referring to the land of Kukuau, there never was any cane on that.

Question: That land has become valuable, more recently by reason of the fact that the town has grown out in that direction?
Answer: I suppose so.
Question: That is the only value there is to the land [page 564] in the immediate vicinity of the boundary near the road?
Answer: Yes.
Question: Is it not a fact that the town has grown in that locality?
Answer: Yes.
Question: How long ago was it that the town had grown in that direction so that it could make this land desirable for residence?
Answer: Just a few years ago.
Question: Are there any houses built at or close to the boundary?
Answer: There was a house there in 1877 where the one is now, a new house.
Question: Did you ever make any investigation from any other kamaaina, Mr. Shipman, except Kaukini?
Answer: No. I never did.

Question: what was the reason for your making an investigation at that time as to the boundaries of Waiakea and Kukuau?
Answer: I was not looking into the boundaries particularly, we were around looking after stock and I asked him where the boundary of Waiakea was. I was not very particular, as I had the two lands, afterwards we went mauka and he showed me the points mauka.
Question: And that is the only time you ever questioned Kaukini regarding these boundaries?
Answer: I always heard that was the boundary. I never heard anything different.
Question: You said it was about three or four years ago that you first heard that the boundary was in a different place?
Answer: I think about that time.
Question: And what made you think that the boundary was different at that time?
Answer: Mr. Fred Lyman put the boundary in a new place. It was only a few years ago, that I was told that the boundary was a little this side.
Question: have you ever, at any time, had reason for finding out definitely where the boundaries were Mr. Shipman, for instance, have you ever made a survey of them, or ever had nay grounds for making an investigation, or from any other source of investigation? [page 565]
Answer: I never had any survey made around there that I remember of.

Mr. Loebenstein: I would like to offer in evidence the original Notes of Survey made by Mr. John Lydgate of Kukuau First.
Commissioner: If there is no objection we will mark the same Exhibit "3" and place on file with the other Exhibits. [following is handwriting of 2nd scribe] [ ]

I hereby certify that the foregoing transcript is a true and correct report of the evidence taken on the 11th and 12th day of July A.D. 1902 at Hilo, Hawaii.
(Signed) G. Ball, Stenographer

Continued on page 566


Kukuau 1st Ahupuaa, District of Hilo, Island of Hawaii, Boundary Commission, Hawaii, Volume D, pps 566-572

(Continued from page 565 of this book)

The Ahupuaa of Kukuau 1st, District of Hilo, Island of Hawaii
Land Commission award No. 8515, R.P. No. 1666 (by name only) [Keoni Ana]

Hilo, Hawaii, March 2d 1903
Commission of Boundaries for the 4th Judicial Circuit, Island & Territory of Hawaii met at the District Court Room, South Hilo, Hawaii, at 10 a.m.

W.S. Wise appeared for Kinney, McClanahan & Bigelow, Attorneys for Mrs. J.L. Richardson, and Carl S. Smith, as Attorney for the Territory of Hawaii.

W.S. Wise filed Notice of Motion & Motion to close the taking of evidence for the matter of the Boundaries of Kukuau 1st.

Carl S. Smith asked to have case continued until Thursday morning March 5th 1903, as the Commission of Public Lands (E.S. Boyd) is quite sick on Maui, and he, the Attorney has had no opportunity to hear from him, since the notice of Motion to close taking of evidence was furnished to Commission of Public Lands, and to the Attorney.

Mr. W.S. Wise of Wise & Ross, makes no objection to having case continued to the 5th instant, receiving right to communicate with Mrs. Richardson's lawyers.
Case continued to 10 a.m. Thursday the 5th day of March 1903.
Rufus A. Lyman, Commissioner of Boundaries, 3rd and 4th Judicial Circuits, Island & Territory of Hawaii.

Hilo, Hawaii, March 5th 1903.
The Commission of Boundaries met, and continued the case until March 19, 1903 to give Carl S. Smith, attorney for the Territory of Hawaii, to see the Commissioner of Public Lands in Honolulu, and to take steps to have the evidence of C.J. Lyons & J.M. Lydgate taken at once, or have case closed & submitted [page 567] to the Commissioner of Boundaries for his decision.
Rufus A. Lyman, Commissioner of Boundaries, 3rd and 4th Judicial Circuits, Island & Territory of Hawaii.

Hilo, Hawaii, March 19th, 1903
Commission of Boundaries met at the South Hilo District court Room, according to adjournment from the 5th instant.

Notice of Motion & Motion to close taking of evidence in this case, presented as follows:

Before Rufus A. Lyman, Commissioner of Boundaries for the Third and fourth Judicial Circuits, Territory of Hawaii

In the Matter of the Boundaries of Kukuau

To H.E. Cooper, Superintendent of Public Works, and E.S. Boyd, Commissioner of Public Lands, and Carl S. Smith, Attorney for the Territory of Hawaii, in the matter of the boundaries of Kukuau and to whom it may concern.

Please take notice that over six months have elapsed since the hearing of evidence in the above entitled cause was continued to enable the Government to take the evidence of C.J. Lyons and J.M. Lidgate, and thus far no steps, to our knowledge, have been taken to secure said evidence, and that therefore we will on the 2nd day of March next, move before said Commissioner of Boundaries, that the taking of evidence be closed and the cause submitted forthwith to said Commission for a final Adjudication, and we give you and each one of you formal notice herewith that upon said 2nd day of March at 10 a.m.  in the city of Hilo at the Court House of said city, we shall ask to be heard upon each motion.
(Signed) Kinney, McClanahan & Bigelow, Attorneys for Mrs. J.L. Richardson
Dated at Honolulu, February 11th 1903

[page 568]
Mr. Wise of Wise & Ross argued for having the taking of evidence in the above matter, closed at once, and that the above motion should be granted.

Mr. Parsons of Smith & Parsons appeared in place of Carl S. Smith, and asked to be allowed a reasonable time to look into the case, and to try and get the evidence of C.J. Lyons taken.

The Commissioner of Boundaries filed copy of his letter dated February 5th 1901, should be Feb. 5, 1903
To E.S. Boyd, Commissioner of Public Lands
Marked Commissioner's Exhibit No. 1.
Also copy of letter from E.S. Boyd, Commissioner of public Lands, dated February 10, 1903
Marked exhibit No. 2
Also copy of letter dated February 20th 1903, from E.S. Boyd, Commissioner of Public Lands, to Commission of Boundaries
Marked Exhibit No. 3.
And made them a part of the record of this case as follows:
Also copy of letter, dated March 11, 1903 from Carl S. Smith marked Commissioner's Exhibit No. 4, Exhibits read as follows:
[page 569]
Commissioner's Exhibit No. 1.
Hilo, Hawaii, February 5, 1901 [sic]
E.S. Boyd, Esquire, Commissioner of Public Lands, Honolulu, Oahu
Dear Sir:
At the hearing for the settlement of boundaries of Kukuau 1, held August 8, 1901, Carl S. Smith stated that he wished to have the case continued to have the evidence of C.J. Lyons and J.M. Lydgate taken for the Government by Depositions in Honolulu, and Mr. Ballon asked to have the evidence of F.S. Lyman and W.H. Shipman taken for Mrs. J.L. Richardson.

The evidence of F.S. Lyman and W.H. Shipman was taken at Hilo on the 11th and 12th of July 1902, and Mr. Smith said he would try to have things got ready to have evidence of Lyons and Lydgate taken in Honolulu.

Now I hear that Mr. Smith is going to the States as soon as the Circuit Court now in session at Hilo, is finished, and I would like to have the case closed up before he goes.

If you are going to have the evidence taken, I would like to have it done now, and to have the Attorneys file their Briefs, so that the case can be got out of the way.
IN haste, I remain,
Your truly obedient Servant
(Signed) Rufus A. Lyman, Commissioner of boundaries 3rd & 4th Circuits, Territory of Hawaii

Commissioner Exhibit No. 2 (reads as follows)
Commission of Public Lands, Territory of Hawaii, Honolulu, February 10th, 1903
Rufus A. Lyman, Esquire, Hilo, Hawaii
Sir:
Yours of February 5, 1901 (this is probably a mistake) in re Kukuau 1, matter was received today, and to say that your request as to depositions of C.J. Lyons and J.M. Lydgate and Briefs to be filed in this case will be attended to at an early date; [page 570] and would call your further attention that when same are filed, they must be filed when the Commissioner of Boundaries opens his Court (or whatever you may call it) for hearing this case.
Yours respectfully
(Signed) E.S. Boyd, Commissioner of Public Lands

Commissioner's Exhibit No. 3
Hilo, Hawaii, February 20th, 1903
E.S. Boyd, Esquire
Commissioner of Public lands, Honolulu, Oahu
Sir:
Your favor of the 10th instant is at hand, and contents noted.

The date of my letter should have been February 5, 1903, instead of 1901.

I have received a copy of notice from Kinney, McClanahan & Bigelow, Attorneys for Mrs. J.L. Richardson that they sent to you and others, that they will move on Monday the 2nd day of March next, at the Court House in Hilo, at 10 a.m. to be heard by me upon said motion.

I hope that you will be able to have the case closed soon.
Yours in haste,
(Signed) Rufus A. Lyman, Commissioner of Boundaries 3rd & 4th Judicial Circuits

Commissioner's Exhibit No. 4
Honolulu, Territory of Hawaii, March 11, 1903
Rufus A. Lyman, Esquire, Hilo, Hawaii
Dear Sir:
After several days in Honolulu I have just been able to obtain an interview with [page 571] Mr. Boyd, relative to the haring of the Boundaries of Kukuau first. Mr. Boyd and I very much wish to have the testimony of Mr. Lyons taken by you before the close of the testimony in this case. To this end we have requested Mr. Lyons to go to Hilo and he now has the matter under consideration. By this same mail I am writing Mr. Parsons upon the subject and trust that you will be able to give the Government any further time which may be necessary to enable us to close the presentation of our testimony.
Very truly yours,
(Signed) Carl S. Smith

The above copies of the Exhibits are made a part of the record in this case.

