United States v. Fullard-Leo

133 F.2d 743, 1943 U.S. App. LEXIS 3889

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 1, 1943
• Docket: No. 9889
• Status: Published

Opinions

HANEY, Circuit Judge.

Appeal was taken from a judgment dismissing an action brought by appellant to quiet title to Palmyra Island.

Palmyra Island is an atoll comprising some 52 islets surrounding three deep-water lagoons, and is situated about 900 miles south of Honolulu. Many of the islets are covered with trees and tropical vegetation. It was discovered by Captain Sawle of the American ship Palmyra on November 6, 1802.

There was evidence, excluded by the court below, that one G. P. Judd, on October 19, 1859, visited the island and left “a bottle containing notice of taking possession”.

Prior to February 26, 1862, Wilkinson and Bent, naturalized citizens of the Kingdom of Hawaii, made a “representation to the Kingdom. The “representation” itself cannot be found. The minutes of a meeting of the Cabinet Council on February 26, 1862, contain the following:

“ ‘P. Kamehameha read a Representation from Z Bent & Mr. Wilkinson, about the Island Palmyra, requesting that the Island should be considered a Hawaiian possession & be placed under the Hawaiian Flag

“ 'After some discussion it pleased the King to direct the Minister of the Interior, to grant what the Petitioners apply for, following the precedent of the Resolution regarding the Island Cornwallis & without exceeding the same.’ ”

The “precedent” referred to an expedition regarding a similar situation, the facts concerning which will be related before continuing the chronology of Palmyra Island.

The precedent of the resolution regarding Cornwallis Island was: On May 24, 1858, one Adams submitted a letter to the Minister of Interior stating that he was desirous of taking possession of an island or islands in the North Pacific in the name of the Hawaiian Government, provided that the government would grant him certain rights. On May 31, 1858, Adams entered into a contract with the Minister of the Interior on behalf of the Hawaiian government, by which Adams was given “the exclusive right for five years of taking guano or any other produce which may be found on any Island or Islands in the North Pacific Ocean taken possession of, in the name of His Majesty King * * * by Samuel Clesson Allen in the Schooner ‘Kalama’.” There followed definite provisions respecting payment to the government, operation of the business by Adams and avoidance of the contract by default. A provision below the signatures was “that if it shall afterwards appear, that any Island or Islands which have been taken possession of by L. C. Allen in the name of H. Majesty * * * had been previously taken possession of by a foreign power — then, this contract shall be void, so far as relates to such Island or Islands”. On the same day a commission was issued to Allen empowering him to take possession in the name of the King “any Island or Islands in the North Pacific which are not in the possession of any other Government, or any other people * * *

On July 12, 1858, Allen reported that on June 14, 1858, he took possession of Cornwallis Island. The minutes of the Privy Council of July 27, 1858, disclose that the report was read, and a resolution adopted stating that the island was “to be considered as part of His Majesty’s Domain”.

The court below found that the contract with the Adams “was rescinded by the Minister of Interior, as to Cornwallis Island, shortly thereafter when it was discovered that that island had been annexed by the United States prior to the time when Allen arrived there on June 14, 1858”, and that the “Minister of Interior, wrote to Adams on October 16, 1858, that the government was embarrassed when it learned that the Island Cornwallis (later known as Johnston Island) taken under Allen’s commission, had already been annexed by the United States”.

Returning to the Wilkinson and Bent chronology, we find that on the day following the passage of the resolution, a newspaper in Honolulu contained the following:

“The sloop Louisa has been purchased by J. Wilkinson, and is now being fitted for a southern expedition, under command of Captain Zenas Bent. We understand she will take possession of an island during her cruise * *

On March 1, 1862, the Minister of the Interior wrote Wilkinson and Bent in part as follows:

«* * * I am authorized to State on the part of his Majesty’s government that they consent to the taking possession of the island Palmyra * * * for the purpose of increasing the trade and Commerce of this Kingdom, as well as offering protection to the interests of its subjects—

“I have the honor to forward with this dispatch tl}e Authority * * * to take possession of the above mentioned island of Palmyra, and I beg to request that you will after having executed the orders contained in the Commission, you will report the fact to this Department * *

The commission referred to was dated the same day, signed by the King and the Minister of the Interior and authorized Bent “to take possession in our name of Palmyra Island * * * not having been taken possession of by any other government or any other people”. It also contained directions as to the method of taking possession, as follows: “ * * * by erecting thereon a short pole, with the Hawaiian flag wrapped around it and interring at the foot thereof a bottle well corked containing a paper signed by him in the following form, viz.: ‘Visited and taken possession of by order of His Majesty King Kamehameha IV, for him and his successors on the Hawaiian throne, by the undersigned sjt * * > * * * ”

A “Memoranda” published in the government gazette on June 14, 1862, stated that Captain Bent had sailed on March 28, 1862, and had arrived at Palmyra Island on April 6, 1862.

