Fullard-Leo

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…

(dissenting).

The burden of proof was on the United States to establish its title and its right of possession. 1 The trial court was of opinion that the burden had not been discharged. It found that while the sovereignty of the United States was extended over Palmyra Island by the annexation of Hawaii, the prior government of that country “did not in fact or in form assert fee simple title to this land at the time of annexation, or at any other time”; and that “petitioner does not exhibit a title which can be sustained.” The bill was accordingly dismissed.

I think the dismissal was proper. The finding was not clearly erroneous, or erroneous at all. The long continued possession of the appellees and their predecessors in interest; under claim and color of right, was presumptive evidence of title in themselves 2 which I believe the showing in the record failed to overcome. The proof leaves it wholly uncertain whether, upon the annexation of Palmyra in 1862, the Hawaiian Kingdom regarded title thereto as having vested in itself, as the United States now claims that it did; or whether, on the contrary, tíie kingdom considered the island to be the property of the two men who sought…