The Commissioner of Boundaries gave the following ruling:
The Government or Attorneys for the contestants have made no good showing why the Motion to chose the taking of evidence in this case, should not be closed, after the Commissioner of Boundaries reopened this case August 6, 1901 in order to allow the Attorney for the Commission of Public Lands or the Government of the Territory of Hawaii, to introduce the evidence of C.J. Lyons & J.M. Lydgate & others for the Contestants, and from that time to the present time, the Commissioner of Boundaries has not been requested to appoint a Commission to take the evidence of C.J. Lyons or of J.M. Lydgate or to summon them to appear before him at Hilo, Hawaii to give their evidence in this case.

It appears to the Commissioner of Boundaries that twenty months is ample time for the contestants to have procured the evidence of these two witness[es], and to have presented it to the Commissioner for his consideration.

That Carl S. Smith, Attorney for Contestants has wished to have the testimony of these two witnesses submitted to the Commissioner, but for some unknown reason has not been able to get the evidence taken & submitted to the Commissioner.

But as Carl S. Smith, the Attorney who has [page 572] had charge of the case for the Contestants has gone to the States for quite a long visit, and Mr. C.F. Parsons, his Partner, has had no opportunity to get acquainted with the case, the Commissioner is willing to give him an opportunity to examine the evidence &c., but is unwilling to continue the case another six months, to have the evidence of C.J. Lyons and J.M. Lydgate taken.

As the Commissioner of Boundaries has been called as a witness in a case to be tried at the April Term of the Circuit Court, IIId Circuit, at Kailua, North Kona, Hawaii, this case is continued for Thirty days, and at the end of Thirty days will close the case.

That if the Commissioner of Public lands wishes to have the evidence of C.J. Lyons & J.M. Lydgate taken, he must have it taken before the end of thirty days from date, as the taking of evidence in this case must be closed by the 18th day of April A.D. 1903.

C.F. Parsons asked to have an opportunity to examine all the exhibits in this case.
The Commissioner said when would given him all the time he need to examine Exhibits &c., and to prepare & filed Brief after the taking of evidence is closed.
Rufus A. Lyman, Commissioner of Boundaries, 3rd & 4th Judicial Circuits, Island & Territory of Hawaii


Kukuau 1st Ahupuaa, District of Hilo, Island of Hawaii, Boundary Commission, Hawaii, Volume D, pps 573-577

Kailua, North Kona, Hawaii, 3rd Circuit, island & Territory of Hawaii
11 a.m. April 13th 1903
I received a letter from Governor S.B. Dole, dated April 7th 1903, that reads as follows:
Executive chamber, Territory of Hawaii, Honolulu, April 7th 1903
Mr. R.A. Lyman, Commissioner of Boundaries, Hilo, Hawaii
Sir:
I desire to make a change in the offices of Commissioner of Boundaries for the 3rd and 4th Judicial Circuits, as I contemplated doing two years ago, but which purpose was not concurred in by Mr. Cooper, then Acting Governor.

If you should prefer to forward your resignation by the return mail from Hilo, that course would be agreeable to me, otherwise I will forward notice of your removal next week.
Very respectfully,
(Signed) Sanford B. Dole.

A copy of the above letter marked Commissioner's Exhibit No. 5 is placed on file with other Exhibits in this case, and made a part of the record.
Rufus A. Lyman, Commission of Boundaries 3r4d & 4th Judicial Circuits, Territory of Hawaii

See next page

[page 574]
Hilo, Hawaii, April 22, 1903
On the 17th day of April, 1903, I received a Telephone at Kailua, North Kona, Hawaii, from Mrs. R.A. Lyman, saying a letter dated April 13, 1903 has been received from Governor Dole, removing you form position of Commissioner of Boundaries of the Third & Fourth Judicial Circuits.

On my return to Hilo, Hawaii, in the afternoon of April 20th 1903, I received said letter that reads as follows:

Executive Chamber, Territory of Hawaii, Honolulu, April 13th 1903
Mr. Rufus A. Lyman, Commissioner of Boundaries, Hilo, Hawaii
Sir:
Pursuant to my letter of last week, I hereby remove you from the position of Commissioner of boundaries for the 3rd and 4th Judicial Circuits.

You are requested to deliver the records and property of the office to Mr. Frederick S. Lyman of Hilo.
Very respectfully
(Signed) Sanford B. Dole, Governor

A copy of above letter is marked Commissioner's Exhibit No. 6 is placed on file with the Exhibits in the Matter of the Boundaries of Kukuau 1, and also a copy of my letter of this date to Governor Dole, marked Commissioner's Exhibit No. 7, to show the way I have been removed from Office, after I have done all I can to try and get evidence, the Government wished to introduce in the Supreme Court April Term 1900, and ruled out by majority of Justices of Supreme court brought into the records of this case. [page 575]

It seemes [sic] that I have been removed, so as to have me out of Office, before the 18th of April, 1903, the day set by me for closing the taking of evidence in this case.

No one on part of contestants, has asked to have time extended, on account of my being detained at the April term of Circuit Court, Third Circuit, until noon of April 18, 1903, so as not to allow me to close case, or to receive the evidence of C.J. Lyons & J.M. Lydgate.

I ordered last survey made, and I find on examining the notes of survey and map filed and sent back to Commissioner of Boundaries by Supreme Court, April 30th 1901, to be passed on by Commissioner, that said notes of survey, and map have been made in accordance with order given September 20, 1900.

Commissioner's Exhibit No. 7, reads as follows:
Hilo, Hawaii, April 22d, 1903
S.B. Dole, Esquire, Governor, Territory of Hawaii
Sir:
I have the honor to acknowledge the receipt of your favor of the 7th instant, on the 13th of this month at Kailua, North Kona, Hawaii, and on the 17th instant, I received a Telephone at Kailua from Mrs. R.A. Lyman, notifying me, that your favor of the 13th instant removing me from Office as Commissioner of Boundaries for the 3rd and 4th Judicial Circuits had been received at Hilo.

I returned to Hilo on the 20th instant and am waiting for the return of F.S. Lyman from Kona, and will turn over the Boundary books, papers &c, as soon as he is ready to receive them.

In justice to my family, and to myself, I would most respectfully ask you to inform me, why I am removed from office in this way, without being informed of the reasons for the removal, or given any opportunity to make any explanations?

Abut two years ago my brother told me, you wished to appoint him in my place, as I had done something out of the way, and when you was [were] in Hilo, I spoke to you, and told you that if I had been charged with doing anything out of the [page 576] way, that I would like to know what it was, and be allowed to explain to you about what I had done, and you replied that you did not know anything about it.

After the case of the Boundaries of Kukuau 1 had been sent back to me from the Supreme Court, for me to pass on the Survey that I ordered made, I reopened the case in August  1901, to give the Commissioner of Public Lands an opportunity to introduce the evidence of C.J. Lyons & J.M. Lydgate, as the majority of the Judges of the Supreme Court had ruled that the evidence of Lyons & Lydgate could not be taken in the Supreme Court, and I wished to give the Commissioner of Public Lands an opportunity to introduce all the evidence he wished to, so that if he took an appeal from my decision, the Supreme Court, would have the evidence before them.

Early last February I notified the Commissioner of Public Lands, that I wished he would have the evidence taken, as soon as possible, so I could close the case before his Attorney, Carl S. Smith went to the States, as Mr. Smith expected to be away six months.

The Commissioner of Public Lands replied that he would have it attended to soon.

The next day Kinney, McClanahan & Bigelow served notice on Commission of Public Lands & others, that they were going to present a motion to have the taking of evidence closed..

At the hearing of this motion, I continued the case, as I heard the Commissioner of Public Lands was sick at Maui, and when case came on, I continued it for two weeks to give Mr. Carl S. Smith an opportunity to see Commissioner of Public Lands in Honolulu.

At the end of two weeks the Motion for closing taking of evidence was argued by W.S. Wise for Petitioner, and C.F. Parsons of Smith & Parsons for the Government, and as Mr. Smith had written me, that the government was very anxious to have C.J. Lyons' evidence taken, I continued the case 30 days to April 18, 1903, to give the Government every opportunity to take Mr. C.J. [page 577] Lyons' evidence, but declined to continued the case another six months, after I had reopened the case in August 1901, and maps belonging to the Fedral [sic] Government from Hilo Custom House, and maps belonging to different [sic] persons, had been filed as exhibits, as were being kept tired up indefinitely.

Mr. Carl S. Smith had told me several times, that he had endeavored to bring the case to a close, but was unable to get it attended to in Honolulu.

I felt that in justice to all parties, case should be brought to a close, so it could be finally decided and the Maps returned to the proper owners.

It has been in my hands about three years, and the Government took out an appeal over two years ago, and the Supreme Court sent it back two years ago, as they ruled the Government took out an appeal before the final decision was given.

