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Full text of "United States Court of Appeals For the Ninth Circuit"

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San Francisco 

Law Library 



436 CITY HALL 



No. ^.Ay2c>^ 



EXTRACT FROM RULES 

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No. 12019 

IN THE 

United States Couft of Appeals 

FOR THE NINTH CIRCUIT 



HARRY C. WESTOVER, United States Collector of 
Internal Revenue, Sixth Collection District of Cali- 
fornia, and UNITED STATES OF AMERICA, 

Appellants, 
vs. 

AGNES F. SMITH, 

Appellee. 



TRANSCRIPT OF RECORD 

Upon Appeal From the District Court of the United States 

for the Southern District of California 

Central Division 



FILfcM 

^^' 16 1948 

PAUL P. O'BRIBN, 



Parker & Company, Law Printers, Los Angelea. Phone TR. 5206. 



No. 12019 

IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



HARRY C. WESTOVER, United States Collector of 
Internal Revenue, Sixth Collection District of Cali- 
fornia, and UNITED STATES OF AMERICA, 

Appellants, 
vs. 

AGNES F. SMITH, 

Appellee. 



TRANSCRIPT OF RECORD 

Upon Appeal From the District Court of the United States 

for the Southern District of California 

Central Division 



Parker & Company, Law Printers, Los Angeles. Phone TR. 5206. 



INDEX 

[Clerk's Note : When deemed likely to Ijc of an important nature, 
errors or doubtful matters appearing in the original certified record are 
printed literally in italics ; and likewise, cancelled matter appearing in the 
original certified record is printed and cancelled herein accordingly. When 
possible an omission from the text is indicated by printing in italics the 
two words between which the omission seems to occur.] 

Page 

Affidavit of Plaintiff in Support of Motion for Sum- 
mary Judgment 35 

Exhibit A. Liquidating Resolution of the Quick- 
work Company 39 

Exhibit B. Bill of Sale and Assignment 40 

Answer to Complaint 29 

Appeal : 

Notice of 51 

Statement of Points to Be Relied Upon on (Circuit 
Court) 54 

Certificate of Clerk.. 52 

Complaint to Recover Over-payment of Federal In- 
come Tax 2 

Exhibit A. Agreement of Sale 12 

Exhibit B. Claim for Refund of $9,146.61 20 

Exhibit C. Claim for Refund of $28,965.65 24 

Judgment 48 

Motion for Summary Judgment, Plaintiff's 35 

Motion to Take Plaintiff's Motion for Summary Judg- 
ment Off Calendar or Counter-Motion for Summary 
Judgment 42 



Page [ 

Names and Addresses of Attorneys 1 

Notice of Appeal 51 | 

Order Denying Defendants' Motion to Take Plaintiff's ! 
Motion for Summary Judgment Oft" Calendar 45 i 

Order on Motions for Summary Judgment 46 ■ 

Order Taking Case Off Pre-Trial Calendar, etc 34 : 

^ 'I 

Statement of Points to Be Relied Upon on Appeal > 

(Circuit Court) 54 i 

j 
Stipulation and Order Taking Case Off Pre-Trial \ 

Calendar and to Set Case for Hearing on Motion \ 

for Summary Judgment 33 \ 



NAMES AND ADDRESSES OF ATTORNEYS: 

For Appellants: 

JAMES M. CARTER 
United States Attorney 

GEORGE M. BRYANT 

E. H. MITCHELL 

Assistants U. S. Attorney 

EUGENE HARPOLE 

Special Attorney, Bureau of Internal Revenue 

600 U, S. Post Office and Court House Building 
Los Angeles 12, Calif. 

For Appellee: 

BERT A. LEWIS of 

GIBSON, DUNN & CRUTCHER 

634 S. Spring Street 

Los Angeles 14, Calif. [1*] 



*Page number appearing at foot of Certified Transcript. 



2 Harry C. Westover, etc. 

In the District Court of the United States in and for the 

Southern District of California 

Central Division 

No. 7476 WM 

AGNES R SMITH, 

Plaintiff, 
vs. 

HARRY C. WESTOVER, United States Collector of 
Internal Revenue, Sixth District of California, and 
UNITED STATES OF AMERICA, 

Defendants. 

COMPLAINT TO RECOVER OVERPAYMENT OF 
FEDERAL INCOME TAX 

FIRST CAUSE OF ACTION 

Comes now the Plaintiff, Agnes F. Smith, and for her 
first cause of action herein alleges as follows: 

I. 

Plaintiff is and has been since May, 1943, a resident of 
Los Angeles County, California. 

II. 

In 1933, Plaintiff acquired all of the oustanding capital 
stock of The Quickwork Company, an Ohio corporation, 
and continued to own said stock until the liquidation of 
said corporation during 1940. 

III. 

The Quickwork Company, above mentioned, immedi- 
ately prior to its liquidation and for many years prior 
thereto engaged in the [2] business of the manufacture 
and sale of certain machine tools consisting principally of 
various types of rotary shears. It owned patents and 



vs. Agnes F. Smith 3 

drawings covering the manufacture of such machines and 
in addition to the manufacture and sale thereof had li- 
censed other companies to manufacture similar machines 
on a royalty basis. 

IV. 

Under date of May 31, 1940, The Quickwork Company 
entered into an agreement for the sale of all of its assets, 
exclusive of cash in the bank and certain miscellaneous 
items, to Whiting Corporation, an Illinois corporation. 
Said agreement provided that the latter corporation should 
pay as consideration for said property $15,000 in cash, 
certain other fixed amounts of a minor nature and 10% 
of the gross sales price to the Whiting Corporation on 
all machinery and equipment thereafter developed and 
manufactured by it as a result of acquiring the machinery, 
patents and patterns of The Quickwork Company. The 
obligation to make said payments based on a percentage 
of sales was to continue in any event until May 31, 1950 
and thereafter during the lifetime of Plaintiflf Agnes F. 
Smith who was 57 years old at the date of said agreement. 
A true and correct copy of said agreement of sale, exclu- 
sive of inventory and miscellaneous schedules attached to 
the original, is attached hereto as Exhibit "A" and is 
incorporated herein by reference as if fully set forth 
herein. 

V. 

The contract of sale between The Quickwork Company 
and the Whiting Corporation was an arms-length trans- 
action in which each party was interested in making the 
best bargain possible. The Directors and stockholders of 
the Whiting Corporation were not related or interested 
in any way in The Quickwork Company nor was The 
Quickwork Company, its stockholders, or directors inter- 



4 Harry C. Westover, etc. 

ested or related in any way to the Whiting Corporation. 
Plaintiff as the controlling officer and stockholder of The 
Quickwork Company attempted to secure the [3] best 
bargain possible for that Company and in connection with 
such negotiations did not solicit nor receive any advice 
concerning the tax consequences to The Quickwork Com- 
pany or herself of the various counter proposals made 
during said negotiations or the agreement as finally exe- 
cuted. For many years prior to said sale the annual sales 
of The Quickwork Company had been substantial and both 
parties to said agreement realized that the impending War 
would be likely to increase considerably the demand for 
and sales of The Quickwork line. 

VL 
The agreement contained in said contract of sale by 
the Whiting Corporation to pay the 10% based upon 
gross sales had a substantial value and the parties to such 
agreement realized it had a substantial value, but there 
was no way of ascertaining the measure of said value at 
the time of said sale, and said agreement then had no 
ascertainable fair market value. 

VII. 

Shortly after May 31, 1940 pursuant to the aforesaid 
agreement The Quickwork Company transferred and de- 
livered by Bill of Sale to the Whiting Corporation com- 
plete title to the assets as described in and as required by 
said agreement of May 31, 1940, and thereupon ceased to 
have any interest whatsoever in said assets and at no 
time thereafter has The Quickwork Company or Plaintiff 
owned or possessed any interest whatsoever with respect to 
said assets. 

VIII. 

Shortly after the consummation of the aforesaid con- 
tract dated May 31, 1940 The Quickwork Company deter- 



vs. Agnes F. Smith 5 

mined to liquidate and dissolve, and under date of August 
24, 1940 it transferred by a Bill of Sale and Assignment 
all of its assets of whatsoever nature including its rights 
against the Whiting Corporation under the agreement of 
May 31, 1940, to the Plaintiff in complete liquidation and 
in complete liquidation and cancellation of all of its out- 
standing [4] stock which was then owned solely by Plain- 
tiff. At said time Plaintiff surrendered her stock for 
cancellation and retirement and said stock was cancelled 
and retired and has not since been reissued. In due course 
thereafter The Quickwork Company was dissolved. 

IX. 

The stock in The Quickwork Company owned by Plain- 
tiff at the time of said liquidation was held by her at an 
adjusted basis of $34,000. She received in the final 
liquidation with respect thereto assets of a total value of 
$39,204.26 exclusive of the right to the percentage pay- 
ments under the agreement of May 31, 1940. Long term 
capital gain of $5,204.26 was reported by Plaintiff in her 
1940 Federal Income Tax return and no adjustment in 
said return was made upon audit by the appropriate 
Federal Revenue Agent's office. At the time Plaintiff 
received in liquidation of her stock in The Quickwork 
Company the contractual right against the Whiting Cor- 
poration in the percentage payments to be paid under the 
contract of May 31, 1940, said contractual right had a 
very substantial value and Plaintiff realized and acknowl- 
edged that it had such a value. There was no way of 
ascertaining the measure of said value and said contrac- 
tual right then had no ascertainable fair market value. 
Because of this no value was assigned to said right in 
determining the amount of Plaintiff's capital gain upon 
said liquidation. 



6 Harry C. Westover, etc. 

X. 

Neither in her Federal Income Tax return for 1940 
nor in any other way at any time has the Plaintiff repre- 
sented or implied to anyone that said contract did not 
have a substantial value at the time of the liquidation of 
The Quickwork Company. During the year 1940 subse- 
quent to the liquidation, Plaintiif received as percentage 
payments from the Whiting Corporation under said agree- 
ment a total of $2,583.23. These were reported as ordi- 
nary income under Schedule C of Plaintiif 's 1940 Income 
Tax return. She left the preparation of said returns to 
a reputable accounting firm and did not seek any [5] 
advice nor give any consideration to the question of how 
said percentage payments should be reported for tax 
purposes. 

XL 

During the calendar year 1941 Plaintiff received as 
percentage payments from Whiting Corporation under the 
aforesaid contract $37,231.68. In her Federal Income 
Tax return for said calendar year Plaintiff reported said 
payments as ordinary income. The tax shown as due per 
return was $13,272.40. Said return was filed with the 
Collector of Internal Revenue for the Tenth District of 
Ohio. Payments by the Plaintiff in satisfaction of the 
liabilities shown per return and a small deficiency assess- 
ment based thereon were as follows: 

Date Amount 



March 14, 1942 


$3,318.40 


June 9, 1942 


3,318.40 


September 10, 1942 


5,636.80 


December 8, 1942 


998.80 


August 1, 1943 


149.53 



vs. Agnes F. Smith 7 

XII. 

All ()( the aforesaid payments were paid to the Collector 
of the Tenth District of Ohio. At the time of each said 
payment Frazier Reams was the Collector of said District. 
He ceased to be Collector of said District on February 1, 
1944 and has not at any time subsequent to said date been 
Collector of that or any other Federal Collection District, 

XIII. 

The aforesaid payments received by Plaintiff during 
1941 under the percentage provisions of the aforesaid 
contract of May 31, 1940 with the Whiting Corporation 
constituted capital gain to Plaintiff realized upon the sur- 
render of her stock in The Quickwork Company upon the 
complete liquidation of said corporation. The correct in- 
come tax liability of the Plaintiff for the year 1941 com- 
puted as [6] heretofore approved by the Bureau of 
Internal Revenue with the sole exception that said pay- 
ments are treated as long term capital gain rather than 
ordinary income, was and is $4,276.52. The total pay- 
ments made by Plaintiff heretofore with respect to said 
year 1941 were $13,421.93 and Plaintiff has overpaid her 
tax for said year by $9,145.41. 

XIV. 
Pursuant to Provisions of Section 322 of the Internal 
Revenue Code, Plaintiff filed with the Collector for the 
Tenth District of Ohio, within the period allowed by law, 
a proper claim for refund in the amount of $9,146.61 for 
refund of said overpayment. A true copy of said claim 
is attached hereto, marked Exhibit "B" and incorporated 



8 . Harry C. IV est over, etc. 

herein by reference as if fully set forth herein. Under 
date of June 11, 1947 Plaintiff was advised by a written 
notice sent by registered mail by the Commissioner of 
Internal Revenue pursuant to Section 3772(a)(2) of the 
Internal Revenue Code that said claim for refund had 
been disallowed in full. No further action has been taken 
with respect to said claim since and no part of said over- 
payment has been refunded or credited to the Plaintiff. 

SECOND CAUSE OF ACTION 

For her Second Cause of Action Plaintiff alleges as 
follows : 

I. 

Plaintiff realleges Paragraphs I, II, III, IV, V, VI, 
VII, VIII, IX and X of her First Cause of Action herein 
as if fully set forth in this, her Second Cauce of Action, 
in haec verba. 

. II. 
During the calendar years 1942 and 1943 Plaintiff 
received as percentage payments from the Whiting 
Corporation under the aforesaid contract respectively 
$65,808.26. and $65,412.64. In her Federal Income Tax 
return for the calendar years 1942 and 1943 [7] Plaintiff 
reported said payments as ordinary income. The tax 
shown as due per said returns was respectively $37,179.21 
and $9,038.45. Said return for the year 1942 was filed 
with the Collector of Internal Revenue for the Tenth 
District of Ohio and the return for the year 1943 was filed 
with the Collector of Internal Revenue for the Sixth Dis- 



vs. Agnes F. Smith C 

trict of California. Payments made by Plaintiff in satis- 
faction of the liability shown per said returns were as 
follows : 

Date Amount 

February 19. 1943 $ 9.294.82 

June 12, 1943 9,294.80 

September 13, 1943 8,294.80 

December 11, 1943 10,294.81 

March 15. 1944 4,519.24 

December 2S, 1944 4,519.21 

Under the provisions of the Current Tax Payment Act 
of 1943 all of said pa}-ments were applied against Plain- 
tiff's 1943 liabilitv' and the true tax liability of the Plain- 
tiff for the year 1942 was and is discharged and the 
liability for said year and the year 1943 was and is ac- 
cumulated as the liability for the year 1943. 

III. 
All of the payments set forth in Paragraph II above, 
up to and including the pa}-ment made on December 11. 
1943 were paid to the Collector of the Tenth District of 
Ohio. At the time of all of said pa^Tnents Frazier Reams 
was the Collector of said District. He ceased to be Col- 
lector of said District on February 1, 1944 and has not at 
any time subsequent to said date been Collector of that 
or any other Federal Collection District. 

TV. 
The aforesaid pa>-ments received by Plaintiff durinjsr 
1942 and 1943 under the percentage pro\'isions of the 



8 Harry C. Westover, etc. 

herein by reference as if fully set forth herein. Under 
date of June 11, 1947 Plaintiff was advised by a written 
notice sent by registered mail by the Commissioner of 
Internal Revenue pursuant to Section 3772(a)(2) of the 
Internal Revenue Code that said claim for refund had 
been disallowed in full. No further action has been taken 
with respect to said claim since and no part of said over- 
payment has been refunded or credited to the Plaintiff. 

SECOND CAUSE OF ACTION 
For her Second Cause of Action Plaintiff alleges as 
follows : 

I. 

Plaintiff realleges Paragraphs I, II, III, IV, V, VI, 
VII, VIII, IX and X of her First Cause of Action herein 
as if fully set forth in this, her Second Cauce of Action, 
in haec verba. 

II. 
During the calendar years 1942 and 1943 Plaintiff 
received as percentage payments from the Whiting 
Corporation under the aforesaid contract respectively 
$65,808.26, and $65,412.64. In her Federal Income Tax 
return for the calendar years 1942 and 1943 [7] Plaintiff 
reported said payments as ordinary income. The tax 
shown as due per said returns was respectively $37,179.21 
and $9,038.45. Said return for the year 1942 was filed 
with the Collector of Internal Revenue for the Tenth 
District of Ohio and the return for the year 1943 was filed 
with the Collector of Internal Revenue for the Sixth Dis- 



vs. Agnes F. Smith 9 

trict of California. Payments made by Plaintiff in satis- 
faction of the liability shown per said returns were as 
follows : 

Date Amount 

February 19, 1943 $ 9,294.82 

June 12, 1943 9,294.80 

September 13, 1943 8,294.80 

December 11, 1943 10,294.81 

March 15, 1944 4,519.24 

December 28, 1944 4,519.21 

Under the provisions of the Current Tax Payment Act 
of 1943 all of said payments were applied against Plain- 
tiff's 1943 liability and the true tax liability of the Plain- 
tiff for the year 1942 was and is discharged and the 
liability for said year and the year 1943 was and is ac- 
cumulated as the liability for the year 1943. 

III. 

All of the payments set forth in Paragraph II above, 
up to and including the payment made on December 11, 
1943 were paid to the Collector of the Tenth District of 
Ohio. At the time of all of said payments Frazier Reams 
was the Collector of said District. He ceased to be Col- 
lector of said District on February 1, 1944 and has not at 
any time subsequent to said date been Collector of that 
or any other Federal Collection District. 

IV. 

The aforesaid payments received by Plaintiff' during 
1942 and 1943 under the percentage provisions of the 



10 Harry C. West over, etc. 

aforesaid contract of May 31, 1940 with the Whiting 
Corporation constituted capital [8] gain to the Plaintiff 
realized upon the surrender of her stock in The Quickwork 
Company upon the complete liquidation of said corpora- 
tion. The correct Income Tax liability of the Plaintiff 
for the year 1943 computed in accordance with the 1942 
and 1943 returns previously filed with the sole exception 
that said payments are treated as long term capital gain 
rather than ordinary income was and is $17,252.03. The 
total payments heretofore made by Plaintiff with respect 
to said year 1943 were $46,216.88 and Plaintiff has over- 
paid her tax for said year by $28,964.85. 

V. 

Pursuant to the provisions of Section 322 of the In- 
ternal Revenue Code Plaintiff filed with the Collector for 
the Sixth District of California within the period allowed 
by law a claim for refund of said overpayment of 
$28,965.65. A true copy of said claim is attached hereto 
marked Exhibit "C" and incorporated herein by reference 
as if fully set forth herein. Under date of June 10, 1947 
Plaintiff was advised by a written notice sent by registered 
mail by the Commissioner of Internal Revenue pursuant to 
Section 3772(a) (2) of the Internal Revenue Code that 
said claim for refund had been disallowed in full. No 
further action has been taken with respect to said claim 
since and no part of said overpayment has been refunded 
or credited to the Plaintiff. 



vs. Agnes F. Smith 11 

THIRD CAUSE OF ACTION 

For her Third Cause of Action Plaintiff alleges as 
follows : 

I. 

Plaintiff realleges Paragraphs I, II, III, IV, V, VI, 
VII, VIII, IX and X of her First Cause of Action herein, 
and Paragraphs II, III, IV and V of her Second Cause 
of Action herein, as if fully set forth in this her Third 
Cause of Action in haec verba. [9] 

11. 

The payments listed in Paragraph II hereinabove in 
Plaintiff's Second Cause of Action herein paid on March 
15, 1944 and December 28, 1944 were paid to Defendant 
Harry C. Westover as Collector of the Sixth District of 
California. Said Defendant has continuously since the 
dates of said payments held and now occupies said position. 

Wherefore, Plaintiff prays judgment: 

(a) Against the Defendant, the United States of 
America, in the amount of $28,068.61 plus interest as pro- 
vided by law, and 

(b) Against Defendant, Harry C. Westover, in the 
amount of $9,038.45 plus interest as provided by law, and 

(c) For her costs and disbursements herein and such 
other relief as the Court may deem meet and proper. 

GIBSON, DUNN & CRUTCHER 
By Bert A. Lewis 

Attorneys for Plaintiff [10] 



12 Harry C. Westover, etc. 

EXHIBIT "A" 

AGREEMENT 

This Agreement, Made and entered into this 31st day 
of May, A.D. 1940, by and between The Quickwork 
Company, a corporation organized and existing under 
and by virtue of the laws of the State of Ohio and author- 
ized to transact business in the State of IlHnois, herein- 
after referred to as "Quickwork", party of the first part, 
and Whiting Corporation, a corporation organized and 
existing under and by virtue of the laws of the State of 
Illinois, hereinafter referred to as "Whiting", party of the 
second part, Witnesseth: 

Whereas, Quickwork is engaged in the manufacture of 
Plate and Sheet Metal Workers Machinery and is desirous 
of selling substantially all of its assets, including the good 
will of the business heretofore carried on by it, the assets 
being more particularly hereinafter mentioned, to Whiting 
on the terms and conditions hereinafter mentioned; and 

Whereas, Whiting is engaged in the business of manu- 
facturing and selling various and sundry devices and ma- 
chinery and is willing and desirous of purchasing said 
assets of Quickwork as a going business, subject to the 
terms and conditions hereinafter set forth: 

Now, Therefore, in consideration of the premises and 
of the warranties hereinafter made and the mutual prom- 
ises and agreements hereinafter entered into, It Is Agreed 
by and between the parties hereto as follows: 

I. Quickwork hereby agrees to sell, assign, transfer 
and deliver to Whiting, and Whiting agrees to purchase 
from Quickwork on the closing date hereafter set forth, 
the following: [11] 



vs. Agnes F. Smith 13 

(a) All of the good will of the business now or here- 
tofore carried on by Quickwork, including all busi- 
ness correspondence with customers, all furniture 
and office fixtures in the office in the Daily News 
Building in Chicago, Illinois. 

(b) All inventories of the products or parts thereof 
which are now in the custody of or owned by 
Quickwork, more particularly described in the list 
attached hereto and by reference thereto incorpor- 
ated herein, said list being hereby identified as List 
No. "r 



((■t )) 



(c) All rights in the trade name ''Quickwork" and to 
the business conducted by Quickwork. 

(d) All patents and applications for Letters Patents 
and trademarks, patterns jigs, tools, dies, fixtures, 
drawings and equipment which are applicable to or 
are used in connection with the manufacture or sale 
of Quickwork machinery. 

(e) Any and all royalties and other fee arrangement 
agreements heretofore entered into by Quickwork 
and all right, title and interest of Quickwork in the 
avails and proceeds of such agreements. 

(f) All unfilled orders or partially filled orders now in 
the hands of Quickwork for any of its products or 
parts thereof, which orders are more particularly 
described in the list attached hereto and by refer- 
ence thereto incorporated herein, said list being 
hereby identified as List No. "2". 

IT. All of the property herein agreed to be sold shall 
be conveyed and transferred by proper Bills of Sale con- 
taining the usual warranties of title. Quickwork warrants 
that all of said property is and will be on the closing date 



14 Harry C. West over, etc. 

free and clear of all [12] liens, charges and encumbrances 
of every kind, character and description. 

III. Whiting agrees that it will assume and perform 
all of Quickwork's unfilled contracts and orders as dis- 
closed by the list heretofore identified as List No. "2". 
Quickwork will furnish to Whiting on the closing date 
executed originals or copies of all such unfilled contracts, 
if any, and all original unfilled sales orders. 

IV. It is expressly understood and agreed that Whiting 
does not assume nor agree to pay, and shall not be 
obligated in any manner for any of the debts of Quick- 
work and that Whiting does not assume any of its con- 
tracts or obligations of any kind or character except only 
as herein expressly specified. This clause does not apply 
to commissions due or to become due to agents who have 
sold Quickwork products, or to existing advertising con- 
tracts or orders heretofore given to Kling Bros, for stock 
cutters which are undelivered at date of closing. A list of 
such commissions and advertising contracts and cutter 
orders is hereto attached, and it is agreed that these shall 
be assumed and paid by Whiting. 

V. All other obligations and indebtedness of Quick- 
work shall be paid by it as soon after the date hereof as 
possible. Quickwork agrees to furnish to Whiting on the 
closing date a written statement under oath containing a 
full, accurate and complete list of its then creditors, their 
addresses and the amounts owing to each, or, if there be 
no creditors, a written statement under oath to that effect, 
and agrees to permit Whiting to withhold out of the sums 
herein agreed to be paid an amount of equal to the sum 
of its unpaid obligations. Whiting will either pay said 
obligationse or indebtedness of Quickwork to the extent 
of the amount remaining in its hands, but only upon 



vs. Agnes F. Smith 15 

Quickwork's order so to do, or will retain the amount so 
withheld until |13| Quickwork, by a written statement 
iiiidcr oath, certifies that all its obligations and indebted- 
nesses are in fact paid, and thereupon Whiting will pay to 
Quickwork, upon demand in writing therefore by Quick- 
work, the amount then remaining in its hands. 

VI. Quickwork agrees that Whiting, through its duly 
authorized representatives, may at any time enter upon 
the premises of Quickwork for the purpose of examining 
any of the objects which are subject to this Agreement. 
Whiting, through its duly authorized representatives, may 
also at any time examine any of the books of account, 
invoices, records and other papers of Quickwork insofar 
as they relate to the subject matters of this Contract, and 
make such extracts therefrom as it may desire. 

