OPINION OF THE COURT BY
CIRCUIT JUDGE GEAR.
Tbis is an. appeal by the defendants from a pro forma order made by a judge of the Eirst Circuit Court overruling a demurrer to a bill in equity for an injunction.
[89]*89The bill alleges title of the United States in and to the public lands in Hawaii, and that the right to the possession, use, income and benefit thereof is in the Territory of Hawaii.
The bill then sets out in haeo verba Eoyal Patent number 5,588, issued March 23, 1866, by Kamehameha V. and alleges that defendant. Liliuokalani claims ownership under said patent.
The patent describes one of the boundaries of the land as following a certain line “running to the sea; thence along the sea at ■low water mark to commencement.”
• The defendant Wilson is alleged to be a licensee or lessee of Liliuokalani authorized by her to remove sand and gravel from the land between high and low water mark, and the bill seeks to restrain either and both of the defendants from removing the sand and gravel, on the ground that the land between high and low water mark belongs toi the Government and that so much of the royal patent as purports to convey land' below high water mark is null and void, for the reason that Kamehameha Y had no lawful power or authority at the time of issuing the patent to convey the same.
It will be seen therefore that the only question necessary to be decided is as to whether or not the king had power to grant and convey the land between high and low water mark.
The general rule of law is that the sovereign power of any country or state can make a valid grant to a private individual of land between high and low water mark.
Gould, in his treatise on the law of waters, says: “The state may grant to individuals or corporations the soil of public navigable waters,” and cites many cases upholding this proposition. Gould on Waters, Sec. 36. But “an express declaration is necessary to warrant the inference that it was intended to permit the shore below high water mark to be converted into private property.” Idem.' “The United States, while they hold the country as territory having all the power, both national and municipal government, may grant, for appropriate purposes, titles or rights in the soil below high water mark of tide waters.” Idem Sec. 40; Shively v. Bowlby, 152 U. S., 1, 47, 58.
[90]*90“Individuáis may also acquire by prescription, against the Crown or State; tbe right to the soil of public waters. Idem Sec. 37.
“When the shores or flats of tide waters have become private property the title thereto may be lost by disseisin. Idem.
The same doctrine is laid down in the following text books and reported cases: Black’s Pomeroy on Water Rights, Secs. 21, 238; Woolrych on Waters, p. 4-10; Hale Deportibus Maris, Chap. 4; Mayor of Mobile v. Eslava, 33 Am. Dec. 329; Robers v. Jones, 1 Wend. 237, 19 Am. Dec. 493; Gouch v. Bell, 21 N. J. L. 165, 22 N. J. L. 44; People v. Perry Co., 68 N. Y. 71; Langdon v. New York, 93 N. Y. 144; Eisenbach v. Hatfield, 12 Lawyer’s Rep. Ann. 630; Hess v. Miner, 65 Md. 601, 5 Cent. Rep. 585; Ward v. Ellis, 6 Jones Law (N. C.) 183, 72 Am. Dec. 570; Pike v. Monroe, 36 Me. 309, 58 Am. Dec. 753; Wrights v. Seymour, 69 Cal. 122; Church v. Meekin, 34 Conn. 421a; Peck v. Lockwood, 5 Day, 26; Parker v. Taylor, 7 Or. 436; Cadmody v. Rowe, 6 C. B. 879; Boston v. Lecran, 56 U. S. 426; Webb v. Demopolis, 21 L. R. A. 62; Abbott v. Treat, 78 Me. 121; Clement v. Burns, 43 N. H. 609.
A grant of land bounded by high water “including all the shore to low water mark” will pass title to the shore. Dillingham v. Roberts, 75 Me. 469.
Prom a review of the above decisions we are satisfied that Kamehameha V had power to make a grant of land between high and low water mark. While it is claimed that Kamehameha V was a constitutional monarch it seems that he was little embarrassed by constitutional restrictions. By his own authority he abrogated the constitution of the kingdom that was adopted by Kamehameha III in 1852 and promulgated a new one to' his own liking August 24, 1864. Such a monarch certainly possessed the usual powers of sovereignty conceded to, constitutional rulers and had the right to convey the land between high and low water mark to the defendants’ grantor.
The Attorney-General contends however that even if the general rule of law be as above stated, that at the time the deed in [91]*91question was made (1859) the king was not authorized under the law to award title to land below high water mark, beeause of a resolution of the king’s privy council passed August 29, 1850, and if the deed or royal patents be construed to pass, by its terms, land between high and low water mark the king and his premier exceeded their powers and that so much of the deed as purports to convey the title to such land is null and void.
