Application of Robinson

421 P.2d 570, 49 Haw. 429, 1966 Haw. LEXIS 72

• Court: Hawaii Supreme Court
• Decided: December 5, 1966
• Docket: 4234
• Status: Published

Opinions

OPINION OF THE COURT BY

RICHARDSON, C.J., AND LEWIS, J.

Appellee filed a Land Court application under E.L.H. 1955, c. 342, as amended, to register ber title to two lots, one being tbe whole of Eoyal Patent 1862, Land Commission Award 10568, Apaña 3 to Oleloa, and the other being a portion of Royal Patents 636 and 4565, Land Commission Award 4552, Apaña 5 to Aumai¹ Each of the patents concededly contained the following provision:

“* * * excepting and reserving to the Hawaiian government, all mineral or metallic mines, of every description.”

Because the Land Commission Awards made no mention of mineral rights, the Land Court held that “the reservation of mineral rights in the Royal Patents was null and void.” A decree was entered registering the lands under the Torrens System without reservation of the mineral rights, and the State, which had asked that the registration be made subject to such reservation,² appealed.

We pass without comment the question whether the applicant was estopped from registering her title without the reservation contained in the Royal Patents,³ and proceed to the question whether the reservation was and is valid.

The Land Commission Awards were issued by the Board of Commissioners to Quiet Land Titles, hereinafter called the Land Commission, provided for by the Second Act of Kamehameha III, entitled “An Act to Organize the Executive Departments of the Hawaiian Islands,” pt. I, ch. VII, art. IV, S.L. 1845-6, p. 107, effective February 7, 1846. Said chapter VII related to the bureau of the land office. S.L. 1845-6, p. 95. By article II of the same chapter it was provided :

“SECTION VI. The form of all royal fee simple patents shall be as follows:

“KAMEHAMEHA -, by the grace of God, king of the. Hawaiian Islands, by this his royal patent, makes known unto all men, that he has for himself and his successors in office, this day granted and given, absolutely, in fee simple unto-, his faithful and loyally disposed subject, for the consideration of-dollars, paid into the royal exchequer, all that certain piece of land, situated at-, in the Island of-, and described {by actual survey or by natural boundaries as the case may be) as follows: containing-acres, more or less; excepting and reserving to the Hawaiian government, all mineral or metallic mines, of every description.

“To have and to hold the above granted land in fee simple, unto the said-, his heirs and assigns forever, subject to the taxes to be from time to time imposed by the legislative council equally, upon all landed property held in fee simple.

“In witness whereof I have hereunto set my hand, and caused the great seal of the Hawaiian Islands to be affixed, at Honolulu, this-day of-, 18-.

“(L.S.) - -.

“Attest,--,

Premier.”

(S.L. 1845-6, pp. 100-01.)

The Land Court held that this section applied “only to grants by the government and not patents issued on awards.” As will appear, the correctness of this conclusion is the controlling issue here.

By section V of article IY (the article creating the Land Commission), it was made the special duty of the Land Commission to advertise a prescribed form of public notice, containing inter alia the following:.

“Patents in fee simple, or leases for terms of years, will be issued to those entitled to the same, upon the report which we are authorized to make, by the testimony to be presented to us.”

(S.L. 1845-6, p. 108.)

As indicated by the form of public notice, the objective of the Land Commission was to determine who were entitled to land patents. Sections IX and XI of article IV provided for the issuance of patents “pursuant to the terms in which the said board shall have confirmed their respective claims,” and “in accordance with the award * * *.” S.L. 1845-6, p. 109. Upon issuance of the patent, the patentee held the legal title, and one claiming under the award contrary to the patent had only such rights as equity would give him. Davis v. Brewer, 3 Haw. 270; Davis v. Brewer, 3 Haw. 359, 361; Laanui v. Puohu, 2 Haw. 161.