VII. Quickwork further agrees that upon the consum- 
mation of said sale it will forthwith, or from time to time, 
upon demand by Whiting, execute or cause to be executed 
such other and further appropriate and reasonable instru- 
ments of transfer as may be required by Whiting for the 
purpose of carrying out the intentions and provisions of 
this Agreement. 

VIII. It is further understood and agreed that 
Whiting plans to manufacture and sell tools and machines 
heretofore developed and sold by Quickwork; that it will 
advertise, promote and develop the manufacturing and sale 
thereof and use all diligent and reasonable efforts in con- 
nection therewith. Whiting further agrees that while this 
agreement is in force and effect it will not sell or offer for 
sale plate or sheet metal machinery of the kind or tv]^ 
other than that now manufactured by Quickwork. or any 
machinery in competition with that now manufactured by 
Quickwork. Whiting further agrees that should it make 



15 Harry C. West over, etc. * 

any additions or changes or improvements in the line of ; 

machinery now purchased by it from Quickwork, or ' 

should it develop any machinery which does the same work ; 

as is now done by Quickwork, the sale of such machinery i 
by Whiting shall be subject to the pro- [14] visions of 

Paragraph IX hereof, and ten per cent of the gross sales i 

thereof shall be paid to Quickwork during the entire period : 

of time in which this agreement is in effect. Commissions ■ 

of Independent dealers not in excess of ten per cent ! 

(10%) may be deducted from gross sales. j 

IX. Whiting hereby agrees to pay to Quickwork as j 

the consideration for all of the property described in Items I 

"a" to "f" both inclusive, of Paragraph No. I of this '■ 

Agreement, and as consideration of this Agreement, the j 
following : 

(a) The sum of Fifteen Thousand ($15,000) Dollars \ 
on the closing date hereinafter referred to. i 

(b) Ten per cent (10%) of Whiting's gross sales price, ' 
less sales, use or occupational tax, F.O.B. Harvey, 
Illinois, on all machinery and equipment, including : 
repair parts (less any of such machinery and j 
equipment, if any, returned to Whiting through 
cancellation or repossession for non-payment) sold ' 
by Whiting after the closing date hereof, which \ 
machinery and equipment shall have been developed ' 
and manufactured by Whiting or upon its order, : 
as a result of the acquiring by Whiting of the ! 
various articles hereinbefore referred to. Com- ! 
missions of Independent Dealers not in excess of ! 
ten per cent (10%) may be deducted from gross \ 
sales. ^ 



vs. Agues F. Smith 17 

(c) Ten per cent (10%) of all royalties and other fees 
received by Whiting- after the closing date hereof 
under and by virtue of the Agreements referred to 
in Item "e" of Paragraph No. I of this Agreement. 

(d) On all unfilled orders, including all orders in pro- 
cess of manufacture and undelivered order, 
Whiting shall pay to Quickwork fifty per cent 
(50%) of the net profit. In computing- such net 
profit no factory or administra- [15] tive overhead 
shall be charged by Whiting. 

(e) The order from The E. L. Essley Machinery Com- 
pany for Six Thousand Eight Hundred Four and 
90/100 ($6,804.90) Dollars and the order from 
Joseph T. Ryerson & Son Inc. for Fourteen Thou- 
sand Five Hundred ($14,500.00) Dollars, less ten 
per cent (10%), now on hand are to come under 
the provisions of Clause "b" hereof and not under 
the provisions of Clause "d". 

Whiting shall make its first accounting and payment to 
Quickwork for the period ending August 31, 1940, on or 
before September 21st, 1940, and shall make all further 
and subsequent accountings and payment? to Quickwork 
for every three (3) months thereafter on or before the 
twenty-first day of the month following such three (3) 
months' period. All payments shall be made at the office 
of Whiting in Harvey, Illinois. Quickwork shall have 
the right at all reasonable times to examine the books of 
Whiting to determine the correctness of all payments due 
or to become due to it under this Agreement. 

The ten ])er cent (10%) of the gross sales price, as set 
forth in Section IX (b) shall be paid to Quickwork or its 



18 Harry C. Westover, etc. 

assignee quarterly during the entire lifetime of Agnes F. 
Smith, (who is the Vice-President of Quickwork). In 
the event of the death of said Agnes F. Smith prior to 
May 31, 1950, said percentage of the gross sales shall be 
paid by Whiting to the Estate of said Agnes F. Smith and 
shall continue from the date of her death to May 31, 1950; 
following this date Whiting shall not be obligated to pay. 
Nothing herein contained shall be construed in any way to 
limit the payment of ten per cent of the gross sales price 
to Agnes F. Smith during her entire lifetime. 

Quickwork has reserved to itself and there is not in- 
cluded in the sale to Whiting the following: [16] 

(a) Cash on hand and in the bank 

(b) Accounts and notes receivable 

(c) All real property now owned by it 

(d) All property not now used by it in the manu- 
facture or sale of Quickwork machinery. 

X. It is mutually agreed that the closing date, for the 
closing and consummation of the sale herein provided for, 
shall be May 31, A.D. 1940. 

XI. It is further understood and agreed that time is 
of the essence of this Contract and that the terms, provi- 
sions and conditions thereof shall be binding upon and 
inure to the use of the several parties hereto and their 
respective successors and assigns. 

XII. Any and all controversies arising under or out 
of, or in connection with or relating to, or for the breach 
of, this Agreement, shall be settled by arbitration, in ac- 



vs. Agues F. Smith 19 

cordance with the rules then obtaining of the American 
Arbitration Association, and judgment upon any award 
rendered may be entered in any court, state or federal, 
having jurisdiction in the premises. The invalidity of this 
paragraph shall not affect the other Agreements herein 
set forth. 

In Witness Whereof, the party of the first part has 
caused these presents to be executed by its Vice-President, 

attached by its Secretary and its Corporate 

Seal to be affixed hereto, and the party of the second part 
has caused these presents to be executed by its Vice- 
President, attested by its Secretary and its 

Corporate Seal to be hereto affixed the day and year first 
above written. 

THE QUICKWORK COMPANY 

By A. F. Smith, 

Vice-President 

Attest : 

Margaret Gairoard, 

Secretary 1 17] 

WHITING CORPORATION 
By "R, E. Prussing, 
Vice-President 

Attest : 

R. A. Pascoe, 

Secretary [18] 



20 Harry C. Westover, etc. 

EXHIBIT ''B" 

Form 843 

Treasury Department 

Internal Revenue Service 

(Revised April 1940) 

CLAIM 

To Be Filed With the Collector Where Assessment Was 
Made or Tax Paid 



The Collector will indicate in the 

block below the kind of claim filed, Collector's Stamp 

and fill in the certificate on the re- (Date received) 
verse side. 

□ Refund of Tax Illegally Collected. 

I I Refund of Amount Paid for Stamps 

Unused, or Used in Error or Excess 

n Abatement of Tax Assessed (not ap- 
plicable to estate or income taxes). 

State of Ohio 

County of Anglaize — ss: 

Name of taxpayer or 

Type purchaser of stamps Agnes F. Smith 

Business Address 

(Street) (City) (State) 

Print Residence 123 S. Gunston Drive, Los Angeles 

24, Calif. 

The deponent, being duly sworn according to law, de- 
poses and says that this statement is made on behalf of 



z;^. Agnes F. Smith 21 

the taxpayer named, and that the facts given below are 
true and complete: 

1. District in which return (if any) was filed 10th Ohio 

2. Period (if for income tax, make separate form for 
each taxable year) from Jan. 1, 1941, to Dec. 3\, 1941 

3. Character of assessment or tax Income tax [19] 

4. Amount of assessment, $13,423.13; dates of pay- 
ment 3/14/42, 6/9/42, 8/2/42, 9/10/42 and 12/8/42 

5. Date stamps were purchased from the Govern- 
ment 

6. Amount to be refunded $9,146.61 

7. Amount to be abated (not applicable to income or 
estate taxes) $ 

8. The time within which this claim may be legally filed 
expires, under Section 322(b) (1) I. R. C. on March 5, 
1945. The deponent verily believes that this claim 
should be allowed for the following reasons: 

See attached 



(Attach letter-size sheets if space is not sufficient) 
Sworn to and subscribed be- Signed Agnes F. Smith 

fore me this 26 day of Feb- 

ruary, 1945 

(Title) 
> 

(Signature of officer administering oath) 

(Claim was properly notarized but name of Notary is 
not now known.) 

(vSee Instructions on Reverse Side) 

16-15504 [20] 



22 Harry C. Westover, etc. 

AGNES F. SMITH 

CLAIM FOR REFUND 

For the Year Ended December 31, 1941 

Pursuant to an agreement dated May 31, 1940 between 
the Quickwork Corporation located in Chicago, IlHnois, 
of which the taxpayer was Vice-President, and the Whit- 
ing Corporation located in Chicago, Illinois, substantially 
all of the assets of Quickwork Corporation were sold 
to Whiting Corporation for cash and the right to receive 
10% of the gross sales of Whiting Corporation for the 
taxpayer's lifetime or ten years certain. 

Neither the Quickwork Corporation nor the taxpayer 
retained any interest whatsoever in the tangible assets, 
goodwill, patents, trade name, etc. transferred to the 
Whiting Corporation. 

Upon dissolution of the Quickwork Corporation, on 
August 24, 1940, the taxpayer received, as payment for 
her stock, cash, the remaining tangible assets and the right 
to receive 10% of the gross sales of the Whiting Cor- 
poration as mentioned in the first paragraph above. 

It is contended that the monies received by the tax- 
payer are deferred payments on the assets sold to the 
Whiting Corporation and that they are in the nature of 
liquidating dividends to the taxpayer by virtue of the 
transfer of the right to her. 

The stock of the Quickwork Corporation was acquired 
by the taxpayer in 1933. Upon liquidation of the corpo- 
ration the cost of her stock was fully recovered. Accord- 
ingly, the entire amount received during the taxable year 
was a long-term capital gain. 



vs. Agnes F. Smith 23 

The following- supporting authorities are cited: U. S. 
V. Dorothy D. Yerger (D. C. Penna. ; 1944), 55 F. Supp. 
521; and Imperial Type Metal Co. v. Commissioner (C. 
C A.-3), 106 F. (2d) 302, 23 A. F. T. R. 347. [21] 

A recomputation of the tax based on the contention of 
the Taxpayer is as follows: 

(Continued) — 1. 

AGNES F. SMITH 

CLAIM FOR REFUND 

For the Year Ended December 31, 1941 

Net income, per Revenue Agent's Report $37,676.16 

Less — Reduction in income due to payments 
from the Whiting Corporation being included 
as a long-term capital gain instead of as a 
royalty 18,615.84 

Adjusted taxable income $19,060.32 

Less — Personal exemption 1,500.00 

Surtax net income $17,560.32 

Less — Earned income credit 300.00 

Normal tax net income $17,260.32 

Normal tax $ 690.41 

Surtax 3,586.11 

Total $ 4,276.52 

Tax previously assessed 13.423.13 

Overassessment $ 9.146.61 

(Concluded)— 2. [22] 



24 Harry C. Westover, etc. 

EXHIBIT ''C" 

Form 843 

Treasury Department 

Internal Revenue Service 

(Revised April 1940) 

CLAIM 

To Be Filed With the Collector Where Assessment Was 
Made or Tax Paid 



The Collector will indicate in the 

block below the kind of claim filed, Collector's Stamp 

and fill in the certificate on the re- (Date received) 
verse side. 

I I Refund of Tax Illegally Collected 

I I Refund of Amount Paid for Stamps 

Unused, or Used in Error or Excess 



I I Abatement of Tax Assessed (not ap- 
plicable to estate or income taxes). 

State of California 
County of Los Angeles — ss: 

Name of taxpayer or 

Type purchaser of stamps Agnes F. Smith 
Business address 



or 



(Street) (City) (State) 

Prmt Residence 123 S. Gunston Drive, Los Angeles 
24, Calif. 



The deponent, being duly sworn according to law, de- 
poses and says that this statement is made on behalf of 



vs. Agnes F. Smith 25 

the taxj)aycr named and that the facts given below are 
true and complete: 

1. District in which return (if any) was filed 6th Calif. 

2. Period (if for income tax, make separate form for 
each taxable year) from Jan. 1, 1943, to Dec. 31, 
1943. 

3. Character of assessment or tax Income 

4. Amount of assessment, $46,217.68; dates of pay- 
ment [23] 2/19/43, 6/12/43, 9/13/43, 12/11/43, 
3/15/44 & 12/28/44 

5. Date stamps were purchased from the Govern- 

6. Amount to be refunded $28,965.65 

7. Amount to be abated (not applicable to income or 
estate taxes) $ 

8. The time within which this claim may be lec^ally filed 
expires, under Section 322(b)(1) I. R. C. on March 
15, 1947. The deponent verily believes that this claim 
should be allowed for the following- reasons : 

See attached 



(Attach letter-size sheets if space is not sufficient) 

Sworn to and subscribed be- Signed Agnes F. Smith 

fore me this 26 day of Feb- 

ruary, 1945 

(Title) 

> 

(Signature of officer administering oath) 

(Claim was properly notarized but name of Notary is 
not now known.) 

(See Instructions on Reverse Side) 

16—15504 [24] 



26 Harry C. Westover, etc. 

AGNES F. SMITH 

CLAIM FOR REFUND 

For the Year Ended December 31, 1943 

Pursuant to an agreement dated May 31, 1940 between 
the Quickvvork Corporation located in Chicago, lUinois, 
of which the taxpayer was Vice-President, and the Whit- 
ing Corporation located in Chicago, Illinois, substantially 
all of the assets of Quickwork Corporation wxre sold to 
Whiting Corporation for cash and the right to receive 
10% of the gross sales of Whiting Corporation for the 
taxpayer's lifetime or ten years certain. 

Neither the Quickwork Corporation nor the taxpayer 
retained any interest whatsoever in the tangible assets, 
goodwill, patents, trade name, etc. transferred to the Whit- 
ing Corporation. 

Upon dissolution of the Quickwork Corporation, on 
August 24, 1940, the taxpayer received, as payment for 
her stock, cash, the remaining tangible assets and the 
right to receive 10% of the gross sales of the Whiting 
Corporation as mentioned in the first paragraph above. 

It is contended that the monies received by the taxpayer 
are deferred payments on the assets sold to the Whiting 
Corporation and that they are in the nature of liquidating 
dividends to the taxpayer by virtue of the transfer of the 
right to her. 

The stock of the Quickwork Corporation was acquired 
by the taxpayer in 1933. Upon liquidation of the corpo- 
ration the cost of her stock was fully recovered. Accord- 
ingly, the entire amount received during the taxable year 
was a long-term capital gain. 

The following supporting authorities are cited: U. S. 
V. Dorothy D. Yerger (D. C. Penna., 1944), 55 F. Supp. 



vs. Agnes F. Smith 27 

521; and Imperial Type Metal Co. v. Commissioner (C. 
C A.-3), 106 F. (2d) 302, 23 A. F. T. R. 347. 

A recomputation of the tax based on the contention of 
the [25] taxpayer is as follows: 

AGNES F. SMITH 

CLAIM FOR REFUND 

For the Year Ended December 31, 1943 

Net income, per 1942 return $65,886.27 

Less — Reduction in income due to payments 
from the Whiting Corporation being in- 
cluded as a long-term capital gain instead 
of a royalty 32,904.13 



Adjusted net income $32,982.14 

Less : 

Personal exemption $ 500.00 

Credit for dependents 350.00 850.00 



Surtax net income $32,132.14 

Less — Earned income credit 300.00 



Normal tax net income $31,832.14 



Normal tax $ 1,909.93 

Surtax 12.396.64 



Total $14,306.57 



Income Victory 

Tax Tax 

1. Net income, per 1943 return $61,906.07 $65,398.64 

2. Less — Reduction in income 
due to payments from the 



28 Harry C. West over, etc. 

Whiting Corporation being in- 
cluded as a long-term capital 
gain instead of a royalty 32,706.32 65,412.65 



$29,199.75 $ 14.01 
3. Less — Personal exemption.— 1,200.00 



4. Surtax net income $27,999.75 

5. Less — Earned income credit 300.00 



6. Normal tax net income $27,699.75 

7. Normal tax $ 1,661.99 

8. Surtax 10,119.86 [26] 

9. Victory tax None 



10. Total $11,781.85 



11. Income tax for 1942 $14,306.57 



12. Larger of Lines 10 and 11.... $14,306.57 

13. Smaller of Lines 

10 and 11 $11,781.85 

14. 75%. of Line 13 8,836.39 



Unforgiven part of tax 2,945.46 



Total income and victory tax $17,252.03 
Tax previously assesse.y 46,217.68 



Overassessment $28,965.65 

^==== [27] 
[Verified.] 

[Endorsed]: Filed Aug. 11, 1947. Edmund L. Smith, 
Clerk. [28] 



vs. Agnes F. Smith 29 

[Title of District Court and Cause] 

ANSWIlR to PLAINTIFF'S COMPLAINT 

Comes now the defendants, Harry C. Westover, Col- 
lector of Internal Revenue, Sixth District of California, 
and the United States of America, by their attorney, 
James M. Carter, United States Attorney in and for the 
Southern District of California, and for an answer to 
plaintiff's complaint herein, admit, deny and allege as 
follows : 

FIRST CAUSE OF ACTION 
I. 

The allegations in paragraph I are admitted. 

IL 

The allegations in paragraph II are admitted. 

IIL 

The allegations in paragraph III are admitted. [30] 

IV. 

The allegations in paragraph IV are admitted. 

V 

Answering paragraph V, defendants allege they are 
without knowledge or information sufficient to form a 
belief as to the truth of the allegations therein set forth. 

VL 

The allegations in paragraph VI are admitted. 

VII. 

The allegations in paragraph VII are admitted. 

VIII. 

The allegations in paragraph VIII are admitted. 

IX. 

The allegations in paragraph IX are admitted. 



30 Harry C. Westover, etc. 

X. 

The allegations in paragraph X are admitted except 
that defendants allege they are without knowledge or in- 
formation sufficient to form a belief as to the truth of 
the allegation that plaintiff left the preparation of her 
returns entirely to the accounting firm and did not seek 
other advice or give other consideration to the question 
of how said percentage payments should be reported for 
tax purposes. 

XL 
The allegations in paragraph XI are admitted except as 
to the dates and payments therein set forth. The defend- 
ants allege that the payments were made on the following 
dates : 

March 18, 1942 $3,318.40 

June 20, 1942 $3,318.40 

September 19, 1942 $5,638.00 

December 12, 1942 $ 998.80 

August 18, 1942 $ 152.89 

XII. 
The allegations in paragraph XII are admitted. [31] 

XIII. 

Answering paragraph XIII, defendants allege that the 
total payments by plaintiff for the year 1941 aggregated 
$13,426.49, instead of the amount alleged. Defendants 
deny each and every material allegation in paragraph 
XIII. 

XIV. 

Answering paragraph XIV, defendants admit that plain- 
tiff filed a claim for refund with the Collector for the 
Tenth District of Ohio, within the period allowed by law 
and that a true copy of said claim is attached to the 
complaint as Exhibit B. Defendants deny that said claim 



vs. Agnes F. Smith 31 

was a proper claim for refund and deny the correctness 
and truth of the averments contained and set forth therein 
and the contentions advanced in said claim. Defendants 
deny there has been any overpayment of taxes by plain- 
tiff as alleged. Defendants admit that the claim for re- 
fund was rejected on June 11, 1947, as alleged. 

SECOND CAUSE OF ACTION 

I. 

For an answer to paragraph I, defendants repeat the 
allegations of their answer to paragraphs I to X, inclusive, 
of the plaintiff's First Cause of Action as if fully set forth 
in this paragraph of answer and thereby repeat the same 
allegations as an answer to paragraph I of the Second 
Cause of Action. 

II. 

The allegations of paragraph II are admitted. 

III. 

The allegations of paragraph III are admitted. 

IV. 

Answering paragraph I\^, defendants allege that the 
aggregate payments made by plaintiff with respect to the 
year 1943, were S46.2 17.68 instead of $46,216.88, as 
alleged. The remaining allegations in paragraph I\' are 
denied. [32] 

V. 

Answering paragraph \', defendants admit that plaintiff" 
filed a claim for refund with the Collector for the Tenth 
District of Ohio, within the period allowed by law and 
that a true copy of said claim is attached to the complaint 
as Exhibit C. Defendants deny that said claim was a 
proper claim for refund and deny the correctness and truth 
of the averments contained and set forth therein and the 
contentions advanced in said claim. Defendants denv 



32 Harry C. Westover, etc. 

there has been any overpayment of taxes by plaintiff as 
alleged. Defendants admit that the claim for refund was 
rejected on June 10, 1947, as alleged. 

THIRD CAUSE OF ACTION 
I. 

For an answer to paragraph I, defendants repeat the 
allegations of their answer to paragraphs I to X, inclusive, 
of plaintiff's First Cause of Action herein and paragraphs 
II to V, inclusive of plaintiff's Second Cause of Action 
herein as if fully set forth in this paragraph of answer 
and makes the same allegations as an answer to para- 
graph I of plaintiff's Third Cause of Action. 

II. 

The allegations in paragraph II are admitted. 

Further answering the complaint, the defendants deny 
that plaintiff is entitled to recover anything against these 
defendants or either of them. 

Wherefore, defendants pray that the complaint be dis- 
missed with costs and for all just and proper relief. 

JAMES M. CARTER 

United States Attorney 
E. H. MITCHELL and 
GEORGE M. BRYANT 

Assistant U. S. Attorneys 
EUGENE HARPOLE 
Special Attorney 
Bureau of Internal Revenue 
By George M. Bryant 
Attorneys for Defendants [33] 

[Affidavit of Service by Mail.] 

[Endorsed] : Filed Oct. 21, 1947. Edmund L. Smith, 
Clerk. [34] 



vs. Agnes F. Smith 33 

I Title of District Court and Cause] 

STIPULATION TO TAKE CASE OFF PRE-TRIAL 
HEARING CALENDAR AND TO SET CASE 
FOR HEARING ON MOTION FOR SUMMARY 
JUDGMENT 

It Is Hereby Stipulated and Agreed by and between 
counsel for Agnes F. Smith, plaintiff, and Harry C. West- 
over, United States Collector of Internal Revenue, Sixth 
District of California, and United States of America, 
defendants, that, subject to the approval of the Court, the 
above case may be removed from and stricken off the 
pre-trial hearing calendar set for December 8, 1947, and 
that the above case may be set for hearing at 10:00 a.m. 
on Monday, January 5, 1948, (or any other date agreeable 
to the Court), before the Honorable William C. Mathes, 
United States District Judge upon plaintiff's Motion for 
Summary Judgment in accordance with Rule 56 of the 
Federal Rules of Civil Procedure. This Stipulation is 
submitted since a hearing on said Motion for Summary 
Judgment may render unnecessary the pretrial hearing 
which would otherwise [35] be required herein. Prior 
to the hearing on the Motion for Summary Judgment, 
counsel for the defendants need to obtain further instruc- 
tions from the Attorney General of the United States, and 
the setting of the hearing on the Motion for Summary 
Judgment on the above date of January 5, 1948, would 
furnish adequate time for the foregoing purposes. 

Dated: This 2nd day of December, 1947. 

GIBSON, DUNN & CRUTCHER 

By Bert A. Lewis, 

Attornevs for Plaintiff 



34 Harry C. Westover, etc. 

JAMES M. CARTER 

United States Attorney 

E. H. MITCHELL and 
GEORGE M. BRYANT 
Assistant United States 
Attorneys 

EUGENE HARPOLE and 
LOREN P. OAKES 
Special Attorneys 
Bureau of Internal Revenue 
By Eugene Harpole 

Attorneys for Defendants 

ORDER 

Pursuant to the Foregoing Stipulation it is hereby 
Ordered on the 4 day of December, 1947, that the above 
case be removed from and stricken oif the foregoing pre- 
trial calendar set for December 8, 1947, and it is further 
ordered that the above Motion by plaintiff for Summary 
Judgment be set for hearing as above set forth on Janu- 
ary 12, 1948, at 10:00 a.m. 

WILLIAM C. MATHES 

United States District Judge 

[Endorsed] : Filed Dec. 4, 1947. Edmund L. Smith, 
Clerk, [36] 



vs. Agnes F. Smith 35 

[Title of District Court and Cause] 

PLAINTIFF'S MOTION FOR SUMMARY 
JUDGMENT 

Now Comes Agnes F. Smith, plaintiff, by Bert A. 
Lewis, her attorney, and moves the court to enter judg- 
ment for the plaintiff for the relief demanded in her 
affidavit hereto attached, in accordance with Rule 56 of 
the Federal Rules of Civil Procedure, 

GIBSON, DUNN & CRUTCHER 

By Bert A. Lewis 
Attorneys for Plaintiff 

[Endorsed] : Filed Dec. 31, 1947. Edmund L. Smith, 
Clerk. [40] 



[Title of District Court and Cause] 

AFFIDAVIT IN SUPPORT OF PLAINTIFF'S 
MOTION FOR SUMMARY JUDGMENT 

State of California 
County of Los Angeles — ss. 