Before I gave my decision setting aside notes of Survey filed by A.B. Loebenstien, & ordering a new survey, Mr. E.D. Baldwin, Agent for Government Lands in Hilo, and acting for Commissioner of Public Lands, stated in Court that he had no more evidence to offer for the Government, and filed a Brief, that he had prepared before he came to Court that day.
Respectfully Yours,
(Signed) Rufus A. Lyman

No answer has been received up to August 28th 1903.
I hereby certify that the foregoing record is a true record of the proceedings in the Matter of the Boundaries of the Ahupuaa of Kukuau 1, District of Hilo, Island of Hawaii from the reopening of the case August 5th & 6th 1901 to the date that F.S. Lyman takes the Books, Records & Exhibits of the Commissioner of Boundaries, 3rd & 4th Judicial Circuits, Territory of Hawaii. Recorded book 5 pages 397-577 inclusive. I also certify that the copies of Records kept by J.H. Van Gieson, and G. Bell, are true copies of the Typewritten copies made by them from their short hand notes.
Rufus A. Lyman, Ex. Commissioner of Boundaries, 3rd & 4th Judicial Circuits, Territory of Hawaii.


Kukuau 1st Ahupuaa, District of Hilo, Island of Hawaii, Boundary Commission, Hawaii, Volume D, No. 5, pps 622-645

Re Boundaries Kukuau 1st, Hilo, Hawaii, Hawaiian Islands
Hilo, November 14, 1903 before F.S. Lyman, Commissioner of Boundaries
A Motion to set the above entitled matter for a hearing, having been filed on the 12th instant by Mssrs Kinney and McClanahan and (See page 628 Motion) Wise and Ross
Attorneys for Mrs. J.L. Richardson

W.S. Wise appeared for the Motion
Carl S. Smith appeared for the territory of Hawaii.

Mr. Smith explained that status of the case at the present time, as being unfinished.

After looking into the matter, on motion of W.S. Wise, it was mutually agreed by the parties that a hearing of the Case be set for December 3d 1903,a t 9 a.m. at the Office of the Commissioner of Boundaries. Consel [sic] to notify their Principals.
F.S. Lyman, Commissioner of Boundaries

December 3d 1903, 9 a.m.
W.S. Wise appeared for Applicant, also R.A. Lyman, under subpoena, Mr. Vicars, Mr. M.M. Spring, Stenographer for Wise and Ross.

Sent for Carl S. Smith, the Representative of the Territory. Mr. Parsons appeared for the Territory, and asked for a continuance of one week, to prepare, as he knows nothing about the case, and Mr. Smith cannot leave the session of the Circuit Court
Continued for one week from today, December 10, 9 a.m.
F.S. Lyman, Commissioner of Boundaries
[page 623]

In Re Kukuau 1st, Hilo, Hawaii
Hilo, Hawaii, December 10, 1903

The Boundary Commission met in the Office of the Commissioner of boundaries, at 9 a.m.
W.S. Wise appeared in behalf of the applicant.
C.F. Parsons, for the Territory
R.A. Lyman, and A.B. Loebenstein, also present.

Motion by Parsons that the applicant, before proceeding further with the case, be required to file as a potion of the original application in this Case, a Map of the proposed change of the boundary claimed, as required by section 281, Civil laws, Territory of Hawaii.

Motion argued by applicant's counsel that it had been practically waived in not asking for it at that time, and the case has proceeded until now without it.
Mr. Parsons does not know about the matter.
Motion overruled.

Motion by Parsons to continue for two weeks, to prepare, as a new Commissioner of Public Lands, J.W. Pratt, has just been appointed, amended to one week, so that Mr. Smith, who is now in the Circuit Court Term, can be present, having acted for the Territory, he being familiar with the case.
Continued to December 17th 9 a.m.
F.S. Lyman, Commissioner of Boundaries

[page 624]
Hilo, December 17, 1903
At the Office of the Commissioner of Boundaries by continuance from the 10th instant
W.S. Wise appeared for applicant
J.W. Pratt, Commissioner of Public Lands
Carl Smith, Attorney for Territory, also R.A. Lyman, present.
Motion by Carl Smith, viz.:

Before the Boundary Commissioner of the 3rd and 4th Circuits
In Re Boundaries of Kukuau First

Motion for an Order
Comes now the Territory of Hawaii, owner of the fee simple of the Ahupuaa of Waiakea, and moves the commissioner of boundaries hearing this cause to make and enter an order in this cause requiring a map of the Kukuau First showing the boundaries of the said land as proposed by the petitioner in this case.

This motion is based upon the records and exhibits in this case together with the affidavits hereto attached.
Smith and Parsons
For the Motion
Hilo, Hawaii, December 15, 1903

Affidavit in Support of Motion.
Carl S. Smith, being duly sworn says upon his oath that he is one of the attorneys for the Territory of Hawaii in the cause now pending before the Commissioner of Boundaries for the Third and Fourth Judicial Circuits of the Territory of Hawaii, and as such attorney has had exclusive and sole charge of the hearing of this cause from the time of filing of the notice of appeal to the Supreme Court until the date thereof except the hearings of two applications for continuance made before the Honorable F.S. Lyman, Boundary Commissioner.

This affiant further says that at the [page 625] time of the original hearing of this matter and before the appeal the Government at all times insisted that a map of the lands in question together with notes of survey showing the proposed location of the boundaries of said land should be filed as provided by law. That this affiant has been informed by E.D. Baldwin, who is the Surveyor of the Territory of Hawaii, that A.B. Loebenstein had asked that the filing with the Boundary Commissioner of such a map be postponed until the same could be completed by said A.B. Loebenstein. That said E.D. Baldwin is now in the City of Honolulu and for that reason cannot be present before the Commissioner for the purpose of making such statement upon oath.

That upon the hearing before the Boundary Commissioner from time to time demanded from the said A.B. Loebenstein that he furnish the Commissioner and file in this cause such a map, and that said Loebenstein at all times postponed the filing of the same and asked at each of such times for further time within which to complete this work on the same..

That this affiant went to the office of the Commissioner on the 16th day of December, 1903, and asked said Commissioner whether such a map had been filed in this cause and was thene [sic] and there informed by said Commissioner that no such map had been filed.

And this affiant further states that sufficient time and opportunity has been given to make and produce such map as that called for. That the Territory of Hawaii has at no time waived the filing of such map but at all times has demanded the production of such map; and it is the belief of this affiant that said petitioner is willfully [page 626] withholding the production of said map.

And this affiant further says that the Territory of Hawaii cannot safely proceed with this cause until such map is produced and filed herewith.
Carl S. Smith
Sworn to before me on the 16th day of December 1903
F.S. Lyman, Commissioner of Boundaries

It appears from the records, that maps, and Notes of Surveys, have been filed at different times, in this case, but do not agree with the decision of the Boundary Commissioner; and further testimony has been introduced, to determine the correct boundaries.

A correct Survey and Notes will have to be presented before a final decision and certificate can be issued.

At the present stage of the case, Applicant appears to have complied with the requirements of the Law.
Motion overruled: the case may proceed.

W.S. Wise states that he is ready with testimony, but it being Rebuttal, cannot be brought in until the testimony of the Territory is closed.

J.W. Pratt, asks that the hearing be continued until February 15th for him to prepare.

W.S. Wise strongly objects to continuance.

J.W. Pratt, states that the evidence he has to offer is now being prepared in the Government Survey Office at Honolulu, that he is going to Kohala tomorrow, and will reach Honolulu next Tuesday, so that he can send the statement and evidence by the Mauna Loa mail of that week, to arrive in Hilo [page 627] Monday, December 28, 1903 at 10 a.m.
F.S. Lyman, Commissioner of Boundaries
Continued until December 28, 1903, 10 a.m.

The Boundary Commission met in the Commissioner's Office at 10 a.m. December 28, 1903.

On looking over the numerous papers and maps on file in the case, it is found that a Map and Notes of Survey are on file; made by A.B. Loebenstein according to the decision of the Commissioner of Boundaries, September 20, 1900; being Exhibits "N" and "1" respectively.

Commissioner of Boundaries
Carl S. Smith filed a Stipulation admitting evidence of Curtis J. Lyons, assistant Survey, and asked to postpone the hearing to the 29th instant.
W.S. Wise appeared for applicant
Continued until tomorrow, December 29, 1903
F.S. Lyman, Commissioner of Boundaries

The Boundary Commission met in the Fireman's Hall, Tuesday, December 29th, 1903, Hilo, Hawaii.
Continued from December 28th
Present: W.S. Wise  & H. Vicaro for applicant
Carl Smith for Territory; R.A. Lyman, and E.D. Baldwin
The Stipulation filed yesterday was read.
See page 629 Stipulation

[page 628]
Before the Honorable Commissioner of Boundaries
Of the Fourth Judicial Circuit, Territory of Hawaii

Motion
In the Matter of the Boundary of Kukuau 1st

To the Honorable F.S. Lyman, Commissioner
Now Comes Mrs. J.L. Richardson, by Messrs Kinney & McClanahan and Wise and Ross her attorneys and moves the Honorable Commissioner to set the above entitled matter down for hearing.
Kinney & McClanahan
Wise & Ross
Attorneys for Mrs. J.L. Richardson

Messrs Smith & Parsons,
Attorneys for the Government
You will please take notice that we will call the above motion up for hearing before the Honorable F.S. Lyman, Commissioner of Boundaries of the Fourth Judicial Circuit, Territory of Hawaii, on Saturday morning November 14th A.D. 1903 at nine o'clock, or as soon thereafter as the matter can be heard.
Kinney & McClanahan
Wise & Ross
Attorneys for Mrs. J.L. Richardson
Dated, Hilo, Territory of Hawaii, November 12th 1903

[page 629]
Before the Commissioner of Boundaries for the Fourth Judicial Circuit

In the Matter of the Boundaries of Kukuau 1st
Stipulation admitting evidence of Curtis J. Lyons, Assistant surveyor

It Is Hereby Stipulated by and between the parties hereto that the attached letter of Curtis J. Lyons to Walter E. Wall, Territorial Surveyor, signed April 10, 1903, together with the plans numbered 1 and 2 therein referred to, be admitted in evidence, subject to the introduction of evidence in contradiction of the same.