By section 3 of the Act of July 20, 1854, it was provided that a Land Commission Award “shall be final and binding upon all parties, and shall be a good and sufficient title to the person receiving such award, his heirs and assigns, and shall furnish as good and sufficient a ground upon which to maintain an action for trespass, ejectment or other real action, against any person or persons whatsoever, as if the claimant, his heirs or assigns, had received a Royal Patent for the same * * *.” S.L. 1854, p. 21. (Emphasis added.) Whether before the enactment of this statute a Land Commission Award without a patent conferred as good a title as one with a patent we need not say, for it is certain that both before and after the enactment of tlie statute a Land Commission Award without a patent conferred no better title than one with a patent.

By section 1 of the Act of July 29, 1872, S.L. 1872, c. 21,⁴ it was provided that all Eoyal Patents issued upon Land Commission Awards should be “in the name of the person to whom the original award was made, even though such person be deceased or the title to the real estate thereby granted have been alienated; And all Eoyal Patents so issued shall inure to the benefit of the heirs and assigns of the holder of such original award.” This eliminated the problem presented in Davis v. Brewer, supra, 3 Haw. 270, of issuance of a patent to one subsequently alleged not to be in fact the successor in interest of the awardee, and caused the court in Brunz v. Minister of Interior, 3 Haw. 783, 787, to remark that the doctrine of Davis v. Brewer had been modified by the 1872 Act, and that “Patents based on awards do not therefore confer or confirm titles.”

It is apparent that by a combination of the 1854 and 1872 acts,⁵ patents based on Land Commission Awards have been reduced in importance to a mere release of the government commutation.⁶ But it would be a bootstrap operation to interpret a Land Commission Award as other than what it originally was — a determination of a right to a patent. The governing point, therefore, is the form of patent contemplated when the award was made.

On August 20, 1846, the Land Commission adopted a set of principles by which it would be guided. These were approved by a resolution of the Legislative Council October 26, 1846, whereby it was “enacted, that from the date hereof, all claims for landed property in this kingdom shall be tested by those principles, and according to them be confirmed or rejected.” S.L. 1847, p. 94. Turning then to the authoritative principles of the Land Commission we find that the Commissioners took cognizance of, and deemed themselves limited by, any “principle in past legislation” applicable to the point under consideration. S.L. 1847, p. 90, para. 3d. This conclusion stemmed from section VII of the article creating the Land Commission, which provided that “the decisions of said board [the Land Commission] shall be in accordance with the principles established by the civil code of this kingdom.” (S.L. 1845-6, p. 109), and from the definition of “civil code” contained in “General Provisions of the Act to Organize the Executive Departments,” which provided that:

“Section III. Until the passage of the civil code, the principles of the foregoing act, and the prescriptions of all the civil statutes now existing not at conflict therewith, shall serve and be binding as a civil code for this kingdom * * (S.L. 1845-6, p. 270.)

While the statutory provision for adherence of the Land Commission to the principles of the civil code was in terms limited to enumerated topics, the Land Commission in its adopted principles, after adverting to the above noted statutory provisions, did not apply the maxim “expressio unius est exelusio alterius” but on the contrary declared it incumbent upon the Commission, in passing upon the merits of each claim, after eliciting the facts from the witnesses, to “reconcile those facts to the provisions of the civil code, whenever there is a, principle in past legislation applicable to the point under consideration; but when no such principle exists, they may judicially declare one, in accordance with ancient usage and not at conflict with any existing law * * S.L. 1847, p. 90, para. 3d. (Emphasis added.) The Commissioners moreover announced that they were not at liberty to disregard “certain restrictions contained in the same Act, by the 4th Article of the 7th chapter of the first part of which they are created,” and that: “Aliens⁷ are not allowed to acquire any allodial or fee-simple estate in lands.” S.L. 1847, p. 90, para. 5th. The matter of aliens’ rights was not enumerated in section VII of the article creating the Land Commission, which made applicable the principles established by the “civil code,” meaning, “the prescriptions of all the civil statutes.”