Agnes F. Smith, being first duly sworn, deposes and 
says: 

1. She is the plaintiff in the above entitled action. 

2. Said action is brought by her to recover over- 
payments of Federal Income Taxes for the years 1941 
and 1943 which resulted from her treating certain pay- 
ments received by her under a contract with the Whiting 
Corporation erroneously as ordinary income whereas they 
should have been reported as capital gain. In 1940 The 



36 Harry C. Westover, etc. 

Quickwork Company, a corporation controlled by the 
plaintiff, sold practically all of its assets to said Whiting 
Corporation for various considerations, including- a prom- 
ise of the Whiting Corporation to pay to the [41] seller, 
The Quickwork Company, 10% of the gross sales price 
to the Whiting Corporation on certain sales thereafter 
made by it. Subsequent to this transfer The Quickwork 
Company completely liquidated and dissolved and plaintiff 
received as a part of the assets in exchange for her stock 
the percentage contract against the Whiting Corporation. 
The present suit involves the tax character of payments 
thereafter received by plaintiff with respect to said con- 
tract. 

3. In paragraph V of her Complaint herein plaintiff 
alleged as follows: 

"The contract of sale between the Quickwork 
Company and the Whiting Corporation was an arms- 
length transaction in which each party was interested 
in making the best bargain possible. The Directors 
and stockholders of the Whiting Corporation were 
not related or interested in any way in The Quick- 
work Company nor was The Quickwork Company, 
its stockholders, or directors interested or related in 
any way to the Whiting Corporation. Plaintiff as 
the controlling officer and stockholder of The Quick- 
work Company attempted to secure the best bargain 
possible for that Company and in connection with 
such negotiations did not solicit nor receive any 
advice concerning the tax consequences to The Quick- 
work Company or herself of the various counter 
proposals made during said negotiations or the agree- 



vs. Agnes F. Smith V? 

ment as finally executed. For many years prior to 
said sale the annual sales of The Quickwork Company 
had been substantial and both parties to said agree- 
ment realized that the impending War would be likely 
to increase considerably the demand for and sales of 
The Quickwork line." 

Each allegation and statement of fact in said paragraph 
is [42] true and correct and is within the personal knowl- 
edge of plaintiff. 

4. In Paragraph X of her Complaint filed herein plain- 
tiff alleged that she left the preparation of her income tax 
returns for the years 1940 and subsequent years to a 
reputable accounting firm and did not seek any legal 
advice on the question of the proper allocation of the 
percentage payments received under the Whiting Cor- 
poration contract between principal and income for tax 
purposes. Said allegation was and is true and was and 
is within the personal knowledge of the plaintiff. 

5. In their Answer to plaintiff's Complaint herein each 
of the defendants has admitted every allegation of fact 
contained therein (with minor but inconsequential variance 
in certain figures) except they have alleged that they are 
without knowledge or informtion sufficient to form a be- 
lief as to the truth of the allegations therein set forth in 
paragraph V of said Complaint and that part of the 
allegations of paragraph X referred to in the immediately 
preceding paragraph of this Affidavit. 

6. The resolution of The Quickwork Company author- 
izing the transfer of all of its assets to plaintiff in com- 
plete liquidation of her stock therein was validly adoi)ted 
by it on August 23. 1940, and a true and correct copy of 
said resolution is attached hereto as "Exhibit A." Pursu- 



38 Harry C. West over, etc. 

ant to said resolution, on August 24, 1940 The Quickwork 
Company transferred to plaintiff all of its assets of what- 
soever nature except its real estate, by a bill of sale and 
assignment, a true and correct copy of which is attached 
hereto as "Exhibit B." The real estate was deeded to 
plaintiff on or about said date by a separate deed and 
plaintiff' thereupon surrendered all of her stock in The 
Quickwork Company for cancellation and retirement. 

7. At no time prior to the distribution mentioned in 
the preceding paragraph of this Affidavit did The Quick- 
work Company make any distribution in liquidation, 
partial or otherwise, with [43] respect to its stock: there 
was no intention or plan to liquidate until the principal 
assets of the Company were transferred to the ^^'hiting 
Corporation pursuant to the contract of May 31. 1940. 
as alleged in paragraph I\' of the Complaint herein. The 
onlv liquidation made thereafter was the final and com- 
plete liquidation eft"ected as set forth in the preceding 
paragraph of this Affidavit. 

8. Plaintiff verily believes that there is no genuine 
issue as to any material fact in this case and that plaintiff 
is entitled to judgment as a matter of law against each of 
the defendants as prayed in her Complaint herein. 

AGNES F. SMITH 

Subscribed and sworn to before me this 31st day of 
December, 1947. 

(Seal) C. E. CULVER, 

Notary in and for the County of Los Angeles, 
State of Cahfornia. 

My Commission Expires June 29, 1950. [44] 



7>s. Agnes F. Smith 39 

EXHIBIT A 
LIQUIDATING RESOLUTION OF 
THE QUICKWORK COMPANY 
Resolved: That the President and Secretary of the 
Company execute such documents of assignment and con- 
veyance as may be necessary to transfer to Agnes F. 
Smith, the sole shareholder of the Company, all of the 
real and personal property of the Company as a liquida- 
ing dividend on her shares of stock, said property to in- 
clude specifically the following: 

1. Cash on hand and in banks. 

2. All accounts receivable, including advances to 
officers. 

3. Any and all claims due or that may accrue in the 
future from the \Miiting Corporation under agree- 
ment between The Quickwork Company and the 
Whiting Corporation, dated May 31, 1940; and for 
repossessed machines consigned by The Quickwork 
Company to the Whiting Corporation, having a 
book value of $4230.00: and the sum of S3145.70 
due from the Whiting Corporation, being in excess 
of charges for inventory, patterns (net), patents, 
experimental machines, etc., amounting to $18,145.70 
less cash collected of $15,000.00 from WTiiting 
Corporation in accordance with the terms of said 
agreement dated May 31, 1940. 

4. Office furniture and fixtures having a book value of 
$50.00. 

5. $140.00 deposit on new IMercury automobile with 
Wright Motors. Inc., 1822 Ridge Ave.. Evanston, 
Illinois. 

6. Insurance policy No. 964825, issued by the New 
England Mutual Life Insurance Company on the 



38 Harry C. Westover, etc. 

ant to said resolution, on August 24, 1940 The Quickwork 
Company transferred to plaintiff all of its assets of what- 
soever nature except its real estate, by a bill of sale and 
assignment, a true and correct copy of which is attached 
hereto as "Exhibit B." The real estate was deeded to 
plaintiff on or about said date by a separate deed and 
plaintiff thereupon surrendered all of her stock in The 
Quickwork Company for cancellation and retirement. 

7. At no time prior to the distribution mentioned in 
the preceding paragraph of this Affidavit did The Quick- 
work Company make any distribution in liquidation, 
partial or otherwise, with [43] respect to its stock; there 
was no intention or plan to liquidate until the principal 
assets of the Company were transferred to the Whiting 
Corporation pursuant to the contract of May 31, 1940, 
as alleged in paragraph IV of the Complaint herein. The 
only liquidation made thereafter was the final and com- 
plete liquidation effected as set forth in the preceding 
paragraph of this Affidavit. 

8. Plaintiff verily believes that there is no genuine 
issue as to any material fact in this case and that plaintiff 
is entitled to judgment as a matter of law against each of 
the defendants as prayed in her Complaint herein. 

AGNES F. SMITH 

Subscribed and sworn to before me this 31st day of 
December, 1947. 

(Seal) C. E. CULVER, 

Notary in and for the County of Los Angeles, 
State of California. 

My Commission Expires June 29, 1950. [44] 



7JS. Agnes F. Smith 39 

EXHIBIT A 
LIQUIDATING RESOLUTION OF 
THE QUICKWORK COMPANY 
Resolved: That the President and Secretary oi the 
Company execute such documents of assignment and con- 
veyance as may be necessary to transfer to Aj^nes F. 
Smith, the sole shareholder of the Company, all of the 
real and personal property of the Company as a liquida- 
ing dividend on her shares of stock, said property to in- 
clude specifically the following: 

1. Cash on hand and in banks. 

2. All accounts receivable, including advances to 
officers. 

3. Any and all claims due or that may accrue in the 
future from the Whiting Corporation under agree- 
ment between The Quickwork Company and the 
Whiting Corporation, dated May 31, 1940; and for 
repossessed machines consigned by The Quickwork 
Company to the Whiting Corporation, having a 
book value of $4230.00; and the sum of $3145.70 
due from the Whiting Corporation, being in excess 
of charges for inventory, patterns (net), patents, 
experimental machines, etc., amounting to $18,145.70 
less cash collected of $15,000.00 from Whiting 
Corporation in accordance with the terms of said 
agreement dated May 31, 1940. 

4. Office furniture and fixtures having a book value of 
$50.00. 

5. $140.00 deposit on new Mercury automobile with 
Wright Motors, Inc., 1822 Ridge Ave., Evanston, 
Illinois. 

6. Insurance policy No. 964825, issued by the New 
England Mutual Life Insurance Company on the 



40 Harry C. Westover, etc. 

life of H. Collier Smith, Jr., with The Quickwork 
Company as beneficiary, including the prepaid in- 
surance premium thereon, having a book value as 
of June 30, 1940, of to wit: $50179 and including 
the dividends left with the company having [45] 
a book value as of June 30, 1940, of to wit: $112.78. 
7. Real estate of the Company in Auglaize County, 
St. Mary's Township, Ohio. [46] 

EXHIBIT B 
BILL OF SALE AND ASSIGNMENT 
For and in consideration of the sum of $10.00 and 
other good and valuable consideration, receipt of which 
is hereby acknowledged, and as a liquidating dividend 
on those shares of stock of The Quickwork Company, 
owned and held by Agnes F. Smith, and pursuant to 
resolution of the Shareholders and Board of Directors 
of The Quickwork Company duly passed and adopted in 
accordance with the by-laws and regulations of the said 
company and the laws of Ohio, the undersigned, The 
Quickwork Company, does hereby sell, assign, transfer, 
deliver, set over and convey to Agnes F. Smith the fol- 
lowing described items of personal property now owned 
by and standing in the name of The Quickwork Company : 

1. Cash on hand and in banks. 

2. All accounts receivable, including advances to 
officers. 

3. Any and all claims due or that may accrue in the 
future from the Whiting Corporation under agree- 
ment between The Quickwork Company and the 
Whiting Corporation, dated May 31, 1940; and for 
repossessed machines consigned by The Quickwork 
Company to the Whiting Corporation, having a 
book value of $4230.00; and the sum of $3145.70 



vs. Agnes F. Smith 41 

due from the Whiting Corporation, being- in excess 
of charges for inventory, patterns (net), patents, 
experimental machines, etc., amounting to $18,145.70 
less cash collected of $15,000.00 from Whiting 
Corporation in accordance with the terms of said 
agreement dated May 31, 1940. 

4. Office furniture and fixtures having a book value 
of $50.00. 

5. $140.00 deposit on new Mercury automobile with 
Wright Motors, Inc., 1822 Ridge Ave., Evanston, 
Illinois. 

6. Insurance policy No. 964825, issued by the New 
[47] England Mutual Life Insurance Company on 
the life of H. Collier Smith, Jr., with The Quick- 
work Company as beneficiary, including the prepaid 
insurance premium thereon, having a book value 
as of June 30, 1940, of to wit: $501.79 and including 
the dividends left with the company having a book 
value as of June 30, 1940, of to wit: $112.78. 

In Witness Whereof, The Quickwork Company has 
caused these presents to be signed by its President and 
attested by its Secretary, this 24th day of August, 1940. 

THE QUICKWORK COiMPANY 
(Signed) H. Collier Smith, Jr. 
Attested: Its President 

Jalth T. Scott, 

Its Secretary [48] 

Received copy of the within Notice this 31 day of De- 
cember, 1947. James M. Carter, U. S. Atty. ; by Gertrude 
M. Johnson, Attorneys for Defts. 

I Endorsed]: Filed Dec. 31. 1947. Edmund L. Smith, 
Clerk. [59] 



42 Harry C. Westover, etc. 

[Title of District Court and Cause] 

MOTION BY DEFENDANTS TO TAKE OFF THE 
CALENDAR PLAINTIFF'S MOTION FOR 
SUMMARY JUDGMENT SET FOR HEARING 
ON JANUARY 12, 1948, AND IN THE 
ALTERNATIVE, COUNTER-MOTION BY DE- 
FENDANTS FOR SUMMARY JUDGMENT 

Come now the defendants, Harry C. Westover, Collec- 
tor of Internal Revenue, Sixth District of CaHfornia, 
and the United States of America, by their attorneys 
above named, and move the Court for reasons hereinafter 
stated to take off the calendar plaintiff's motion for sum- 
mary judgment set for hearing on January 12, 1948, and 
in the alternative the foregoing defendants move the 
Court by way of counter-motion for a summary judgment 
in their favor under Rule 56 of the Federal Rules of Civil 
Procedure. In support of the foregoing motion and 
counter-motion, the following is stated and shown: 

1. On December 4, 1947, pursuant to stipulation by 
the parties hereto, this Court set January 12, 1948, as the 
date for hearing of a motion by plaintiff for summary 
judgment. The foregoing motion by plaintiff, together 
with supporting and related papers have been served upon 
the defendants. In such supporting papers plaintiff quotes 
at great length from the case of Susan J. Carter, 9 T. C. 
No. 54, promulgated September 17, 1947. Plaintiff places 
her principal [60] reliance on the Carter case and states 
the Tax Court decided the issue here involved ". . . on 
facts very similar to those involved in the instant case". 



vs. Agnes F. Smith 43 

2. Subsequent to the above date of December 4, 1947, 
it lias been ascertained that the Chief Counsel for the 
Bureau of Internal Revenue approved a recommendation 
that the Commissioner of Internal Revenue nonacquiesce 
in the above Carter decision and that such case be appealed 
from the Tax Court to the Second Circuit Court of Ap- 
peals. It is most Hkely that the Department of Justice 
will likewise concur in the foregoing recommendation and 
promptly prosecute an appeal to the Second Circuit with 
respect to the above Carter decision. 

3. Defendants represent that the facts in the Carter 
case are stronger in favor of the taxpayer than are the 
facts here involved in favor of the instant taxpayer. 
Under these circumstances it would necessarily follow that 
if the Second Circuit decides the proposed Carter appeal 
in the Government's favor, the issues raised by the instant 
plaintiff's motion for summary judgment should a fortiori 
be decided in favor of the above defendants. In the inter- 
est of conserving the time of both the Court and counsel, 
the motion by plaintiff for summary judgment should be 
taken off calendar or otherwise held in abeyance pending 
a decision by the Second Circuit on the proposed Carter 
appeal involving facts conceded by plaintiff to be very 
similiar to those here involved. 

4. If the foregoing motion to take plaintiff's motion 
oft" calendar is not granted, the above defendants request 
the Court to grant the counter-motion above mentioned. 
It is understood that plaintiff will endeavor to present at 
the hearing of her above motion on January 12. 1948, all 



I 



44 Harry C. Westover, etc. ij 

the material facts herein. If all material facts are pre- -j 
sented, defendants submit that such facts will support a 

motion for summary judgment in favor of defendants ! 

rather than a motion for such judgment in favor of the | 

plaintiff. j 

5. Under Rule 3 of the Local Rules of this Court, \ 

defendants will be required to serve a statement of reasons \ 

in opposition to plaintiff's above motion and an answering I 

memorandum of points and authorities and file such state- , 

ment and answering memorandum and it is requested that I 

the foregoing statement and memorandum be considered j 
to also serve the purpose of constituting [61] the state- 
ment of reasons in support of the above counter-motion 
and the memorandum of points and authorities supporting 
such counter-motion. 

Dated: December 31, 1947. 

JAMES M. CARTER 

United States Attorney 

E. H. MITCHELL and 
GEORGE M. BRYANT 
Assistant United States 
Attorneys 

EUGENE HARPOLE and 
LOREN P. OAKES 
Special Attorneys 
Bureau of Internal Revenue 
By Loren P. Oakes 
Attorneys for Defendants. [62] 

[Affidavit of Service by Mail] 

[Endorsed] : Filed Dec. 31, 1947. Edmund L. Smith, 
Clerk. [63] 



vs. Agnes F. Smith 45 

[Title of District Court and Cause] 

ORDER DENYING DEFENDANTS' MOTION TO 
TAKE PLAINTIFF'S MOTION FOR SUM- 
MARY JUDGMENT OFF CALENDAR 

The above named case coming on this 12th day of 
January, 1948 to be heard on motion of Plaintiff for 
Summary Judgment and on motion of defendants to take 
Plaintiff's Motion off calendar and in the alternative for 
Summary Judgment, and Counsel being heard for the 
respective parties; 

It Is Hereby Ordered That: 

Defendants' Motion to take off calendar Plaintiff's 
Motion for Summary Judgment be, and the same hereby 
is overruled and denied. 

WM. C. MATHES, 

United States District Judge 

The above Order approved as to form this 22 day of 
January, 1948. James M. Carter, United States Attorney; 
E. H. Mitchell and George M. Bryant, Asst. U. S. Attys. ; 
Eugene Harpole, Special Atty. Bureau of Internal Rev- 
enue; by Eugene Harpole. 

[Endorsed] : Filed Jan. 26, 1948. Edmund L. Smith, 
Clerk. [106] 



46 Harry C. Westover, etc. 

[Title of District Court and Cause] 

ORDER ON MOTIONS FOR SUMMARY 
JUDGMENT 
This cause having heretofore come before the court for 
hearing on the motion of plaintiff for summary judgment 
and the motion of defendants for summary judgment; 
and the motions having been heard and submitted for 
decision; and it appearing to the court: 

(a) that there is no genuine issue as to any ma- 
terial fact involved in this cause; 

(b) that the facts alleged in plaintiff's complaint 
are true; 

(c) that no reason appears which would warrant 
the court in disregarding the separate corporate entity 
of Quickwork Company in determining the income 
tax liability of plaintiff in [142] controversy [Moline 
Properties Inc. v. Commissioner, 319 U. S. 436 
(1943); Rogan v. Starr Piano Co., 139 F. (2d) 671 
(C. C A. 9th, 1943)]; 

(d) that the Whiting Corporation contract was 
received by plaintiff in exchange for plaintiff's stock 
[a capital asset] upon the liquidation of Quickwork 
Company in 1940, and the contract had no ascertain- 
able fair market value at the time of the exchange 
[See I. R. C. § 111 (b)]; 

(e) that since the property [Whiting Corporation 
contract] received by plaintiff upon liquidation had 
no ascertainable fair market value, the transaction 
[liquidation of Quickwork] was not closed at the time 
of the exchange in 1940 [Burnet v. Logan, 283 U. S. 
404 (1931); Commissioner of Internal Revenue v. 
Hopkinson, 126 F. (2d) 406 (C. C. A. 2d, 1942); 
United States v. Yerger, 55 Fed. Supp. 521 (E. D. 
Pa., 1944); Susan J. Carter, 9 T. C. 364 (1947)]; 



vs. Agnes F. Smith 47 

(f) that payments subsequently received by plain- 
tiff under the Whiting Corporation contract, as al- 
leged in the complaint, were accordingly "amounts 
distributed in complete liquidation" of the Quick- 
work Company within the meaning of I. R. C. § 
115 (c), in exchange for capital assets [Quickwork 
stock] held by plaintiff for more than six months; 
hence such payments are taxable to plaintiff as "long 
term capital gain" pursuant to I. R. C. § 117 (a) (4) 
[Burnet v. Logan, supra, 283 U. S. 404 (1931); 
Susan J. Carter, supra, 9 T. C 364 (1947)] ; and 

(g) that plaintiff is therefore entitled, as a matter 
of law, to judgment against defendants as [143] 
prayed for in the complaint; 

It Is Now Ordered: 

(1) that plaintiff's motion for summary judgment 
against defendants, as prayed for in the complaint, 
be and is hereby granted; 

(2) that defendants' motion for summary judg- 
ment be and is hereby denied; and 

(3) counsel for plaintiff' are directed to submit 
judgment accordingly — and findings of fact and con- 
clusions of law if so advised [See Rule 52 (a) 
F R. C. P., as amended March 19, 1948]— pursuant 
to local rule 7 within 10 days. 

It Is Further Ordered that the Clerk this day forward 
copies of this order by United States mail to the attorneys 
for the parties appearing in this cause. 
May 18, 1948. 

WM. C. MATHES 

United States District Judge 

[Endorsed]: Filed May 18, 1948. Edmund L. Smith. 
Clerk. [144] 



48 Harry C. Westover, etc. 

In the District Court of the United States 

Southern District of California 

Central Division 

No. 7476-WM 

AGNES F. SMITH, 

Plaintiff, 

vs. 

HARRY C. WESTOVER, UNITED STATES 
COLLECTOR OF INTERNAL REVENUE, 
SIXTH DISTRICT OF CALIFORNIA, and 
UNITED STATES OF AMERICA, 

Defendants. 
JUDGMENT 

This cause having heretofore come before the court for 
hearing on the motion of plaintiff for summary judgment 
and the motion of defendants for summary judgment; and 
the motions having been heard and submitted for decision ; 
and the court having heretofore entered its order on May 
18, 1948, granting plaintiff's motion for summary judg- 
ment and denying defendants' motion for summary judg- 
ment: 

It Is Hereby Ordered, Adjudged and Decreed that 
plaintiff do have and recover of and from the defendant. 
United States of America 

(1) The sum of $9,149.97 with respect to the tax 
year 1941 plus interest at the rate of six per cent per 
annum on the following amounts from the following 



vs. Agnes P. Smith 49 

dates in accordance with the provisions of Section 177 
of the [145 J Judicial Code (28 U. S. C. A. Section 
284) : afi4 computed to ^hi^ dates provided m saki 
Gcctiono : | Mathes, J.] 

Amounts Interest from 

$152.89 August 18, 1943 

$998.80 December 12, 1942 

$5,638.00 September 19, 1942 

$2,360.28 June 20, 1942 

(2) The sum of $19,927.20 with respect to the tax 
year 1943 plus interest at the rate of six per cent per 
annum on said amount from March 15, 1944, in 
accordance with the provisions of Section 177 of the 
Judicial Code (28 U. S. C. A. Section 284): aH4 
ee mputcd to the dates provided m sai4 section : 
[Mathes, J.] 

It Is Hereby Further Ordered, Adjudged and Decreed 
that plaintiff do have and recover of and from defendant, 
Harry C. Westover, the sum of $9,038.45 with respect to 
the tax year 1943 plus interest at the rate of six per cent 
per annum on the following amounts from the following 
dates in accordance with the provisions of Section 177 
of the Judicial Code (28 U. S. C. A. Section 284) : aft4 
computed %e the dates provided m sei4 section : [Mathes, 

J-] 

Amounts Interest from 

$4,519.21 December 28, 1944 

$4,519.24 March 15, 1944 



50 Harry C. Westover, etc. 

It Is Further Ordered, Adjudged and Decreed in accor- 
dance with Rule 54 (c) F. R. C. P., that Paragraph (a) 
of the prayer in plaintiff's complaint in this action be 
amended by striking therefrom the figures $28,068.61 and 
inserting in lieu thereof the figures $29,077.17, the latter 
figure being the correct figure [146] and being supported 
by the pleadings in this case. 

Dated: May 28, 1948. 

WM. C. MATHES 

United States District Judge 

The foregoing Judgment approved as to form: May 
26, 1948. James M. Carter, United States Attorney; 
E. H. Mitchell and George M. Bryant, Assistant U. S. 
Attorneys; Eugene Harpole, Special Attorney Bureau of 
Internal Revenue; by George M. Bryant, Attorneys for 
Defendants. 

Judgment entered May 28, 1948. Docketed May 28, 
1948. C. O. Book 51, page 60. Edmund L. Smith, Clerk; 
by Louis J. Somers, Deputy. 

[Endorsed] : Filed May 28, 1948. Edmund L. Smith, 
Clerk. [147] 



vs. Agnes F. Smith 51 

[Title of District Court and Cause] 

NOTICE OF APPEAL 

Notice Is Hereby Given that Harry C. Westover, United 
States Collector of Internal Revenue, Sixth Collection 
District of California, and the United States of America, 
defendants herein, each hereby appeal to the Ninth Circuit 
Court of Appeals from the order denying defendants' 
motion for summary judgment and granting plaintiff's 
motion for summary judgment entered by this Court on 
May 18, 1948, and from the final judgment of this Court 
entered on May 28, 1948, in favor of the plaintiff and 
against both the defendants herein for the sum of 
$37,107.96, plus interest. 

Dated: July 13, 1948. 