It is further Stipulated that the said letter be taken as if the sworn testimony of Curtis J. Lyons, it being understood that the said Lyons is at the present time in bad health and unable to give testimony in the matter, applicant not however admitting said evidence to be true or the conclusions correct..

This stipulation is entered into on behalf of the applicants on the condition that this testimony be submitted and that the decision of the Commissioner be made before midnight of December 31st, 1903. In default of decision being rendered and made at that time, this stipulation is to be of no force and effect.

In witness whereof the parties hereto have hereunto set their hands this 23 day of December 1903.
James W. Pratt
Commissioner of Public Lands
Kinney, McClanahan & Cooper
Attorneys for Applicants [continued Part 11, page 630]

[Kukuau 1, Part 11, page 630]
Honolulu, Territory of Hawaii, March 25th 1903
Mr. Walter E. Wall, Territorial Surveyor;
Sir:
In reference to the question of boundary of Lower Kukuau (South), adjoining Waiakea and especially as to the line from the Government road to the point known as Kilohana, I would state as follows:

This line was described first by William Webster in 1851 as part of the boundary of the land of Waiakea, surveyed by him for the King Kamehameha III.

This description was incorporated in the subsequent leases of said land Waiakea.

When the boundary of Kukuau South was certified by Mr. Rufus A. Lyman in 1873-75, Certificate No. 58 [Huumuula], the same description word for word was incorporated in the said Certificate as a part of said boundary of Kukuau.

Now that the matter is reopened before the same Boundary Commissioner (whether rightly or wrongly it is not pertinent here to say), said Commissioner does not claim to be setting aside the original line specified above, but to be newly describing it in terms of true meridian and thereby locating it accurately on the ground..

Granting that he has the right so to do, which right however, I claim should not be acknowledged, it appears that two surveyors, Mr. Baldwin, Government Survey, and Mr. A.B. Loebenstein, surveyor for owner of Kukuau, and also claiming to be attorney, have made separate and divergent true meridian descriptions and location of this line, both accepting Kilohana as the upper end of the said line, Having made an examination [page 631] of the claims of each I would unhesitatingly approve of Mr. Baldwin's as against the other for the following reasons:

1st: That Mr. Webster's survey was made with a theodolite, with a certain uniform meridian, and that this meridian varied 7° 20 East from the true meridian. This fact I had ascertained and made a memorandum of, twenty years previous to the coming up of this question, by comparison of his work with the Government triangulation. To run this line therefore it is not necessary to go into the question of change of declination, nor even of the present declination, but simply to apply said 7° 20' to the magnetic bearings given. I have been furnished with the coordinates of Kilohana and of the lower end of Baldwin's line, upon which figures both surveyors practically agree, and find by actual calculation that starting form Kilohana, and running down the given bearings and distances with the above mentioned correction of 7° 20' (Northeast) the line will reach practically, i.e. within a few feet under the limit of the corner of the point claimed by Mr. Baldwin. Upon this I speak positively. As to marks claimed to be on the line I do not think that Webster left any on a crooked line.

2d. there is certainly one point below the road on which both parties are agreed within a few feet; the Northwest corner of the fish pond marked as Hanalei on town map. Now to reach this point from the road station of Loebenstein's survey would require the utter ignoring of one of Webster's courses, 2nd below road, viz.; North 63 ° 50' East 257 feet, without any apparent reason or authority.

See C, D, E on attached plan No. 1

3rd. Webster's map of this part of [page 632] Waiakea is on file in the Survey Office and was carefully drawn to a large scale (600 feet to an inch). It gives the distance by scale from a recognized point on the road to the eastward, viz.; the road junction with the west edge of the Piopio Fish Pond or Mohouli.*

Measuring this on the map confirms absolutely Baldwin's contention. In fact I cannot see how any respectable surveyor can uphold the contention that the Easterly line is correct.

I think the above three positions as stated settle the point where the line should cross the road, provided the Webster survey is to be strictly followed. Webster was a careful and accurate surveyor, and I think that i have showed that there is no chance for error in the above deductions.
Respectfully submitted,
(Signed) Curtis J. Lyons, Assistant
[Diagram]
Honolulu, April 10, 1903,
See Plan No. 2
No. 1. [Words on map: Top: Sea; upper left: Pohahawai, Certificate of Boundary No. 47, 2d piece; Kukuau 2d Certificate of boundary No. 32, For Lidgate's original Map Government Survey Office. Reg. Ho c[?],L.C.A. 4239B, Kanaina; L.C.A.  1106, Haae; Left: On Line "true north"
Upper Middle Deed to J.C.[?]; Northfeld Lumber yard; Upper Middle right: Front Street; East Junction of Webster's N.W.L. of Piopio; Piopio St.; Middle: Hanalei Fish Pond; Canal; Lower left: L.C.A. 2696 Puniono; L.C.A.3206 [Haoleopunui], Letters C, D, E.
Line from Kilohana; Lower right : Section below road. Reduction of tracing furnished by E.D. Baldwin to the Land Commission, Red Line Baldwin, Green, Loebenstein.
C.D. Line where bearing North 63° 50' East 247 is set aside by Loebenstein survey
E. point where surveys practically agree
Scale 500 ft. to inch.
[Diagram:]
Plan 2, page 633
[words on map:]
Upper right: Scale 600 ft to an inch; Webster's Meridian; Top center: road, marsh; Wailoa; Left Hilo Bay; stump; Piopio Acres 44.15; Right: Fish pond, Waiakea; Lower left: Kukuau, road from Hilo; Lower center: Waiakea; 1800 ft "compare map of Hilo Town";
Lower right: pond; Fish pond; Tracing of Webster's original Map of Waiakea enlarged section. Note in script (in quotes above) by C.J. Lyons; Made in Government Survey Office, Curtis J. Lyons
 
[page 634]
Testimony
December 29, 1903
E.D. Baldwin, sworn, I have investigated the boundaries regarding the survey by Loebenstein, from Volcano road to sea shore, here is a Map showing it..
(Government offers Map, marked Exhibit #4)

The green line represents the surveyed line given in Loebenstein's last description at the time case was taken to the supreme court (Exhibit 1); this is the description, green line is that given on it. I took that line and run it on the ground. I made a very careful exact survey. We have fixed points in town all tied to Halai Trig. Station. Are tribly [triply] tested and accurate. We commenced at makai side of volcano Road, running makai, located line, we have a Government pound Station; from that we located Loebenstein's pile of rocks makai of Volcano Road, on an elevation between two gullies; Webster's line runs to a gully; the place is called Kalanakamaa, no name of gully, the government witnesses gave name Kalanakamaa, located very nearly 180 feet Southeasterly; the green line shows Applicant's present contention and former contention, below volcano Road, as surveyed by Loebenstein; we went down and found a second pile of stones about 20 feet above bluff over Kumu Springs; his course #93, says "to a + marked on bluff overhanging Kumu Spring and bathing place." I examined bluff and all around, but could not find any mark; then run off his coordinates and found it exactly, the pile of rocks is still there. Course #92, from pile by Volcano road runs to his +, marked on Map, + on pahoehoe, solid pahoehoe clearly marked +, comes to it exactly; it is a little over 20 feet above bluff over Kumu Spring, and on the Waiakea side of bluff; the 20 feet is directly above the bluff, but 50 feet from the ledge overhanging Kumu Spring, towards Waiakea. Webster's survey is supposed to run to Kumu, which is known as the boundary.

I ran line by Webster's survey, shown by red line on my Map, runs right through Kumu Spring; Loebenstein's line is nearly 50 feet South of Spring; there is nothing in immediate vicinity to tie it to; the nearest is to Fish Pond, Hanalei, is about 400 feet from Spring; starting from corner of Fish Pond, and running up by Webster's survey we came to within less than 20 feet of Kilohana, a fixed point, about 2 1/2 miles [page 635] distant, going right over Kumu Spring, and the location at Volcano Road. Kalanakamaa, is where people coming from Puna, rocky land, took off sandals and hung up on a breadfruit tree, pointed out to me by many natives. It is the highest point around there, can look all over the country. From corner of Pond up, we come into a gully, which Webster followed to above Volcano Road. The breadfruit tree is directly above the Puniono kuleana, Northwest from gully, mauka of the road, about 70 feet from our station below the road and about 50 feet Northwest from red line.

Exhibit T (Exhibit T Webster's Survey) Course #50, I found that small gully makai of Volcano road; we hit it exactly, running from Fish Pond and Kumu Spring and also running to sea and across to corner of Piopio, 818 feet; 54th course agrees exactly with Webster's description. The pile of rocks in little gully makai of Volcano road, marked in centre, is checked to Kilohana, and to gully, down Webster's line, and across to Piopio, as surveyed by Webster; and to Webster's sea point.

Exhibit E. On map of Piopio, corner at Volcano road, measure along Volcano road to the line of Kukuau and Waiakea; it agrees with the distance on the Map. Running down Kukuau, locate Webster's sea point.

Lidgate's Map of Kukuau 2 runs the line of Ponahawai direct to the sea, and the boundary of Kukuau 1st, similar, but his description swung both the lines East about 115 feet, and the Kukuau 1st side is paralel [sic]; the rule of surveys is, when the plan and description differ, to follow the plan.

Lidgate apparently surveyed some by True, and some by Magnetic bearings; his Magnetic are the best; before any Government Stations were fixed. In the Kukuau survey he had it in True, and changed to Magnetic.

Loebenstein, in running line from corner of Kanaina kuleana ran it on Lidgate's description of Kukuau 1d, and from that sea point, ran across to 30 feet West of where Webster fixes sea point above at right angles. The green lines along Kanaina kuleana, is Loebenstein's description #1, first up from sea shore, 1st call, 2 to Kanaina kuleana, and 3d call along Kanaina kuleana. On the Waiakea side of Kukuau 1st green line is Loebenstein's 1st survey; we located the point of that map. [Margin note:] (Exhibit 4) "A.B. L's nail X on beach, below present Front Street.

