Kapiolani Estate, Ltd. v. Cleghorn

— 331 — OPINION OF THE COURT BY FREAR, C.J. (Perry, J., dissenting.) The case is sufficiently stated in Mr. J ustice Perry’s dissenting opinion. It is a case of ejectment and comes here on ninety-two exceptions, only a few of which are now relied on. The only question is whether the defendant made out a case of adverse possession. The trial was lengthy and the contest was chiefly upon the question of fact as to whether.the defendant’s possession had been adverse for the statutory period, and most of the instructions asked or given related to the general law of adverse possession. But at the close of the case, perhaps as an afterthought or as a result of a new discovery, the plaintiff raised the question whether the holding could be adverse as matter of law, however adverse it may have been in fact, for the reason that during a portion of the period in question the King had the paper title and during a smaller portion- of that time the Constitution of 1864 was in force, which provided, in Article: 39, that, “The King’s private lands and other property are inviolable.” This is made the chief jjoint in this court and) will be considered first. The exception by which this question is brought here is that to the refusal to give the following instruction: “The jury are instructed that Article 39 of the Constitution of 1864 was the law of the land until the promulgation of the Constitution of 1887.” This instruction was properly refused, if for no other reason, because it was meaningless -soi far as the jury was concerned. Of course that article was the law. of the land until it was abrogated. There was no dispute about that, and the verdict could not properly have been influenced one way or the other by that mere statement. The court was not even requested to state the substance of that article, much less to> construe it. It might as well have instructed the jury that any other article of that constitution or the whole constitution was in force until abrogated. There is nothing whatever to indicate that the jury even over-heard the article read when the matter was argued to the court. "We are informed that it was argued, though ap — 332 — parently very briefly, but there is some reason to believe that the jury was not then present. The plaintiff could hardly expect the instruction to be given on the idea that the jury should find a copy of that constitution and construe it for themselves. There are, however, certain other exceptions under which it' might at least be argued that the same question could be raised, although the giving and refusing of instructions, to which such exceptions were taken, was apparently based on the theory that such instructions were intended, as probably they were, to relate only to the general law of adverse possession. The question will therefore be briefly considered on its merits. The question is whether this constitutional provision prevented the running of the statute of limitations against the King as to his private lands, that is, whether one could acquire title by adverse possession as against the King in his private or natural capacity. The question is one of great difficulty. Probably the article was intended to relate to crown lands as distingushed from government lands, for it was copied from the constitution of 1852 (Art. 41), and at that time the crown lands were regarded as private lands for many purposes and were often spoken of as such. See Estate of Kamehameha IV, 2 Haw. 715. But, whether it was intended to relate to such lands or not, it seems clear that it was intended to relate to lands, such as those in questtion, owned by the King in his private capacity. The question would then remain whether the word “inviolable*” should be construed as exempting the King’s private lands from, the statute of limitations. If the statute could not run against the King in case he had the title when the adverse possession began, the fact that he did not acquire the title in this instance until after the adverse possession began would not prevent the statute being stayed as soon as he did acquire, title. The same rule would apply in such case, as applies when a state acquires title after the statute has begun to run. As soon as the state acquires title the running is stayed. United States v. Nashville, &c. R’y. Co., 118 U. S. 120, 126. — 333 — The general rule, that disabilities arising after tbe statute once begins to run do not interrupt it, does not apply in this instance, for no subsequent disability arose wben tbe King acquired title, for be could'sue though be could not be sued. Nor should the approval of tbe statute of limitations by tbe King be construed as a waiver of bis constitutional exemption, if tbe exemption would otherwise apply. Wellion v. Berkley, Plowd. 239, 240, quoted in note to People v. Herkimer, (4 Cow. 345), 15 Am. Dec. 379. Tbe common law differed in many respects in its application as between tbe King and bis subjects. The King, liowevei’, was recognized as having a natural and a political capacity. He could bold land in each capacity. Lands held in bis private or natural capacity descended to bis heirs. Those beld in bis political capacity descended to bis successors. 