Honolulu Republican, Volume IV, Number 495, 12 January 1902 — CHARGE TO THE JURY BY ESTEE [ARTICLE]

CHARGE TO THE JURY BY ESTEE

Condemnation Sait Against tbe Honolulu Plantation Leasehold. niDIJO PEARL HARBOR IHDS POSSIBILITIES OF THE FUTURE MUST NOT RECEIVE CONSIDERATION W*a! Un’ted States Wants is Just Compensation and Impartial Judgment —Treaties—So-Called Expert Test mony—Visit to the Lands. to Provide Form of Verdict. r States Judge Morris M. Ksd hi - rhsriti- to the jury in ti* H n'i'-ilu Plantation Company’s Ivarl Harbor leasehold condemnation • ,im 'h« n tbi- Dinted States District <’■ i * 7i‘*i| ■■■ -'. day morning A .J;j igc E-tii' wiit- al>ont to romi:i< i ;iics charge them was an argu :m "• •\< the form of verdict. the de f• -i.•! .int • !>}•-< ting to one clause upon wh'.h the fJoremment insisted. .Iu ip- K»t« • -aid that if counsel r-ould IV irt would provide a form of verdict. T' ■ hit'to the jury was. in part, couoral action in which tire i; Plantation Company is one oi t ■ defendants, is brought under ; rovi-otin* <if an Art of Congress t: Cnltetl States, dated August 1. " i-ntitled 'An A< t to authorize D i'-i.i'.i lunation of land and for sites • ; id • buildings and for other pur- • • line .’5. Cnlte.l States Statutes page 3.". Tl I oids -ought to l»e condemned t liutl - with all the interests of ov- • » - : therein are certain lands 1 :.iii- nr the District of E»a, in and •< *• i ii. l Harbor of Pearl l.ochs, un< called I’t-arl Harbor, in the a o; Oah : in the Territory of Hawaii. Lana’ for Naval Station, i tine ; Stales of America i s- i<> i (it'.deruu these lands and to . a fee simple estate therein He puipos. ■ of a naval station • haivnc] defense, for the purposes ■' • i •-1 St at* i- and of the Nav> ■ i.- t tlier.-of. and for the ini p cement of the haibor and channel leading thereinto, known ns o. 1.0.'■« inietimes i ailed Pearl ii.. ■ c- her with the erection r .iitiienanee upon said land, of u I puliiii buildings. magazines. • nai« navy yards, lighthouses, e air i stations. vvh«rv.*s, docks, .ana’-, roads, ditches, flumes, p is pine lines, cemeteries and ..' ■is - may be necessary for the t. . . of -aid Naval Station ■ l harbor and channel defense, v opct; v (‘specially sought to .i - ■ ned uj this ease now being tin d liefer*' you Is the leasehold In- • own. ,1 by the defendant." Wh.it tne Government Wants. \ -.>r reviewing the leases held by t H niidulii Plantation Company. Judge Ibdee con limp'd li » -b ar it refore. from an »‘\ -■ ■ that they a >a t act of laud. namely, in- ,■ a.-ri - of which the portion ; by the Government is but a -mall i art. a ti fle over a fifth there- ' t■ •w it : acres, as was agreed uinn 1 • iw*. n the counsel at the trial. It ' the value of this leasehold nt *st n these .ail,* acres of land that \ou are to estimate. Just Compensation. I ,r -e you tna« private property e ,;i u be taken for a public use with • ist compensation.’ This is the an- :*ge of our fundamental law. the K. o. a Constitution larticlo 5 of the \rr. ndments of iTSU. This is a Con 1 s' .uiiona! provision intended for the 1 ::*ty o' a person in the enjoyment ’ • !.-s property , ami a$ such it should 1 - v. n a libeial interpretation, that h s* property is taken by the . ’ -nt for public us*« may re- } > -< for full and just oompensa , i •u.s Ik half ! charge you that t h dd interest of the defen- i i ‘ Honolulu Plantation Com- I > : perty and that tbe said ' defer.;am is entitled to receive a ‘ < ompensatton for it* taking 1 And :n assessing this Jua; compen : Ml lon it is your duty to aee that it is just, not id. -«.|> to the individual • w hose projK-rty u taken, but to the , Public who is to imy for It,’’ *B*-ar) vs District S. hnol. U 3 V, g. 565.1 Impartial Judgment. t in • r.is behalf I further charge you e