JAMES M. CARTER 

United States Attorney 
E. H. MITCHELL and 
GEORGE M. BRYANT 

Assistant United States 
Attorneys 

EUGENE HARPOLE, 
Special Attorney 
Bureau of Internal Revenue 

By Eugene Harpole 

Attorneys for Defendants 

[Endorsed] : Filed & mid. copy to Gibson, Dunn & 
Crutcher Jul. 14, 1948. Edmund L. Smith, Clerk. [150] 



52 Harry C. Westover, etc. 

[Title of District Court and Cause] 

CERTIFICATE OF CLERK 

I, Edmund L. Smith, Clerk of the District Court of 
the United States for the Southern District of CaHfornia, 
do hereby certify that the foregoing pages numbered from 
1 to 152, inclusive, contain full, true and correct copies of 
Complaint to Recover Over-Payment of Federal Income 
Tax; Stipulation and Order For Extension of Time to 
Answer or Otherwise Plead; Answer to Plaintiff's Com- 
plaint; Stipulation and Order To Take Case Off Pre- 
Trial Hearing Calendar and to Set Case for Hearing on 
Alotion for Summary Judgment; Order Extending Time; 
Notice of and Plaintiff's Motion for Summary Judgment 
with Affidavit, Exhibits and Points and Authorities in 
Support ; Motion by Defendants to Take Off The Calendar 
Plaintiff's Motion for Summary Judgment and in the 
Alternative Counter-Motion by Defendants for Summary 
Judgment; Notice of Motion to Take Off' Calendar etc.; 
Plaintiff's Memorandum of Reasons, Points and Authori- 
ties in Opposition to Defendants' Motion to Take Off 
Calendar Plaintiff's Motion for Summary Judgment; 
Written Statement of Reasons in Opposition to Plaintiff's 
Motion for Summary Judgment and Memorandum of 
Points and Authorities Answering Such Motion by Plain- 
tiff and Also Supporting Countermotion by Defendants 
for Summary Judgment; Plaintiff's Reply Memorandum 
Concerning Her Motion for Summary Judgment; Plain- 
tiff's Memorandum Concerning Question of Whether or 
Not Plaintiff Stands in the Shoes of her Corporation, the 



vs. Agnes F. Smith 53 

Quick- Work Company, for the Purpose of Computing the 
Income Tax Resulting to her from the Liquidation of said 
Company; Order Denying Defendants' Motion to Take 
Plaintiff's Motion for Summary Judgment Off Calendar; 
Stipulation and Order re Briefs; Supplemental Brief for 
Defendants; Brief in Reply to Defendant's Supplemental 
Brief; Order on Motion for Summary Judgment; Judg- 
ment; Certificate of Probable Cause; Notice of Entry of 
Judgment; Notice of Appeal and Designation of Record 
on Appeal which constitute the record on appeal to the 
United States Circuit Court of Appeals for the Ninth 
Circuit. 

Witness my hand and the seal of said District Court 
this 9 day of August, A.D. 1948. 

(Seal) EDMUND L. SMITH 

Clerk 
By Theodore Hocke 

Chief Deputy 



[Endorsed] : No. 12019. United States Circuit Court 
of Appeals for the Ninth Circuit. Harry C. Westover, 
United States Collector of Internal Revenue, Sixth Col- 
lection District of California, and United States of 
America, Appellants, vs. Agnes F. Smith, Appellee. 
Transcript of Record. Upon Appeal From the District 
Court of the United States for the Southern District of 
California, Central Division. 

Filed August 12, 1948. 

PAUL P. O'BRIEN 
Clerk of the United States Circuit Court of Appeals for 
the Ninth Circuit 



54 Harry C. Westover, etc. 

In the United States Circuit Court of Appeals 
for the Ninth Circuit 

No. 12019 

HARRY C. WESTOVER, Collector of Internal Revenue 
for the Sixth District of California, and UNITED 
STATES OF AMERICA, 

Appellants, 
vs. 
AGNES F. SMITH, 

Appellee. 

APPELLANTS' STATEMENT OF POINTS TO BE 
RELIED UPON ON APPEAL 

To: Agnes F, Smith and Gibson, Dunn & Crutcher, her 
attorneys : 

You and Each of You will please take notice under the 
provisions of subsection (6) of Rule 19 of the Rules of 
Practice of the United States Circuit Court of Appeals 
for the Ninth Circuit that the Appellants intend to rely 
upon the following points in their appeal in the above 
entitled case: 

1. The District Court erred in granting appellee's mo- 
tion for a summary judgment and in awarding judg- 
ment in favor of the appellee and against these ap- 
pellants in the amount of $37,107.96, plus interest. 

2. The District Court erred in denying appellants' mo- 
tion for a summary judgment. 

3. The District Court erred in finding, holding and 
concluding that the pleadings, motions and affidavits 
established that payments received by appellee dur- 
ing the calendar years 1941 and 1943 from the 
Whiting Corporation pursuant to a contract between 
the Quickwork Corporation and the Whiting Cor- 



vs. Agnes F. Smith 55 

poration which contract was assigned to appellee in 
1940, under a dissolution of the Quickwork Corpo- 
ration and in liquidation of said corporation and in 
exchange for stock in the Quickwork Corporation 
owned by the appellee, appellee being the sole stock- 
holder of Quickwork Corporation, constitute capital 
gains under Section 117, Internal Revenue Code, as 
contended by the appellee rather than ordinary in- 
come under Section 22(a), Internal Revenue Code, 
as contended by appellants. 
4. The pleadings, motions and affidavits in the record 
in the District Court establish that said payments 
were ordinary income to appellee and that the Com- 
missioner consequently correctly treated such pay- 
ments as ordinary income in the tax years involved 
rather than the proceeds derived from the sale or 
exchange of capital assets. 

Dated: This 11th day of August, 1948. 

JAMES M. CARTER— E.H. 

United States Attorney 
E. H. MITCHELL— E.H. 

Assistant United States Attorney 
GEORGE M. BRYANT— E.H. 

Assistant United States Attorney 
EUGENE HARPOLE 

Special Attorney 

Bureau of Internal Revenue 

Attorneys for Appellants 

Received copy of the within Appellants' Statement of 
Points to Be Relied Upon on Appeal this 11 day of 
August, 1948. By Bert A. Lewis, Attorneys for Appellee. 

I Endorsed]: Filed Aug. 13, 1948. Paul P. O'Brien, 
Clerk. 



No. 12019 
IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



Harry C. Westover, United States Collector of Internal 

Revenue, Sixth Collection District of California, and 

United States of America, 

Appellants, 

vs. 

Agnes F. Smith, 

Appellee. 

Appeal From the District Court of the United States 
for the Southern District of California, 



BRIEF FOR THE APPELLANTS. 



Theron Lamar Caudle, 

Assistant Attorney General. 

Ellis N. Slack, 
Robert N. Anderson, 
Homer R. Miller, 
Special Assistants to the Attorney General. 

James M. Carter, 

United States Attorney. 

George M. Bryant, 
Assistant United States Attorney. 

Edward H. Mitchell, 

Assistant Unitc<i States Attorney. 

Parker & Company, Law Priatars, Los Angeles. Phone TR. 5206. 



ii < 



1 



f ! 



TOPICAL INDEX. 

PAGE 

Opinion below 1 

Jurisdiction 1 

Question presented 2 

Statute and regulations involved 3 

Statement : 3 

Statement of point to be urged 5 

Summary of argument 6 

Argument 7 

The income received from the contracts in 1941 and 1943 did 
not arise from the sale or exchange of capital assets and 
therefore constituted ordinary income and not capital 

gains 7 

Conclusion 19 



INDEX TO APPENDIX. 

PAGE 

Internal Revenue Code, Sec. 22 (26 U. S. C, 1946 ed., Sec. 

22) 1 

Internal Revenue Code, Sec. 29.111-1 4 

Internal Revenue Code, Sec. 29.115-5 4 

Internal Revenue Code, Sec. Ill (26 U. S. C, 1946 ed.. Sec. 

111) 1 

Internal Revenue Code, Sec. 112 (26 U. S. C, 1946 ed., Sec. 

112) 2 

Internal Revenue Code, Sec. 115 (26 U. S. C, 1946 ed.. Sec. 

115) 2 

Internal Revenue Code, Sec. 117 (26 U. S. C, 1946 ed.. Sec. 
117) 3 

Treasury Regulations 103, Sec. 19.111-1 4 

Treasury Regulations 103, Sec. 19.115-5 4 



TABLE OF AUTHORITIES CITED. 

Cases. page 

Bedell v. Commissioner, 30 F. 2d 622 18 

Blum V. Helvering, 74 F. 2d 482 IS 

Boudreau v. Commissioner, 134 F. 2d 360 15, 18 

Brown v. Commissioner, 26 B. T. A. 781 ; affd., 69 F. 2d 863 ; 

cert, den., 293 U. S. 579 12 

Burnet v. Logan, 283 U. S. 404 10, 11, 16, 17 

Carter v. Commissioner, 9 T. C. 364 9, 16 

Citizens State Bank of Barstow, Tex. v. Vidal, 114 F. 2d 380.... 13 
City and County of San Francisco v. United States, 106 F. 2d 

569 13 

Commissioner v. Hopkinson, 126 F. 2d 406 16, 17 

Commissioner v. Union Pac. R. Co., 86 F. 2d 637 18 

Esperson v. Commissioner, 127 F. 2d 370 15 

Fairbanks v. United States, 306 U. S. 436 8 

Fleming v. Commissioner, 153 F. 2d 361 15, 16 

Gould V. Gould, 245 U. S. 151 12 

Hale V. Helvering, 85 F. 2d 819 8 

Haynes v. United States, 50 F. Supp. 238 16 

Helvering v. Flaccus Leather Co., 313 U. S. 247 8 

Helvering v. Weaver Co., 305 U. S. 293 9 

Hoyd V. Citizens Bank of Albany Co., 89 F. 2d 105 13 

Imperial Type Metal Co. v. Commissioner, 106 F. 2d 302 16 

Kieselbach v. Commissioner, 317 U. S. 399 8, 14 

Levy V. Commissioner, 131 F. 2d 544 13 

Moore v. Thomas, 131 F. 2d 611 15 

Mount V. Commissioner, 48 F. 2d 550 16 

Nicholson v. Commissioner, 3 T. C. 596 16 

Penn v. Robertson, 115 F. 2d 167 15 

Puelicher v. Commissioner, 6 T. C. 300 14 



PAGE 

Samet v. Farmers' & Merchants' Nat. Bank, 247 Fed. 669 13 

Tri-Lakes S. S. Co. v. Commissioner, 146 F. 2d 970 13 

Tsivoglou V. United States, 27 F. 2d 564; affd., 31 F. 2d 706 16 

United States v. Merriam, 263 U. S. 179 12 

White V. United States, 305 U. S. 281 9 

Statute. 

Internal Revenue Code : 

Sec. 22 (26 U. S. C, 1946 ed.. Sec. 22) 7, 18 

Sec. Ill (26 U. S. C, 1946 ed., Sec. Ill) 6, 9, 11, 12, 13 

Sec. 112 (26 U. S. C, 1946 ed., Sec. 112) 9 

Sec. 115 (26 U. S. C, 1946 ed., Sec. 115) 3, 6, 8, 9. 11, 17 

Sec. 117 (26 U. S. C, 1946 ed., Sec. 117) 3, 6, 8, 9, 11 

MlSCEIvLANEOUS. 

1 Mertens, Law of Federal Income Taxation, Sec. 5.07 12 



No. 12019 
IN THE 



United States Couirt of Appeals 



FOR THE NINTH CIRCUIT 



Harry C. Westover, United States Collector of Internal 
Revenue, Sixth Collection District of California, and 
United States of America, 

Appellants, 
vs, 
Agnes F. Smith, 

Appellee. 



BRIEF FOR THE APPELLANTS. 



Opinion Below. 

The District Court wrote no opinion. 

Jurisdiction. 

This is an appeal from a judgment in favor of the tax- 
payer for the refund of income taxes for the years 1941 
and 1943, in the amount of $38,115.62, plus interest. 
Within the time allowed by law a claim for refund for 
1941 was filed with the Collector of Internal Revenue for 
the Tenth District of Ohio [R. 7], and a claim for 1943 
was also filed within time with the appellant Collector 
[R. 10]. The Commissioner notified taxpayer by regis- 
tered mail of the disallowance of these claims on June 11, 
1947 [R. 8], and June 10, 1947 [R. 10], respectively. 



— 2- 

This action was commenced in the District Court on 
August 11, 1947 [R. 28], within two years after the 
Commissioner's notice of disallowance of both claims, in 
conformity with the provisions of Section 3772(a)(2), 
Internal Revenue Code. 

The taxes for 1941 were paid to the Ohio Collector who 
has been out of office since January 1, 1944 [R. 6-7]. The 
taxes for 1943 were in part paid to the Ohio Collector 
[R. 9], and in part to the appellant Collector, the latter 
being in office on the date of this suit [R. 11]. 

The District Court had jurisdiction under Section 24, 
Twentieth, of the Judicial Code even though the amount 
sued for exceeded $10,000. Taxpayer filed a motion for 
summary judgment [R. 35] which was sustained by the 
District Court [R. 46-47]. Judgment of the District 
Court was entered May 28, 1948 [R. 48-50]. Notice of 
appeal was fixed within sixty days thereafter on July 14, 
1948 [R. 51]. This Court has jurisdiction under the 
provisions of 28 U. S. C, Section 1291. 

Question Presented. 

In 1940 Quickwork Company in its dissolution and 
liquidation transferred to taxpayer, its sole stockholder, 
in exchange for her stock in the corporation, all of its 
assets including assets of a determinable value and a con- 
tractual right to receive from the Whiting Corporation 
certain payments, the amount of which depended on certain 
gross sales thereafter made by Whiting. The fair market 
value of this right on the date of its receipt by taxpayer 
was not ascertainable though it was recognized to be of 
substantial value. The question presented is whether pay- 
ments received by taxpayer from this right in subsequent 



years, which were in excess of the adjusted basis of tax- 
payer's stock previously recovered, were taxable to her as 
ordinary income or constituted capital gains under Sections 
115(c) and 117(a)(4), Internal Revenue Code. 

Statute and Regulations Involved. 

The pertinent statute and Regulations are set forth in 
the Appendix, infra. 

Statement. 

Taxpayer brought this action to recover income taxes 
for 1941 and 1943, in the sum of $37,107.96, plus interest 
[R. 2-11]. The answer admitted most of the material 
allegations of the complaint aside from legal conclusions 
[R. 29-32]. The taxpayer filed a motion for summary 
judgment based on the facts as admitted by the pleadings 
or as supported by an affidavit as to the allegations which 
were denied [R. 35-41]. The Court granted taxpayer's 
motion for a summary judgment and entered judgment 
accordingly [R. 46-50]. 

The undisputed facts pertinent to this controversy as 
admitted by the pleadings or as set out in taxpayer's affi- 
davit may be briefly summarized as follows : 

The Quickwork Company was an Ohio corporation en- 
gaged in the manufacture and sale of certain machine 
tools consisting principally of various types of rotary 
shears. It owned patents and drawings covering the manu- 
facture of such machines and in addition to the manufac- 
ture and sale thereof had licensed other companies to 
manufacture similar machines on a royalty basis. In 
1933, taxpayer acquired all of Quickwork's outstanding 
stock which she continued to own up to the date of the 
liquidation of the corporation in 1940 [R. 2-3]. 



On May 31, 1940, Quickwork entered into an agreement 
with Whiting Corporation for the sale to the latter of all 
of its assets, exclusive of cash and miscellaneous items. 
The agreement provided that Whiting should pay in con- 
sideration for the assets $15,000 in cash, certain fixed 
amounts of a minor nature and 10% of the gross sales 
price to Whiting on all machinery and equipment there- 
after developed and manufactured by it as a result of 
acquiring the machinery, patents and patterns of Quick- 
work. The obligation to make these payments on a per- 
centage basis was to continue in any event until May 31, 
1950, and thereafter during the lifetime of taxpayer, who 
was 57 years of age on the date of the agreement [R. 3]. 

For many years the annual sales of Quickwork had been 
substantial and both parties realized that the impending 
war would be likely to increase considerably the demand 
for and sales of the Quickwork line [R. 36-37]. While 
the parties realized the agreement to pay the 10% based 
on gross sales had a substantial value, there was no way 
of ascertaining the measure of the value at the time of the 
sale "and said agreement then had no ascertainable fair 
market value" [R. 4]. 

Shortly after May 31, 1940, pursuant to the contract, 
Quickwork transferred and delivered by bill of sale to 
Whiting complete title to the assets described in the agree- 
ment and thereupon ceased to have any interest in such 
assets. Shortly thereafter, Quickwork decided to liquidate 
and dissolve. Under date of August 24, 1940, it trans- 
ferred to taxpayer by a bill of sale and assignment all of 
its assets of whatsoever nature including its rights against 
Whiting under the agreement of May 31, 1940, in com- 
plete liquidation and cancellation of all of its outstanding 
stock which was then owned solely by taxpayer who sur- 
rendered her stock for cancellation and retirement, after 



which it was cancelled and retired without later being re- 
issued. In due course thereafter, Quickwork was dis- 
solved [R. 4-5]. 

The adjusted basis of taxpayer's stock on the date of 
liquidation was $34,000. She received in final liquidation 
assets of the total value of $39,204.26, exclusive of the 
right to the percentage payments under the agreement 
between Quickwork and Whiting. At the time of its re- 
ceipt by taxpayer, the contractual right had a very sub- 
stantial value. However, there was no way of ascertaining 
the measure of the value and therefore it had no ascertain- 
able fair market value. Because of this no value was as- 
signed to it in determining the amount of taxpayer's capi- 
tal gain upon said liquidation [R. 5]. 

In 1941, taxpayer received as percentage payments from 
Whiting under the contract $37,231.68, which she reported 
in her federal income tax return for that year as ordinary 
income and paid a tax thereon [R. 6]. In 1943, she re- 
ceived further percentage payments under the contract in 
the sum of $65,412.64, which she likewise reported as ordi- 
nary income and paid a tax thereon [R. 8]. Taxpayer 
alleges her treatment of these items as ordinary income 
was erroneous and that they represented capital gains 
realized by taxpayer on the exchange of her stock in 
Quickwork in complete liquidation of that company [R. 7, 
9-10]. 

Statement of Point to Be Urged. 

The District Court erred in sustaining taxpayer's mo- 
tion for summary judgment and in finding and holding 
that the amounts received in 1941 and 1943, on the as- 
signed contractual right, were amounts received in com- 
plete liquidation of Quickwork and that they should be 
treated as capital gains rather than ordinary income. 



Summary of Argument. 

The assets distributed to taxpayer under the complete 
liquidation of Quickwork are treated under Section 
115(c), Internal Revenue Code, as being received in full 
exchange for her stock. These assets here consisted of 
money and property of fixed value plus a contractual right 
of substantial but unascertainable value. 

The gain on the exchange (which is a capital gain under 
Section 117(a)(4), Internal Revenue Code) is measured 
under Section lll(a)(b) and Section 115(c), Internal 
Revenue Code, by the difference between the value of the 
money and property received and the adjusted basis of 
taxpayer's stock. 

Taxpayer's capital gain on the transaction was realized 
in 1940, the money and the property being in excess of the 
adjusted basis of her stock without considering the con- 
tractual right. Since it was impossible to value the con- 
tractual right its value was correctly reported as zero and 
taxpayer realized capital gain to the extent of the value 
of the property received above the basis of the stock. The 
sums received in later years were not received in exchange 
for taxpayer's stock but were derived from the contractual 
obligation and not being received from the sale or ex- 
change of capital assets they constituted ordinary income 
rather than capital gains. 

The decision of the court below was therefore incorrect 
in treating the amounts received under the contract as 
being amounts distributed in complete liquidation and thus 
capital gains. They were ordinary income derived from 
the contract regardless of the value or lack of value of the 
contract when received. 



— 7— 

ARGUMENT. 

The Income Received From the Contracts in 1941 and 
1943 Did Not Arise From the Sale or Exchange 
of Capital Assets and Therefore Constituted Ordi- 
nary Income and Not Capital Gains. 

In August, 1940, taxpayer, the sole owner of the stock 
of Quickwork Company, received all of the assets of that 
company in complete liquidation in exchange for her stock. 
The adjusted basis of her stock was $34,000, and the cash 
and assets that could be valued at the time were worth 
$39,204.26. Besides these assets taxpayer received abso- 
lutely a contractual right under a contract entered into 
between Quickwork and the Whiting Corporation on May 
31, 1940, whereby she became entitled to receive 10% of 
Whiting's gross sales prices less certain taxes and com- 
missions on all machinery or equipment (with some ex- 
ceptions) thereafter sold by Whiting and which were de- 
veloped and manufactured by Whiting or upon its order 
as a result of the acquisition of various articles referred 
to in the contract [R. 16]. Both Whiting and Quickwork 
recognized the contractual right as having a substantial 
value [R. 4]. This was also recognized by taxpayer on 
the date of its distribution to her by Quickwork [R, 5]. 
However, there were no means of ascertaining its fair 
market value at that time and consequently in her income 
tax return for 1940, taxpayer assigned it no value in de- 
termining the capital gain on the liquidation and reported 
capital gain of only $5,204.26. 

In 1941 and 1943, taxpayer received from Whiting 
payments pursuant to this contractual right in the respec- 
tive amounts of $37,231.68 and $65,412.64 [R. 6, 8]. The 
controversy here is over whether these payments are ordi- 
nary income under Section 22(a), Internal Revenue Code 



(Appendix, infra), and reportable in full or capital gains 
so that taxpayer may take into account only the percent- 
ages set forth in Section 117(b), Internal Revenue Code 
(Appendix, infra). 

It is our position that the sums are not capital gains 
because taxpayer did not receive them as property dis- 
tributed in liquidation of Quickwork in exchange for her 
stock and consequently they did not arise from the sale 
or exchange of capital assets. She did not receive the pay- 
ments from or through Quickwork but from Whiting 
under the contractual right which had been previously 
received by taxpayer in liquidation of her corporation. 
Taxpayer here is not entitled to treat the payments as 
capital gains in 1941 and 1943, because they were not in 
fact capital gains from the sale or exchange of a capital 
asset as defined in Section 117(a)(1) (4), Internal Reve- 
nue Code (Appendix, infra), but were ordinary income 
arising from a contract. The contractual right had not 
been sold or exchanged. In considering this problem we 
mention briefly several legal principles involved which are 
well settled and not in serious dispute between the parties : 

1. The term "capital gains" is expressly made to apply 
only to gains from the sale or exchange of capital assets. 
Section 117(a)(4); Helvering v. Flaccus Leather Co., 
313 U. S. 247; Fairbanks v. United States, 306 U. S. 436; 
Kieselbach v. Commissioner, 317 U. S. 399; Hale v. Hel- 
vering, 85 F. 2d 819 (App. D. C). Where it does not 
arise from the sale or exchange of a capital asset gain 
must be reported as ordinary income. Fairbanks v. United 
States, supra. 

2. Under Section 115(c), Internal Revenue Code (Ap- 
pendix, infra), taxpayer is entitled to treat a distribution 
in complete liquidation as property received in full ex- 



— ^- 

chang-e for her stock, and is entitled to apply the capital 
j^ains provisions in determining gain or loss on her stock 
on the theory there has been an exchange of her stock for 
assets. Helvering v. Weaver Co., 305 U. S. 293; White 
V. United States, 305 U. S. 281. 

3. Under Section 115(c), gain on a complete liquida- 
tion is determined under Section 111, Internal Revenue 
Code (Appendix, infra), and recognized to the extent pro- 
vided under Section 112, Internal Revenue Code (Appen- 
dix, infra). It is conceded that none of the exceptions in 
Section 112 are here applicable so that the entire gain must 
be recognized subject to Section 117(b). Under Section 
111 (a) and (b), Internal Revenue Code (Appendix, 
infra), the amount of gain realized is the sum of money 
received plus the fair market value of property other than 
money received, less the adjusted basis of the stock. It is 
not disputed that the sums received were in excess of the 
basis of the stock and constituted taxable income. 

The problem here seems to hinge on v^hether the pay- 
ments involved were in fact property or money received 
as a distribution in exchange for taxpayer's stock as de- 
fined in Section 111(b), or were derived from property so 
received. 

The lower court held that the payments of $37,231.68 
and $65,412.64 were amounts received in exchange for the 
stock. In reaching its decision the court relied strongly 
on Carter v. Commissioner, 9 T. C. 364, (pending on 
appeal in the Court of Appeals for Second Circuit).^ The 
facts in that case are so similar to those here involved that 
the cases are probably indistinguishable. However, we 



^That case has been argued on appeal but was undecided at the 
time of writing this brief. 



i 



contend that the decision is incorrect and that the Tax 
Court erred in its view that the decision in Burnet v. 
Logan, 283 U. S. 404, required that the payments there 
involved must be treated as part payment in exchange for 
the stock. 

In the Logan case, supra, the taxpayer sold her stock for 
cash plus a contractual right given her by the purchaser 
to receive unascertainable amounts payable annually based 
on future production of iron ore. The Court held that the 
future royalties did not constitute taxable income in the 
years actually received because taxpayer had not yet re- 
covered her capital investment in the stock and in deter- 
mining whether the basis had been recovered refused to 
value the contractual right because of its speculative value. 
The Court took the position that this sale was not a closed 
transaction in the year title to the stock passed because of 
the contingent payments to be received in the future. 

