A general law may grant titles as well as a special law.
The act of Hawaii of 1846, "of Public and Private Rights of
Piscary," together with royal grants previously made, created and
confirmed rights in favor of landlords in adjacent fishing grounds
within the reef or one mile to seaward which were vested rights
within the saving clause in the organic act of the Territory
repealing all laws of the Republic of Hawaii conferring exclusive
A statement in a patent of an apuhuaa in Hawaii that "a fishing
right is also attached to this land in the adjoining sea" and
giving the boundaries thereof, passes the fishery right even if the
habendum refers only to the above granted land.
The facts are stated in the opinion of the court.
Page 194 U. S. 157
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action at law, somewhat like a bill to quiet title,
to establish the plaintiff's right to a several fishery of a
peculiar sort, between the coral reef and the ahupuaa of Moanalua
on the main land of the island of Oahu. The organic act of the
Territory of Hawaii repealed all laws of the Republic of Hawaii
which conferred exclusive fishing rights, subject, however, to
vested rights, and it required actions to be started within
Page 194 U. S. 158
two years by those who claimed such rights. Act of April 30,
1900, c. 339, §§ 95, 96, 31 Stat. 141, 160. At the trial, the
presiding judge directed a verdict for the defendant. Exceptions
were taken but were overruled by the supreme court of the
territory, and the case comes here by writ of error.
The right claimed is a right within certain metes and bounds to
set apart one species of fish to the owner's sole use, or,
alternatively, to put a taboo on all fishing within the limits for
certain months, and to receive from all fishermen one-third of the
fish taken upon the fishing grounds. A right of this sort is
somewhat different from those familiar to the common law, but it
seems to be well known to Hawaii, and, if it is established, there
is no more theoretical difficulty in regarding it as property and a
vested right than there is regarding any ordinary easement or
profit a prendre as such. The plaintiff's claim is not to be
approached as if it were something anomalous or monstrous,
difficult to conceive and more difficult to admit. Moreover,
however anomalous it is, if it is sanctioned by legislation, if the
statutes have erected it into a property right, property it will
be, and there is nothing for the courts to do except to recognize
it as a right. Wedding v. Meyler, 192 U.
, 192 U. S.
The property formerly belonged to Kamehameha IV, from whom it
passed to his brother, Lot Kamehameha, and from him by mesne
conveyances to the plaintiff. The title of the latter to the
ahupuaa is not disputed. He claims the fishery also under a series
of statutes and a royal grant. The history is as follows: in 1839
Kamehameha III took the fishing grounds from Hawaii to Kauai and
redistributed them -- those named without the coral reef, and the
ocean beyond, to the people; those "from the coral reef to the sea
beach for the landlords and for the tenants of their several lands,
but not for others." The landlord referred to seems to have been
the konohiki, or overlord, of an ahupuaa, or large tract like that
owned by the plaintiff. It is not necessary to speculate as to what
the effect of this act of the king would have been standing alone,
Page 194 U. S. 159
having absolute power. It had at least the effect of
inaugurating a system de facto.
But in 1846, the monarchy
then being constitutional, an act was passed, article 5 of which
was entitled "Of the Public and Private Rights of Piscary." By the
first section of this article it was provided again that the same
fishing grounds outside the reef should be free to the people,
etc., and then by the second it was enacted that the fishing
grounds from the reefs to the beach, or, where there are no reefs,
for one mile seaward,
"shall in law be considered the private property of the
landlords whose lands, by ancient regulation, belong to the same;
in the possession of which private fisheries the said landholders
shall not be molested except"
By § 3,
"the landholders shall be considered in law to hold said private
fisheries for the equal use of themselves and of the tenants on
their respective lands, and the tenants shall be at liberty to use
the fisheries of their landlords subject to the restrictions in
this article imposed."
Then follows a statement of the rights of the landlord as they
have been summed up above, and a provision that the landlords shall
not have power to lay any tax or to impose any restrictions upon
their tenants regarding the private fisheries other than those
The Civil Code of 1859, § 387, repeated the enactment of § 2,
that the fishing grounds within the reef or one mile seaward
"shall, in law, be considered the private property of the
konohiki," etc., in nearly the same words, and other sections
codified the regulations just mentioned. There was a later
repetition in the Penal Laws of 1897, § 1452, etc., and this was in
force when the organic act of Congress was passed, repealing, as we
have said, the laws conferring exclusive fishing rights, but
preserving vested rights.
The foregoing laws not only use the words "private property,"
but show that they mean what they say by the restrictions cutting
down what otherwise would be the incidents of private property.
There is no color for a suggestion that they
Page 194 U. S. 160
created only a revocable license, and if they imported a grant
or a confirmation of an existing title, of course, the repeal of
the laws would not repeal the grant. The argument against their
effect was not that in this case the ahupuaa did not belong to the
fishery, within the words "landlords whose lands, by ancient
regulation, belong to the same" (the land seems formerly to have
been incident to the fishery), but that citizens have no vested
rights against the repeal of general laws. This is one of those
general truths which become untrue by being inaccurately expressed.
A general law may grant titles as well as a special law. It depends
on the import and direction of the law. A strong example of the
application of the rule intended by the argument is to be found in
Wisconsin & Michigan Railway v. Powers, 191 U.
, where a railroad company was held to have no
vested right to exemptions proclaimed in a general tax act. The
statute was construed not to import an offer, covenant, or grant to
railroads which might be built in reliance upon it. But if a
general law does express such an offer, as it may, the grant is
made. If the Hawaii statutes did not import a grant, it is hard to
see their meaning.
However, in this case it is not necessary to invoke the statutes
further than to show that, by the law in force since 1846, at
least, such rights as the plaintiff claims, and which, as is shown
by the evidence, he and his predecessors in title have been
exercising for forty years, have been recognized as private
property. Such is the view of the leading case, decided in 1858 and
acquiesced in, we believe, ever since. Haalelea v.
2 Haw. 62, 66. In the present instance, the
plaintiff claims under a royal patent, admitted to have been
effective as to whatever, by its true construction, it purported to
convey. This patent describes the ahupuaa by metes and bounds, and
then the granting clause goes on: "There is also attached to this
land a fishing right in the adjoining sea, which is bounded as
follows," again giving boundaries, and continuing: "The islands of
Mokumoa, Mokuonini, and Mokuoco are a part of Moakalua and are
included in the above area."
Page 194 U. S. 161
The description of what is intended to be conveyed could not be
plainer. But the habendum is "to have and to hold the above granted
land," and it is said that, as the fishery of an overlord or
konohiki, unlike the rights of tenants, did not pass as an incident
of land, but must be distinctly granted, the fishery was not
included in the patent. Haalelea v. Montgomery,
2 Haw. 62,
71. Again, we must avoid being deceived by a form of words. We
assume that a mere grant of the ahupuaa without mention of the
fishery would not convey the fishery. But it does not follow that
any particular words are necessary to convey it when the intent is
clear. When the description of the land granted says that there is
incident to it a definite right of fishery, it does not matter
whether the statement is technically accurate or not; it is enough
that the grant is its own dictionary and explains that it means by
"land" in the habendum, land and fishery as well. There is no
possibility of mistaking the intent of the patent. It declares that
intent plainly on its face. There is no technical rule which
overrides the expressed intent, like that of the common law, which
requires the mention of heirs in order to convey a fee. We are of
opinion that the patent did what it was meant to do, and therefore
that the plaintiff is entitled to prevail.