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Patent Laws
THE LAW OF PATENT OWNERSHIP / VESTMENT:
Fc: Public Law 94-579: Title VII sec. 705 (a) Federal Statute 2792 Patent grants inure to the heir on title.
Kiaaina v. Kahanu, 1871, reciting statutes of 1846 p. 59: the law governing the descent of Property is that which is in force at the time of the death of the ancestor, the rights of the Heirs being considered as arising at that time: fc:3 Washburn, R.P. 413; 10 Met., 293
Estate of Bernice Pauahi Bishop, 5 H, 288 (1885) No one can contest a will which only disposes of property, except the heir at law or next of kin of the testator. [L 1822; L 1846; L CC 1850, 1859; L 1865; L 1874; L 1886; 1890; 2000; 2004]
Patents are issued by legislative authority: fc: Title 43, U.S.C.; Legislative Assembly 1844, Hawaii. The Supreme Court of Hawaii will not go behind an already adjudicated Court Order decreeing land to an Awardee of Title.(recipient of a certificate of title (palapala hooko).
INHERITING A PATENT TITLE:
HAWAII REVISED STATUTES §172-11 Land patents on land commission awards; to whom, for whose benefit. Every land patent issued upon an award of the board of commissioners to quiet land titles, shall be in the name of the person to whom the original award was made, even though the person is deceased, or the title to the real estate thereby granted has been alienated; and all land patents so issued shall inure to the benefit of the heirs and assigns of the holder of the original award. [L 1872, c 21, §1; RL 1925, §568; RL 1935, §1587; RL 1945, §4641; RL 1955, §100-11; HRS §172-11]
Case Notes
Land commission award held good against later royal patent. 1 H. 69; 1 H. 90. Award cannot be collaterally attacked. 1 H. 90. Certificate of award of land commission, with its accompanying survey, are admissible in evidence. 2 H. 202.
Patents based as awards do not confer or confirm title of later holders. It is merely a quitclaim interest of the government in lands. 3 H. 783; 11 H. 587, 589.Court is inclined not to disturb award of land commission long adjudicated. 5 H. 354.
Mahele of 1848 considered and defined. 6 H. 195.
Award may be to deceased person; heirs must determine their own respective rights. 15 H. 648. Section does not authorize the issuance of grant to deceased person. 26 H. 382, 397.
Review of case law and effect of patent. 49 H. 429, 421 P.2d 570.Cited: 35 H. 608, 630, 658.
· Brunz v. Smith, 3 Haw. 783 (Hawaii King. 1877). all subsequent claimants of land must derive their title from the person to whom the original award was made. Brunz at 787.
Zimring, 58 Haw. at 114, 566 P.2d at 731. Any applicant claiming title to land or to be the recipient of land under the above categories, excluding the "crown lands," could petition the Board of Commissioners to Quiet Land Titles (Land Court Commission) for a Grant or Royal Patent to quiet title to the land. Robinson, 49 Haw. at 432, 421 P.2d at 573;
The Fundamental Law of Hawaii, 138. The award of a Land Commission patent conferred legal title over the land to the successful applicant. (listed / inventoried in government registry and Bureau of Conveyances) Robinson, 49 Haw. at 438-39, 421 P.2d at 576; The Fundamental Law of Hawaii, 137-39. Zimring, 58 Haw. at 112-13, 566 P.2d at 730. Rather, the Land was awarded under a valid Land Commission Award, and is more properly characterized as being from one of the other categories established under the Great Mahele of 1848.(found in records called Mahele books, Books of Patents and Awards) Id. Since Kalua held legal title to the Land under a valid Land Commission award, he could freely devise or alienate it at his (fee) discretion. Id. at 114, 566 P.2d at 731 ("[t]o establish legally cognizable private title to land in the great majority of cases, one must show that he or a predecessor-in-interest acquired a Land Commission Award, a Royal Patent, a Kamehameha Deed, a Grant, a Royal Patent Grant, or other government grant for the land in question").
HRS. 172-11 titled "Land Patents on Land Commission Awards: to whom, for whose benefits [sic][" states,] in pertinent part;
"Every land patent issued upon an award by the Board of Commissioners to Quiet Land Titles, shall be in the name of the persons (identifies heirs of) to whom the original award was made, even though these persons are deceased, or the title to the real estate thereby granted has been alienated; and all land patents so issued shall inure to the benefit of the heirs and assigns of the holders of the original award."