Some of the distinguishing features between that case j; 
and the case at bar are : 

1. The transaction there involved was a sale rather 
than an exchange as here involved. This was emphasized 
by the Court in its opinion (p. 412). 

2. In the case at bar taxpayer had recovered the basis 
of her stock in 1940 prior to the tax years involved while 
there the basis had not been recovered in the tax years and 
it was held no taxable income arose until such recovery 
took place. 

3. There the future payments were due and owing 
from the purchaser under a promisor-promisee relation- 
ship. Here there is no such relationship, taxpayer having 
received the right in exchange for her stock, which right 
vva5 clearly a property right enforceable against another 



* 



—11— 

company effective from the date of its assignment and one 
which taxpayer could enforce without reference to Quick- 
work. 

4. In the Logan case, supra, there were grounds for 
considering the transaction still open, which grounds do 
not exist in the instant litigation. The purchaser there 
was required to make contingent payments over future 
periods pursuant to the contract. Here, Quickwork Com- 
pany, in exchange for an absolute transfer of the stock, 
assigned unconditionally all of its assets including the con- 
tractual right and immediately thereafter dissolved. It 
had no further interest or connection with the contractual 
right and as between Quickwork and taxpayer the trans- 
action was fully and completely closed. 

5. The Logan case did not involve the provisions of 
Section 117 (a) and (b), Internal Revenue Code, or simi- 
lar provisions of Revenue Acts. The Court there did not 
construe the capital gains provisions of the statutes, and 
its holding is not inconsistent with treating the contractual 
right as property under Section 111(b). It was not a 
question there of whether the sums involved were capital 
gains or ordinary income, but the question was whether 
they constituted taxable income at all. The Court held 
they did not because the capital investment had not been 
recovered. 

We submit that the Logan case is readily distinguishable 
from the case at bar. There is nothing in the Court's 
opinion to suggest that the income here realized in later 
years should be related back to the sale or exchange and 
valued at its face amount in determining the gain. Section 
111(b) clearly requires that the property shall be valued 
according to its fair market value when received. Further. 
Section 115(c) treats amounts distributed in complete 



—12— 

liquidation of a corporation as being in full payment in 
exchange for the stock.^ 

Taxpayer argues in effect that since the value of the 
contract could not be ascertained, she is entitled to treat 
the payments as in lieu of the "amount realized" as defined 
in Section 111(b). She contends that the payments may 
be treated as capital gains in 1941 and 1943, whereas the 
gain from her exchange of stock is clearly under the appli- 
cable law recognizable on the date the transaction was com- 
pleted, that is when the exchange was fully carried out 
which we submit was in 1940. We believe there is no 
warrant here for extending the provisions of the statutes 
beyond the clear import of the language used. Gould v. 
Gould, 245 U. S. 151 ; United States v. Merriam, 263 U. S. 
179. The exchange here was complete in 1940, and any 
gain on the stock was realized in that year. 

In the Logan case, supra, the Court stated (p. 412), 
"The 1916 transaction was a sale of stock — ^not an ex- 
change of property." This statement indicates that a 
different conclusion might have been reached if there had 
been an exchange of stock under a complete liquidation 
of a corporation, the corporation distributing all of its 
assets including a contract to that taxpayer as was the 
situation here. We have shown that the Court there did 
not construe Section 111(b), Internal Revenue Code, or 



^It has been stated that the doctrine of the Logan case should be 
applied sparingly in order to accelerate the taxation of income rather 
than defer recognition of taxable gains. 1 Mertens, Law of Fed- 
eral Income Taxation, Sec. 5.07. See for example, Broztm v. 
Commissioners, 26 B. T. A. 781, affirmed, 69 F. 2d 863 (C. C. A. 
5th), certiorari denied, 293 U. S. 579, holding that where a taxpayer 
entered into a contract for the cutting of timber owned by her 
she was not entitled to recover her full investment on the value of 
the entire timber contract before reporting her liability for income 
tax on the profits derived from the timber cut and sold. 



—13— 

similar provisions of Revenue Acts providing that in de- 
termining gain in a sale or other disposition of property 
except an installment sale under Section 111(d), the 
amount realized shall be the sum of money received "plus 
the fair market value of the property (other than money) 
received." We therefore submit that the Logan case is not 
authority supporting taxpayer's position. 

It is clear that the contractual right here involved con- 
stituted "property" received by the taxpayer under the 
provisions of Section 111(b). The term when as here 
used broadly in the statute clearly includes obligations, 
rights and other intangibles as well as physical property. 
Citizens State Bank of Barstow, Tex., v. Vidal, 114 F. 
2d 380 (C. C. A. 10th). The term ''property" when so 
used extends to everything of value including easements, 
franchises, improvements and incorporeal hereditaments. 
Hoyd V. Citizens Bank of Albany Co., 89 F. 2d 105 
(C. C. A, 6th). It has been stated that the term "prop- 
erty" includes anything which has an exchangeable value 
or goods to make up a man's worth including any interest 
or estate which the law recognizes as of sufficient value for 
judicial recognition. Samet v. Farmers' & Mercliants' 
Nat. Bank, 247 Fed. 669 (C. C. A. 4th). It is well settled 
that it covers intangibles as well as tangibles. Levy v. 
Commissioner, 131 F. 2d 544 (C. C. A. 2d); Tri-Lakes 
S. S. Co. V. Commissioner, 146 F. 2d 970 (C. C. A. 6th) ; 
City and County of San Francisco v. United States, 106 
F. 2d 569 (C. C. A. 9th). 

It is clear that the taxpayer here received as "prop- 
erty" under Section 111(b), a contractual right which 
she did not sell or exchange, but continued to hold re- 
ceiving payments therefrom which did not arise from 



—14— 



I 



a sale or exchange of such right but as income from the j 
investment. Such payments were ordinary income rather j 
than capital gains. (Puelicher v. Commissioner, 6 T. C. J 
300; Kieselbach v. Commissioner, 317 U. S. 399.) \ 

The principles above stated are well illustrated by the 
Kieselbach case, supra. There the City of New York 
obtained title to that taxpayer's property under a con- 
demnation proceeding. Several years later the Supreme 
Court of New York entered a decree fixing the value of 
the property under which the taxpayer was entitled to 
receive its fair market value on the date of condemna- 
tion plus interest from that date. The title to the prop- 
erty vested in the City of New York on the date of the 
condemnation but payment was not received until after 
the decree. The Court held that the principal sum rep- 
resented proceeds from an involuntary sale of capital 
assets and should be treated as capital gains in so far 
as they exceeded the adjusted basis of the property. 
However, it held that the interest which was paid after 
title to the property had passed to the city constituted 
ordinary income as not being part of the sales price. Al- 
though it was argued that in common acceptation the 
interest received was in payment of the property sold, 
the Court refused to so construe it and held rather that 
it was a sum derived from a right which had already 
been acquired on account of the delay in payment which 
could not be treated as proceeds from the sale of a capital 
asset. Here, as there, the payments arose from a right 
which had already been acquired and not pursuant to a 



—15— 

sale or exchange.^ It would apparently be conceded here 
that if the right could have been valued in any given 
amount when received, it would have been includible in 
reporting capital gain in 1940 and in that case no ques- 
tion would have arisen as to the payments being ordinary 
income. It is obvious that the fact that the right had 
no ascertainable fair market value at the date of acquisi- 
tion cannot alter the provisions of the statute with re- 
spect to the computation of the capital gains from the 
exchange in that year. The only effect the value or lack 
of value of the property received has upon the computa- 
tion of the capital gains is with respect to determining 
the size or extent of such gains at the time of the ex- 
change. 

Income is determinable as at the close of a tax year 
without regard to subsequent events not then predictable 
or foreseeable. (Penn v. Robertson, 115 F. 2d 167, 175 
(C. C. A. 4th) ; Moore v. Thomas, 131 F. 2d 611 (C. C. 
A. 5th).) A taxpayer may not postpone the payment of 
taxes in order to ascertain the final outcome of the 
transaction out of which there arose a gain or loss. 
(Blum V. Helvcring, 74 F. 2d 482 (App. D. C.).) As 
the court stated in Boudrcau v. Commissioner, 134 F. 2d 
360, 361 (C. C. A. 5th): 

"Under the express provisions of the applicable 
statutes, when there is complete liquidation of a 
corporation, stockholders are accountable for the 



^See also Es person v. Commissioner, 127 F. 2d 370 (C. C. A. 
5th), holding that where a taxpayer under a conveyance of oil in- 
terests reserved an interest in the oil in place that the "in-oil" pay- 
ments did not constitute capital gain from the sale of capital assets 
but were receipts from income producing operations. See also 
Fleming v. Commissioner, 153 F. 2d 361, 363 (C. C. A. 5th); 
Boudreau v. Commissioner, 134 F. 2d 360 (C. C. A. 5th). 



—In- 
difference between the cost basis of their stock and 
the fair market value of the property received in ex- 
change for it." 



I 



And in Fleming v. Commissioner, 153 F. 2d 361, 363 

(C. C. A. 5th), the court stated — "The exchange is an ,; 

income-reaHzing event, and the fair market value of | 

the distributed assets must be determined." There is ! 

nothing in the statutes or in the rationale in the case of ': 

Burnet v. Logan, 283 U. S. 404, which would permit the ^: 

payments here in question to be treated as received under j: 

an exchange merely because the right from which they | 

were derived was not susceptible of valuation at the time ■ 

of its acquisition. If property received on an exchange ,: 

had no fair market value then no taxable gain or deducti- \ 

ble loss was realized. (Mount v. Commissioner, 48 F. 2d ;: 

550 (C. C. A. 2d) ; Tsivoglou v. United States, 27 F. 2d i; 

564 (Mass.), affirmed, 31 F. 2d 706 (C. C. A. 1st).) It :: 

would follow that if part of the property only can be 1 

valued the gain is measured only by the value of that ; 

portion. The value or lack of value of the right cer- ■■ 

tainly could not determine whether such right was re- i 

ceived under an exchange. !• 

The other cases relied upon by the Tax Court in Car- ; 
ter V. Commissioner, 9 T. C. 364, are readily distinguish- 
able on their facts. In the cases of Haynes v. United 
States, 50 F. Supp. 238 (C. Cls.) ; Nicholson v. Commis- ' 
sioner, 3 T. C. 596; Imperial Type Metal Co. v. Commis- : 
sioner, 106 F. 2d 302 (C. C. A. 3d); and Commissioner 
V. Hopkinson, 126 F. 2d 406 (C. C. A. 2d), the property 
involved was sold on the installment plan with the pur- 



—17— 

chase price to be discharged by future payments. It was 
held that payments of the purchase price collected in the 
future tax years were capital gains because they con- 
stituted gain from the sale or exchange of a capital asset. 
But the payments collected by the taxpayer here were, as 
we have already emphasized, not the result of a sale or 
exchange of a capital asset, but merely the collection of 
income stemming from property received on the ex- 
change and were not even collected from a party to the 
exchange. 

Taxpayer's position here is analogous to an argument 
that if the corporation's assets distributed to taxpayer 
had included bonds or real estate the interest and rent 
later collected should be related back to the exchange 
and treated as capital gains in years subsequent to the 
exchange. This is patently erroneous and as we have 
shown is contrary to Section 115(c), and in addition 
inconsistent with the purposes underlying the capital gain 
statutory scheme outlined by the court in the Hopkin- 
son case supra (p. 410).^ The Logan case supra, cer- 
tainly does not require such treatment. 

Finally we emphasize there is clearly no authority 
under the statutes for a deferment plainly inconsistent 
with the statutes in the recognition of a capital gain 
from an exchange such as here where title to the capital 



*As the court points out there, the enactment of statutes provid- 
ing for the treatment of capital gains was a measure to furnish relief 
from high surtaxes occasioned by the enhancement in value of 
property over a number of years. 



—18— 

stock and assets exchanged therefor fully passed, until 
a later year when the full amount of the income to be 
derived from a contractual right received on such ex- 
change had been recovered. Such a treatment would be 
inconsistent with the policy of the law which is designed 
to accellerate and not delay the reporting of income. It 
is, of course, proper to value the contract if that is pos- 
sible. It is only in rare cases that such impossibility 
exists. {Boudreau v. Commissioner, 134 F. 2d 360, 361 
(C. C. A. 5th).) The inability to value the contract 
favors the taxpayer in reducing his capital gain, but 
at the same time creates the disadvantage of a low basis 
for gain or loss on the property received if sold or ex- 
changed in the future. Certainly the basis of the contract 
would be zero under a sale or exchange under the facts 
as admitted here. All this could have no possible effect 
on the treatment of the income from the contract any 
more than it could have on the treatment of rent, interest 
or dividends received on other property received under 
any sale or exchange. 

In view of the foregoing there is no authority for tax- 
payer's valuing the contracts on the basis of the subse- 
quent payments. The transaction was complete when 
titled passed in August, 1940. {Cf. Bedell v. Commis- 
sioner, 30 F. 2d 622, 624 (C. C. A. 2d); Commissioner 
V. Union Pac. R. Co., 86 F. 2d 637 (C. C. A. 2d).) 
The subsequent payments were not proceeds of a sale or 
exchange but income taxable under Section 22(a) and not 
capital gains. 



—19- 

Conclusion. 

The judgment should be reversed. 

Respectfully submitted, 

Theron Lamar Caudle, 

Assistant Attorney General. 
Ellis N. Slack, 
Robert N. Anderson, 
Homer R. Miller, 

Special Assistants to the Attorney General. 

James M. Carter, 

United States Attorney. 
Edward H. Mitchell, 

Assistant United States Attorney. 
George M. Bryant, 

Assistant United States Attorney. 

November, 1948. 



APPENDIX. 

Internal Revenue Code: 

Sec. 22. Gross Income. 

(a) General Definition. — "Gross income" includes 
gains, profits, and income derived from salaries, wages, 
or compensation for personal service, of whatever kind 
and in whatever form paid, or from professions, voca- 
tions, trades, businesses, commerce, or sales, or dealings 
in property, whether real or personal, growing out of the 
ownership or use of or interest in such property; also 
from interest, rent, dividends, securities, or the trans- 
action of any business carried on for gain or profit, or 
gains or profits and income derived from any source 
whatever. * * * (26 U. S. C. 946 ed., Sec. 22.) 

■ Sec. 111. Determination of Amount of, and 
Recognition of, Gain or Loss. 

(a) Computation of Gain or Loss. — The gain from 
the sale or other disposition of property shall be the 
excess of the amount realized therefrom over the ad- 
justed basis provided in section 113(b) for determining 
gain, and the loss shall be the excess of the adjusted basis 
provided in such section for determining loss over the 
amount realized. 

(b) Amount Realized. — The amount realized from 
the sale or other disposition of property shall be the 
sum of any money received plus the fair market value 
of the property (other than money) received. 

(c) Recognition of Gain or Loss. — In the case 
of a sale or exchange, the extent to which the gain 



— 2— 

or loss determined under this section shall be recognized j 
for the purposes of this chapter, shall be determined - 
under the provisions of section 112. ■ 

(d)' Installment Sales. — Nothing in this section i 

shall be construed to prevent (in the case of property :; 

sold under contract providing for payment in install- | 

ments) the taxation of that portion of any installment I 

payment representing gain or profit in the year in which j| 

such payment is received. (26 U. S. C. 1946 ed., Sec. { 

111.) 

Sec. 112. Recognition of Gain or Loss. 

(a) General Rule. — Upon the sale or exchange of 
property the entire amount of the gain or loss, determined | 
under section 111, shall be recognized, except as herein- 
after provided in this section. (26 U. S. C. 1946 ed., 
Sec. 112.) 



Sec. 115 Distributions by Corporations. 

(c) Distributions in Liquidation, — Amounts dis- 
tributed in complete liquidation of a corporation shall be 
treated as in full payment in exchange for the stock, 
and amounts distributed in partial liquidation of a corpo- 
ration shall be treated as in part or full payment in ex- 
change for the stock. The gain or loss to the distributee 
resulting from such exchange shall be determined under 
section 111. but shall be recognized only to the extent 
provided in section 112. * * '^ (26 U. S. C. 1946 
ed., Sec. 115.) 



I 



Sec. 117. Capital Gains and Losses. 

(a) Definitions. — As used in this chapter — 

(1) Capital Assets. — The term "capital assets" means 
property held by the taxpayer (whether or not connected 
with his trade or business), but does not include stock 
in trade of which taxpayer or other property of a kind 
which would properly be included in the inventory of the 
taxpayer if on hand at the close of the taxable year, or 
property held by the taxpayer primarily for sale to custo- 
mers in the ordinary course of his trade or business, or 
property, used in the trade or business, of a character 
which is subject to the allowance for depreciation provided 
in section 23 ( 1 ) ; 

********* 

(4) Long-term Capital Gain. — The term "long- 
term capital gain" means gain from the sale or exchange 
of a capital asset held for more than 18 months,^ if and 
to the extent such gain is taken into account in com- 
puting net income; 

********* 

(b) Percentage Taken into Account. — In the case 
of a taxpayer, other than a corporation, only the follow- 
ing percentages of the gain or loss recognized upon the 
sale or exchange of a capital asset shall be taken into ac- 
count in computing net capital gain, net capital loss, and 
net income: 

********jtc 

(26 U. S. C. 1946 ed.. Sec. 117.) 



^Section 150, Revenue Act of 1942, c. 619, 56 Stat. 798, changed 
this to "6 months." 



Treasury Regulations 103, promulgated under the In- ' 
ternal Revenue Code:® 1 

Sec. 19.111-1. Computation of Gain or Loss. — Except ; 
as otherwise provided, the Internal Revenue Code regards 
as income or as loss sustained, the gain or loss realized i 
from the conversion of property into cash, or from the ; 
exchange of property for other property differing materi- 
ally either in kind or in extent. The amount realized 
from a sale or other disposition of property is the sum 
of any money received plus the fair market value of any 
property which is received. The fair market value of 
property is a question of fact, but only in rare and ex- 
traordinary cases will property be considered to have no 
fair market value. * * * 



Sec. 19.115.5. Distribution in liquidation. — (a) Gen- 
eral. — Amounts distributed in complete liquidation of a 
corporation are to be treated as in full payment in ex- 
change for the stock and the amounts distributed in par- 
tial liquidation are to be treated as in part or full pay- 
ment in exchange for the stock so canceled or redeemed. 
The gain or loss to a shareholder from a distribution in 
liquidation is to be determined, as provided in section 
111 and section 29.111-1, by comparing the amount of 
the distribution with the cost or other basis of the stock 
provided in section 113; but the gain or loss will be recog- 
nized only to the extent provided in section 112. 



^Similar provisions appear in the corresponding Treasury Regu- 
lations 111, promulgated under the Internal Revenue Code, Sections 
29.111-1 and 29.115-5 governing the year 1943. 



J 



No. 12019 
IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



Harry C. Westover, United States Collector of Internal 
Revenue, Sixth Collection District of California, and 
United States of America, 



vs. 
Agnes F, Smith, 



Appellants, 



Appellee. 



APPELLEE'S BRIEF. 



Gibson, Dunn & Crutcher, 
1000 Banks-Huntley Building-. Los Angeles 14, 
Attorneys for Appellee. 

DEC fc- 1948 
PAUL P, O'BRIEN, 

Parker & Company, Law Printer*. Los Angeles. Phone TR. 5206. " "—- ^. VJbERK 



TOPICAL INDEX 

PAGE 

Jurisdiction -.— 1 

Statement of the case 2 

Summary of argument ~... 3 

I. 

The judgment of the lower court is in accord with a substan- 
tial body of case law on the point at issue ; there is no au- 
thority to the contrary 4 

II. 
The rule adopted by the judgment of the lower court is sound, 
equitable and practical 18 

III. 
The rule advanced by the appellants cannot be reconciled with 
the statute, whereas the judgment of the lower court is 
consistent with it 23 

IV. 
Appellants attempt to distinguish the present case from the 
Logan case is lacking in substance 26 

(1) The present transaction involves an exchange whereas 
the Logan case involved a sale 26 

(2) In the present case the taxpayer has recovered her 
basis whereas in the Logan case that was not so 27 

(3) (4) In the Logan case the taxpayer received the con- 
tingent promise of the Whiting Corporation rather than 
the contingent promise of the Quick work Company to 
which she transferred her stock 28 

(5) The Logan case did not involve the capital gains pro- 
visions _ 28 

Conclusion 29 

Appendix. Opinion of the United States Court of Appeals 

- ' App. p. 1 



TABLE OF AUTHORITIES CITED | 

Cases. page 

Boudreau v. Commissioner, 134 F. 2d 360 14, 15 

Burnet v. Logan, 283 U. S. 404, 51 S. Ct. 550, 75 L. Ed. 1143 

4, 6, 7, 8, 9, 15, 16, 18, 20, 21, 23, 26 ■ 

Carter v. Commissioner, 9 T. C. 364 4, 9, 13, 14 

Cassatt V. Commissioner, 137 F. 2d 745 8 

Citizens National Bank of Kirkville v. Commissioner, 122 F. 

2d 101 1 22 

Commissioner v. Hopkinson, 126 F. 2d 406 7 

Corbett Investment Company v. Helvering, 75 F. 2d 525 22 

Daniel Brothers Company v. Commissioner, 28 F. 2d 761 21 

Dreymann, Carl G., 11 T. C. 153 7 

Fleming v. Commissioner, 153 F. 2d 361 14, IS 

Geary v. Commissioner, 6 B. T, A. 1109 26 

Golden, Harry B., 47 B. T. A. 94 14 ; 

Haynes v. United States, 50 Fed. Supp. 238 7 

Helvering v. Syndicate Varieties, 140 F. 2d 344 27 

Henrietta Mills, Inc. v. Commissioner, 52 F. 2d 931 21 

Hills Estate v. Maloney, 58 Fed. Supp. 164 8 . 

Imperial Type Metal Company v. Commissioner, 106 F. 2d 302 8 I 

John C. Moore Corp. v. Commissioner, 42 F. 2d 186 22 ; 

Kieselbach, et al. v. Commissioner, 317 U. S. 399, 63 S. Ct. 303, ! 

87 L. Ed. 358 17 ' 

Littlefield v. Perry, 21 Wall. 205, 22 L. Ed. 577 18 « 

MacDonald v. Commissioner, 76 F. 2d 513 21 ' 

McAbee, Phillip W., 5 T. C. 1130 7 

Myers, Edward C, 6 T. C. 258 7\ 

Perry v. Commissioner, 152 F. 2d 183 8, 24 ^ 

Snell v. Commissioner, 97 F. 2d 891 141 

Steinbach Kresge Co. v. Sturgess, 33 Fed. Supp. 897 22 1 

United States v. Yerger, 55 Fed. Supp. 521 , 7 



! 



Statutes page 

Internal Revenue Code, Sec. Ill 7, 8 

Internal Revenue Code, Sec. 111(b) 24, 25, 28 

Internal Revenue Code, Sec. 115(c) 8, 27 

Internal Revenue Code, Sec. 117(j) 14 

Internal Revenue Code, Sec. 3772(a) (2) 1 

Judicial Code, Sec. 24(20) 2 

Revenue Act of 1918, Sec. 202(b) 26 

Revenue Act of 1934, Regulations 86, Art. 111-1 25 

Revenue Act of 1934, Regulations 111, Sec. 29.111-1 25 

United States Code, Title 28, Sec. 1291 2 

Textbooks 

Cumulative Bulletin II-2, p. 44, I. T. 1737 20 

Cumulative Bulletin XII-1, p. 96, I. T. 2674 21 

Cumulative Bulletin 1931-1, Part 2. p. 249 House Ways and 

Means Committee Report 27 

10 Mertens, Law of Federal Income Taxation (1942), p. 433.... 25 



.* I 



No. 12019 
IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



Harry C. Westover, United States Collector of Internal 
Revenue, Sixth Collection District of California, and 
United States of America, 

Appellants, 

vs. 

Agnes F. Smith, 

Appellee. 



APPELLEE'S BRIEF. 



Jurisdiction. 

Plaintiff filed claims for refunds of alleged overpay- 
ments by her of 1941-1943 Federal income taxes within 
the period prescribed by law [R. 7, 10]. The Commis- 
sioner notified plaintiff by registered mail of the disallow- 
ance of these claims on June 11, 1947 [R. 8] and June 
10, 1947 I R. 10] respectively. Plaintiff commenced this 
action in the District Court on August 11, 1947 |R. 28] 
within two years after the Commissioner's notice of dis- 
allowance of both claims in conformity with Section 3772 
(a) (2) of the Internal Revenue Code. 

The entire alleged overpayment of 1941 taxes was 
paid to the Collector of Internal Revenue for the Tenth 



— 2— 

District of Ohio [R. 6]. A part of the alleged overpay- 
ment for the year 1943 was made to said Collector [R. 9] | 
and the balance was paid to appellant Collector who is the t 
Collector of the Sixth District of California [R. 11]. | 
Frazier Reams was the Collector of the Tenth District off 
Ohio at the time of all of said payments to that District 
and he has been out of office since January 1, 1944 [R. 9]. 
Therefore, even though the amount involved with respect 
to said payments to that District exceeded $10,000, theH 
United States of America was the proper party defendant 
under Section 24 (20) of the Judicial Code. 