On June 16, 1862, Bent wrote the Minister of the Interior stating that he had taken “possession of Palmyra Island, in the name of His Majesty on April 15, 1862; that he left on the island one white man and four Hawaiians; that he planted some vegetables thereon; and that he proposed to return to the island in about ten days. On June 18, 1862, the Minister of the Interior published a “Proclamation” in the gazette reciting that Captain Bent had taken possession of Palmyra Island on April 15, 1862, and “This is to give notice, that the said island, so taken possession of, is henceforth to be considered and respected as part of the Domain of the King of the Hawaiian Islands”.

Bent conveyed all his “right, title and interest” in the island to Wilkinson on December 24, 1862. In 1885, Pacific Navigation Company, a Hawaiian corporation, became a successor in interest to Wilkinson after previous conveyances. Assessment for taxes was made against the corporation in 1885, 1886, 1887, the valuation of the island being fixed at $1,000. The corporation disposed of its interest in the island during the last named year, and no taxes were levied against the island until 1911.

Hawaii was a monarchy from 1795 to 1893 when the monarchy was abolished and after an intervening provisional government a republic was established. The joint resolution of Congress, approved July 7, 1898, 30 Stat. 750, recited that the Government of the Republic of Hawaii had consented “to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands * * * and all other public property of every kind and description belonging to the Government of the Hawaiian Islands * * It provided that the cession was accepted and that the Hawaiian Islands and their dependencies were “annexed as a part of the territory of the United States and are subject to the sovereign dominion thereof, and that all and singular the property and rights hereinbefore mentioned are vested in the United States of America”. “Though the resolution was passed July 7, the formal transfer was not made until August 12, when, at noon of that day, the American flag was raised over the government house, and the islands ceded with appropriate ceremonies to a representative of the United States”. Territory of Hawaii v. Mankichi, 190 U.S. 197, 209, 23 S.Ct. 787, 47 L.Ed. 1016.

The court below stated that appellant had asked it to take judicial notice of “U.S. Senate Document 16, 55th Congress, 3rd Session. Message of the President of the United States transmitting the Report of the Hawaiian Commission in pursuance of the Joint Resolution to provide for annexing the Hawaiian Islands to the United States”; that in such document an itemized inventory of all government property and lands and interests in lands; that Palmyra Island is not listed as government property, but is listed as a part of the Hawaiian group; and that the report contains the following:

“The Public Domain. — The statistics available in regard to the public lands belonging to the Republic of Hawaii at the time of the cession to the United States are not of that absolute or definite character that they can be accepted as conclusive of areas and values.

“The frequent radical changes in the past years in the methods of control and of sales and leases and transfers of lands under the direction of the Crown * * * have made it difficult to / arrive at exact figures * *

The court below also stated that the evidence showed that “extensive and exhaustive search has been made to ascertain if Palmyra Island was ever publicly designated, classified, or known as Crown land or public domain, during or after the time of the Monarchy. Nothing of the kind can be found”.

On February 11, 1905, the Attorney General of the Territory of Hawaii wrote the Governor of the Territory in answer to a request by the Governor for an opinion as to the jurisdiction of the Territory over the various small guano islands to the northwest of Kauai. In it the Attorney General' stated: “Palmyra Island, seems to have been acquired during the reign of Kamehameha IV, by a proclamation signed by him, dated the 15th day of June, 1862”. He further stated:

“ * * * I believe that from these records the government’s right to lease the islands, or any privileges thereon, is clear; also to lease the same, as suggested in your letter. The fact of making such leases, and the lessees taking possession thereunder, recognizing the Territory of Hawaii as the landlord would be prima facie evidence in international law of our right to the same and would be the best evidence the govemment could make of its claim to the various islands in question”.

In 1911, one Henry E. Cooper became the record owner of the island. In 1912, he filed a petition in the Land Court of the Territory, claiming ownership in fee simple, and praying for confirmation and registration of his title. The Territory, named as a respondent, by its Attorney General, filed a disclaimer of any interest in, to, or concerning the lands. On October 4, 1912, the Land Court made a decree declaring Cooper to be the owner in fee simple of the island. Assessments against the island for taxes have been made annually since 1911.