HRS 532-4 history cc 1859, sec. 1448; am L 1872,c 1
DEFINITION of AHUPUAA USED:
An "ahupuaa" is a "[l]and division usually extending from the uplands to the sea[.]" Mary Kawena Pukui & Samuel H. Elbert, Hawaiian Dictionary 9 (rev. ed. 1986).
In this context, a "kuleana" is a "small piece of property, as within an ahupuaa". Hawaiian Dictionary, supra, at 179. 1982 case (66 Haw.1, 656 p.2d 745), the Hawaii Supreme Court acknowledged that the original award of the Manawai ahupua'a on Maui was subject to "Koe nae no kuleana o na kanaka malolo." This proviso was translated at trial as "the kuleanas of the people therein are excepted."
GRANTS & PATENTS:
This is the "First Title Deed" to a piece of property. Usually granted by the government (either federal or state) or in the 13 original colonies a Proprietor or as Chartered governments. All property in the United States can be traced back to the First Title Deed and claims document titles for land originally owned
PATENT/GRANT Once the survey was complete a Patent/Grant was issued.
This is the government's or proprietor's passing of title to the patentee/grantee. This is the first-title deed and the true beginning of private ownership of the land. For public domain states these patents/grants are well documented and found in the appropriate BLM (Bureau of Land Management) Office. For the original 13 colonies, Texas and Hawaii their land patents/grants are usually found in their State Archives or State Land Office.
LAWS IN HAWAII:
Real property laws in Hawai`i differ from real property laws in other jurisdictions in the United States.
In 1845, the government created the Board of Land Commissioners to investigate and settle all land claims of private individuals, whether native or foreign. The Land Commission subsequently adopted seven principles to guide them in deciding all claims. The commission's work led to the Mahele of 1848, the division of lands between the king and the konohiki (2). Those lands retained by the king were subsequently divided into Government Lands and King's Lands.
Melody Kapilialoha MacKenzie ed., Native Hawaiian Rights Handbook 151 (1991) (footnote added).
All lands of the king, the government, and the konohiki were awarded subject to the rights of native tenants. In 1850, the enactment of further principles or the Kuleana Act empowered the Land Commission to award fee simple title to native tenants for their plots of land or kuleana. . . . The awards were limited to the amount of land actually cultivated, plus small houselots distinct from the cultivated lands. When the Land Commission confirmed an individual's land claim, it issued an award of that land to the claimant. Generally, upon payment of a commutation tax to the government, the minister of the interior conveyed complete title in the form of a royal patent.
Id. at 151-52.
RES JUDICATA: MAKILA LAND COMPANY v. KAPU (APPEALS COURT)
Although the heirs of APAA (k), to whom Apana 1 of Land Commission Award 6507 was awarded, were never judicially determined, Momona's 1872 Lease recitation that APAA (k) was his father evidences that title descended from APAA (k) to his son, Momona. (Exhibit 1, Colleen H. Uahinui Declaration). . . .
Although the heirs of APAA (k), to whom Apana 1 of Land Commission Award 6507 was awarded, were never judicially determined, Momona's 1872 Lease recitation that APAA (k) was his father evidences that title descended from APAA (k) to his son, Momona. (Exhibit 1, Colleen H. Uahinui Declaration). Haw. R. Evid. 803(b)(15)(pedigree recital admissible to show grantor's relationship to deceased owner); Hana Ranch, Inc. v. Kanakaole, 1 Haw. App. 573, 577, 623 P.2d 885, 888 (1981) (pedigree recital is competent evidence of descent); Apo v. Dillingham Invest. Corp., 57 Haw. 64, 67-69, 549 P.2d 740, 743 (1976)(pedigree recital evidences grantor's relationship to deceased owner); Haw. Rev. Stat. § 532-4(a) (intestate's property descends to intestate's issue)
HAWAII RULES OF EVIDENCE: Rule 901 (1993) states, in relevant part:
Requirement of authentication or identification. (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples . .
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity[.]
HRE Rule 902 states, in relevant part:
Self-authentication. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any state, . . ., department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
HRE Rule 804 (1993) states, in relevant part:. . . .
(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage.