Plaintiff filed a motion for summary judgment [R. 35] ;■ 
which was granted by the District Court [R. 46-47]. I 
Judgment of the District Court was entered May 28, 1948^ 
[R. 48-50]. Notice of appeal was filed within sixty daysi 
thereafter on July 14, 1948. This Court has jurisdiction|i 
of the case under the provisions of 28 U. S. C, Sections 
1291. 

Statement of the Case. 

The statement of the case contained in Appellants'l' 
Brief from pages 3 to 5 thereof is accurate and fair. Weii 
should merely like to add to the facts therein stated, thefl 
following : 

1. Neither in her Federal income tax return for 194 
nor in any other way at any time has the plaintiff repre-- 
sented or implied to anyone that the Whiting contract di^l 
not have a substantial value at the time of the liquidatiortij 
of the Quickwork Company [R. 6], 



— 3— 

2. The negotiation of the contract between the Whit- 
ing Corporation and the Quickwork Company was an 
arm's length deal involving no inter-related interests in 
which each party bargained for the best possible deal for 
himself. Plaintiff did not solicit nor receive any advice 
concerning the tax consequences to the Quickwork Com- 
pany or herself of the various proposals made during said 
negotiations or the agreement as finally executed | R. 4, 
36-37]. 

Summary of Argument. 

The judgment of the lower court, in holding that the 
amounts received by the plaintiff under the Whiting con- 
tract in 1941, 1942 and 1943 constituted capital gain to 
her from the exchange of her Quickwork stock, follows 
the many decided cases directly in point on the question 
at issue. There is none to the contrary. 

The rule of the lower court and the cases cited by it 
[R. 46-47] is sound in principle, practical and equitable. 
It has been accepted as settled law for many years and 
the tax statute has been amended numerous times during 
that period and Congress has not seen fit to change it. 

By contrast, the rule urged by appellants in their brief, 
completely unsupported by authority, is inequitable and 
unsound in principle (because it actually taxes real capital 
gain as ordinary income) and cannot be reconciled with 
the controlling statutes involved. 



ARGUMENT. 

I. 

The Judgment of the Lower Court Is in Accord With 
a Substantial Body of Case Law on the Point at 
Issue; There Is No Authority to the Contrary. 

When a taxpayer receives, in consideration for the sale 
or exchange of an asset, a contractual right calling for 
uncertain future payments depending upon future contin- 
gencies, that contractual right is considered as having 
no ascertainable fair market value, and the cases have 
uniformly held that the transaction is not "closed" upon 
the receipt of the contractual right but remains open as 
long as payments are made under the contract; the pay- 
ments thus subsequently received are received in exchange 
for the original asset transferred. This authority origin- 
ated with a unanimous Supreme Court decision in 1931 
which has not subsequently been questioned by that body, 
and extends to Tax Court decisions decided within the 
past few months. But a year ago the Tax Court, in a 
decision reviewed by its entire membership without a 
single dissent, applied this rule to a gain realized upon the 
complete liquidation of a corporation where the facts from 
the standpoint of the Commissioner of Internal Revenue 
were far more favorable to him than are the facts in the 
instant case. 

Carter v. Commissioner, 9 T. C. 364 (1947). 
The Carter case was affirmed by the Second Circuit 
while this brief was being printed. The Second Circuit 
Opinion is contained in the Appendix to this brief. i 

In Burnet v. Logan, 283 U. S. 404, 51 Sup. Ct. 550, 
75 L. Ed. 1143 (1931), taxpayer sold her stock in one 
company in exchange for certain cash and the premise of 



— 5— 

the vendee to pay her so many cents a ton on ore there- 
after mined from certain property in which the first named 
company had an interest. This occurred in 1916. During 
1918, 1919 and 1920, the taxpayer received substantial 
payments under this contract, but by the end of that period 
the total amount she had received with respect to her or- 
iginal stock did not exceed its basis. The Commissioner 
treated the 1916 sale as a closed transaction, and pur- 
ported to value the contract received in 1916 under a 
complicated discount formula; consistently, in the tax 
years involved in that case, 1918, 1919 and 1920, he at- 
tempted to tax as income a certain percentage of the total 
payments received by the taxpayer under the contract. 
The Supreme Court held that the Commissioner's method 
of treating the 1916 transaction as closed was erroneous, 
stating at pages 412, 413: 

"The 1916 transaction was a sale of stock — not an 
exchange of property. We are not dealing with 
royalties or deductions from gross income because 
of depletion of mining property. Nor does the situa- 
tion demand that an effort be made to place according 
to the best available data some approximate value 
upon the contract for future payments. This prob- 
ably was necessary in order to assess the mother's 
estate. As annual payments on account of extracted 
ore come in they can be readily apportioned first as 
return of capital and later as profit. The liability for 
income tax ultimately can be fairly determined with- 
out resort to mere estimates, assumptions and specu- 
lation. When the profit, if any, is actually realized, 
the taxpayer will be required to respond. The con- 



sideration for the sale was $2,200.00 in cash and the 
promise of future money payments wholly contingent 
upon facts and circumstances not possible to foretell 
with anything like fair certainty. The promise was 
in no proper sense equivalent to cash. It had no 
ascertainable fair market value. The transaction was 
not a closed one. Respondent might never recoup 
her capital investment from payments only condi- 
tionally promised. Prior to 1921 all receipts from 
the sale of her shares amounted to less than their 
value on March 1, 1913. She properly demanded the 
return of her capital investment before assessment 
of any taxable profit based on conjecture." 

It will be noted from the above quotation that the Su- 
preme Court repeatedly said that after the taxpayer had 
recouped her basis, there would then be a profit upon which 
she must pay a tax. Since the word "profit" rather than 
"income" was used, and since the "profit" would be real- 
ized only after the basis of the asset originally sold was 
recovered, the Supreme Court was undoubtedly referring \ 
to the profit on the sale of the original asset, as distin- 
guished from the contingent contract. 1 

It is true that the Logan case did not involve the capital 
gains provisions, and did not require a direct holding that 
the payments subsequently received on such a contingent 
contract should be considered for tax purposes to be re- 
ceived in exchange for the original assets surrendered. 
Yet, that is the obvious and necessary import of the Logan 
decision. Under the present applicable statute — and it has 
not been changed for years in this respect — the determina- 



tion of gain or loss from the sale of an asset is controlled 
by Section 111 of the Internal Revenue Code (the section 
involved in the Logan rule cases) regardless of whether 
the asset is or is not a capital asset. And it must neces- 
sarily follow that if the original transaction is not "closed" 
— to use the Supreme Court's language — the subsequent 
payments must relate to it. The Courts have unanimously 
so interpreted the Logan decision, and have repeatedly re- 
iterated the Supreme Court's view that a transaction may 
be either '*open" or ''closed" for tax purposes. 

The Logan case has been applied in a uniform series of 
cases involving a sale of patent rights or similar property 
for a consideration based upon subsequent production or 
profits. 

Commissioner v. Hopkinson, 126 F. 2d 406 (C. C. 
A. 2d 1942) ; 

U. S. V. Yerger, 55 Fed. Supp. 521 (D, C. Penn. 
1944) ; 

Haynes v. U. S., 50 Fed. Supp. 238 (Ct. CI., 1943) ; 

Phillip W. McAhee, 5 T. C. 1130 (1945), at 1151; 

Edward C. Myers, 6 T. C. 258 (1946) ; 

Carl G. Dreymann, 11 T. C. 153 (1948). 

These cases hold that the subsequent payments received 
year after year constitute capital gain and are taxable as 
such if the asset originally sold was a capital asset and 
had been held for the required length of time at the time 
of sale. At pages 16 and 17 of Appellants' Brief, an at- 
tempt is made to distinguish these cases ^nd others which 



amply support them in principal with the bland statement 
that they involved sales on the installment plan "with the 
purchase price to be discharged by future payments." 
There is no such difference. For the purpose of the 
present issue the cases are identical with the instant case, 
neither of them constituting an ''installment" sale, and all 
of them possessing the same installment — that is, periodic 
payment-characteristics. 

None of the above cases involved a gain upon the sur- 
render of corporate stock in complete liquidation of a 
corporation. However, it is conceded at pages 8 and 9 
of Appellants' Brief that the Internal Revenue Code pre- 
vents any differentiation in tax treatment because of that 
fact. Section 115(c) thereof specifically provides that 
the amounts received from a corporation in complete 
liquidation of its stock shall be treated as in full payment 
in exchange for the stock, (thus entitling liquidations to 
capital gain and loss treatment) and the gain or loss to 
the stockholders so resulting shall be determined under 
Section 111. Section 111 is the section which controls 



^In view of the many cases directly in point on the question at 
issue, it is felt there is no need of lengthening this brief by the 
discussion of numerous analogous cases which have applied the 
Logan doctrine under all tax statutes subsequent to the Logan deci- 
sion and down to the present time. Some of these cases are : 

Perry v. Commissioner, 152 F. 2d 183 (C. C. A. 8th, 1945), the 
Court citing with approval at page 186 the following language of 
the Tax Court : 

" 'The very fact,' said the Court, 'that the statute' uses fair 
market value instead of mere 'value' indicates intent not to 
permit the inclusion in income of any contract merely because 
of intrinsic value." 

Hills Estate v. Maloney, 58 Fed. Supp. 164 (Dist. Court 
N. J., 1944) ; 

Imperial Type Metal Company v. Commissioner, 106 F. 2d 
302 (C. C. A. 3rd, 1939) ; 

Cas$att V. Commissioner, 137 F. 2d 745 (C. C. A. 3rd, 1943). 



— 9— 

the taxation of all sales or dispositions of property, and 
it or its preceding counterpart was involved in all of the 
above cases. That is, the above cases held that if a con- 
tract is so contingent as to have no "ascertainable fair 
market value" under the rule of the Logan case, it does 
not have a "fair market value" under Section 111(b) and 
therefore the determination of the gain is left open until 
the contingent contract received is paid out. Clearly a 
gain upon a complete liquidation must be governed by the 
same rule since it is governed by the identical statutory 
provision. 

It was so held in the recent unanimous case of Susan J. 
Carter, 9 T. C. 364 (1947) (affirmed by the Second Cir- 
cuit; see Appendix to this brief.) In the Carter case Oil 
Trading Company, Inc. (hereinafter referred to as "the 
Corporation") was a corporation engaged in the oil brok- 
erage business. It would secure customers for various 
sellers of oil. The contracts for the sale of the oil fre- 
quently provided that the purchaser would buy an approxi- 
mate amount of oil, or the entire production at a particu- 
lar locality, for a certain period, or a certain number of 
tank cars of varying capacity. The Corporation's contract 
with the seller entitled the Corporation to a commission of 
1^ per barrel on all oil delivered under the contract. In 
view of the uncertainty of the amount of oil under a 
particular contract, it could not be determined at the time 
of the execution of the contract just what the total com- 
mission would be. 

In 1943 the Corporation liquidated and dissolved, and 
transferred all of its assets, including 29 brokerage con- 
tracts and 3 others of a similar nature — where the amount 
of the commission was subject to future contingencies of 



-10- l 

the type above summarized — to the taxpayer, its sole stock- 
holder, in exchange for her stock in the corporation. In 
the year 1943 the taxpayer received $43,640.24 as com- 
missions under these contracts. She reported this sum as 
capital gain realized upon the exchange of her stock in 
liquidation and the Commissioner claimed that it was or- 
dinary income. This issue was determined in taxpayer's 
favor, and in view of the similarity between this case and 
the instant one, the reasoning of the Court on this issue 
is set forth hereinafter at length (9 T. C, 370) : 

"After examination of the authorities adduced, and 
many others, we are of the opinion that the collections 
upon the property just here involved (where no 
services are to be performed by the distributee) are 
(except as to minor amounts hereinafter examined) 
to be regarded as capital assets, and gain calculated 
at capital gain rates. In Burnet v. Logan, supra, the 
Supreme Court considered a situation where a sale of 
stock was made, payment to be made in proportion to 
ore mined, so that the market value of the agreement 
to pay could not be determined with fair certainty. 
The Court said that it was not necessary to place 
some approximate value on the contract for future 
payments, that, as payments on account of extracted 
ore come in, 'they can be readily apportioned first as 
return of capital and later as profit. * * * When 
the profit, if any, is actually realized, the taxpayer 
will be required to respond. * * * The transac- 
tion was not a closed one. * * * She properly de- 
manded the return of her capital investment before 
assessment of any taxable profit based on conjecture.' 
(Italics supplied.) Thus, it is clear that, if there is 
a sale (or exchange) in part in consideration of a 
contract without ascertainable fair market value, 
taxation is deferred until collection under such con- 



I 



—11— 

tract, and tax will be upon the profit over cost basis, 
and not \\\)(m ordinary income. This is answer to re- 
spondent's idea that Susan J. Carter's recovery of her 
cost basis in the primary distribution distinj^^uishes 
the Logan case. Profit on a capital transaction is not 
ordinary income; and, under section 115(c) of the 
Internal Revenue Code, there was exchang-e of stock 
in payment for the contracts distributed — a capital 
transaction. The respondent says it was a closed 
transaction. The Logan case says the transaction 
there 'was not a closed one.' Is there any reason, in 
the fact of exchano^e involved in liquidation rather 
than ordinary sale or exchange, to distinj^uish the 
Logan case from that here involved? We can find 
none. Both are sales, or exchanges, of capital assets 
(stock) for contracts of no ascertainable value. Sec- 
tion 115(c), in our view, requires us to make no 
distinction. The Logan case speaks of profit, not 
ordinary income, after recovery of basis, and the 
transaction here is no more required to be treated 
closed than in that case. Nothing in the nature of 
liquidation distribution is seen to require an imme- 
diate closing, more than in an ordinary exchange, and 
the language of section 115(c) provides no exception, 
in case of distribution of unascertainable values, from 
its mandate to regard the distribution as received in 
payment in exchange for the stock — and it imme- 
diately thereafter treats of 'gain or loss to the dis- 
tributee resulting from such exchange.' \\> think 
that such a distributee, after realization on the con- 
tracts of more than cost basis, had gain requiring 
treatment under section 117. 

Bessie B. Hopkinson, 42 B. T. A. 580: aflFd.. 126 
Fed. (2d) 406, is. in eflfect, the same as the Logan 
case, upon which it in part relies. There, a ])atentee 
conveyed his patent rights in consideration of an 



—12— 



I 



agreement to make payments based upon manufac- 
turing done under the patent rights. After receiving ; 
under the contracts amounts exceeding his cost or 
other basis, the patentee placed the contracts in trust 
for his wife, the petitioner in the case. The question 
at issue was whether payments thereafter received by | 
the beneficiary were ordinary income or capital gain. 
We held that they were capital gain, saying that, Tn 
contemplation of law, every payment * * * was, 
* * ''^ part of the purchase price of a sale of capital 
assets.' It will be noted that the cost basis had been 
recovered, as here. In Haynes v. United States, 50 
Fed. Supp. 238, the Court of Claims held that one 
who sold capital stock for cash, plus a promise to pay 
according to the amount of oil and gas produced from 
the properties involved, was taxable upon such pay- 
ments when received as profits from sale of capital 
assets, under section 117(a) of the Revenue Act of 
1936, and not as current income. In George James 
Nicholson, 3 T. C. 596, the petitioner in 1931 sold 
corporate stock in consideration of cash, in excess of 
his cost basis, and 2 cents a gross ton of stone pro- 
duced and shipped by the corporation. In later years 
he received payments under the contract. We held 
that they were taxable as capital gain, 'since, as we 
have seen, they are periodic payments for the property 
sold in 1931.' In United States v. Yerger, 55 Fed. 
Supp. 521, partnership assets were in 1913 trans- 
ferred to a corporation in consideration of transfer 
to the partners of corporate stock and agreement to 
pay them a percentage of the corporate profits for 5 
years. A partner assigned his interest in the profits 
to the defendant, who in 1936 received payments 
under the agreement. Citing the Logan and Hopkin- 
son cases, the court held that, 'where there is a right 
to receive the consideration for capital assets in in- 



i 



—13— 

• stallinents, or upon contingencies, the transaction is 
not a closed one. * * * j^ j^.^^^ j^^ ascertainable 
fair market value,' and that the defendant's share of 
corporate profits were payments upon the purchase 
price of ca])ital assets, as disting-uished from ordinary 
income. The court relied upon Imperial Type Metal 
Co. V. Commissioner, 106 Fed. (2d) v302, affirming 
38 B. T. A. 1531, involving the same company and 
transaction, where it was held that the payments were 
capital expenditures upon purchase price for capital 
assets and not business expense deductible by the cor- 
poration. 

The respondent attempts to distinguish the above 
cases, urging that petitioner did not sell or exchange 
the contracts; that is, did not sell or exchange capital 
assets. The distinction is, in our view, untenable. 
She did, under section 115(c), exchange capital as- 
sets — her stock. Helvering v. Chester N. Weaver 
Co., 305 U. S. 293. Under the above authority, we 
hold that the petitioner's income from the contracts 
so far considered was taxable as capital gain." 

The instant case is a stronger case from the taxpayer's 
standpoint than was the Carter case. In the latter the 
commissions under the contract would have been ordinary 
income if received by the corporation. However, they 
were transformed into capital gain as a result of the 
liquidation. In the instant case, the corporation itself — 
Quickwork — sold the assets with which produced its in- 
come, (plus a small inventory) which assets are ordinarily 
regarded in business and legal channels as "capital as- 
sets." It so happened that under the tax law applicable 
to the year 1941, the part of those assets constituting 
depreciable property, /. e. the patents, would not be con- 
sidered as capital assets for tax purposes, although the 



—14— 

rest would be so considered. However, under the income 
tax law applicable to the year 1943, the gain from all of 
such assets would be treated as capital gain. 

I. R. C, Section 117 (j); 

Snell V. Commissioner, 97 F. 2d 891, (C. C. A. 
(5th) 1938); 

Harry B. Golden, 47 B. T. A. 94 (1942). 

Thus in the instant case, if Quickwork had continued to 
receive the Whiting payment, a large part of them would 
have constituted capital gain to it in 1941, and virtually 
all of them would have constituted capital gain to it in 
1943. Her position is thus much stronger than that of 
the plaintiff in the Carter case. 

The Second Circuit unanimously affirmed the Carter 
case while this brief was being printed. The entire opin- 
ion is contained in the Appendix to this brief. 

As opposed to the above cases directly in point and 
unanimously supporting the judgment of the lower court, 
appellants have marshaled only four authorities worthy 
of mention. Two of these, Bondreaii v. Commissioner, 134 
F. 2d 360 (C. C. A. (1st) 1943), and Fleming v. Com- 
missioner, 153 F. 2d 361 (C. C. A. (5th) 1946) (App. Br. 
pp. 15, 16, 18), both rejected a stockholders' claim that the 
gain upon the complete liquidation of his stock should not 
be considered a closed transaction because of the difficulty 
of valuing certain of the assets received. The Boudreau 
case involved an oil interest, which the trier of fact in the 
lower court had found to have an ascertainable fair market 
value and had actually valued at a specific figure. This 



i 



—15— 

case has no bearing on the present one since here it is 
achnitted that the contract involved had no ascertainable 
fair market value. The Fleming case involved the receipt 
in liquidation of a fee interest in land subject only to the 
interest of a lessee in an outstanding^ oil lease. Thus the 
stockholders had received the most absolute type of prop- 
erty interest, a fee interest in land. The difference be- 
tween that sort of property and the unsecured contingent 
contractual right involved in the instant case and the 
Logan cases is obvious and need not be expounded. In 
any event, the appellants are apparently not relying upon 
the Boiidreaii and Fleming cases which required the valua- 
tion of the property when received ; appellants' position ap- 
parently is not that the Whiting contract should have been 
valued at some figure by the plaintiff when received by 
her in 1940, but rather that since it had the uncertain 
qualities of a Logan contract and the basis of her Quick- 
work stock had been recovered, the Whiting contract must 
have been valued at zero in 1940. 

If the Whiting contract had been considered by the 
parties in 1940 to be worthless, and it could have been 
properly valued at zero at that time and was so valued, 
then there would have been a closed transaction in 1940, 
the contract itself would then have acquired an independ- 
ent basis of zero, and any subsequent payments thereon 
would be upon the contract rather than in exchange for 
the stock and thus would constitute ordinary income. 
However, in the instant case it is conceded that the con- 
tract had a very substantial value when received in 1940, 
but the amount of that value could not be determined. 
This being so, under the law the gain on the exchange of 
the stock remained open, and the contract did not acquire 
an independent basis of its own. 



—16— 

In the Puelicher case, (App. Br. p. 14) the taxpayer 
inherited a judgment against the bondholders committee — 
as such and not personally — of an insolvent water com- 
pany. The judgment "had no fair market value at that 
time" (6 T. C. 301). At a later date she received certain 
payments on the judgment and claimed them as capital 
gain. Since neither she nor anyone else had sold or ex- 
changed anything, the Court properly held that there 
could be no capital gain. That was the only point that 
case discussed or determined. It has no bearing on the 
instant case since here the taxpayer did sell or exchange 
something, namely, her stock in the Quickwork Company. 
Furthermore, it may well be that the Tax Court meant by 
its statement that the claim had no fair market value when 
inherited, that it was worthless. If so, the claim itself 
must have had an independent basis of zero to the tax- 
payer so that subsequent payments thereon must have 
been with respect to the claim rather than with respect 
to some earlier asset of the taxpayer. When property 
is inherited in an estate, there are strong practical rea- 
sons which require its being given a value at that time 
even though the value is rather speculative. The estate 
must be closed and inheritance taxes must be computed. 
As a matter of fact in the Logan case itself, the taxpayer 
had inherited a part of the contractual rights involved 
from her mother and that part had been valued in her 
mother's estate; the Supreme Court recognized that this 
"probably was necessary in order to assess the mother's 
estate." Yet, when it was faced with an income tax prob- 
lem where there was no pressing necessity of a value 



—17— 

based upon guesswork, it chose the more practical and fair 
solution of leaving the matter open until the actual pay- 
ments were received on the contract. 

Finally in appellants' fourth case. Kiesclhach, et al. v. 
Commissioner, 317 U. S. 399, 63 Sup. Ct. 303, 87 L. Ed. 
358 (1943), the taxpayer claimed that that part of a 
condemnation award actually consisting of interest at six 
per cent per annum on the value of the property, as de- 
termined at the time of taking, from the date of taking 
to the date of payment constituted capital gain. In that 
case the judgment involved actually determined how much 
was owing the taxpayer for his property — the value there- 
of at the time of taking — and how much was owing him 
for delay in paying for it. Obviously the latter was in- 
terest and must have been taxed as ordinary income. In 
contrast, in the instant case, there is nothing to indicate 
that the parties gave any consideration to the value to 
either of them of the fact that the payments were spread 
out over several years of time. The spreading out was 
a necessary result of the method the parties used in de- 
termining the purchase price. There was no thought of 
discount or interest. Be that as it may, the Kiesclhach 
case did not tax the entire payment as ordinary income, 
but only the interest. 

The above summary of the pertinent case law on the 
instant problem has thus demonstrated that there are 
numerous cases directly in point and that the holding of 
the lower court in the instant case is in conformity with 
all of them. 



—18— 

II. 

The Rule Adopted by the Judgment of the Lower ] 
Court Is Sound, Equitable and Practical. | 

Long before we had an income tax law it had become j 

common practice to measure the sales price of capital as- j 

sets of an uncertain value — particularly patents — by a 1 

percentage of sales thereafter or profits from said sales. , 

Little field v. Perry, 21 Wall. 205, 22 L. Ed. 577 (1875). j 

Since our income tax law requires the computation of in- \ 

come on an annual basis and differentiates between capital I 

gain and ordinary income the proper treatment there- I 

under of the payments received under such a contract has 

posed a difficult problem for the Commissioner and the 

Courts. There are three possible solutions : 

I 
1. It could be required that all such contracts be valued ' 

at some figure at the time of receipt regardless of the j 
margin of error in such determination; capital gain or - 
loss would then be determined in that year based on that 
figure; the contract received would then acquire a basis J 
of its own equal to the value then placed upon it, subse- 
quent payments on the contract would be tax-free to the 
extent they did not exceed that basis, and the remainder 
would be ordinary income. (Such payments might be 
treated entirely as a return of capital until the basis of the 
contract was recovered after which they would be 100^; 
income, or, in the alternative, a percentage of each pay- 
ment could be allocated to capital and income.) 

This was the method used by the Commissioner and 
condemned by the Supreme Court in the Logan case. The 
objections to it as there set forth are: (a) Tax liabihty 
is predicated upon guesswork — the uncertain value of the 
contract; (b) a taxpayer is required to pay a tax on a 



i 



—IP- 
gain which he never receives in dollars and, because of 
the contingent nature of the contract, may never receive, 
and (c) the taxpayer is required to pay when he has 
neither received the cash to make the tax payment nor any 
asset u])on which he can realize, by loan or otherwise, 
with which to pay. 