In Exhibit #1 (Loebenstein's latest description), this is the end of 95th course, across beach side of Kukuau 1st, is about 115 too short to reach from the sea corner of Kukuau 2d as shown by the plot, to reach Loebenstein's nail point, on Kukuau 1st [page 636] and Waiakea. According to Lidgate's plot of Kukuau 2d, the point marked A, is Lidgate's point of Kukuau 1st and Waiakea. Do not know how Loebenstein arrived at this point. The only way he could locate it would be to run Lidgate's bearings and distances along Kukuau 2d and along beach by his bearing and distance of Kukuau 1st, along beach; but comparing with Lidgate's plan Kukuau 1st would be wider than it appears from his description; from Ponahawai.

From pile of rocks at Volcano road down to sea, does not come near Loebenstein's corner; and from Kukuau 2d across by Loebenstein's description would take off from Kukuau 1st, which the government does not claim.

Loebenstein, on the Waiakea boundary, from beach up to Kumu, follows Webster's courses and distances, but from there to Volcano road assumes a course not given by Webster.

If he started from volcano road and run down by Webster, would go over 100 feet into Waiakea. We laid it out according to his coordinates, and found the exact spot, a small galvanized nail, and occupied that point.

Loebenstein stated that he point galvanized iron pipe there, call 95, to pipe drive in below front street; we could find no pipe there; we occupied his Station, scraped sand 30 feet around there. I examined, shortly after his testimony in August 8; we examined in September.

Loebenstein testified he put iron pipe at corner of Hanalei Fish Pond; We occupied the point by his coordinates, but found no pipe there, only a small stake 3 inches in ground; the corner is about 46 feet North of Loebenstein's corner; the corner of Pond wa changed when digging the canal.

Cross-examined:
Running a line on a variation of 12° 10', and on 12° 20'; could not say what would be the difference at end of line 2 1/2 miles long; could figure it out (asked to figure it). Webster's Survey was made 1851. I ran along to Kilohana in 1900. Tom. Cook assisted me, and I had Janeway triangulate up there some.

The Lava flow of 1880-1 was after Webster's survey. About 3/4 mile covered by lava on the Kukuau Waiakea line; 2 1/2 miles to Kalanakamaa; if you run by Magnetic lines would be trouble, but Webster used a Theodolite; his variation was 7° 20'; he used back angles and Lyons got declination from Kulani, and made Variation 7° 20' [page 637]; now we have the true bearings; the lava flow makes no difference. Kilohana is a resting place, a large mound, a large pile of stones on high brow of hill; pahoehoe mound, by old trail, is a well established point, no dispute. Webster run on 7° 20' variation, and even on 7° 30' would be but little different; about a degree, on present declination 8° 20', one degree different from 1851.

The two culverts under Volcano road, at little gully, shows that water ran there; no mark of Webster's at Kumu; no marks are mentioned by him on lines; he mentions localities, like a stream, ridge, Spring &c. I have investigated the land above Kilohana, and made this Map from surveys by myself, Loebenstien, and description of Kukuau 1st, and data in Survey department; location of Lava flows.
(Map filed, Marked Exhibit 5)

The two red lines on Map, show Lidgate's survey; it does not reach down to Kilohana; the lower red lines show Loebenstein's survey. I took Loebenstein's starting points, by his coordinates; pencil line shows survey, by Exhibit #1, which runs way to the South of Waiakea line as laid out by Lidgate; nothing cuts off above, only end of lines; leaves 1100 acres between the two Kukuaus, approximately; it is more than 1000 acres.

I investigated it with Lyons; had surveys of Kaumana, and Pohahawai, and Kukuau 1st, the original Maps; I also wrote to Lidgate and he was here and say my Maps; said it was just as he ran the lines, as he remembered.

Lidgate was here in town, and saw this Map; I had written to him first, asking what he had done, and when here, he examined this Map and said it agreed with the work he had done; said he followed up the old trail through woods; and Kawaaokamoi cut across the land; he had the kamaainas with him, and the owners of the land too; cut across at points marked A [in circle] and B [in circle], which points the owners agreed were on the boundaries. The distances were taken from the original Maps of Kukuau 1st; they are South East from Kawaaokamoi. Loebenstein, in a former survey gave North mark A [in circle] as this, and South corner a good deal further mauka, but his later survey pushes both corners nearly 4000 feet above A [in circle].

Mr. Lyons and I went over the plot and found Lidgate replotted part of his work over again, which would make the addition; We found also that Lidgate did not run those lines; he only went through the woods once, in the road, [page 638] on the North line of Kukuau 2d, in numerous small courses up to Kawaaokamoi, then he cut out on the lava flow.
If we run up Lidgate's survey, North line from Kawaaokamoi up to upper and of Kukuau 2d and down the other side comes down to A [in circle], and not to Loebenstein's corners we actually plotted out Lidgate's notes of survey, and found this. Checked Lidgate's A [in circle], and B [in circle], by going around the survey.

Cross-examined.
The line on Map between Kukuau 1st and Kukuau 2d, is the same course, but is 4000 feet longer in the Patent than to A [in circle] on this Map. The next line corresponds in course and distance with the Patent exactly.

I compiled this Map from various sources; This Map (Exhibit C) has an error in distance of 4000 feet; the new Map shows the error; a different scale; the description gives exact distance, 23,600 or 23,700 feet (measured on Map) up from edge of woods, first course (on exhibit C) Lidgate's, to first angle, (A on Baldwin's compiled Map); 23,600 feet is the distance given in the Patent.

On Baldwin's Map, from edge of forest to A [in circle] is 19,500 + feet, and is about 4000 feet shorter than the line given in Lidgate's Map, and the Patent; the Patent does not go back into Kukuau 2d. The Patent follows up the North side to "Kawaaokamoi," then gives course and distance to upper and, then across, and down to point A [in circle], as by this compiled Map, then down the next course is 4000 feet too long; runs into Kukuau 2d, below woods.

When Lyons and I replotted Lidgate's lines below Kawaaokamoi, we found that he replotted about 4000 feet of distance, which is 4000 feet more than is given in the Patent of Kukuau 2d.

(Exhibit F. Kukuau 2d patent) South 87.35. Loebenstein's dotted line is intended to be the same as the Patent, and is some distance above upper end of the land. Divergence of line 10' difference, would be about 38 feet in 2 1/2 miles; a right angle distance.

Examined by Court
The Patent of Kukuau 2d gives North boundary as on this compiled Map, and down to lower edge of woods at a known point on boundary of Kukuau 1st and Kukuau 2d; is about 4000 feet too long on that side. And of Station 46 (Loebenstein, Kukuau 1st running up) Patent running down, while if we run up South side of Patent, it will not close with the North side by 4000 feet; the survey in the Patent does not close.
The Territory closed testimony.

[page 639]
Rebuttal
A.B. Loebenstein, sworn, I made a survey of Kukuau 1st according to the decision of the former Boundary Commissioner; this is the description (Exhibit 1) and this is the Map (Exhibit N) to my recollection the Map is identical with Patent line of Kukuau 2d. I made this survey on the ground, and cut the lines through all the way.

The line from lower edge of woods, ginger, by Lidgate direction and distance, given in Kukuau Patent, 23,600 feet, run out on Magnetic bearing, the same as the Kukuau 2d Patent.

The boundary of Kukuau 1st, South line, crossed Volcano road practically midway, through gate of government Pound.

Distance and bearing is the same, of Patent and Kukuau 1st from upper end down, 26,000+ feet. I know Kumu Spring below. On this Map the green line is my line - mark + on bluff overhanging Kumu spring, I got it partly from Webster survey, partly from Kamaaina testimony on record.

Lidgate's sea point (Exhibit 4) East corner of Kukuau, I got it form North East angle of Kanaina kuleana; this survey was made by myself, with aid of Sisson and others; points marked pipe, mean it. I do not know anything about the doubling up Baldwin [to] speak of.

Court: I have tested the Kukuau 2d survey, cannot say if it will close. I have run out the line from the head of Punahoa down along Kaumana, and also the short call by Lidgate in the Patent.

Redirect: Along South line of Punahoa, along Kaumana, to head of Punahawai, I found a discrepancy of 4000 feet.

Following from South West angle of Punahoa Patent around by certificate of Boundaries of Kaumana, to where Kukuau 1 and 2, are cut off by Waiakea and Piihonua. I find these distances in Kukuau Patent, to agree perfectly with Lidgate's description and my action was endorsed by Lyons. Kukuau 1st and 2d join each other.

Court: Kukuau 2d patent carries the land some distance above Punahoa, along Piihonua, then up along Waiakea, and across, and down to Kukuau first. I ran out all these lines on the ground and located the corners of both Kukuaus and Punahoa.

Court: Kukuau 2d Patent carries the land some distance above Punahoa, along Piihonua, then up along Waiakea, and across, and down to Kukuau first. I ran out all these lines on the ground and located the corners of both Kukuaus and Punahoa. Kukuau overlaps the corner of Punahoa a little, but that is an earlier Patent and holds good.

R.A. Lyman, sworn, Was born and brought up in Hilo, am acquainted with Kukuau 1st. I saw the corners as fixed by Lidgate, near sea, on North side joining Kukuau 2d corner established by Lidgate, as pointed out by Kapu and others (L) [Exhibit L?], saw red wood post [page 640] at sea coat at that time, set by Lidgate, also a red wood post about the point
"A.B.L." on Map. I saw them while survey was being made. North West corner of Kukuau 2d as patented.