A "konohiki" is the "[h]eadman of an ahupuaa land division under the chief[.]" Mary Kawena Pukui & Samuel H. Elbert, Hawaiian Dictionary 166 (rev. ed. 1986). An "ahupuaa" is a "[l]and division usually extending from the uplands to the sea[.]" Id. at 9.
An "`apana" is a "piece, slice, portion, fragment, section, segment, installment, part, land parcel, lot, district, sector, ward, precinct. . . ." "A kuleana, land division, may consist of several `apana." Pukui & Elbert, supra note 2, at 28.
A "Palapala Sila Nui" is a "Royal Patent". Judge Jon J. Chinen, Original Land Titles in Hawaii 56 (1961).
The Act of 1860 authorized awards of land to konohiki whose names appeared in the Mahele Book of 1848 but had failed to file claims to the Land Commission. The awards were issued in the name of the original claimant, whether alive or dead. Territory v. Gay, 26 Haw. 382, 398 (1922); Smith v. Hamakua Mill Company, 15 Haw. 648, 660 (1904).
DEFINITIONS
"No . . . ka mea, kuleana" is translated as "ownership". Id. at 494.
"Hema" means "South". Id. at 66.
"Hik" is an abbreviation for "hikina, east." Id. at 68.
"Akau" means "North". Id. at 13.
"Kom" is an abbreviation for "komohana, west." Id. at 164.
"Eka" denotes "acre". Pukui & Elbert, supra note 2, at 39.
Case App. 26120 [Court of Appeals]
On August 12, 2003, Judge Nakamura entered Findings of Fact and Conclusions of Law, and Order Granting Plaintiff's Summary Order Granting Plaintiff's Summary Judgment Motion that stated, in relevant part, as follows:
Land Patent Grant 3635 was granted to Kealohaai, after which title to those portions, being described as: LOT 2 within TMK (3) 9-4-4-25, LOT 3 within TMK (3) 9-4-4-23, and LOT 5 within TMK (3) 9-4-4-22, vested by mesne conveyances in Luther R. Macomber, who conveyed by Deed dated October 9, 1862, recorded in Liber 16, Page 2, to four persons, one of whom was Luhia, who died intestate, whereupon title descended to her heirs, determined in 3rd Cir. Probate 382 to be her issue, one of whom was her son, HANALEI KAMALII (k), also known as HENRY KAMALII and H. KAMALII (k).
To prevail on this claim, the evidence would have to show that H. K. Kamalii did not convey during life, and that title was still vested in him at death. (a search of records or affidavit stating that he never conveyed is proof).
Distinguishing Significance of Land Commission Court Awards and Royal Patents. The Land Commission awards are the legal title of the land holder, and that claimant, his or her heirs or assigns (present owners), has/have legal standing in a court of law concerning that piece of land. It also provides information about the land and those who occupied it. Even when claims are not awarded, the claimant’s heirs have legal standing in a court of law concerning burials and artifacts uncovered. The importance of the Royal Patent for the land holder, is that the Government (whether in Kingdom,Republic, Territory, or State) relinquishes its interest in the property (J. Achiu, 2004 and Jon J. Chinen, 2002)
PATENT TITLE INCEPTED:
Beginning in 1638, the Swedish and Dutch settled the area that is now Pennsylvania, but in 1664 King Charles 11 granted the land to his brother, the Duke of York.349 Consequently, by 1665, the Duke's Law governed Pennsylvania. In a royal patent dated March 4, 1680, King Charles 11 gave William Penn a patent for lands and a grant of governmental authority in the province of Pennsylvania. Pursuant to the patent, Penn obtained a charter in January 1682, which declared the colony's reliance on English common law.350 By deed of feoffinent dated August 4, 1682, the Duke granted William Penn all the lands in the New York provincial territory that the King's royal patent to Penn had covered, including title to the Pennsylvania lands.351
In 1777 lawmakers enacted a reception statute that remained in force until 1972. 352 The current law states:
The common law and such of the statutes of England as were in force in the Province of Pennsylvania on May 14, 1776 and which were properly adapted to the circumstances of the inhabitants of this Commonwealth shall be deemed to have been in force in this Commonwealth from and after February 10, 1777.353
In a fashion similar to that of North Carolina in 1749, the Pennsylvania legislature ordered the supreme court in 1807 to determine which English statutes were in force and which statutes should remain in force. The court identified 180 statutes that were in force and advised that all but fourteen should continue in force. 354 The report included a lengthy but informative comment on the factors that the court used to determine the reception of common and statutory law, especially with respect to property rights.355
The modem judicial commentary on common law reception in Pennsylvania includes a 1949 decision in which the court declared that the English common law had become the law of the Commonwealth of Pennsylvania."' A 1955 decision noted that the common law of England governed matters in criminal cases that state statutes did not address.357 In 1961 a court declared that a statute of Henry VIII still governed lessors' reversionary interests."'