8 Bac. Abr. Tit. Prerogative, E. 2: Co. Litt. 15b. and note (4). This distinction existed here as between tbe King’s private lands strictly speaking and bis crown lands. It is said tbat anciently, at common law, prescription ran against tbe King as against other people as to his private lands, but not as to lands appurtenant to the crown, but tbat for several centuries this distinction has not been observed and tbat tbe crown is excepted by implication from tbe operation of statutes of limitation unless expressly named. United States v. Hoar, 2 Mason 311, 313. Statutes of limitation have been passed in England and many of the United States which by their express terms run against tbe King or tbe State-. Whatever may be tbe rule at common law, it seems to be conceded by tbe plaintiff tbat tbe common law maxim nullumi tempus oceurrit rcyi did not apply here as to tbe King’s private lands. Tbat is supposed to have been a prerogative of tbe King as sovereign and not in bis private capacity, and is possessed by even republican governments as an attribute of sovereignty. It was expressly beld in Harris v. Carter, 6 Haw. 195, 209, that time would run against tbe King as to crown lands even. Much moré would that be tbe case as to bis strictly private lands. Tbe — 334 — plaintiff’s contention is, not that the general rule applicable to sovereignties applies here, but that the special constitutional provision in question applies to the King’s private lands. But what force was the word “inviolable” intended to have? Was this provision intended, for instance, merely to cover substantially the same ground as that covered by the provision in the constitution of 1840 that, “He also shall retain his own private lands”? A number of provisions of the constitutions of 1852 and 1864 were but restatements, in more exact or more modem form, of provisions in the crude constitution of 1840. Was this prevision intended to mean that the King’s private lands should continue to be regarded as such and not be regarded as held by the King in his political capacity, or as subject to legislative action, as were the government lands? The provision is very indefinite. There are other provisions protecting the property and other rights of subjects. Was the provision relating to the King intended to go farther than the provisions, worded just as strongly, relating to the people generally? Perhaps so. ■ Perhaps not. If not, its presence could be accounted for on the ground that the King occupied a dual position, as others did not, and consequently that there was danger that in regard to his rights there might be confusion in the absence of such a provision. If the intention was to give him greater rights, what greater rights? We need not undertake to say. There is much reason to suppose that the intention was not to exempt the King’s private lands from the operation of the statute of limitations and, the question being at least one of doubt, the leaning should be towards the more enlightened view. In support of this we may refer to former decisions of our own courts in so far as they bear on the question, and reason by analogy from decisions of other courts on other constitutional provisions. For instance, in Estate of Kamehameha IV, supra, it was held that even the crown lands, limited though they were to the King and his successors, were subject to dower. If they be335 longed to the successor King on the demise of the predecessor King, and if, because they were “inviolable”, they were not subject to general limitation laws, would they be any more subject to the general dower law? If they were, the Queen Dowager of the former King would take an estate for life in one-third of the reigning King’s lands under the general law without the latter's consent. Again, in Harris v. Carter, supra, the court actually decided the very question now before us. It is contended that the opinion there expressed on this point was only a dictum, but it appears to have been an actual decision. The question was whether the ^plaintiffs had title to certain lands which the Commissioners of Crown Lands claimed as crown lands. The plaintiff claimed (1) by devise from Kamehameha III to his Queen, Kalama, by descent from the Queen to Charles Kanaina, and by deed from Kanaina to himself, and (2) by adverse possession begun by Queen Kalama after the death of Kamehameha III. The court held that the title to the lands in question did not pass by the devise, •descent and deed, and consequently it became necessary to de■cide upon the validity of the second contention, that of adverse possession. It was decided that adverse possession could be held . against the Kings Kamehameha IV and V. Up to that point in the case evidence as to adverse possession had been fully.put in as to only one of the lands in question, as to which the evidence was held not sufficient. The court left the parties at liberty to intro- • duce evidence as to adverse possession in regard to the other lands involved. The parties thereupon, as the. papers on file show, con.sented to judgment for the plaintiff as to certain of those lands . and for the defendants as to the rest. It is true that the decision was by a single, judge only, but it was by one peculiarly fitted for • deciding the question by reason of his familiarity with the political and constitutional history of the islands and the views of the chiefs and people. The judgment was not questioned or appealed from although the defendant®, besides being familiar with vthe ancient conditions and laws themselves and representing in — 336 — a sense tbe King bimself, were represented by counsel of ability and learning, a former member of the Supreme Court. It may be, also, that the attention of the court was directed only to' the general maxim that time does not run against the King and that the constitutional provision was ovei'looked. But, considering who were concerned or took part in that case — the' J"ustice., the counsel, the Commissioners of Crown Lands and the King himself — and the importance of the question, it would seem that either the