Thus the Land Commission deemed the precept established by section VII to be of general application and not limited to the enumerated topics. Pursuant to this precept, the prescriptions of all the civil statutes were binding on the Land Commission whenever applicable. It would be incompatible with this precept were we to hold that section VI of article II, prescribing the form of “all royal fee simple patents,” did not govern Land Commission Awards as well as other dispositions. While some sections of this article II related to the sale of government land at a price, section VI relating to the form of patent was not limited to that subject matter. Our conclusion that the provisions of article II as to the form of patent governed Land Commission Awards as well as other dispositions is confirmed by section 7 of the Joint Resolution of November 7, 1846 (S.L. 1847, p. 70 at 71), which provided for the issuance of a patent “in accordance with Act 2, part 1, chapter 7, article 2” to a konohiki desiring to have his portion of an ahupuaa or ili set off to him “according to his rights in the same.” As interpreted in Territory v. Gay, 26 Haw. 382, 403, this operated in respect of Land Commission Awards when the commutation was settled in kind. The November, 1846 legislation, coming as it did on the heels of the October, 1846 approval by the Legislative Council of the principles adopted by the Land Commission, manifested the legislative understanding that a patent in the form prescribed by article II would be the end result of the settlement of rights then in progress.

A further point made by the Land Court in its decision was that “the ownership of mines or minerals is not included in the category or classification of ‘sovereign interests’ or ‘corporate rights of the body politic,’ ” the court here evidently referring to the principles adopted by the Land Commission on August 20, 1846, wherein it was stated that the King had not conferred upon the Land Commission “Ms sovereign prerogatives as head of the nation” (S.L. 1847, p. 85), and that as more fully stated in note 6, supra, payment of commutation would extinguish the right to rent, and leave the claimant an allodium, “subject only to the corporate rights of the body politic” (S.L. 1847, p. 93). The sovereign prerogatives, or as otherwise put, the corporate rights of the body politic, were by the Land Court held to be “only such items as powers of taxation, of eminent domain or the like, commonly thought of as ‘political powers’ as distinguished from proprietary interests.” Appellee so argues in this court. The argument overlooks the proposition that the Land Commission was merely speaking of the stability of titles which would result from its proceedings in effectuation of the new laws, as compared with the former system. See Knudsen v. Board of Education, 8 Haw. 60, discussed infra. It was emphasizing that under the new system the corporate rights of the body politic nevertheless would remain. The Land Commission was not saying that the Eoyal Patents issued on its awards would be any more comprehensive than other Eoyal Patents issued under the new laws.

This was a time of formulation of land titles. Claimants before the Land Commission could receive no better title than was offered pursuant to law. There is nothing to show that the government was offering to such claimants a better title than it was willing to sell.

It is important to note that it was government property that was being disposed of by the Land Commission proceedings. The nature of land tenures prior to the making of the Land Commission Awards must be considered. As stated in Estate of His Majesty Kamehameha IV., 2 Haw. 715, 720:

“In the year 1839 began that peaceful but complete revolution in the entire polity of the Kingdom which was finally consummated by the adoption of the present Constitution in the year 1852. His Majesty Kamehameha III. began by declaring protection for the persons and private rights of all his people from the highest to the lowest. In 1840 he granted the first Constitution by which he declared and established the equality before the law of all his subjects, chiefs and people alike. By that Constitution, he voluntarily divested himself of some of his powers and attributes as an absolute Ruler, and conferred certain political rights upon his subjects, admitting them to a share with himself in legislation and government. This was the beginning of a government as contradistinguished from the person of the King, who was thenceforth to be regarded rather as the executive chief and political head of the nation than its absolute governor.”

By the Constitution of 1840 it was declared:

“The origin of the present government, and system of polity, is as follows: KAMEHAMEHA I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and people in common, of whom Kamehameha I was the head, and had the management of the landed property. Wherefore, there was not formerly, and is not now any person who could or can convey away the smallest portion of land without the consent of the one who had, or has the direction of the kingdom.” (The Fundamental Law of Hawaii, p. 3.)