2. The appellants have developed a new suggested solu- 
tion of the problem obviously calculated to avoid the 
barrier of the Logan decision. Their view is that the con- 
tract should be valued at zero (App. Br. pp. 16, 17 and 
18), and that after the original basis of the stock trans- 
ferred has been recouped, all subsequent payments on the 
contract must be reported as ordinary income. This view 
cannot be reconciled with the pertinent provisions of the 
Internal Revenue Code as will be pointed out hereinafter. 
But for the present, analyzing it only on principle with 
reference to the general pattern of our tax law. it is 
patently unsound because it taxes real capital gain as 
ordinary income. Let us assume, for example, that the 
Quickwork patents had been owned by the taxpayer, and 
two other taxpayers A and B, in equal interests as tenants 
in common, each interest being held at a basis of $10,000; 
that the purchaser was willing to pay each of them $100,- 
000 cash for his interest, but each of them was demanding 
$200,000 in cash therefor. Let us assume that the pur- 
chaser negotiated with each of them separately and finally 
agreed to pay A $150,000 in cash, B $150,000 in ten 
$15,000 annual installments, and plaintifif taxpayer 2% 
of the gross sales of the Quickwork line over a ten-year 
period, which 2% happened to amount, as the facts de- 
veloped, to $15,000 a year for ten years. Appellants must 
concede that A could report his entire $140,000 profit as 
capital gain, and B could include a proportionate part of 



—20— 

his $140,000 profit in his income tax returns for the ten 
subsequent years, all of which would be taxed as capital 
gain. I. T. 1737, 11-2 C. B. 44. Yet the appellants' 
rule would require the plaintiff taxpayer to treat her 
entire $140,000 gain as ordinary income. 

The important fact in the instant case is that the Whit- 
ing contract when received had a very substantial value 
and all of the parties recognized that it had such a value. 
Thus, the taxpayer's stock likewise possessed that value. 
There is no reason in principal or otherwise why, because 
of the difficulty in arriving at the true measure of that 
value, that the realization thereof must be taxed entirely 
as ordinary income. The situation is entirely different 
from that which would exist if the value were wholly 
speculative and probably non-existent. So in the hypo- 
thetical case above supposed, if taxpayer had accepted the 
offer of $100,000 for her interest, she could have reported 
the gain as capital gain, but because she felt it was worth 
more and agreed on a method of valuation subject to fu- 
ture contingencies which vindicated her judgment, she 
would lose entirely the advantage of the capital gain pro- 
visions and be required to report as ordinary income, not 
only the $50,000 in excess of the $100,000 figure which 
everyone agreed was the minimum value, but also the 
$90,000 gain based upon that minimum accepted value. 

In view of these results, it is not surprising that no 
Court to date has adopted appellants' theory. 

3. The final alternative solution of the problem is that 
adopted by the lower court, the Logan case and those fol- 
lowing it: Hold the transaction open until the contingent 
contract is paid out and treat the payments on the contract 
as being received in exchange for the asset originally sold. 
Under this method the taxpayer's ta:?^es are computed on 



i 



—21— 

the basis of actualities rather than guess-work. And it 
has the practical advantage comparable to the installment 
sales method of requiring payment of taxes only after the 
taxpayer receives the funds with which to pay. 

This solution has appeared to be the most sound to all 
of the Courts that have been faced with this problem. 
The only possible weakness in it is that it ignores the 
interest element, if any, in such a transaction which com- 
pensates the seller for his consenting to be paid for his 
capital asset over a number of years. But because of the 
character of the transactions in which contingent con- 
tracts are received in payment, it is usually evident that 
the parties have not given any consideration to this "in- 
terest" element. And there are numerous instances in 
the tax law where the Courts have refused to create or 
imply an interest element in order to treat as ordinary in- 
come a percentage of a lump sum capital payment. Thus, 
if property is sold upon an installment basis and there is 
no specific provision for interest on deferred installments, 
no interest payment will be implied and the entire pay- 
ments will be considered as made in exchange for the 
property. 

I. T. 2674, XII-1, C. B. 96; 

MacDonald v. Commissioner, 76 F. 2d 513. fC. C. 
A. 2nd, 1935); 

Daniel Brothers Company v. Commissioner, 28 F. 
2d 761 (C. C. A. 5th,' 1928); 

Henrietta Mills, Inc. v. Commissioner, 52 F. 2d 
931 (C. C. A. 4th, 1931). 



—22— 

Again if A sells property to B in consideration for B's ' 
promise to pay A a certain annuity for life, B must capital- 
ize the entire amount of each annual payment and cannot 
deduct part of it as interest. 

Citizens National Bank of Kirkville v. Commis- 
sioner, 122 F. 2d 1011 (C. C. A. 8th, 1941); 

Corbett Investment Company v. H elver ing, 75 F. 
2d 525 (App. D. C, 1935); \ 

Steinbach Kresge Co, v. Sturgess, 33 Fed. Supp. 
897 (D. C. N. J., 1940). 

Compare : 

John C. Moore Corp. v. Commissioner, 42 F. 2d 
186 (C C. A. 2nd, 1930). 

But even if we were to concede, contrary to the facts, 
that in the instant case the parties did have in mind this 
interest element the result would be that the lower court 
had taxed as capital gain not only the true capital gain 
but also the interest element. The appellants' cure for 
this slight weakness in the Logan rule is not merely to 
cure the defect but to compound the error by treating not 
only the interest element but the entire capital gain as 
ordinary income. It should be noted in this connection 
that the Logan case actually involved only an attempt to 
tax the "interest" element of the payment as determined 
by the Commissioner, and this attempt failed. Certainly 
our Supreme Court would not permit the taxing as an 
"interest element" of the entire payment. 

It is submitted that, in view of the above, the solution 
reached by the lower court and the Logan cases to the 
instant problem is the best possible solution, and is far 
preferable to that suggested by the appellants. 



—23— 

III. 

The Rule Advanced by the Appellants Cannot Be 
Reconciled With the Statute, Whereas the Judg- 
ment of the Lower Court Is Consistent With It. 

Let us assume that A, who holds a capital asset at a 
basis of $10,000, sells it to B for nothing except a con- 
tingent contract of the Logan type. In the subsequent 
year he receives $10,000 on the contract and in the follow- 
ing year an additional $10,000. Appellants did not carry 
their "zero basis" theory to its logical conclusion which 
would require that the first $10,000 received be treated as 
ordinary income. They could not do so in the face of the 
Logan case, and therefore attempted to distinguish that 
case on the ground that there the taxpayer had not re- 
covered her original basis at the time the Commissioner 
attempted to tax her on the transaction. (App. Br. p. 10.) 
If the appellants were asked why the first $10,000 did not 
constitute ordinary income they would no doubt reply that 
it constituted a return of capital. If they were then asked 
"what capital?" they would no doubt reply "the capital 
invested in the asset sold." If they go this far they must 
admit that the first $10,000 received is received in ex- 
change for the original asset sold. If this be true, the 
last $10,000 must likewise be treated as received in ex- 
change for the original asset sold. So far as the law of 
contracts and the intention of the parties are concerned, 
every dollar received has the same character ; that is, it is 
paid in exchange for the same consideration. So far as 
the purchaser is concerned, he would not even care about 



-^^ i 

the seller's basis, and would have no interest in reaching 
the point where the seller has recouped his basis. Ob- 
viously, in his mind, everything he pays is in exchange for 
the same thing. 2 

This being so, it is impossible to reconcile the appel- 
lants' theory with the tax statute. Once the position is as- 
serted that the contingent contract has a basis of zero, 
then it must logically follow under the statute that all pay- 
ments received thereon thereafter, even before basis is re- 
couped, constitute ordinary income. 1 

Thus, we must remake the statute if we are to accept, the 
appellants' theory. In contrast, the Logan rule as applied 
by the lower court ties perfectly into the language of Sec- 
tion 111(b). That section requires the gain to be based 
upon the "sum of any money received plus the fair market 
value of the property (other than money) received." This 
statutory language has remained virtually unchanged since I 
1924. Since that time numerous cases have applied the 
Logan doctrine to it and have held that a contract which 
has no ascertainable fair market value can have no fair 
market value. Thus the gain is computed as the cash 
comes in under the contract. To use the language of the 
Tax Court in the Perry case cited with approval by the 
Eighth Circuit in affirming it. Perry v. Commissioner, 152 
F. 2d 183 (C. C. A. 8th 1945 at page 186): 

'The very fact * * * that the statute uses "fair 
market value" instead of mere "value," indicates in- 
tent not to permit the inclusion in income of any con- 
tract merely because of intrinsic value." 



—25— 

This interpretation of the section has been recognized not 
only by the cases in point hereinabove discussed, but also 
by the leading text on the subject. Mertens, "Law of Fed- 
eral Income Taxation" (1942), Vol. 10, page 433, 

"On the other hand, Congress undoubtedly recog- 
nized that under certain circumstances it was possible 
for property at a given time to have no fair market 
value." 

Furthermore, at least for the last fourteen years, the 
Commissioner's own regulations under Section 111(b) 
have recognized that in certain "rare and extraordinary 
cases" property may have no fair market value. Thus, 
Article 111-1 of Regulations 86 under the 1934 Revenue 
Act provided that "the fair market value of property is a 
question of fact, but only in rare and extraordinary cases 
will property be considered to have no fair market value." 
This identical provision has been contained in every sub- 
sequent regulation and is presently contained in Regula- 
tions 111, Section 29.111-1. The Courts have unanimously 
held that a contingent contract such as the one presently 
involved is that rare type of property which has no ascer- 
tainable fair market value. This has been the accepted 
case law for sometime and Congress has changed the stat- 
ute on many occasions without making any change in the 
controlling language of Section 111(b). 

It is submitted, therefore, that the opinion of the lower 
court is in conformity with the controlling statute, whereas 
the suggested interpretation of appellants cannot be recon- 
ciled with it. 



—26— 

IV. 

Appellants Attempt to Distinguish the Present Case 
From the Logan Case Is Lacking in Substance. 

At pages 10 and 11 of their brief, appellants attempt 
to distinguish the present case from the Logan case. We 
may dispose of these purported differences summarily in 
the order there set forth: 

(1) The Present Transaction Involves an Exchange Whereas 
the Logan Case Involved a Sale. 

In the Logan case the taxpayer transferred stock and 
received in exchange cash and a contingent contract. In 
the instant case the taxpayer surrendered her stock in the 
Quickwork Company and received in exchange cash, cer- 
tain other assets and a contingent contract. There is no 
difference in substance between the two situations. The 
fact that the Supreme Court in the Logan case emphasized 
that that case involved a sale rather than an exchange is 
no doubt due to the peculiar provision of the 1918 Reve- 
nue Act there involved. Section 202(b) of that Act pro- 
vided with respect to exchanges that gain or loss upon an 
exchange would be recognized only if the property re- 
ceived had a fair market value. Otherwise such exchanges 
were completely tax-free. This treatment applied to ex- 
changes only and not to sales, Geary v. Commissioner, 6 
B. T. A. 1109, 1112 (1927), where the Board said with 
reference to a comparable provision of the 1921 Revenue 
Act: 

"The provision of the statute that where property 
is exchanged for other property no gain or loss is 
recognized unless the property received in exchange 
has a readily realizable market value, is applicable 
only to exchanges of property and not to sales." 



* 



—27— 

This explains why the Supreme Court was careful to 
distinguish between a sale and an exchange under the 
1918 Act. 

Furthermore, there is no significance whatsoever to the 
peculiar language of Section 115(c) treating a liquidation 
as an "exchange" and as "full payment." Hardly more 
is needed than a reference to the legislative history of this 
section. It was introduced into the law in the 1924 Reve- 
nue Act with the following explanation by the House Ways 
and Means Committee, C. B. 1939-1, part 2, page 249: 

"The proposed bill as in the 1918 Act treats a liqui- 
dating dividend as a sale of the stock to the corpora- 
tion and recognizes the true effect of such a distribu- 
tion." 

What more eloquent evidence could be asked that Congress 
intended to apply no magic meaning to the word "ex- 
change," when in their very Committee Report they refer 
to it as a "sale." Indeed it has been held that a surrender 
of stock by a stockholder in complete liquidation constit- 
tutes a "sale" as that term is used in other provisions of 
the Internal Revenue Code. 

H elver ing v. Syndicate Varieties, 140 F. 2d 344, 
346 (C. C. A. D. C. 1944). 

(2) In the Present Case the Taxpayer Has Recovered Her 
Basis Whereas in the Logan Case That Was Not So. 

In the preceding sections of this brief, we have dealt 
completely with this asserted difference and have pointed 
out that the statute does not permit any difference in treat- 
ment based upon this ground. 



—28— ! 

(3) (4) In the Logan Case the Taxpayer Received the Con- 
tingent Promise of the Whiting Corporation Rather Than 
the Contingent Promise o£ the Quickwork Company to j 

Which She Transferred Her Stock. \ 

i 

This is clearly a distinction without a difference. The i 
taxpayer acquired no greater rights against the Whiting j 
Corporation through the liquidation than she would have \ 
received had she exchanged an asset directly to it for such j 
a contingent promise. The same contingencies inherent in 
the Whiting contract when it was received by the Quick- 
work Company were inherent in it when it was received 
by the taxpayer from the Quickwork Company. If it was 
the type of promise which has ''no ascertainable fair mar- 
ket value" — and it is admitted in this case that it does fall 
within that category — then it has no "fair market value" 
as that phrase is used in Section 111(b). It matters not, 
under the language of that section or under the principles 
established by the cases, whose promise it is. 

(5) The Logan Case Did Not Involve the Capital Gains 

Provisions. 

We have dealt with this asserted difference also in previ- 
ous sections of this brief and pointed out that under the 
statute, since Section 111(b) governs the computation of 
gain on both the sale of capital and non-capital assets and 
makes no distinction between the two, the asserted dift'er- 
ence must fall. 

The most eloquent final answer to all of the above as- 
serted differences is that when they were presented to the 
various courts in the cases in point previously discussed 
there were properly considered to be lacking in substance. 



—29— 

Conclusion. 
In the instant case the taxpayer owned a very valuable 
capital asset — all of the stock of the Quickwork Company. 
She received in exchange therefor a contingent contract of 
no ascertainable fair market value. She desires to pay the 
Government the entire taxes due it on the gain ultimately 
received by her from the disposition of her stock in the 
complete liquidation of the Quickwork Company. She 
feels that she should not be denied this privilege merely 
because of the fact that the amount ultimately received for 
such capital asset depends on future events and contin- 
gencies. 

The instant transactions were motivated purely by busi- 
ness considerations on the part of the taxpayer and her 
corporation. She did not even seek tax advice concerning 
the consequences to her of these events. This is eloquently 
proved by the fact that in her 1940 income tax return, she 
reported the receipts under the Whiting contract which 
she received after the liquidation as ordinary income and 
let the statute of limitations run without filing a claim for 
refund based upon their proper treatment as capital gains. 
Thus we are not involved with a situation where the tax- 
payer attempted to utilize the Logan doctrine to secure a 
tax advantage where business considerations would dic- 
tate a different process. The entire present transaction was 
based wholly upon business considerations. 

The judgment of the lower court is in accord with all of 
the decided cases on the subject, is in conformity with the 



—30— I 

statute as interpreted by said cases, and is recognized by | 
the Commissioner of Internal Revenue in his own regula- 
tions since 1934. It is fair and equitable. 

The judgment should be affirmed. 

Respectfully submitted, 

Gibson, Dunn & Crutcher, 
By Bert A. Lewis, 

Attorneys for Appellee. 



APPENDIX. 

United States Court of Appeals, for the Second Cir- 
cuit. 

No. 26— October Term, 1948. 

(Argued October 6, 1948. Decided November 29, 
1948.) 

Docket No. 20999. 

Commissioner of Internal Revenue, Petitioner, v. Susan 
J. Carter, Respondent. 

Before L. Hand, Swan and Chase, Circuit Judges. 

Petition to review a decision of the Tax Court of the 
United States. 

The Commissioner seeks reversal of a decision of the 
Tax Court holding that income received by the taxpayer 
in 1943 was taxable as capital gain rather than as ordi- 
nary income. 9 T. C. 364. Order affirmed. 

Theron Lamar Caudle, Assistant Attorney General, 
Lee A. Jackson and Irving I. Axelrad, Special Assistants 
to the Attorney General, for petitioner. 

John S. Keith, Attorney for respondent. 

Swan, Circuit Judge: 

This appeal presents the question whether income re- 
ceived by the taxpayer in 1943 is taxable as long-term 
capital gain, as the Tax Court ruled, or as ordinary in- 
come as the Commissioner contends. The facts are not 
in dispute. The taxpayer, Mrs. Carter, had owned for 
ten years all the stock of a corporation which was dis- 
solved on December 31. 1942. Upon its dissolution all 
of its assets were distributed to her in kind, subject to 



—2— j 

i 

all its liabilities which she assumed. In the distribution [ 
she received property having a fair market value exceed- [ 
ing by about $20,000 the cost basis of her stock, and she \ 
reported such excess as a capital gain in her 1942 return ; 
and paid the tax thereon. In the corporate liquidation j 
she also received 32 oil brokerage contracts which the i 
parties stipulated had no ascertainable fair market value ] 
when distributed. Each contract provided for payment ; 
to the corporation of commissions on future deliveries of i 
oil by a named seller to a named buyer. The contracts re- ', 
quired no additional services to be performed by the cor- \ 
poration or its distributee, and the future commissions 
were conditioned on contingencies which made uncertain j 
the amount and time of payment. In 1943 the taxpayer i 
collected commissions of $34,992.20 under these contracts. ; 
She reported this sum as a long-term capital gain; the I 
Commissioner determined it to be ordinary income. The i 
Tax Court held it taxable as capital gain. The correct- ' 
ness of this decision is the sole question presented by the ' 
Commissioner's appeal. [ 

Mrs. Carter's stock was a "capital asset" as defined by ' 
section 117(a) of the Internal Revenue Code, 26 U. S. C. I 
A., 1940 edition. In exchange for her stock, she received 
the assets of the corporation upon its dissolution. The , 
tax consequences of such a transaction are controlled by \ 
section 115(c) which provides that "the gain or loss to! 
the distributee resulting from such exchange" shall be i 
determined under section 1 1 1 but recognized only to the j 
extent provided in section 112. Turning to section; 
111(a): the "gain from the sale or other disposition of j 
property" is the excess of "the amount realized there-; 
from" over the adjusted cost basis provided in section [ 
113(b). Paragraph (b) of section 111 defines the I 

i 



— 5- 

"amount realized from the sale or other disposition of 
property" to be the sum of money received "plus the fair 
market value of the property (other than money) re- 
ceived." Paragraph (c) of the same section provides 
that "In the case of a sale or exchange, the extent to which 
the gain or loss determined under this section shall be 
recognized for the purposes of this chapter, shall be de- 
termined imder the provisions of section 112." That sec- 
tion lays down the general rule, subject to exceptions 
not pertinent to the case at bar, that "upon the sale or 
exchange of property" the entire amount of the gain or 
loss, determined under section 111, shall be recognized. 
From the foregoing statutory provisions, it is obvious 
that if the oil brokerage contracts distributed to the tax- 
payer had then had a "fair market value," such value 
would have increased correspondingly the "amount realized" 
by her in exchange for her stock and would have been 
taxable as long-term capital gain, not as ordinary income. 
Boudreau v. Commissioner, 5 Cir., 134 F. 2d 360; Flem- 
ing V. Commissioner, 5 Cir., 153 F. 2d 361. The question 
presented by the present appeal is whether a different re- 
sult is required when contract obligations having no ascer- 
tainable fair market value are distributed in liquidation 
of a corporation and collections thereunder are made by 
the distributee in later years. 

In answering this question in the negative, the Tax 
Court relied primarily upon Burnett v. Logan, 283 U. S. 
404. That involved a sale of stock, not a distribution 
in liquidation, under which the seller received cash and 
the buyer's promise to make future payments conditioned 
on contingencies. The cash received did not equal the 
seller's cost basis for the stock, and the contingencies af- 



fecting future payments precluded ascribing a fair mar- 
ket value to the buyer's promise. In later years pay- 
ments were made which the seller did not return as in- 
come. The decision held that she was not required to do 
so. With respect to such payments, the court said, pages 
412-413: 

"As annual payments on account of extracted ore come 
in they can be readily apportioned first as return of 
capital and later as profit. * * * When the profit, if 
any, is actually realized, the taxpayer will be required 
to respond. The consideration for the sale was $2,200,- 
000.00 in cash and the promise of future money pay- 
ments wholly contingent upon facts and circumstances not 
possible to foretell with anything like fair certainty. The 
promise was in no proper sense equivalent to cash. It 
had no ascertainable fair market value. The transaction 
was not a closed one. Respondent might never recoup 
her capital investment from payments only conditionally 
promised. * * * gj^^ properly demanded the return 
of her capital investment before assessment of any tax- 
able profit based on conjecture." 

The Commissioner argues that the Logan case is in- 
applicable because there the taxpayer had not recovered 
the cost basis of her stock while here she had. The Tax 
Court thought the distinction immaterial. We agree. 
The Supreme Court spoke of the annual payments as con- 
stituting "profit" after the seller's capital investment should 
be returned. Until such return it cannot be known whether 
gain or loss will result from a sale ; thereafter it becomes 
certain that future payments will result in gain. No rea- 
son is apparent for taxing them as ordinary income. As 
this court said in Commissioner v. Hopkinson, 126 F. 2d 



—5— 

406, 410, "payments received by the seller after his basis 
had been extinguished would have been taxable to him 
as capital gains from the sale of the property," citing 
Burnet v. Logan as authority/ 

The Commissioner also urges that the Logan case is 
distinguishable because it dealt with a sale of stock rather 
than exchange of stock for assets distributed in a corpo- 
rate liquidation. This contention is answered by White 
v. United States, 305 U. S. 281, 288, and Helvering v. 
Chester N. Weaver Co., 305 U. S. 293, 295, where the 
court held that the recognition required by section 115(c) 
of gains and losses on liquidation must for purposes of 
computation of the tax, be taken to be the same as that 
accorded to gains and losses on sales of property. Con- 
sequently we agree with the Tax Court's ruling that the 
principle of the Logan case is applicable to a corporate 
liquidation where stock is exchanged in part for contracts 
having no ascertainable market value, and that future col- 
lections under such contracts are taxable as capital gain 
in the year when received if the distributee has previously 
recovered the cost basis for the stock. 

The Commissioner's argument that such collections are 
analogous to the receipt of interest or rent upon bonds 
or real estate distributed in a corporate liquidation over- 
looks a significant distinction. Payment of interest or 
rent does not impair the value of the bond or real estate 
since each remains as a capital asset regardless of the 
number of payments. See Helvering v. Manhattan Life 



^For similar rulings see Haynes v. United States. 50 F. Supp. 
238 (Ct. Cls.); United States v. Yerger, 55 F. Supp. 521 (D. C. 
E. D. Pa.) ; Hill's Estate v. Maloney. 58 F. Supp. 146 (D. C. 
N. J.) ; Nicholsor^ v. Commissioner, 3 T. C. 596. 



Ins. Co., 2 Cir., 71 F. 2d 292, 293. But with respect 
to the oil brokerage contracts, under which no additional 
services were to be rendered by the payee, each payment 
decreases their value until, with the final payment it will 
be completely exhausted; and, if the payments be treated 
as income, the distributee has no way to recoup his capi- 
tal investment, since concededly he has no economic in- 
terest in the oil producing properties and therefore no 
right to depletion deductions.^ Hence to consider the brok- 
erage payments as ordinary income would produce a most 
unjust result and one quite unlike the result which fol- 
lows the distribution of bonds or real estate in a corpo- 
rate liquidation. 

For the foregoing reasons we think the decision of 
the Tax Court correct. It is affirmed. 



^It is true, in the case at bar, the taxpayer had no capital in- 
vestment in the brokerage contracts because from other assets dis- 
tributed she had already recovered the cost basis of her stock and 
the oil brokerage contracts had no ascertainable fair market value. 
But the Commissioner's analogy argument would be equally appli- 
cable if the brokerage contracts had been the only corporate assets 
distributed and it had been possible to ascribe to them a fair market 
value of $21,000. In that case, the distributee's capital investment 
in the brokerage contracts would have been $20,000, the cost basis 
of her stock being $1,000. She would be entitled to recover her 
capital investment before she could be charged with receiving either 
gain or ordinary income, and the only source of recovery would be 
the payments which would ultimately exhaust the value of the con- 
tracts. Hence the answer given above to the analogy argument is 
apposite. 



No. 12020 

IN THE 

United States Couft of Appeals 



FOR THE NINTH CIRCUIT 



GEORGE T. GOGGIN, as Trustee of the Estate of 
A. Moody & Co., Inc., Bankrupt, 

Appellant, 



vs. 



H. L. BYRAM, Tax Collector for the County of Los 
Angeles, State of California, 

Appellee. 



TRANSCRIPT OF RECORD 

Upon Appeal From the District Court of the United States 

for the Southern District of California 

Central Division 



SEP2'M948 

PAUL P, O'BRIEN, Nw 



Parker & Company, Law Printers, Los Angeles. Phone TR. 5206. 



