United States v. John II Estate, Ltd.

(dissenting).

This important and vigorously contested appeal is one of a series of appeals, like Kelly v. U. S., 300 U.S. 50, 54 , 57 S.Ct. 335 , 81 L.Ed. 507 , reversing this court, 83 F.(2d) 783 , in which cases this court has frustrated the consideration of the major question of the merits by the application of technical rules of procedure.

I cannot agree with my conscientious and able brethren that, complicated and archaically artificial as the rules and decisions have made federal procedure, they have so sanctified the form above the essence that in this case they compel us to deny to the United States the consideration of the merits of its appeal.

The issue is a very simple one. It is whether the Ii Estate (called . konohiki), claiming to be the owner of the several rights to take (tabu) several kinds of fish, namely, pua, nehu, and mullet, is, under the Hawaiian law, the owner of all three or the owner of only an optional right to take one kind of fish or one-third the catch of the entire three. The District Court held that the Ii Estate was entitled to all three. Tire United States appealed, and claims that under the Hawaiian law the estate is the owner of no more than…

This is a condemnation proceeding under the Act of April 14, 1930, c. 149, 46 Stat. 165 , and, except as hereafter indicated, is similar in all respects to United States v. Shingle (C.C.A.) 91 F.(2d) 85 , this day decided.

The rights here sought to be condemned are the privately owned rights of fishery within designated areas in Pearl Harbor, Island of Oahu, Territory of Hawaii, these being part of the larger area specified in the act. Answers were filed by all the appellees. The answers raised no issue save *94 as to the amount of compensation to be paid and the distribution thereof. At the trial below, the John Ii Estate was permitted, over appellant’s objection, to file an amended answer in which it set up a claim for damages similar to that set up in the amended answer of the Oahu Railway & Land Company in the Shingle Case. The trial court’s judgment condemns for public use all privately owned rights of fishery within the above-mentioned areas, adjudges the value of said rights to be the sum of $90,000, awards said sum of $90,-000 to the John Ii Estate and James Panai Oneha, trustee, and directs that distribution thereof be made by paying $89,999 to said estate and $1 to said…