The government also encouraged reform when it appointed Real Property Commissioners in 1829.418 From 1829 until 1833, the Commissioners published four masterful reports that dealt with inheritance, dower, curtesy, fines, recoveries, prescription, limitations, tenures, contingent remainders, future interests, perpetuities, covenants, limits on church rights, wills, probate, and a registry of deeds and other land-related instruments.419 Lawmakers codified many of the reform recommendations into several different statutes including the Inheritance Act of 1833 121
The Commissioners' second report in 1830 had suggested a system of title registration, and royal commissioners reiterated this recommendation in 1857.427 The government introduced a voluntary system in 1862,428 but it was not successful. Finally, in 1897 compulsory title registration was established.429
Exhaustion of remedy is not required: Chapman, 128 N.H. 24, 26, 509, A 2d. 753, 755 (1986) 33 C.J.S. International Law, section 21,22, 29; 73B C.J.S.
MORE INFORMATION ON PATENTS:
An allodial title was bestowed, by law, upon the land with inalienability forever. No government, agency, bank or other sovereign power could place any lien, attachment or encumbrance on land held in an allodial state. An allodial title is derived from the original, federal land patent. "Land Patents" are still today the highest evidence of title and have never been refuted by any court of competent jurisdiction. (42)
All federal "Land Patents" flow from the treaty (e.g. The Oregon Treaty, 9 Stat. 869, 6/15/1846), therefore no state, private banking corporation or other federal agency can effectively challenge the superiority of title to land holders who have "perfected" their land patent. With an updated land patent brought forward in "Your Name" you can hold the rights and title to land as a sovereign, "state" Citizen. Be very clear that this is distinct from the equitable interest, title and deed. (43) Property tax attaches to the equitable title and interest in the property and real estate through a hidden federal lien. If the property and real estate is recorded with a deed (i.e., Trust Deed, Warranty Deed, Quit Claim Deed) at the County Recorders office,
The "Land Patent" is the only evidence of title to land. Land Patents are derived from the treaties and enabling acts of congress under the signature of the president of the United States when each state entered the Union. Land Patents are stare decisis (i.e., res judicata). It is already well settled law and decided. [Editor¹s Note: See Suma Corp. supra ; Wine Vs. Gastrell, 54 Fed 819; U.S. Appeal 581]
For example, railroad land granted and patented in the late 1800's is still " sovereign" today. Building codes and local zoning ordinances do not apply to railroad property.(44) Railroad patents were also issued by a special act of congress (Railroad Grant Acts) granting alternating sections of land in each township. They are still the largest land owner in America.
There are many more cases where the United States Supreme Court has supported the fact that the Land Patent certifies absolute and supreme title to land. There are no cases where the courts ever ruled against the properly obtained Land Patent.
Summa Corp. v. California (466 U.S. 198), is not listed above, yet it is one of the best cites describing how land patents work.
The Land Patent is the only form of perfect title to land available in the United States. Wilcox v. Jackson, 13 PET (U.S.) 498 10 L.Ed. 264.
"A grant of land (Land Patent) is a public law standing on the statue books of the State, and is notice to every subsequent purchaser under any conflicting sale made afterward." Wineman v. Gastrell, 54 FED 819, 2 IS Ap. 581
The Land Patent is permanent and cannot be changed by the government after its issuance. "Where the United States has parted with title by a patent legally issued, and upon surveys made by itself and approved by the proper department, the title so granted cannot be impaired by any subsequent survey made by the government for its own purposes." Cage v. Danks, 13 LA.ANN 128. The court is bound by the supremacy clause of the Constitution to uphold the treaty making your Patent a statutory limitation throughout the land. Wineman v. Gastrell 54 FED 819, 2 U.S. App. 581.
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