In latter part of 1866, Kamehameha V was at Hilo, stopping in the long house of Keelikolani; he directed me to take charge of Waiakea, Crown Land; he was King, and had dismissed the konohiki; he sent Kapu, Kaaua, and other old men to point out the boundary of Kukuau and Waiakea above old water wall above the road; at that time Kukuau 1st was held under Lease, represented by John Ena; Kamehameha V sent these men to show me the boundary, as people were cultivating at Upleoa, on Waiakea and Kukuau down towards the volcano road; they pointed out boundary along gulch, said, said it was Kalanakamaa gulch, crossing it where it used to overflow; follow down a ridge through middle of Kalolo kuleana to a point on Puna side of ridge, crossing Volcano road to about where Loebenstein's pile of stones now stands by Pound gate; all the kamaainas but Kaaua agreed. He said it should follow down gulch to Puna of that; from Volcano road pointed out in a direct line to precipice above Kumu spring, close to where Kumu gulch empties into Kumu; from there pointed out along edge of Waiolama to angle in Hanalei Fish pond; below pond, along North West side of Kaihenui's kalo patch, along iwi aina toward shore.

They said Webster's sea point was washed away at the time Waiolama ate into beach and almost went into Kaihenui's house on North side of Keelikolani's house; they claimed that when Waiolama went in that direction it carried Kukuau into Waiakea, as Waiolama belonged to Kukuau 1st; said that when Webster surveyed Waiakea, the sea came up to the present Front Street. Waiolama was flowing toward Waiakea; that was first time boundaries were definitely pointed out to me.

Waiakea natives pointed out boundaries, the same at different times, up to survey in 1874, and up to time Lease was parted with to Hawaiian Agricultural company, in 1877. Kapu and Kaaua, I think it was, the kamaainas who went with Webster to survey, were sent with Lidgate to survey, and the told me they pointed out the same points they showed me.

When I examined survey by Loebenstein, and found it [page 641] did not agree with the Patent of Kukuau 2d, and Webster's point at sea coast, which he disregarded, I directed him to make new notes of survey, to conform with Patent of Kukuau 2d, from the sea up, and to follow to extreme mauka end of Kukuau 2d, then to follow notes of survey in Certificate of Boundaries of Kukuau 1st, across head of Kukuau 1st, and down along Waiakea to Kilohana, and from Kilohana to point on volcano road, as run by Loebenstein, which struck pile of stones and puhala tree at Upeloa, and to pile stones below Volcano road on Puna side of Pound gate, from there in straight line to Kumu, as pointed out to me by Kapu and other natives, from head of Kumu to follow Webster's survey to his sea point, 818 feet from West corner of Piopio; from there to supply course and distance to Lidgate's North East corner of Kukuau 2d, and across to Waiakea; all these points were showed me by kamaainas, as near as I can tell, the point by Volcano road is as shown me by kamaainas, and from there direct to Kumu Spring.

Cross-examined: Loebenstein was directed to follow line to Kumu. I saw Lidgate's Red Wood posts; as near as I could tell now, looking from Kanaina corner, looked a little distance towards Waiakea, to post, could not tell how many degrees; could not locate it now; there are so many houses there.

About 1874, it was shifting sand; sand used to wash both ways; it is difficult to locate posts without surveys; there are so many changes; as near as I can tell, locate posts on Map, as Lidgate's; locate points on land by looking; past was to the right; looking towards sea. I used to go there looking after fish in sea, and in river; have not been there lately; did not talk to Loebenstein about posts; they being established by Royal Patent, at time of survey by Lidgate, marks above and below.

I had Lease of both Kukuaus, and was told to see they were surveyed correctly; those men told me they pointed out boundary to Webster; I settled the boundaries before, and reopened case for the Government to bring in evidence.

There was no Pound then; it was established after I left Hilo. I sent kamaainas with Lidgate; know that he surveyed below Volcano road; he said he went there; I asked the Government to put him on as a witness; 21 months ago. I am not interested in this matter, excepting being Boundary Commissioner. I went to Honolulu to explain Exhibits, was asked by Kinney; was there a couple of days could not say exactly how many [page 642] days; had to wait over one steamer. (Boundary Commission Records, pages 572-8, Book D.)  I wrote this - page 575 shows why I did not have the hearing at the time set; I had no interest in case except as Boundary Commissioner.

Testimony closed at 4:30 p.m.

Decision
Before Frederick S. Lyman, Commissioner of Boundaries, Fourth Judicial District, Territory of Hawaii

In the Matter of the Boundaries of the Land of Kukuau 1st, District of Hilo, Island of Hawaii, Territory of Hawaii.

I do  hereby decide that the Boundaries of the Land of Kukuau 1st, in the District of Hilo, Island of Hawaii, Territory of Hawaii, are and hereafter shall be as set forth i the description given in the Survey made by A.B. Loebenstein, now on file, dated July 19th 1901, as directed by order of the Commissioner of Boundaries of the Fourth Judicial District, Territory of Hawaii, dated September 20th 1900.

Certificate of Boundaries to be issued accordingly, on payment of the costs and fees of the Boundary Commission.
Frederick S. Lyman, Commissioner of Boundaries, Fourth Judicial District. Territory of Hawaii
Hilo, Hawaii, December 31st 1903

(Book C, 4, page 154)

Territory of Hawaii
Before the Boundary Commissioner of the Fourth Circuit,
Honorable F.S. Lyman, Commissioner.
In the Matter of the Boundaries of Kukuau 1st.
Exception to Ruling of Commissioner.
Now comes the Territory of Hawaii and notes its exception to the ruling of the Commissioner in the above entitled cause, that the Territory of Hawaii as Appellant herein pay to the Commissioner on appeal not only one half of the total costs, and disbursements in the above cause already paid in amounting to $220.60 but also the additional sum of $402.10 being the petitioners respondants share of said disbursements and costs.
James W. Pratt, Commissioner of Public Lands
(Filed February 10, 1904)

[page 643]
Bill of costs
The Land of Kukuau 1st, Hilo, Hawaii, Mrs. J.L. Richardson
To Commissioner of Boundaries, December 31, 1903

[columns for year, Item, Dr[?] costs & fees]
1900, To R.A. Lyman, Commissioner, [Owed], [Summation]
1900, To 6 days hearing in 1900, $60.00
1900, To Notices Hawaii Herald, 10.00
1900, To Recording Testimony, 74.50
1900, To Certified Copy, certificate of Boundaries, 5.50; 150.00
1901, To Services J.H. Van Gieson, for papers and 3 days, 6.50
1901, To Services J.H. Van Gieson, Typewriting 440 folio @ 30c, 134.70; 141.20
1902, To Services G. Bell, Typewriting 55 folio, 16.50
1902, To Services G. Bell, 2.00; 18.50
1901, 2, 3, To 7 days hearings, July, August and March 1903; 70.00
To Copying 540 folio evidence &c in Records 135.00; 205.00
Total to R.A. Lyman; 514.70

1903, December 30, To F.S. Lyman, Commissioner
1903, To 8 days service on the case 80.00
1903, To Record 44 folio testimony @ 25c 11.00
1903, To Certificate of Boundaries 2.00
1903, To 30 folio description in Certificate @ 50c; 15.00; 108.00
Total Costs $622.70

E & O Exhibits
It is Ordered that the Contestant, i.e. the Government of the territory of Hawaii, pay of the above Costs, 220.60
And the Applicant pay the remainder, 402.10
F.S. Lyman, Commissioner of Boundaries

1900, Received from the Government on costs $150.-
1901, Received from the Government 1/2 Van Gieson bill; 70.60; 220.60
1901, Received from Mrs. J.L. Richardson on costs 71.60
1905, January 19, Received from Mrs. J.L. Richardson on costs 331.50; 402.10
F.S. Lyman, Commissioner of Boundaries

[page 644]
Hilo, Hawaii, January 27, 1904, Office of the Commissioner of boundaries, 3d and 4th Judicial Districts, Territory of Hawaii

In the Matter of the Boundaries of Kukuau 1st, Hilo, Hawaii

Carl S. Smith, of Smith and Parsons, appeared for the Territory of Hawaii, and presented the following Motion for Extension of time within which to perfect appeal; and stated that he had served Wise and Ross with the Motion, and that said Firm declined to appear in the matter.

Motion heard, and granted, extending the time in which to perfect Appeal to the 15th day of February 1904 as the Costs have not yet been received from Honolulu.
F.S. Lyman, Commissioner of Boundaries

(Motion filed January 27, 1904)
Before the Boundary Commissioner for the Third and fourth Judicial Circuits, Territory of Hawaii.

In Re the Boundaries of Kukuau First

Motion for Extension of the time within which to Perfect appeal

Comes now the Territory of Hawaii, and the Commissioner of Public Lands, the owners of the land of Waiakea, respondents in this cause, and moves that the time within which an appeal my be taken, perfected and allowed in this cause to the Supreme Court shall be extended to the fifteenth day of February, 1904.
(Signed) Smith & Parsons, For the Motion
Hilo, Hawaii, January 27, 1904

Service by copy acknowledged, Wise & Ross

[page 645]
Before the Boundary Commissioner for the Third and Fourth Judicial Circuits, Territory of Hawaii.

In the Matter of the Boundaries of Kukuau First

Order extending time for Appeal

This matter coming on this day to be heard upon the motion of the respondents for an extension of time within which to take and perfect an appeal herein to the Supreme Court, it is hereby ordered that the time for taking and perfecting an appeal here be and is hereby extended to the fifteenth day of February, 1904.
Witness my hand on this 27th day of January, 1904
Frederick S. Lyman, Commissioner of Boundaries, The Third and Fourth Judicial Circuits

(Notice of Appeal, filed January 30, 1904)
Before the Boundary Commissioner of the Third and fourth Judicial circuits.