Claimants before the Land Commission presented their claims “against the King or Government, as the source of all title.” Thurston v. Bishop, 7 Haw. 421, 431. Claimants had no titles, and the act creating the Land Commission “provided a method by which titles could be obtained.” Id. at 433. The claimants theretofore held merely “a possessory right under the crown,”⁸ “a qualified right of possession to lands.”⁹ The nature of this right was explained in Knudsen v. Board of Education, supra, 8 Haw. 60, where the court recognized the authority, during the period when land matters were in the course of settlement, of early laws not in accordance with what would be deemed permissible under present day notions. Sustaining a “quasi right of eminent domain” under which lands had been taken for school purposes without compensation, the court stated:

“We must bear in mind that it was not until the organization of the Commission to Quiet Land Titles, which was accomplished by the general statutes of 1846, the chiefs and people had any titles to land; and it was not until 1848 that the Mahele or great division was made, by which the interests of the King, chiefs and people in the lands of the Kingdom were separated, followed by the final act of the King ceding to the Government a portion of his reserved lands.” (8 Haw. at 63.)

The government or state was meant when the Land Commissioners spoke of the King in the principles adopted by the Land Commission. Thurston v. Bishop, supra, 7 Haw. at 430. Thus, when the Commissioners spoke of their power “to alienate for him any rights, which he as King could surrender in regard to these lands” (S.L. 1847, pp. 84-85), and when they further stated that by their appointment there had been conferred upon them by the King “all his private and public power in lands claimed by private parties, which in the nature of things he can delegate” (S.L. 1847, p. 87), the Land Commissioners were referring to the government.

The power over government property thus bestowed on the Land Commission was not unregulated by law, and the Land Commission so recognized. It was within the framework of the governing laws that the Land Commission was to fix the “terms” of the awards. This authority, conferred by section IX of article IV (S.L. 1845-46, p. 109), must be considered in the light of the section as a whole, whereupon it appears that leases as well as patents were to be issued by the Minister of the Interior to claimants “pursuant to the terms in which the said board shall have confirmed their respective claims * * *.” The Land Commission could award a lease or some other right; for example in Kalama, v. Kekuanaoa, 2 Haw. 202, there was involved a Land Commission Award of a right of residence for life in one third of certain Port Lands, the court deciding that the award ran to one Kailio and not to Kalama.

As part of the framework within which the Land Commission operated, mineral or metallic mines could not be disposed of, by virtue of the prescribed form of patent. The effect of this prescribed form of patent was to make the mineral rights reservation self-effectuating. Argo Oil Corp. v. Lathrop, 76 S.D. 70, 72 N.W.2d 431, 76 S.D. 555, 82 N.W.2d 504; Hough v. Porter, 51 Or. 318, 388, 95 Pac. 732, 98 Pac. 1083, 1091; United States v. Washington, 233 F.2d 811, 817 (9th Cir.); United States v. Joyce, 240 Fed. 610 (8th Cir.); cf., Knudsen v. Board of Education, supra, 8 Haw. 60, 64. Compare Shaw v. Kellogg, 170 U.S. 312; United States v. Price, 111 P.2d 206 (10th Cir.).

We recognize that the Land Commission had judicial powers. State v. Hawaiian Dredging Co., 48 Haw. 152, 178, 397 P.2d 593, 608; Kanaina v. Long, 3 Haw. 332, 335; Kahoomana v. Moehonua, 3 Haw. 635, 640. No such powers were called into play here. The Land Commission simply decided who was entitled to a patent in the form prescribed by law. Accordingly, the reservations contained in the Royal Patents here involved were valid; the Land Commission Awards were subject thereto when made. No mention of the mineral rights was necessary in the Land Commission Awards since the reservation would be, as in fact it was, contained in the patents. The decree of registration should have provided for the notation of a reservation as prayed.