To sustain this contention the Attorney-General quotes the resolution of the privy council of August 29th, 1850, which reads as follows:
“Resolved, that the rights of the king as sovereign extend from high water mark a marine league to sea, and to all navigable straits and passages among the Islands, and no private right can be sustained, except private rights of fishing and of cutting stone from the rocks, as provided and reserved by law.” 3 Privy Council Record, p. 425.
The Attorney-General argues that as this resolution was ten years prior to the Act of 1860 “for the relief of certain konohikis” who were entitled to lands under the great, mahele of 1848 but who had failed to obtain their awards from the Land Commission, and who, by that Act, were given further time to procure their awards, therefore an award granted subsequent to the passage of the resolution of the privy council was subject to said resolution and void in so far as it attempted to pass title to land mentioned in the resolution.
This contention is without merit for two* reasons;, the first one being that the privy council had no power to enact laws. The only power they had at the time of the passage of this resolution was to advise with the king.
The powers of the privy council are provided for in the old Civil Code and are as follows:
“It shall be the duty of every privy councillor: (1) to advise the king according to the best of his knowledge and discretion. (2) To advise for the king’s honor and the good of the public without partiality through friendship, love, reward, fear or favor. (3) Finally to avoid corruption and to observe, keep and [92]*92■do all that a good and true councillor ought to observe, keep and to do his sovereign.” Civil Code, Sec. 26.
The legislative power was in the house of nobles and house of representatives, and only by -their combined action and assent could laws be passed. We find no power given by any statute empowering the privy council to-enact- laws.
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OPINION OF THE COURT BY
CIRCUIT JUDGE GEAR.
Tbis is an. appeal by the defendants from a pro forma order made by a judge of the Eirst Circuit Court overruling a demurrer to a bill in equity for an injunction.
[89]*89The bill alleges title of the United States in and to the public lands in Hawaii, and that the right to the possession, use, income and benefit thereof is in the Territory of Hawaii.
The bill then sets out in haeo verba Eoyal Patent number 5,588, issued March 23, 1866, by Kamehameha V. and alleges that defendant. Liliuokalani claims ownership under said patent.
The patent describes one of the boundaries of the land as following a certain line “running to the sea; thence along the sea at ■low water mark to commencement.”
• The defendant Wilson is alleged to be a licensee or lessee of Liliuokalani authorized by her to remove sand and gravel from the land between high and low water mark, and the bill seeks to restrain either and both of the defendants from removing the sand and gravel, on the ground that the land between high and low water mark belongs toi the Government and that so much of the royal patent as purports to convey land' below high water mark is null and void, for the reason that Kamehameha Y had no lawful power or authority at the time of issuing the patent to convey the same.
It will be seen therefore that the only question necessary to be decided is as to whether or not the king had power to grant and convey the land between high and low water mark.
The general rule of law is that the sovereign power of any country or state can make a valid grant to a private individual of land between high and low water mark.
Gould, in his treatise on the law of waters, says: “The state may grant to individuals or corporations the soil of public navigable waters,” and cites many cases upholding this proposition. Gould on Waters, Sec. 36. But “an express declaration is necessary to warrant the inference that it was intended to permit the shore below high water mark to be converted into private property.” Idem.' “The United States, while they hold the country as territory having all the power, both national and municipal government, may grant, for appropriate purposes, titles or rights in the soil below high water mark of tide waters.” Idem Sec. 40; Shively v. Bowlby, 152 U. S., 1, 47, 58.
[90]*90“Individuáis may also acquire by prescription, against the Crown or State; tbe right to the soil of public waters. Idem Sec. 37.
“When the shores or flats of tide waters have become private property the title thereto may be lost by disseisin. Idem.
The same doctrine is laid down in the following text books and reported cases: Black’s Pomeroy on Water Rights, Secs. 21, 238; Woolrych on Waters, p. 4-10; Hale Deportibus Maris, Chap. 4; Mayor of Mobile v. Eslava, 33 Am. Dec. 329; Robers v. Jones, 1 Wend. 237, 19 Am. Dec. 493; Gouch v. Bell, 21 N. J. L. 165, 22 N. J. L. 44; People v. Perry Co., 68 N. Y. 71; Langdon v. New York, 93 N. Y. 144; Eisenbach v. Hatfield, 12 Lawyer’s Rep. Ann. 630; Hess v. Miner, 65 Md. 601, 5 Cent. Rep. 585; Ward v. Ellis, 6 Jones Law (N. C.) 183, 72 Am. Dec. 570; Pike v. Monroe, 36 Me. 309, 58 Am. Dec. 753; Wrights v. Seymour, 69 Cal. 122; Church v. Meekin, 34 Conn. 421a; Peck v. Lockwood, 5 Day, 26; Parker v. Taylor, 7 Or. 436; Cadmody v. Rowe, 6 C. B. 879; Boston v. Lecran, 56 U. S. 426; Webb v. Demopolis, 21 L. R. A. 62; Abbott v. Treat, 78 Me. 121; Clement v. Burns, 43 N. H. 609.