that it i* your duty to treat both side* wtih r -qoai faim*>» and impartiality in arriving at a conclusion on the question of compensation You are not to to one aide any pr»-ferm**n: or advantage denied the other. For instance, you are not to place an unduly depreciated valuation upon thic leasehold interest because the United States Government vidu it, nor should you place an exaggerated valuation upon the property either because it is private property or because the Government wants it. “If. In the course of this long and tedious trial, the Court has by any word or expression appeared to favor one side or the other in this suit, be undeceived. The court does not take sides in this matter. i instruct you that whenever private property is taken for public use or for public purpose.-, the fair market value of the property at the lime of the taking should be paid for it: and according to the statute of this Territory the actual value of the property at the date of the summons is d‘-signaled as the measure of the valuation of all property to be condemned ; and I charge you that the oat- ot this summons in this ease is July Mh. 1901. It Is to this date therefore, that you are to look in fixing the value of the case. You are to remember tii.it the material consideration is the actual condition of the'leasehold interest on that date. It is to this that >ou are limited Placing a Valuation. In placing a valuation upon this leaseh6ld interest you cannot consid ih* mere speculative or possible talue of sugar that might be pro<l viced on this land ten, .twenty or thirty years from now This is too iemote and uncertain, and could form' no just basis for a valuation. You may in estimating the value of ibis piece of ihnd sought by the Gov • ram< nt for public purposes, consid- « i any usefulness it may possess to the Honolulu Plantation Company in view of its whole property, its needs and its equipment And if from the evidence you should find that the defendant has any im provenients upon that portion of the land covered by the leasehold interest of the defenda.it. and sought to Is’ ■ ondemned by tin United States which were there prior to the 6th day of July. 1901, you are to find the ' thereof separate a.id distinct from the value of the Itasehold itself In said lands. And in this regard I instruct you that you cannot consider in this case the cost or. value of Hie sugar mill, the pumping station or ither machinery belonging to the demda.it. if not constructed or stand og upon the land sought to be con-j lemned by the United States, at the line of the taking, to wit: July 6th. 1901. Testimony ef Experts. In this case certain so-called ex pen testimony has been Introduced, but I instruct you that it is your province to weigh the testimony of [ln witness whose opinions have been nivea upon the subject of the value >f defendant's leasehold interest In ;hi> land, by reference to the whole situation of that |iortion of the prop- ■ rty sought to be condemned by the United States upon which this leasehold infer, -t exists and by applying to all these circumstances your own snow ige and general experience Yiie evidence of experts as to value loes not differ in principle from th.’ •v idenee of experts upon other sub iects. Then so far from laying aside tour own knowledge and ideas, you nay apply that general knowledge »nd those ideas to the matter of faet n evidence, in this case, determining he weight to be given to the opinions \ pressed. Jury's Visit to Lands. Gentlemen of the jury, early in the rial you v isited the lands sought to >«• condemned. The object of such isit was that you might familiarize ourselves with the nature and extent ’! the land, and its physical rondlion> and characteristics, so as to Inter enable you to understand the evib nee on the trial of the case. The mow ledge so acquired may be used > you in determining the weight of onilivtiug testimony respecting the alue of the leasehold interest in hese lauds but not otherwise. Sonic evidence has been introduced •> the Government, tending to show ertaui valuations of this leasehold merest, sworn to by the defendant, htvugh its manager. Mr. Low. before, he c.-mruencetn»nt of these proceed ugs to wit. certain tax returns fiVd rith the assessor pursuant to the law f the Territtjrv Such sworn returns i duly made by the representative of he defendant, to the assessor, ar- 1 * ailed in law. admissions against ini’rest. and are competent evidence ending to show the then market valeof the property. You may tbereJro consider such rt turns alcng wi'h ae other evidence In the case bear ig upon the question of value of tH roperty. and give to It such weight s to vou may seem just. I further tstruct you that the burden of provig the market valne of the interest f the defendant in the lands in quescu is upon the p'airtlff. Considering Witnesses. You should take into consideration ie opportunities of the various vrltesses for seeing or knowing the*

