256 Opinion of the Court. the King in the Cabinet Council had power to convey the lands to private citizens. Civil Code, 1859, §§ 39-48; Act of January 3, 1865, Rev. Laws, Hawaii, 1905, p. 1226, § 3. We assume further that the formal claim to Palmyra for the Hawaiian Kingdom made by Bent, pursuant to his commission, gave Hawaii not only sovereignty over Palmyra but also the power to grant the lands of the newly annexed islets as part of its public lands to private owners. 12 In the circumstances heretofore described, were the district and circuit courts justified in quieting title to Palmyra in respondents on the theory of a lost grant? We take judicial notice of the laws of Hawaii prior to its annexation as a part of our domestic laws." The rules under which the Hawaiian people lived under the monarchy or republic define, for the sovereign of today, the rights acquired during those periods. While in matters of local law the federal courts defer to the decisions of the territorial courts, we are dealing here with a problem of federal law-the United States seeks to quiet its title to land now claimed by virtue of Hawaiian cession. The federal rights are partly dependent upon the Hawaiian law prior to annexation. Therefore while the Hawaiian law, as it existed before the annexation of the Territory, is controlling on rights in land that are claimed to have had their beginnings then the federal courts construe that law for themselves. The federal courts cannot be foreclosed by determinations of the Hawaiian law by the Hawaiian courts. They will lean heavily upon the Hawaiian decisions as to the Hawaiian law but they are not bound to follow those decisions where a claimed title to public 11 United States v. Perot, 98 U. S. 428, 430; United States v. Chaves, 159 U. S. 452, 459. 12 De Castro v. Board of Comm'rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Opinion of the Court. 331 U.S. lands of the United States is involved.13 The roots of respondents' claim spring from Hawaiian law. As their claim to Palmyra continued after the United States acquired in 1898 whatever rights Hawaii then had, the validity of respondents' claim must be judged, also, in the light of the public land law of the United States. The presumption of a lost grant to land has received recognition as an appropriate means to quiet long possession. It recognizes that lapse of time may cure the neglect or failure to secure the proper muniments of title, even though the lost grant may not have been in fact executed." The doctrine first appeared in the field of incorporeal hereditaments but has been extended to realty.15 The rule applies to claims to land held adversely to the sovereign.16 The case from this Court most often cited is 13 Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; S. R. A., Inc. v. Minnesota, 327 U.S. 558, 564. 14 Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. 15 Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), § 17. 16 1 Greenleaf, Evidence (16th Ed.), § 45a: "Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;' yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceable enjoyment, accompanied by the usual acts of ownership. So, after less than forty years' possession of a tract of land, and proof of a prior order of council for the survey of the lot, and of an actual survey thereof accordingly, it was held that the jury were properly instructed to presume that a patent had been duly issued. In regard, however, to crown or public grants, a longer lapse of time has generally 256 Opinion of the Court. United States v. Chaves, 159 U. S. 452. In that case, there was evidence of the prior existence of the lost grant. The title of the claimants was upheld but this Court then stated, at p. 464, conformably to Fletcher v. Fuller, supra: "Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law." See United States v. Pendell, 185 U. S. 189, 200-201. A few years later, in United States v. Chavez, 175 U. S. 509, the problem of the lost grant again arose. In this case, as to one tract, case No. 38 at 516, the existence of the grant to Joaquin Sedillo was not shown except by a statement of January 11, 1734, that the tract conveyed "was acquired by his [affiant's] father in part by grant in the name of His Majesty [The King of Spain] . . ." P. 514. In referring to the recognition of title in the private owners, this Court said, at 520: "Succeeding to the power and obligations of those Governments, must the United States do so? This is insisted by their counsel, and yet they have felt and expressed the equities which arise from the circumstances of the case. Whence arise those equities? That which establishes them may establish title. Upon a long and uninterrupted possession, the law bases presumptions as sufficient for legal judgment, been deemed necessary, in order to justify this presumption, than is considered sufficient to authorize the like presumption in the case of grants from private persons." in the absence of rebutting circumstances, as formal instruments, or records, or articulate testimony. Not that formal instruments or records are unnecessary, but it will be presumed that they once existed and have been lost. The inquiry then recurs, do such presumptions arise in this case and do they solve its questions?" Thereafter the Court, 524, referred to the long possession and sustained the claimants in their title. Cariño v. Insular Government, 212 U. S. 449, was decided on a writ of error to the Supreme Court of the Philippine Islands. An Igorot chieftain sought to register his land in Benguet Province, long held by his family. Under claim of succession to the Spanish rights by the Treaty of Paris and an exception in the Act of July 1, 1902, providing for temporary administration of civil government in the Philippines," the land had been taken for public purposes by the United States and the Philippine Government. Objection was made by the two governments and sustained by the Supreme Court of the Philippines on the ground that the applicant did not show a grant from any sovereign. This Court thought it unjust, in the circumstances, to require a native to have a paper title. "It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land." 212 U. S. at 460. The Philippine judgment was reversed. The law of the Territory of Hawaii recognizes and has applied the doctrine of the lost grant in controversies between a claimant to Government land and the Territory. 17 32 Stat. 691, § 12. 256 Opinion of the Court. In re Title of Kioloku (1920), 25 Haw. 357. The tract involved in that litigation had been held in "actual, open, continuous and uninterrupted possession" since 1870. No record or evidence of a grant by any governmental authority was produced. After a discussion of several of the cases just referred to and others, it was held that the doctrine of the lost grant, in claims to land against the state, was the "law of the land" in Hawaii. On appeal the holding was affirmed by the Circuit Court of Appeals for the Ninth Circuit. That court said: "Under the rule of law applicable to the case, as we find it, it was not necessary that the appellee should prove the probability that a grant did in fact issue to one of its predecessors in interest. It was enough to show, as we think it was shown, that there was a legal possibility of a grant." "Territory of Hawaii v. Hutchinson Sugar Plantation Co., 272 F. 856, 860. We are therefore of the opinion that where, as here, there was power in the King or the officials of the Kingdom of Hawaii to convey a title to Palmyra 18 during the years immediately following its annexation to the Kingdom of Hawaii and prior to many of the private conveyances hereinafter referred to, the doctrine of a lost grant may be applied, in suitable circumstances, and its existence presumed in favor of the predecessors in title of these respondents. In order for the doctrine of a lost grant to be applicable, the possession must be under a claim of right, actual, open and exclusive." A chain of conveyances is important. So is the payment of taxes.20 A claim for government lands stands upon no different principle in 18 1 Greenleaf, Evidence (16th Ed.), § 45a. 19 Fletcher v. Fuller, supra, 551; United States v. Chaves, supra, 464; United States v. Chavez, supra, 520. 20 Fletcher v. Fuller, supra, 552; Whitney v. United States, 167 U. S. 529, 546; Jover v. Insular Government, supra, 633. |