A grant of land bounded by high water “including all the shore to low water mark” will pass title to the shore. Dillingham v. Roberts, 75 Me. 469.
Prom a review of the above decisions we are satisfied that Kamehameha V had power to make a grant of land between high and low water mark. While it is claimed that Kamehameha V was a constitutional monarch it seems that he was little embarrassed by constitutional restrictions. By his own authority he abrogated the constitution of the kingdom that was adopted by Kamehameha III in 1852 and promulgated a new one to' his own liking August 24, 1864. Such a monarch certainly possessed the usual powers of sovereignty conceded to, constitutional rulers and had the right to convey the land between high and low water mark to the defendants’ grantor.
The Attorney-General contends however that even if the general rule of law be as above stated, that at the time the deed in [91]*91question was made (1859) the king was not authorized under the law to award title to land below high water mark, beeause of a resolution of the king’s privy council passed August 29, 1850, and if the deed or royal patents be construed to pass, by its terms, land between high and low water mark the king and his premier exceeded their powers and that so much of the deed as purports to convey the title to such land is null and void.
To sustain this contention the Attorney-General quotes the resolution of the privy council of August 29th, 1850, which reads as follows:
“Resolved, that the rights of the king as sovereign extend from high water mark a marine league to sea, and to all navigable straits and passages among the Islands, and no private right can be sustained, except private rights of fishing and of cutting stone from the rocks, as provided and reserved by law.” 3 Privy Council Record, p. 425.
The Attorney-General argues that as this resolution was ten years prior to the Act of 1860 “for the relief of certain konohikis” who were entitled to lands under the great, mahele of 1848 but who had failed to obtain their awards from the Land Commission, and who, by that Act, were given further time to procure their awards, therefore an award granted subsequent to the passage of the resolution of the privy council was subject to said resolution and void in so far as it attempted to pass title to land mentioned in the resolution.
This contention is without merit for two* reasons;, the first one being that the privy council had no power to enact laws. The only power they had at the time of the passage of this resolution was to advise with the king.
The powers of the privy council are provided for in the old Civil Code and are as follows:
“It shall be the duty of every privy councillor: (1) to advise the king according to the best of his knowledge and discretion. (2) To advise for the king’s honor and the good of the public without partiality through friendship, love, reward, fear or favor. (3) Finally to avoid corruption and to observe, keep and [92]*92■do all that a good and true councillor ought to observe, keep and to do his sovereign.” Civil Code, Sec. 26.
The legislative power was in the house of nobles and house of representatives, and only by -their combined action and assent could laws be passed. We find no power given by any statute empowering the privy council to-enact- laws.
But even if it be conceded that the privy council possesses such power and that the “Resolution” quoted had the effect of a law, we are of the opinion that it would not affect the award and patent in this case, as they relate back to and are determined, by the great mahele of 1848, in pursuance of which they were issued.
The award and patent in question were issued under the Act 'of 1860 for the relief of certain konohikis, section I of the Act being: “The Minister of the Interior is hereby authorized to grant awards for their lands to all konohikis who have failed to •receive the same from the land commission, provided that the names of such konohikis appear in the mahele book 'of the year 1848; and all awar*ds so granted by said minister shall be equally valid with those of the land commission.”
The case In re Boundaries of Pulehunui, 4 Haw. 239, held -that an award of the land commission of land “by name” is intended to assign whatever was included in such land according to the boundaries as known and used from ancient times.' The opinion in that case, written by Mr. Justice McCully, describes practically how the boundaries of awards designated by name are arrived at.
“After the surrender by Kamehameha III, in 1848, of the greater part of the land of the kingdom-to his chiefs and people, the necessity of a speedy distribution of it in accordance with what may be called the feudal rights of the chiefs, required that awards of lands be made by name only without survey. No- body of surveyors could have been found in the country or practically could have been brought here, who might have surveyed these large estates -within the lifetime of half the grantees, so- that .every award should have been issued as of a tract defined by metes and bounds, or with even an approximate statement of the [93]*93acreage. The “mahele” or division was, therefore-, made without survey. Tracts of land known to Hawaiians as an ahupuaa or ili were awarded to those entitled by name of the ahupuaa or ili. By such grant was intended to- be assigned whatever was included in such tract according to its boundaries as known and used from ancient times.
