436 REPORT OF THE COMMISSIONER OF FISHERIES. 



in the previous report) were, liovvever, inconsistent with the laws of 

 this country, and the act creating the Territory of Hawaii, which went 

 into eii'ect June 14, 1900, contained specific legislation regarding- them. 

 It was provided that all for which claim had not been made up to June 

 14, 1902, should be abolished and the privileges thej^ carried should 

 become common property; those which might be proved to be of the 

 nature of vested rights should eventually be condemned and opened 

 to common use, but the owners would be compensated therefor. 



When the time for action came, on June 14, 1902, the territorial 

 government set up the defense that a "fishery right" was not a vested 

 right, but merely a license, and hence the Territory was not required 

 to compensate the owners of such alleged rights for their extinguish- 

 ment. Several of the parties entered suit in the lower territorial 

 courts and were defeated. Two of the cases — those of the Bishop 

 estate for the fisher}^ of Waialae-iki and Samuel M. Damon for the 

 fishery of Moanalua — were appealed to the supreme court of the Ter- 

 ritory, with the same result as in the lower courts. Mr. Damon there- 

 upon carried his case on appeal to the United States Supreme Court, 

 where it was argued in March, 1904, and on April 25 of the same year 

 the court handed down a decision upholding the contention of Mr. 

 Damon, the plaintiff, that a "fishery right" was a vested right. 



The present status of the claims is thus set forth in. a paragraph of 

 a letter from Mr. Lorrin Andrews, attorney -general of the Territory, 

 dated October 8, 1904: 



The decision of the United States Supreme Court has practically precluded us from 

 setting up the defense that the parties already suing had not vested rights in the 

 property. We are therefore requiring each person suing to prove his title, as alleged 

 in the complaint, upon which we consent that a judgment be entered against the 

 Territory, and we will immediately bring condemnation proceedings against such 

 established owners of fisheries, so as to obtain the title for the Territory. This will 

 probably be done some time before the spring of next year, as there are a large 

 number of cases, and of necessity we must proceed slowly. 



The abolition of private fishery rights Aviped out the greater part of 

 the fishery laws previously in force on the islands, and at present the 

 following seem to be all that are in effect: 



In 1850, under the heading of "Malicious injuries and mischiefs," the "destroying, 

 cutting, injuring, or impairing the usefulness or value of any fish net," etc., and the 

 "putting of auhuhu or other substance deleterious to fish into any lake, pond, stream, 

 or reservoir for the purpose of destroying the fish," were made misdemeanors. 



"No person residing without the Kingdom shall take any fish within the harbors, 

 streams, reefs, or other waters of the same for the purpose ofcarrying them for sale, 

 or otherwise, to any place without the Kingdom, under penalty of a fine not exceeding 

 two hundred dollars, in the discretion of the court." (Civil Code of 1859, Chap. VII, 

 Art. V, sec. 386.) 



"Section 1. No person shall use giant powder or any other explosive substance 

 in taking fish within or upon any harbors, streams, reefs, or waters within the juris- 

 diction of this Kingdom. The possession by fisherman, fish venders, or persons in 