In the Matter of Boundaries of Kukuau First.

Notice of Appeal
The Territory of Hawaii and the Commissioner of Public Lands, respondents in this cause come now and give this notice of intention to appeal and do hereby appeal from the decision of the Commissioner of boundaries for the Third and Fourth Judicial Circuits made and entered in this cause on or about the 31st day of December, 1903, and do hereby appeal from the said decision to the supreme court of the Territory of Hawaii.
The Territory of Hawaii, James W. Pratt, commissioner of Public Lands.
By Smith & Parsons, Their Attorneys
Hilo, Hawaii, January 30, 1904


Kukuau 1st Ahupuaa, District of Hilo, Island of Hawaii, Boundary Commission, Volume D, No. 5, pps 650-652

Re Kukuau 1st, Hilo, Hawaii

The Balance of Costs - $402.10 was paid February 10, 1904, by J.W. Pratt, Commissioner of Public Lands

The Bond of J.W. Pratt, Commissioner of Public Lands, with E.D. Baldwin, surety, for Costs in the Supreme Court, was filed February 13, 1904

The balance of Costs and expenses accrued, $402.10, having been paid on the tenth day of February, by J.W. Pratt, Commissioner of Public Lands, appellant, and the bond for $100.00, costs in the Supreme Court, being filed this 13th day of February, 1904, thereby perfecting the appeal to the Supreme Court of the Territory of Hawaii.
Frederick S. Lyman, Commissioner of Boundaries, 3d and 4th Judicial Circuits, Territory of Hawaii.

Before the Boundary Commissioner for the Third and Fourth Judicial Circuits.

In Re Boundaries of Kukuau First

Certificate of Appeal
I hereby certify that in the above entitled cause J.W. Pratt, as Commissioner of Public Lands of the Territory of Hawaii, and the Territory of Hawaii, as owner of the land of Waiakea, respondents in this cause, have duly noted on appeal from the final decision of the boundary Commissioner in this cause and have duly completed the said appeal to the supreme court as provided by law; and that accompanying this certificate all of the records, exhibits and files in this cause transmitted to the Supreme Court.
In witness whereof I have hereto set my hand on the fifteenth day of February, 1904.
Frederick S. Lyman, Boundary Commissioner

[page 651]
Re Kukuau 1st, Hilo, Hawaii
January 18, 1905
Received Remittitur of the case from the Supreme Court, with papers and exhibits, returned) and January 19th, Mrs. J.L. Richardson, paid the balance, $331.50 of her shore of the total costs, as per decision December 31, 1903, and the Original Certificate of Boundaries of December 31, 1903 was delivered to her; also Exhibits "A," and "3" and also a certified copy of the Certificate of Boundaries; $10.25 paid
Frederick S. Lyman, Commissioner of Boundaries

"In the Supreme Court, Territory of Hawaii

In the Matter of Kukuau 1st

Appeal from Judgment of the Boundary Commissioner

The appeal, in the above entitled cause having been dismissed the records and files herein are hereby ordered remitted to the Honorable F.S. Lyman, Boundary Commissioner.
By the Court
(Signed) George Lucas, Clerk
Honolulu, December 5, 1904”

In the Supreme Court of the Territory of Hawaii, October Term, 1904

In the Matter of the Boundaries of Kukuau 1st, Island of Hawaii
Remittitur
This matter duly appealed from the Commissioner of Boundaries of the island of Hawaii, to the Supreme Court of the Territory of Hawaii and is by said Court duly ordered remitted to said Commissioner: therefore
[margin note: H.S.]
It is Ordered:
That said cause be and the same is hereby remanded to said Commissioner of Boundaries, together with the records, exhibits, maps, and notes of evidence filed in said cause.
Dated: Honolulu, January 16, 1905
(Seal) By the Court Henry Smith
Clerk Supreme Court, Territory of Hawaii

[page 652]
Re Kukuau 1st, Hilo Hawaii

February 1905

The Government Costs paid on appeal to Supreme Court, returned to J.W. Pratt, Commissioner of Public Lands, $402.10
Frederick S. Lyman, Commissioner of Boundaries

The Exhibits on file, returned from the Supreme Court, were delivered to A.B. Loebenstein, attorney for Petitioner:

1. Exhibit F - Copy Royal Patent No. 5706, Kukuau 2d, Hilo
2. Exhibit G -Tracing of Hilo Mountain lands
3. Exhibit J - Calculation Sheet
4. Exhibit L - Calculation Sheet
5. Exhibit V - Copy of Waiakea Lease to R.A. Lyman
6. Exhibit W - Plan of Government Pound, Waiakea
7. Exhibit Y - Calculation Sheet
8. Exhibit Z - Calculation Sheet
9. Exhibit K - Lidgate plan of Punahoa 1st, Hilo.
10. Exhibit X - Loebenstein line of Waiakea, Kukuau 1st (tracing)
11. Exhibit P - Plan of Hilo Harbor
12. Exhibit AA - Plan of Hilo lands, 1: 24000
13. Exhibit 1 - Plan of Hilo Front St., Scale 1:6000
14. Exhibit B - Plan of Kukuau 1st, Scale 1:6000
15. Exhibit N - Plan of Kukuau 1st, Scale 1:24000
16. Exhibit Q - Map of Hilo Bay, by J.E.G. Jackson, 1882
17. Exhibit O - Map of Hilo Bay by Magnetic Variation, 1888
(Signed) A.B. Loebenstein, Surveyor & Attorney, for Mrs. J.L. Richardson
in re boundaries Kukuau 1st
February 20, 1905


Kukuau 1st Ahupuaa, District of Hilo, Island of Hawaii, Boundary Commission, Hawaii, Volume C, No. 4, pps. 154-159

No. 189

Certificate of Boundaries of the Land of Kukuau 1st, District of Hilo, Island of Hawaii, U.S.A.
 
Keoni Ana, Royal Patent #1666 (by name) Land Commission Award # 8515.

Commission of Boundaries, Fourth Judicial Circuit, Territory of Hawaii, Frederick S. Lyman, Commissioner

In the Matter of the Boundaries of the land of Kukuau 1st, District of Hilo, Island of Hawaii, Territory of Hawaii, U.S.A.

Judgement
An application to decide and certify the Boundaries of the Land of Kukuau 1st, District of Hilo, Island of Hawaii, having been filed with the Commissioner of Boundaries on the 27th day of April, A.D. 1900 by Mrs. J.L. Richardson, by her attorney A.B. Loebenstein, in accordance with the provisions of an Act to facilitate the settlement of Boundaries, now therefore, having duly received and heard all the Testimony offered in reference to the said boundaries, and having endeavored otherwise to obtain all information possible to enable me to arrive at a just decision, which will more fully appear by reference to the records of this matter by me kept in Book No. 5, D, page 622, and it appearing to my satisfaction that the true, lawful and equitable boundaries are as follows, viz.:

Beginning at a point on the sea beach at high water mark, the coordinates of which point are North 2491.62 East 5701.38 feet referred to Hawaii Government Survey Station Halai, the North boundary of this land follows the boundary of the land of Kukuau 2d and its allotments by the following courses and distances, measured by the true meridian:

1.    South 15° 00' West 183.0 feet along Land Commission Award 8521B
2.    South 43° 22' West 350.0 feet along Land Commission Award 8521B to the East angle of Land Commission Award 4239b, Kanaina, the coordinates of said point being North 2060.42, East 5413.78 feet referred to Hawaiian Government Survey Station Halai. [page 155]
3.    South 21° 04' West 307.0 feet along Land Commission Award 4239B, Kanaina, to South angle thereof;
4.    South 31° 17' West 376.0 feet along Land Commission Award 11045B, Kanakaole;
5.    South 55° 54' West 1131.5 feet along Land Commission Award 11045B, Land Commission Award 3205, and Land Commission Award 1091, to the South angle of Land Commission Award 1091, Hio;
6.    South 49° 26' West 307.2 feet to West angle of Mill Street;
7.    South 40° 44' West 370.7 feet to North angle of stone wall, the present North angle of Land Commission Award 2664, Kahua;
8.    South 36° 20' West 251.5 feet through Land Commission Award 2664, Kahua, to a pipe, the coordinates of which point are North 133.04, East 3542.96 feet referred to Hawaii Government Survey Station Halai;
9.    South 34° 04' West 1198.0 feet to old water hole, the coordinates being South 839.57 East 2871.89 feet referred to Hawaii Government Survey Station Halai;
10.    South 49° 56' West 1764.0 feet to Makaliiaina, the coordinates being South 1994.79 East 1521.91 feet referred to Hawaii Government Survey Station Halai;
11.    South 39° 10' West 1410.0 feet to a + under Lidgate mound of stones the coordinates being South 3087.99 East 631.41 feet referred to Hawaii Government Survey Station Halai;
12.    South 69° 12' West 984.2 feet to + under mound of stones at edge of lava flow;
13.    South 54° 46' 30” West 721.6 feet to + under mound of stones on lava;
14.    South 49° 11' West 582.8 feet to + under mound of stones on lava;
15.    South 70° 41' West 587.8 feet to + under mound of stones on lava;
16.    South 50° 32' West 728.6 feet to + under mound of stones on lava, the coordinates being South 4892.2 West 2434.9 feet referred to Hawaii Government Survey Station Halai;
17.    South 45° 03' West 758.5 feet to + under mound of stones on lava;
18.    South 70° 03' 30” West 470.0 feet to + under mound of stones on lava;
19.    South 44° 36' West 817.4 feet to + under mound of stones on lava;
20.    South 03° 52' East 555.6 feet to + under mound of stones on lava;
21.    south 33° 16' 30” West 511.0 feet to + under mound of stones on lava, the coordinates being South 7153.2 West 4264.2 feet referred to Hawaii Government Survey Station Halai;
22.    South 38° 52' West 738.0 feet to + under mound of stones on lava;
23.    South 29° 25' West 823.0 feet to + under mound of stones on lava;
24.    South 52° 11' West 155.0 feet to + under mound of stones on lava;
25.    South 52° 32' West 600.0 feet to + under mound of stones on lava;
26.    South 27° 12' West 910.0 feet to Lidgate's mound of stones on grazing land, the coordinates being South 9709.3 West 6142.8 feet referred to Hawaii Government Survey Station Halai;
27.    South 36° 20' West 307.0 feet to + under mound of stones;
28.    South 34° 51' West 1403.0 feet to + under mound of stones;
29.    South 48° 19' West 174.0 feet to + under mound of stones;
30.    South 46° 40' West 406.0 feet to + under mound of stones, the coordinates being [page 156] South 11502.3 West 7552.4 feet referred to Hawaii Government Survey Station Halai;
31.    South 28° 25' West 252.5 feet to + under mound of stones;
32.    South 41° 07' 30” West 226.0 feet to + under mound of stones;
33.    South 48° 57' West 365.0 feet to + under mound of stones;
34.    South 53° 07' West 742.0 feet to + under Lidgate mound of stones on Kilohana ridge, the coordinates being South12577.7 West 8690.0 feet referred to Hawaii Government Survey Station Halai;
35.    South 49° 06' West 793.0 feet to + under mound of stones near lower edge of forest;
36.    South 51° 51' West 435.5 feet to + under Lidgate mound of stones;
37.    South 51° 55' West 164.5 feet to + under mound of stones;
38.    South 46° 27' 30” West 419.0 feet to + under mound of stones at lidgate's gingers;
39.    South 09° 20' West 206.0 feet to + under mound of stones;
40.    South 10° 04' West 191.0 feet to + under mound of stones;
41.    South 14° 22' West 133.0 feet to + under mound of stones;
42.    North 57° 20' 30” West 165.0 feet to + under Lidgate's mound of stones;
43.    North 70° 32' west 209.7 feet to + under Lidgate mound of stones at Lidgate's ohia K, remarked [triangle with X in it]
44.    North 47° 29' West 233.3 feet to + on smooth rock outside of woods;
45.    North 61° 04' 30” West 197.5 feet to + under Lidgate mound of stones in open, the coordinates being South 13849.0 West 10835.1` feet referred to Hawaii Government Survey Station Halai;
46.    South 57° 58' west 1460.0 feet across open to + under mound of stones at Lidgate's clump of gingers in forest, the coordinates being South 14622.6 West 12072.8 feet referred to Hawaii Government Survey Station Halai;
47.    South 67° 55' west 23600.0 feet to marked trees surrounding a + cut in the rock, the coordinates being South 23495.1 West 33941.5 feet referred to Hawaii Government Survey Station Halai;
48.    North 81° 17' West 26100.0 feet to + under mound of stones on which is now the lava flow of 1880 at extreme Northwest angle of land, adjoining Waiakea, the coordinates being South 19539.7 West 59740.1 feet referred to Hawaii Government Survey Station Halai;
49.    South 19° 35' East 1150.0 feet across lower branch of said flow to point of woods surrounded by marked trees at top this land adjoining Waiakea, to Southwest angle, the coordinates being South 20623.2 West 59254.7 feet referred to Hawaii Government Survey Station Halai;
50.    South 75° 09' East 27258.0 feet along Waiakea to marked trees surrounding a mound of stones, the coordinates being South 27609.2 [page 157] West 32999.6 feet referred to Hawaii Government Survey Station Halai; [32999.0 feet in R.P 8172]
51.    North 65° 35' East 23960.0 feet to + under mound of stones at Lidgate's gingers, the coordinates being South 17704.9 West 11182.5 feet referred to Hawaii Government Survey Station Halai;
52.    North 85° 08' East 781.0[?] feet to + under mound of stones;
53.    North 72° 08' East 803.0 feet to + under mound of stones;
54.    North 62° 31' East 267.0 feet to + under mound of stones;
55.    North 58° 52' East 1388.0 feet to + under mound of stones;
56.    North 53° 00' East 732.0 feet to + under mound of stones;
57.    North 55° 42' East 1219.0 feet to + under old mound of stones at lower edge [of] forest, the coordinates being South 15430.0 West 6689.0 feet referred to Hawaii Government Survey Station Halai;
58.    North 19° 18' East 1152.0 feet to + under old mound of stones at lower edge forest;
59.    North 06° 40' West 489.0 feet to + under mound of stones at old trail;
60.    North 37° 12' East 1189.0 feet to + under mound of stones;
61.    North 33° 07' East 758.0 feet to + under mound of stones;
62.    North 38° 21' East 1071.0 feet to + under mound of stones;
63.    North 20° 50' East 194.0 feet to + under mound of stones;
64.    North 09° 08' East 1025.0 feet to + under mound of stones;
65.    North 50° 25' East 837.0 feet to + under mound of stones;
66.    North 32° 52' East 757.0 feet to + under mound of stones (Webster) on Kilohana ahua, the coordinates being South 9072.7 West 3278.9 feet referred to Hawaii Government Survey Station Halai;
67.    North 29° 54' East 2887.0 feet to + under mound of stones a little above edge of lava flow;
68.    North 17° 32' East 594.0 feet to + under mound of stones on lava, the coordinates being South 6004.7 West 1662.4 feet referred to Hawaii Government Survey Station Halai;
69.    North 26° 53' East 1749.5 feet to + under mound on lava flow;
70.    North 74° 05' East 1392.0 feet to + under mound of stones on lava flow, the coordinates being South 4062.5 East 467.7 feet referred to Hawaii Government Survey Station Halai;
71.    North 58° 14' East 957.0 feet to + under old mound of stones below lava flow;
72.    North 41° 13' West 964.0 feet to + under old mound of stones below lava flow;
73.    North 40° 24' East 295.0 feet to + under old mound of stones below lava flow;
74.    North 37° 02' East 312.4 feet to + under old mound of stones below lava flow;
75.    North 46° 43' East 244.5 feet to + under old mound of stones below lava flow;
76.    North 37° 23' East 264.5 feet to + under old mound of stones below lava flow;
77.    North 22° 09' East 122.8 feet to + under old mound of stones below lava flow;
78.    North 15° 13' East 259.5 feet to + under old mound of stones below lava flow;
79.    North 41° 51' East 148.0 feet to + under old mound of stones below lava flow;
80.    North 88° 37' East 198.0 feet to + under old mound of stones below lava flow;
81.    North 51° 06' East 128.0 feet to + under old mound of stones below lava flow; [page 158]
82.    North 09° 22' East 44.0 feet to + under old mound of stones below lava flow;
83.    North 79° 14' East 167.0 feet to + under old mound of stones below lava flow;
84.    North 71° 16' East 121.0 feet, the coordinates being 1306.9 East 3429.1 feet referred to Hawaii Government Survey Station Halai;
85.    North 61° 16' East 376.0 feet to + under mound of stones in gully by old puhala tree (W), now cut down;
86.    North 02° 24' West 268.0 feet to + under mound of stones;
87.    North 49° 32' East 260.0 feet to + under mound of stones;
88.    North 28° 49' East 348.0 feet to + under mound of stones;
89.    North 41° 49' East 280.0 feet to + under mound of stones, the coordinates being South 179.9 East 4304.9 feet referred to Hawaii Government Survey Station Halai;
90.    North 37° 06' East 307.0 feet to + under mound of stones;
91.    North 46° 12' East 616.0 feet to + under mound of stones;
92.    North 40° 42' East 447.0 feet to  under mound of stones a little below the lower edge of the Volcano Road, the coordinates being North 830.3 East 5225.7 feet referred to Hawaii Government Survey Station Halai;
93.    North 48° 55' East 362.0 feet to a + marked on ledge overhanging Kumunui spring and bathing place;
94.    North 03° 19' East 410.7 feet the boundary following the base of the cliff at the water edge and the Kuauna of the Hanalei fish pond to a pipe in said Kuauna;
95a.    North 39° 52' East 452.0 feet to original Northeast angle of Kukuau 1, the Northwest angle of Piopio, as per survey of Wm. Webster, Esquire in 1851, distant 818.0 feet being North 81° 02' East (true) the coordinates being North 1818.30 feet East 5312.36 feet referred to Hawaii Government Survey Station Halai;
95.   North 18° 24' East 308.4 feet to a pipe driven in the ground below Front Street, the coordinates being North 2117.22 East 5905.78 feet referred to Hawaii Government Survey Station Halai;
96.   North 15° 00' East 299.4 feet to edge sea-beach at high water mark, thence along said sea-beach at high water mark to point of commencement, the direct bearing and distance being
97. North 75° 14' West 294.2 feet to said point of commencement.
Containing an area of 4520.0 Acres, more or less, as surveyed by A.B. Loebenstein.
July 10th 1901

It is therefore adjudged, and I do hereby certify and decide that the boundaries of said land of Kukuau 1st are, and hereafter shall be as hereinbefore set forth, and that Certificate of Boundaries No. 58 is hereby cancelled and set aside.

Given under my hand at Hilo, Island of Hawaii, the 31st day of December A.D. 1903
Frederick S. Lyman, Commissioner of Boundaries, Fourth Judicial Circuit, Territory of Hawaii

Copy 33 folio

[No. 189, Kukuau 1st Ahupuaa, District of Hilo, Island of Hawaii, 4520  Acres, 1903]