It is contended that from and after 1900 land patents were issued on Land Commission Awards without the mineral rights reservation, and that there have been Land Court registrations prior to this one in which such reservation has not been claimed by the Territory or State. Prom the contentions made at the oral argument, disinterest in the mineral rights on the part of government officials appears to have been at a time when there was no “reason to focus attention on the question.” Cf., United States v. California, 332 U.S. 19, 39-40. At all events, the matters referred to could not affect the result in this case, in which the mineral rights reservation does appear in the patents. The waiver of the mineral rights reservation, if authorized in the instances mentioned, would not operate in other instances where no such waiver was attempted. The question is simply one of the validity of the reservation in the patents here involved. Moreover, the matters referred to are not of record and are not before us. At the oral argument counsel for appellee offered to supplement the record in this respect. Such supplementation would not be appropriate. It would go outside the issues presented by the appeal, as framed by the agreed statement under H.R.C.P., Rule 76.¹⁰

Appellee notes that section VI of article II, chapter VII, part I, Second Act of Kamehameha III, prescribing the form of patent, above quoted, was repealed upon the enactment of the- Civil Code of 1859. This, it is argued, shows the government’s disinterest in the mineral rights, but as seen that point is not significant. The repeal was effected by C.C. 1859, § 1491, which provided that: “From and after the day upon which the provisions of this Code shall take effect,¹¹ the following statutes shall be considered as repealed,” the enumeration including the above quoted section VI along with almost all of the Second Act of Kamehameha III. At the same time, C.C. 1859, § 43,¹² provided:

“SECTION 43. A Royal Patent, signed by the King, and countersigned by the Kuhina Nui and the Minister of the Interior, shall issue under the great Seal of the kingdom to the purchaser in fee simple of any government land or other real estate; and also to any holder of an award from the Board of Commissioners to quiet land titles for any land in which he may have commuted the government rights.”

The effect of this repeal was prescribed by C.C. 1859, § 22,¹³ which provided:

“SECTION 22. The repeal of any law shall, in no case, affect any act done, or any right accruing, accrued, acquired or established, or any suit or proceeding had or commenced in any civil case, before the time when said repeal shall take effect.”

The repeal of section VI of article II therefore did not invalidate the reservations contained in these patents, whether or not the patents were issued after the date of the repeal.¹⁴ Each patent was issued upon a Land Commission Award already made.¹⁵ Such award established the right to a patent in the form prescribed by section VI of article II, and the repeal did not enlarge the right already established. Cf., United States v. Magnolia Petroleum Co., 276 U.S. 160. Moreover, C.C. 1859, § 5,¹⁶ provided that: “No law shall have any retrospective operation.” This in itself precluded application of the 1859 law to change the rights of awardees. Cf., Waiakea Mill Co. v. Tierra, 35 Haw. 550; United States v. Hemmer, 241 U.S. 379.¹⁷

Andrew S. O. Lee, Deputy Attorney General (Bert T. Kobayashi, Attorney General, with him on the briefs) for appellant. Thomas W. Flynn, for appellee.

Eeversed and remanded for entry of a modified decree in conformity herewith.

1 The record on appeal is an abbreviated one “setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the questions by the supreme court,” by agreed statement pursuant to H.R.C.P., Rule 76. The dates of the Land Commission Awards and Royal Patents do not appear.

2 Specifically, the State prayed “that if the title to the land in the application be registered in the applicant, the said land be made subject to the reservation of all mineral and metaUic mines of every description in favor of the State of Hawaii.”

3 It is questionable whether this question has been properly presented by the record on appeal and the specification of error in the opening brief.

4 This is now R.L.H. 1955, § 100-11.

5 The opinions rendered after the dates of these acts have not always been meticulous in spelling out the statutory source of the doctrine that a patent based on a Land Commission Award is a mere release of the government commutation. See, e.g., Minister of Interior v. Papaikou Sugar Co., 8 Haw. 125. However, in such cases it was not important that this be spelled out.