“With the Hawaiians, from prehistoric times, every portion of the land constituting these islands was included in some division larger or smaller, which had a name-, and of which the boundaries were known to the people living thereon or in the neighborhood. Some persons were specially taught and made the repositories of this knowledge, and it was carefully delivered from father to son.
“The division of the lands were to a great extent made on rational lines, following a ridge, the bottom of a ravine or depression, but they were often without these and sometimes in disregard of them. Sometimes a stone or rock known to the aboriginals and notable from some tradition, or sacred uses, marks a corner or determines a line-. The line of growth of a certain kind of tree, herb or grass, the habitat of a certain kind of bird, sometimes made a division. Through some parts of the country which must always have been unfrequented by the general population, as thick forests, rough and barren mountain lands, their division lines lay, where they could be traced out by some persons at least in charge of the territory, whose business it was to know them.”
“A principle very largely obtaining in these divisions of territory was that a land should ran from the sea to the mountain, thus affording to- the chief and his people a fishery residence at the warm seaside, together with the products of the high lands, such as fuel, canoe timber, mountain birds, and the right of way to the same, and all the varied products of the intermediate land as might be suitable to the soil and climate of the different altitudes from sea soil to- mountainside or top-. But this mode of allotment had numerous exceptions, because some -o-f the lands were for some reason not always understood, and perhaps arbitrary in the beginning, very wide at the top, cutting off a great number of other lands from the mountain; others in like manner wide in the low lands, cut off land from the sea.
“The contour of lands which have been surveyed and plotted is most irregular. The only general description would be that the lines are not rectilinear, and that there- is no preference for [94]*94right, angles. In size ahupuaas are found of form a hundred acres up to thousands, in several instances containing more than one hundred thousand and more than two hundred thousand acres.
“The statute which establishes the office of commissioner of boundaries prescribes that the holders of lands granted by name only shall apply to such commissioner for the settlement and determination of the boundaries of'what is claimed, presenting a general description of them by “survey or otherwise.” After notice to owners of adjacent lands, the commissioner sits to hear evidence of what are the ancient lines of the land in question, hearing what is offered by the petitioner and adversely to him by others whose interests are affected. He may aid his information by going on tire ground, and is to endeavor to obtain all information possible to enable him to arrive at a just decision. An appeal lies to the Supreme or Circuit Court, on record of the evidence of witnesses before the commissioner, which may be supplemented by further testimony.” 4 Haw. pp. 241, 242.
From this it will be seen that the great mahele of 1848 was a grant by name of certain tracts of land the boundaries of which were well known but not “defined by authority,” and therefore it became necessary to provide for the settlement of the boundaries, in pursuance of which an Act was passed, in 1862, “To provide for the appointment of boundary commissioners.”
By this Act, before a royal patent could issue on a land, a commission award of the boundaries of the land had to be ascertained as provided in the Act, and by Section 10 of the Act, the Minister of the Interior was forbidden to issue any patent on an award until the boundaries had been so ascertained.
The title of the owner in the lands passed by the mahele, although the award was not issued till long afterwards, it being necessary to reduce to a survey the boundaries of .the grant, which boundaries were determined as of the time'of the mahele, and the award and patent in this case therefore related back to 1848, two years before the resolution of the privy council was passed, and therefore were not affected by the resolution, even conceding it to have been valid.
E. P. Dole, Attorney-General, for the Territory.
Robertson <& Wilder for the defendants.
Hatch & $UHman as amibas curiae on behalf of defendants.
The Attorney-General further contends that as the royal patent and award contained the words “koe nae ke kuleana O' na kanaka” this reserved to the people all the rights below high water mark not expressly recognized as private rights, and that this reserved all rights excepting the rights to fish and the rights to remove coral rock. He states that the king was “authorized by the law and by the land commission award to issue the royal patent reserving however the people’s kuleana therein. The people’s kuleana was the land between high water mark and low Avater mark, which Kamehameha. had no authority to alienate.”
By reference to the statutes of 1845-46, Yol. 2, pp. 81, 94, it Avill be seen that the grants are to be made “subject to the private lights of the tenants, if there be any on the land,” and on page ■85 in a definite statement of the public rights to which the grant is subject, showing that the words “koe nae ke kuleana o na kanaka”, have no reference .to sueh public rights, but can only have reference to the house lots and taro patches and gardens of tenants living on land Avithin the boundaries of the larger tract 'granted.
We are of the opinion that the words quoted have a well understood meaning as used in conveyances Avithin this Territory and that they, as well as the English equivalent “reserving however the people’s kuleana therein,” mean the reservations of the house lots and taro patches or gardens of natives lying within the boundaries of the tract granted.
The order overruling the demurrer of defendants is reversed, and the cause remanded with directions to the trial court to sustain the demurrer and order the bill dismissed.