constitutional provision was thought not to apply if it Avas noticed, or else that in the opinion of those who; if any, ought to know,' there was nothing, in Hawaiian ideas or customs or history or the status of the King beyond Avhat appertained to kings generally that would exempt his private lands from the operation of the statute. That being an actual and carefully considered decision by the best authoiity, and the point being at least a doubtful one, it would seem that we ought not to take a backward step by overruling it. Decisions in somewhat analogous cases elsewhere tend to support the holding that the King’s lands are not violated by the application of the statute of limitations to them. The Federal constitution provides that, “No State shall * * * pass any -x- * * jaw impaling the obligation of contracts.” And yet there is no question of the constitutionality of a statute which, •though enacted after a contract has been made, limits or reduces the time within which action may be brought on it, provided a reasonable time is allowed — eA7en though the effect of a failure to bring action within the time limited is to take away all remedy and destroy the Avalué of the contract. Gilfillan v. Union Canal Co., 109 U. S. 401; Cranor v. School District, 151 Mo. 119. The Constitution of California provided that each stockholder of a corporation should be personally liable for his proportion of all debts contracted while he was a stockholder, and contained no limitation as to the time within which action might be brought. But it aaus held that the statute of limitation “does not attempt to relieve the stockholder from his liability under the constitu — 337 — tion; it only limits the time within which the action may be brought, and this is n.ot inconsistent with the constitutional den» laration that such liability is imposed upon the stockholder.” Santa Rosa Nat. Bank v. Barnett, 125 Cal. 407. Indeed, the constitution of 1864 itself contained provisions that protected the private property of subjects generally, and all modem constitutions contain similar provisions protecting life, liberty and property. Private property as a rule cannot be taken except for public use and then only upon just compensation and by due process of law. And yet no one questions the constitutionality of reasonable statutes of limitation the effect of which is usually held to be in the case of specific property to actually transfer the title as well as bar the remedy. Exceptions were taken also to certain instructions given at the request of the defendant, to the effect that, if the jury found certain enumerated facts, the defendant was the heir of his daughter the Princess Kaiulani, and that the possessions of several possestsors between whom there is privity of estate, such as ancestor and heir, may be added together. It is not disputed that these instructions set forth correct law. The contention is that they were inapplicable because the evidence showed that the daughter never had possession. In our opinion, there was sufficient evidence to justify the giving of these instructions. There seemed to be some uncertainty in tire defendant’s testimony at first as to whether he held possession originally in Iris own right or in that of his wife or daughter, but he finally seemed to take the position that it was in his own right. But there was considerable testi-mony, drawn out largely by the plaintiff, tending to show a parol gift to the daughter and that the defendant had been regarded as holding in her right'until her death. There was no doubt that he was her heir. This justified the instructions as to tacking possessions. Another exception was to the defendant’s requested instruction that, “Where one is shown to have been in possession of land for the period of limitation, apparently as owner, and such pos338 session is not explained or otherwise accounted for, it will be presumed to have been adverse, although this presumption is open to rebuttal.” This instruction was taken substantially from 1 Am. & Eng. Enc. of Law (2nd ed.) 889. It was held to be correct law in Sister Albertina v. Kapiolani Estate, Limited, ante, 321. Grouped with this exception are exceptions to the refusal to give two instructions requested by the plaintiff to the effect that if the defendant was allowed by the holder of the legal title to take possession and if'he took possession with the consent of the owner, as a matter of convenience and without any understanding that the property should belong to the defendant, the possession, however long continued, would not bar. a recovery, and that consent need not be expressed in words, but might be ■shown by acts and attendant circumstances, and that certain enumerated acts might be taken into consideration in determining the question of consent. In so far as these refused instructions were warranted by the evidence, their substance was sufficiently covered by other instructions that were given. Kinney, Ballou & McGlanaha,n for the plaintiff. Robertson & Wilder for the defendant. It is contended under other exceptions that there was no evidence to sustain the verdict. The evidence is voluminous and it ■will serve no useful purpose to review it at length. The main contention on this point- is that the possession was shown to be permissive and not adverse. It must be conceded that there is much that can be said in support of this contention. But the argument is one that would more appropriately be addressed to the jury. On the whole, in our opinion, there was sufficient evidence to sustain the verdict, whether the weight of the evidence was on that side or not. The exceptions are overruled.