6 The government commutation, pursuant to the Principles of the Land Commission, adopted as hereinafter set forth, was as follows:

“6th. The share of government, or the body politic, to be commuted for with the Minister of the Interior, by any confirmed claimant wishing to obtain a fee simple title under chapter 7 of part first of the Act to organize the Executive Departments, this Board understand, from the evidence adduced before them, to be one third part of the value of the land, without improvements, which third part of unimproved value, being paid by the confirmed claimant, should extinguish the private rights of the King in the land, and leave such claimant an allodium, subject only to the corporate rights of the body politic, to be exerted by the King under authorization of the laws, and through the agency of his officers created by the laws.

* * * They [claimants] had a possessory right under the crown, equal to two thirds undivided of the value of the land, provided there were no tenants; and in consideration of the undivided third of the King, they paid an annual rent, in produce of the soil, and in service. * * * That rent can be sold by the Minister of the Interior, for not exceeding one third of the unimproved value of the land as aforesaid, which would divest the land so commuted for of all interference, save that of the community, for the causes and in the way aforesaid.”

(S.L. 1847, p. 93.)

See Minister of Interior v. Papaikou Sugar Co., supra, 8 Haw. 125, holding that the commutation was to be based on the value of the land as of the date of the award, and referring to the Principles of the Land Commission.

7 The Second Act of Kamehameha III, by the 4th article of the 7th chapter of the first part of which the Land Commission was created, provided in section III of article II of said 7th chapter, S.L. 1845-6, p. 100, that: “It shall in no case be lawful to grant lands in fee simple, within this kingdom, to aliens * * and provided in section IV of article I of chapter V of part I of the same act, S.L. 1845-6, p. 76, that: “* * * aliens * * * are not able to acquire any allodial or fee simple estate in lands.” Subsequently, by the Act of July 10, 1850 (S.L. 1850, p. 146), aliens were made eligible to acquire land in fee simple.

8 Quoted from the principles adopted by the Land Commission, S.L. 1847, p. 93.

9 Quoted from Thurston v. Bishop, supra, 7 Haw. at 433.

10 The parties agreed that the question on appeal was:

“Are the reservations of all mineral and metallic mines in favor of the Hawaiian Government (State of Hawaii) contained in the Royal Patents valid, when no such reservations were contained in the Land Commission Awards, and the Royal Patents were issued pursuant to the Land Commission Awards?”

11 The Civil Code of 1859 took effect August 1, 1859. C.C. 1859, § 1492.

12 As amended, this section is now R.L.H. 1955, § 99-16.

13 This section is now R.L.H. 1955, § 1-13.

14 We do not have before us the question of whether a waiver of the mineral rights reservation, by omission of the same from the patent, would have been authorized after the date of the repeal. No such waiver was attempted as to these awards.

15 While the dates of the awards do not appear in the record transmitted to this court, they necessarily antedated the dissolution of the Land Commission on the last day of March, 1855, pursuant to the Act of July 20, 1854, S.L. 1854, p. 21, supra.

16 As amended, this is now R.L.H. 1955, § 1-6.

17 A situation comparable to the present one arose in Alaska upon the repeal by the Alaska Omnibus Act (Pub. L. 86-70, sec. 21(d) (7), 73 Stat. 141) of a congressional enactment requiring the reservation of rights-of-way (61 Stat. 418). In litigation since this repeal no point has been made of it. See Hillstrand v. State, 181 P. Supp. 219 (D. Alaska), interloc. review denied, 352 P.2d 633 (Alaska); Myers v. United States, 210 P. Supp. 695 (D. Alaska), aff’d in part and rev’d in part, 323 P.2d 580 (9th Cir.). This confirms our view that the repeal of section VI of article II is not significant in this case.