th.nr* about which they testified; also their interest or lark of interest in the result of the action, the probability or improbability of the truth of their several statements in view of alt the other evidence adduced or cir;ra ns stances shown upon the trial, and from all of fh s circumstances determine upon which side the weight : or the preponderance of the evidence rests But arbitrary or lumping metblods of a s «c ? ?ina damage* for the taking of property are to be condemned. The Influence of Treaties. Defendant has asked for certain instructions arising out of the treaties eat-r»-d nto between the Kingdom of Ha« a . and the United States Government ;n 18*7. and in refusing to give any but one of said instructions. 1 1 think it proper to stare to the Jury. ■ that in the year 1875 and again in 18S7. two treaties were negotiated b--twe.-n the Go»e rn ment of Hawaii then repr-seated by Kink Kalakaua, and th- Republii of the United Stales by whiro the latter Government granted uciproclty to Hawaiian sugar and 't arti' ics produced in Hawaii. In the treaty stipulations of 1887.' of which treat, stipulations th’- Cou; must take judicial cognizance, it was prescribed by Article j| thereof, as follows: "His Majesty, tne King of th“ Hava:,in Islands, grants to the GovernMe;.t of the United States, the ‘*xcln-1 s.ve right to enter the Harbor of Frail River, in the island of Oahn, and establish and maintain there a c laline and repair station for the use of ves- j - .if th United States, and to that • 'id. tin United States may improve the entrance to said harbor and if.' all other things n* edful for the purpos aforesaid." It will be seen by the terms of said Trtaty f In'7. the United States then secured the "exclusive right" to the land locked waters of F’earl Harbor. : and so. while privati parties may own , the lands bordering on these waters, the waters themselves have belonged j to the United Stat s since the date, of that treaty. This is and has lieen | an open and notorious fact. " I therefore instruct you that in! reaching a verdict von are not to eon-' sider or place any value upon the 1 water rights in front of or bordering i upon said inland waters as belonging to the private parties now litigating i with the United States Government j because although the treaty made be- 1 tween the Kingdom of Hawaii and the UuiiMi States of America in ISB7. by which Pearl Harbor was ceded to the United States did not in any way affect private ownership in the lands j fronting on said harbor; yet those j parties have no interest, other than that of every citizen of the United j States, in the sloughs and waters of, Pearl Harbor; for these inland waters arc now and since 18S7. have b°eu the prop- rty of the United States. Closing Remarks. Gentlemen, the defendant in this rase is represented by its manager, .lames A. lx>w. who is the only respon- . sible party appearing for defendant al this trial. It appears that on December Bth. he made oath to defend-' anfs answer swearing to an amount of damage which defendant would j suffer by the condemnation of this , leas, hold estate; while at the trial, and w ithout giving any reasons there lor he testified to a lump sum of’ I2WJNHI more damage than that i which was demanded in the answer.; It appears in this case that every witn< 'S produced in court by the defend- j am to prove value, testified to dam ; ag- s of a greater value than the de- j feniiant demanded in its answ- r. Yon j may consider these 4 facts in wcigli >ug the testimony, of the weight of which, a- 1 have tried to impress up- 1 on you, you are to be the sole judges. Gentlemen of the Jury, in arriving' at a verdict it must be by the unani mous consent of all your m- tnbers. l udcr tne pleadings in this case, th-. re is but one issue involved —the ; amount of the “just" compensation I to be awarded to the defendant for the taking of his property. You must men fore find fur the plaintiff, a verdict condemning the leasehold interest of the defendant, the Honolulu Plantation Company, in and to the 5*<1.2 acres of laud desired by the Government; and ycu must find aver diet in favor cf the defendant for the ‘ e mount of compensation due it there- ! for. i