At the time of the decree a statute provided in part that the “laws of Hawaii relating to public lands * * * shall continue in force * * * ”. 48 U.S.C.A § 664. Rev.Laws of Hawaii, 1905, § 2395, provided in part:

“A court is hereby established, to be called the court of land registration, which shall have exclusive original jurisdiction of all applications for the registration of title to land within the Territory, with power to hear and determine all questions arising upon such applications, and also have jurisdiction over such other questions as may come before it under this chapter, subject, however, to the right of appeal, as hereinafter provided. The proceedings upon such applications shall be proceedings in rem against the land, and the decrees shall operate directly on the land and vest and establish title thereto”. • ■

Section 2431 provided in part: “* * * Every decree of registration of absolute title shall bind the land, and quiet the title thereto, subject only to the exceptions stated in the following section. It shall be conclusive upon and against all persons, including the Territory, whether mentioned by name in the application, notice or citation, or included in the general description ‘to all whom it may concern.’ * * * ”

In 1922, Cooper conveyed a major portion of the island to Leslie and Ellen Fullard-Leo. On December 12, 1939, appellant filed in the court below an action to quiet title to Palmyra Island. The defendants named were Leslie and Ellen FullardLeo and the distributees of Cooper’s estate. The petition alleged that the island became a part of the public or crown lands of the Kingdom of Hawaii on June 18, 1862; that the only interest in the island granted anyone, was the exclusive right to take guano and other produce from the island for five years, which right was granted Wilkinson and Bent in 1862; that title to the lands passed to appellant by cession by the Republic of Hawaii; that the Land Court which made the decree above mentioned, was without jurisdiction to enter a decree because no conveyance from the Kingdom, the Provisional Government, or the Republic of Hawaii, or from appellant was shown;, and that appellant was not a party to the proceedings. Jury trial was waived. The court below concluded that appellant had failed to establish its title, and dismissed the petition. This appeal followed. j

Since the appellant alleged that it was the owner in fee simple of the island, it had the burden of establishing that ownership by a preponderance of the evidence. Appellant contends that it sustained that burden because: the island was proclaimed to be a part of the “domain” of the King, which meant absolute ownership; and that the King retained that absolute title, merely granting to Wilkinson and Bent the right to the produce from the island for five years. Appellees maintain that the proclamation that the island was a part of the “domain” of the King merely meant that it was under the “sovereignty” of the King and did not mean “ownership” in the King; that the “precedent” of Cornwallis Island meant only that Wilkinson and Bent could take possession of the island for the purpose of placing it under the sovereignty of the King only if it had not been taken possession of by any other government or people; and that in any event, the acquiescence by the governments of Hawaii in the private possession, and taxation of the island as private property, was sufficient to warrant a decision that the government of Hawaii parted with its title by a lost grant.

While it is possible, under principles of international law for two individuals to obtain title to such territory as they discover (see Johnson v. McIntosh, 8 Wheat. 543, 595, 21 U.S. 543, 595, 5 L.Ed. 681), such an occurrence is rare because title can also be obtained by conquest. 1 Hyde, International Law, 176 § 106. If the discovered land is important, many countries could and probably would acquire it by conquest, and the knowledge that such event might happen would deter most explorers. On the other hand, if the explorers take possession in behalf of a sovereignty, they are ordinarily able to salvage something of value from their effort with much less chance of losing it, depending, of course, on the strength of the sovereignty.

In the instant case, while the resolution of the Cabinet Council and the letter of March 1, 1862, addressed to Wilkinson and Bent by the Minister of Interior, may be equivocal on the point of ownership, there is nothing equivocal about the authority or commission issued to Bent. The commission makes it abundantly clear that Bent was merely acting as agent of the King. Under the principles of international law, the taking of possession by Bent perfected the title of the King. 1 Hyde, International Law, 167 § 100; 1 Oppenheim, International Law, 276-278, §§ 221-224; Martin v. Waddell, 16 Pet. 367, 409, 41 U.S. 367, 409, 10 L.Ed. 997. Nothing in the resolution or the letter referred to is contrary to that view.

Title being in the King, it passed to the United States by cession, unless it had been alienated by one of the Hawaiian governments. There is no proof of such alienation. Appellees contend, however, that possession by private individuals and taxation of the island are sufficient to warrant a decision that the alienation of the island was by a lost grant. By their answers appellees prayed that their title be quieted. The court below failed to grant that relief, and while discussion of the question was not made, the record seems conclusive against granting such relief. To sustain the claim, there must be “proof of an adverse, exclusive, and uninterrupted possession for twenty years”. United States v. Chavez, 175 U.S. 509, 522, 20 S.Ct. 159, 163, 44 L.Ed. 255. While there was some evidence of possession, there is no proof that it was adverse, exclusive or uninterrupted within the meaning of the rule.

Appellees also contend we should affirm because the findings are actually an opinion, but we believe they are sufficient.

Reversed.