No. 12020 

IN THE 

United States Court of Appeals 



FOR THE NINTH CIRCUIT 



GEORGE T. GOGGIN, as Trustee of the Estate of 
A. Moody & Co., Inc., Bankrupt, 

Appellant, 



vs. 



H. L. BYRAM, Tax Collector for the County of Los 
Angeles, State of California, 

Appellee. 



TRANSCRIPT OF RECORD 

Upon Appeal From the District Court of the United States 

for the Southern District of California 

Central Division 



Parker & Company, Law Printers, Los Angeles. Phone TR. 5206. 



INDEX 

[Clerk's Note: When deemed likely to be of an important nature, 
errors or doubtful matters appearing in the original certified record are 
printed literally in italics ; and likewise, cancelled matter appearing in the 
original certified record is printed and cancelled herein accordingly. When 
possible an omission from the text is indicated by printing in italics the 
two words between which the omission seems to occur.] 

Page 

Adjudication, Order of 13 

Affidavit for and Order Extending Time to File Peti- 
tion for Review 34 

Appeal : 

Notice of ...: 52 

Statement of Points on (District Court) 53 

Statement of Points on (Circuit Court) 58 

Approval of Debtor's Petition and Order of Reference 
Under Section 322 of the Bankruptcy Act 12 

Bond of Trustee and Order Approving 23 

Certificate of Clerk 56 

Claim of H. L. Byram, Tax Collector 26 

Findings of Fact and Conclusions of Law 30 

Names and Addresses of Attorneys 1 

Notice of Appeal 52 

Objections to Claim of H. L. Byram, Tax Collector, 
and Notice of Hearing 29 

Order of Adjudication 13 

Order Appointing Receiver 19 

Order Approving Bond of Trustee 25 

Order Approving Nomination of Trustee, Under Pro- 
visions of Section 338, Chapter XI, in the Event of 
Liquidation 22 



Page I 

Order Authorizing Debtor to Remain in Possession.... 14 \ 

Order Authorizing Trustee to Abandon Burdensome I 
Assets — 27 : 

Order Extending Time Within Which to File Petition ; 
for Review 35 ■ 

Order, Findings of Fact and Conclusions of Law re 

Claim of Tax Collector 30 | 

I 
Order on Petition of Thalco, a Creditor, for Order ' 

Vacating Order Allowing Debtor to Remain in Pos- '. 

session and for Receiver 17 ! 

Order on Review of Referee's Order of February 2, ' 
1948 49 I 

Petition Under Chapter XI of the Bankruptcy Act 2 \ 

Referee's Certificate on Review 43 ; 

Referee's Certificate on Review, Supplemental 48 ; 

Statement of Points on Appeal (District Court) 53 | 

Statement of Points on Appeal (Circuit Court) 58 

Stipulation and Order re Supplemental Certificate on 
Review 47 



NAMES AND ADDRESSES OF ATTORNEYS 

For Appellant: 

RUSSELL B. SEYMOUR 

1120 Rowan Building 
458 South Spring Street 
Los Angeles 13, Calif. 

FRANK C. WELLER 

111 West Seventh Street 
Los Angeles 14, Calif. 

For Appellee: 

HAROLD W. KENNEDY 
County Counsel 

ANDREW O. PORTER 
Deputy County Counsel 

1100 Hall of Records 
Los Angeles 12, Calif. [1*] 

*Page numlier appearing at foot of Certified Transcript. 



2 George T. Goggin, etc. | 

\ 
In the District Court of the United States for the '^ 

Southern District of California < 

Central Division j 

In Bankruptcy No. 44737- WM -. 

In the Matter of A. MOODY & CO., INC., a California j 
corporation, \ 

Debtor. ; 

I 

PETITION UNDER CHAPTER XI \ 

(Section 322) j 

OF THE BANKRUPTCY ACT ! 

To the Honorable Judges of the Above-Entitled Court: 

The verified petition of A, Moody & Co., Inc., a corpor- \ 

ation, respectfully represents to the Court as follows : j 

I 

I. ! 

That your petitioner is now and at all times herein ; 
mentioned has been a corporation duly and regularly \ 
organized and existing under the laws of the State of : 
California, having its principal place of business at 5300 j 
South San Pedro Street, Los Angeles, in the County of j 
Los Angeles, State of California, being engaged in the ' 
manufacture of mattresses and box springs, and is entitled ! 
to become a bankrupt under the Acts of Congress relat- : 
ing to bankruptcy, and is not a municipal, railroad, in- i 
surance or banking corporation or a building or loan , 
association. 

II. I 

That your petitioner has had its principal place of ' 
business and office at 5300 South San Pedro Street, in i 
the City of Los Angeles, [2] County of Los Angeles, 
State of California, within the above judicial district for 



vs. H. L. Byram, etc. 3 

a longer portion of the six months immediately preceding- 
the filing of this petition than in any other judicial dis- 
trict. 

III. 

That no bankruptcy proceeding has heretofore been 
filed by your petitioner and no involuntary petition in 
bankruptcy is now pending against it. 

IV. 

That your petitioner is unable to pay its debts as they 
mature and proposes the arrangement with its unsecured 
creditors as hereinafter set forth. 

V. 

That your petitioner alleges, as required by Section 
324, Chapter XI of the Bankruptcy Act, as amended: 

(a) That your petitioner has no executory contracts 
except a lease with an option to purchase, covering the 
building and real property described in the schedules 
attached hereto. 

(b) That a statement of affairs of your petitioner 
will be filed within the time directed by the above-entitled 
Court. 

(c) That the Clerk's filing fee will be paid upon the 
filing of this petition. 

(d) That your petitioner's assets are located at 5300 
South San Pedro Street, in the City of Los Angeles, 
County of Los Angeles, State of California. 

VI. 

That your petitioner was incorporated during the month 
of March, 1946, and took over the manufacturing busi- 
ness of A. Moody & Co., a co-partnership, which co- 



4 George T. Goggin, etc. 

partnership had been engag-ed in the business of manu- 
facturing and selHng mattresses for a period of some 
twenty-nine years. That since the incorporation of debtor 
herein, your [3] petitioner has been the largest manufac- 
turer of mattresses on the Pacific Coast, and during the 
first ten months of your petitioner's operations, had sales 
in excess of One Million Four Hundred Thousand Dol- 
lars ($1,400,000.00). That your petitioner's business has 
been operating at a profit and can be operated at a profit, 
but due to a program of expansion and the purchasing 
of large inventories, has depleted its working capital and 
is unable to meet its obligations as they mature. 

That your petitioner leased premises at 5300 South San 
Pedro Street, Los Angeles, California, from the Lesco 
Corporation, and proceeded to consolidate its operations 
and installed machinery and equipment and fixtures, which 
resulted in a cash outlay and the incurring of obligations 
in the amount of One Hundred Seventy-five Thousand 
Dollars ($175,000.00). 

That your petitioner has a large supply of glass wool 
warehoused with the Haslett Warehousing Company, the 
warehouse receipts being pledged with the Bank of Amer- 
ica National Trust & Savings Association to secure an 
obligation in the amount of One Hundred Thirty-one 
Thousand Nine Hundred Eighty-three and 76/100 Dol- 
lars ($131,983.76). That your petitioner has been with- 
drawing merchandise as required and paying the sum of 
Two and 25/100 Dollars ($2.25) per pound for the glass 
wool so withdrawn. Said glass wool was purchased by 
your petitioner for the sum of Three and 40/100 Dollars 
($3.40) per pound. 

That your petitioner has been discounting its accounts 
receivable with the Standard Factors Corporation. Under 



vs. H. L. Byram, etc. 5 

said arrangement, a twenty per cent (20%) hold-back 
is held as reserve against accounts so factored. 

VII. 

That your petitioner estimates that its operating expense 
for the next thirty days will consist of: [4] 

Payroll $ 18,000.00 

Utilities 1,000.00 

Transportation expense 1,000.00 

Materials and supplies 94,000.00 

Total $114,000.00 

That the sale will be made of One Hundred Fifty Thous- 
and Dollars ($150,000.00) and that the invoices evidenc- 
ing said sales can be discounted with the Standard Factors 
Corporation so as to realize One Hundred Twenty Thous- 
and Dollars ($120,000.00) cash to defray said operating 
expenses. 

VIII. 

The stock of the corporation is owned and subscribed 
for by Joe Moody, who is the president and general mana- 
ger, and has been entitled to receive the sum of Two 
Hundred Dollars ($200.00) per week as his compensation; 
that C. W. Jacobson, who is the comptroller and assistant 
to Mr. ]\loody, has been and will receive One Hundred 
Dollars ($100.00) per week; that sales are handled by M. 
^lalcolm Jones, who is paid the sum of One Hundred Dol- 
lars ($100.00) per week; and that Robert Moody, a 
cousin of Joe Moody, is production manager and receives 
One Hundred Dollars ($100.00) per week. That your 
petitioner proposes to pay said salaries until the further 
order of the above entitled court. 



6 George T. Goggin, etc. 

IX. 

That your petitioner has heretofore, in connection with 
Joe Moody, invested money in connection with the de- 
velopment of a saw mill in the San Jacinto Mountains for 
the purpose of obtaining lumber for its box springs con- 
struction and shipping requirements. That a total of 
Twenty-nine Thousand One Hundred Thirty-two and 
87/100 Dollars ($29,132.87) has been invested in said 
project. 

X. 

That your petitioner has heretofore entered into escrows 
for the [5] sale of certain parcels of real property in 
order to provide additional working capital, and that said 
escrows are in a condition where it is hoped the same 
may be closed at an early date. That your petitioner 
will realize from properties sold in connection with said 
escrows, an estimated net amount of $7,000.00. 

XL 

That attached hereto and made a part hereof, are 
schedules of assets and liabilities required by the general 
orders in Bankruptcy, which schedules contain a list of 
all creditors now known to your petitioner, with their 
addresses and the amounts of their obligations. 

DEBTOR'S PROPOSED PLAN OF 
ARRANGEMENT 

That your petitioner proposes the following plan of 
arrangement : 

Article 1 : That the creditors of petitioner be divided 
into classes and that the proposed classes be as follows: 

Class A. Expenses of operation under plan of ar- 
rangement as may be allowed and ordered paid. 



vs. H. L. Byram, etc. 7 

Qass B. Expenses of administration that may be 
allowed and ordered paid. 

Class C. All creditors entitled to priority as provided 
in Section 64a, subdivisions 2, 4 and 5 of the Acts of 
Congress relating to Bankruptcy, as amended. 

Class D. Obligations as they mature to secured credit- 
ors in accordance with the terms of their contracts. 

Class E. To pay pro-rata, at such times as this Hon- 
orable Court may direct and at intervals not to exceed 
six months, dividends upon unsecured creditors' claims 
until said claims are paid in full. 

Article II. That said plan of arrangement be carried 
out by permitting the debtor to remain in possession of its 
assets with the right to carry on its manufacturing busi- 
ness in the ordinary course under the supervision of a 
representative of the above entitled court [6] or a credit- 
ors' committee, as may be desired by creditors and deemed 
advisable by the above-entitled Court. 

Article III. That petitioner be permitted to make 
payments from time to time when funds are available in 
accordance with this plan of arrangement and that pe- 
titioner be given an extension of time within which to 
complete this arrangement and to discharge all of the 
creditors' claims as provided in this arrangement. 

Article I\^. That petitioner be permitted to remain in 
possession of its assets and continue its manufacture and 
sale of mattresses and box springs, the purchase of ma- 
terials, the employment of workmen and to conduct and 
operate its business under the supervision and direction of 
this Honorable Court with authority to employ agents, 



8 George T. Goggm, etc. 

managers, assistants and the necessary labor as may be re- 
quired to carry out the debtor's plan of arrangement, in- 
cluding the right to borrow money and incur obligations as 
may be authorized and permitted from time to time by the 
above-entitled Court, and to secure said obligations if 
required so to do, as may be ordered and directed by 
the above-entitled Court. 

Article V. All debts incurred after the filing of this 
petition prior to the confirmation of the plan of arrange- 
ment shall be paid in full and in such manner as ordered 
by the above-entitled Court. 

Article VI. The Court shall retain jurisdiction of the 
debtor's property and the operation of same until the | 
payment in full of all creditors' claims and this Honorable 
Court be authorized, in its discretion, to countersign all 
checks signed by the debtor in possession. d[ 

Article VII. In the event any claim is in controversy i 
in respect to classification or the amount due, the debtor, \ 
under order of Court, may make such deposit in such \ 
manner as the Court may direct in respect to said dis- \ 
puted claim and proceed to pay other [7] creditors and be j 
restored to possession pending a final determination of ; 
said disputed claim. ^ 

XI. 1 

.... "I 

That your petitioner is advised that Chapter XI of the , 

Bankruptcy Act is the appropriate section of the Act ] 

under which to seek relief and that your petitioner verily 

believes that if its business can be operated in the manner \ 

herein designated and if permitted to continue to operate \ 



vs. H. L. Byram, etc. 9 

as proposed in this petition, your petitioner can pay all 
its just debts in full. 

That it is necessary for the speedy and proper adminis- 
tration of the debtor's affairs and the equitable payment 
of creditors, that all creditors and parties be enjoined 
from commencing or prosecuting any suit or foreclosure 
proceeding in any form or manner other than before the 
above-entitled Court or without permission of the above- 
entitled Court. 

Wherefore, your petitioner prays that proceedings may 
be had upon this petition in accordance with the provisions 
of Chapter XI of the Bankruptcy Act as amended. That 
all creditors and other parties be enjoined from commenc- 
ing any suit in any Court or conducting any sale or fore- 
closure proceedings affecting the property of the petitioner 
or repossessing any property without order of this Hon- 
orable Court first had and obtained. That debtor be 
permitted to pay current labor, operating expenses. That 
this Honorable Court leave the debtor in possession, with 
full authority to operate and carry on the debtor's business 
affairs pending a confirmation of the debtor's proposed 
plan of arrangement and that an adjudication be stayed. 
That this Honorable Court require debtor to open the 
necessary bank account or accounts for the purpose of 
properly conducting the business and that the funds may 
be withdrawn upon the signature and countersignature as 
this Honorable Court may direct and to take [8] such 
other steps and make such other orders herein as may be 
necessary for the protection of the debtor and all interest- 



10 George T. Goggin, etc. 

ed parties and that your petitioner be granted such other 
and further rehef as is just and proper in the premises. 

A. MOODY & CO, INC, 
(Seal) a CaHfornia Corporation 

By Joe Moody, President 

MURCHISON, MYERS & GRAY and 
COBB & UTLEY 

By Francis B. Cobb 

Attorneys for Debtor [9] 

[Verified.] [10] 

CERTIFIED COPY OF RESOLUTION 

ADOPTED BY THE BOARD OF DIRECTORS OF 
A. MOODY & CO. INC. 
A Cahfornia Corporation 

Resolved that the president and/or secretary of this 
corporation be and each of them hereby is authorized to 
file in the District Court of the United States, for the 
Southern District of California, Central Division, a peti- 
tion for an arrangement or other appropriate petition un- 
der the applicable laws of the United States for and on 
behalf of the Corporation. 

Be It Further Resolved that the firm of Murchison 
Myers & Gray and the firm of Cobb & Utley be and they 
hereby are employed by the corporation as its attorneys 
to file said petition and prosecute such proceedings with 
relation thereto as in their judgment may be fit and neces- 
sary in the premises. 

The foregoing resolution was put to a vote and unani- 
mously adopted. 



vs. H. L. Byram, etc. 11 

I hereby certify that the foregoing is a full, true and 
correct copy of a resolution adopted by the board of 
directors of said corporation at a duly and regularly called 
and held meeting of said directors held on the 25th day 
of January, 1947, at which all of the directors of said 
corporation were present and voted; that said resolution 
appears on the minutes of said meeting and that it has 
never been revoked or modified. 

I also certify that the foregoing resolution was fully 
approved by Joe Moody, Bruce Murchison, H. Morton 
Newman and H. Morton Newman, Jr., being all of the 
directors of said corporation. 

In Witness Whereof, I have hereunto set my hand 
and the seal of the corporation, this 25th day of January, 
1947. 

(Seal) BRUCE MURCHISON 

Secretary of A. Moody & Co., Inc., a California 
Corporation 

[Endorsed] : Filed Jan. 27, 1947. Edmund L. Smith, 
Clerk. [11] 



12 George T. Goggin, etc. 

[Title of District Court and Cause] 

APPROVAL OF DEBTOR'S PETITION AND OR- 
DER OF REFERENCE UNDER SECTION 322 
OF THE BANKRUPTCY ACT 

At Los Angeles, in said District, on Jan. 27, 1947 be- 
fore the said Court the petition of A. Moody & Co., Inc., 
a corporation, that he desires to obtain relief under Sec- 
tion 322 of the Bankruptcy Act, and within the true in- 
tent and meaning of all the Acts of Congress relating to 
bankruptcy, having been heard and duly considered, the 
said petition is hereby approved accordingly. 

It is thereupon ordered that said matter be referred to 
Hubert F. Laugharn, Esq., one of the referees in bank- 
ruptcy of this Court, to take such further proceedings 
therein as are required by said Acts; and that the said 
A. Moody & Co., Inc., a corporation, shall attend before | 
said referee on Feb. 3, 1947 and at such times as said ' 
referee shall designate, at his office in Los Angeles, Cali- I 
fornia, and shall submit to such orders as may be made j 
by said referee or by this Court relating to said matter. \ 

Witness, the Honorable Wm. C. Mathes, Judge of said \ 
Court, and the seal thereof, at Los Angeles, in said Dis- i 
trict, on Jan. 27, 1947. I 

(Seal) EDMUND L. SMITH ; 

Clerk ; 

By F. Betz I 

Deputy Clerk j 

[Endorsed] : Filed Jan. 27, 1947. Edmund L. Smith, ; 
Clerk. [12] i 



vs. H. L. Byram, etc. 13 

[Title of District Court and Cause] 

ORDER OF ADJUDICATION 

A meeting of the creditors of said debtor corporation 
having been regularly called, and notice thereof having 
been given in the manner provided by law, and said meet- 
ing having been continued from time to time until the 18th 
day of March, 1947, at 2:00 o'clock P. M. before the 
undersigned Referee, Cobb & Utley appearing as attorneys 
for debtor corporation, Craig & Weller and George R. 
Larwell appearing as attorneys for Creditors' Committee, 
and Russell B. Seymour and Frank C. Weller appearing 
for the receiver herein, and certain creditors being repre- 
sented in person, and it appearing that the said debtor had 
failed to file a fair, equitable and feasible plan of arrange- 
ment, and it also appearing from the statement in open 
court of attorney Ernest R. Utley for said debtor that 
the said debtor had no objection to an adjudication of 
bankruptcy herein, and it also appearing from statement 
of counsel for the Creditors' Committee that said Com- 
mittee recommended an adjudication of said debtor cor- 
poration, and no creditor in court in [13] person or by 
counsel having objected to said adjudication, and it ap- 
pearing to the court that it is for the best interests of the 
creditors that an order of adjudication be made herein. 

Now. Therefore, It Is Ordered that the said debtor 
corporation be, and it hereby is, adjudicated a bankrupt, 
and it is directed that bankruptcy be proceeded with pur- 
suant to the provisions of the Bankruptcy Act. 

Dated: This 21 day of March, 1947. 

HUBERT F. LAUGHARN 
Referee in Bankruptcy 

[Endorsed] : Filed ^lar. 24, 1947. Edmund L. Smith, 
Clerk. [14] 



14 George T. Goggin, etc. 

[Title of District Court and Cause] 

ORDER AUTHORIZING DEBTOR TO REMAIN IN 

POSSESSION 

Upon reading and filing the petition of the debtor cor- 
poration for relief under Chapter XI and it appearing 
to the best interest of all parties in interest, that the 
debtor be permitted to remain in possession of the assets 
and effects of the above named debtor, and that the busi- 
ness being operated be carried on in the ordinary couise 
until further order of this Court, on motion of Francis 
B. Cobb, one of the attorneys for the above named debtor, 
and good cause appearing. 

It Is Hereby Ordered that said debtor corporation 
be and it is hereby authorized to remain in possession 
of its assets and effects and to carry on the debtor's busi- 
ness in the ordinary course until further order of this 
Court, but under the supervision and control of this Court. 

It Is Further Ordered that the debtor corporation 
file twice each month a report of the debtor's operations, 
which report shall contain a summary of all cash re- 
ceived, of all cash disbursed and of all obligations in- 
curred, the amount of sales on credit, the amount of any 
accounts discounted, the amount of any accounts receiv- 
able collected, and profit made or loss sustained. [15] 

It Is Further Ordered that the bankrupt shall keep 
separate books and records of its operations commencing 
on January 29, 1947, and continue until further order of 
the Court. 

It Is Further Ordered that the bankrupt immedi- 
ately sign up for gas, water, electricity and telephone 
and make the required deposit with said utility companies 
and have readings made in respect to meters in order that 



vs. H. L. Byram, etc. 15 

the obligations existing to said companies at that time 
be separate and apart from obHgations to arise in the 
future. 

It Is Further Ordered that the debtor in possession 
open three bank accounts with the CaHfornia Bank, 
5979 South Broadway, Los Angeles, California, and 
that the first account shall be known as "A. Moody 
& Co., Inc., Debtor," and to which account there shall 
be deposited all income derived by the debtor in pos- 
sion. Disbursement shall be made from said account 

Joseph Moody 
by checks signed by Gv Wr Jacobson and countersigned by 
Hubert F. Laugharn, Referee in Bankruptcy, or any other 
Referee in Bankruptcy of this Court. The company shall 
open an account to be known as the "Payroll Account" 

Joseph Moody 
on which checks shall be signed by /^ C. W. Jacobson; 
that the debtor shall transfer from the debtor ac- 
count sufficient funds to meet payroll checks, and the 
transfer shall be by check and countersigned by the under- 
signed Referee, or any other Referee of this Court, and 
accompanying said transfer check shall be presented a 
complete payroll showing the employees, the amount to 
be paid to each, and the deductions made for withholding 
tax, social security and unemployment insurance. The 
company shall open a third account which shall be known 
as the "Tax Account." Accompanying each check trans- 
ferring to the payroll account funds to meet the pay- 
roll, there shall be drawn a check on the debtor's account 
for an amount covering all social security, unemployment 
insurance and withholding taxes, including the contribu- 
tion by the debtor corporation, and said check so drawn 
on the debtor's account shall be deposited in the tax 



16 George T. Gog gin, etc. 

account, and said tax account [16] shall be used only for 
the purpose of paying to the proper taxing agencies taxes 
required to be paid by the debtor corporation. The checks 
drawn upon said tax account shall be countersigned by 
the undersigned or any other Referee in Bankruptcy. 

It Is Further Ordered that the debtor prepare and 
file the quarterly tax returns as required by law, and 
that any funds now held under a trust account to pay 
taxes shall be transferred to said tax account above pro- 
vided to be made. 

It Is Further Ordered, that until further order of 
this Court the debtor corporation be authorized and 
permitted to pay to Joe Moody the sum of Two Hun- 
dred Dollars ($200.00) per week, to C. W. Jacobson the 
sum of One Hundred Dollars ($100.00) per week, to 
M. Malcolm Jones the sum of One Hundred Dollars 
($100.00) per week, and to Robert Moody the sum of 
One Hundred Dollars ($100.00) per week, as compen- 
sation for their services. 

The Court reserves the right to make such other and 
further orders as may appear proper in the premises. 
Dated this 27th day of January, 1947. 

HUBERT F. LAUGHARN 
Referee in Bankruptcy 

[Endorsed] : Filed Aug.' 3, 1948. Edmund L. Smith, 
Clerk. [17] 



vs. H. L. Byram, etc. 17 

[Title of District Court and Cause] 

ORDER ON PETITION OF THALCO, A CREDI- 
TOR, FOR ORDER VACATING ORDER AL- 
LOWING DEBTOR TO REMAIN IN POSSES- 
SION AND FOR RECEIVER 

The petition of Thalco, a corporation, an unsecured 
creditor herein, having been filed and coming on for hear- 
ing on February 11, 1947, before the Honorable Hubert 
F. Laugharn, Referee herein, after notice thereof given 
to the Debtor, A. Moody & Co., Inc., and the petitioner 
appearing by its attorney, George R. Larwill, and the 
Debtor appearing by its attorneys, Murchison, Myers & 
Gray and Cobb & Utley, by Francis B. Cobb, and other 
creditors having appeared, to-wit. Standard Automatic 
Sprinkler Co., by its attorney, Everett Shilling, Hill Elec- 
tric Co., by its attorneys, Robert McWilliams and Grain- 
ger and Hunt, by Adele O. Carver, and other creditors, 
to-wit, Modern Springs, Coast Coil Spring Co.. Greeno 
Company, Lester E. Nielson and De Lamar Bed Springs 
Co., being present by some representative thereof, the 
Referee having considered said petition and [18] having 
heard statements of counsel and the creditors so repre- 
sented having had an informal meeting and having ap- 
pointed a committee of five for the purpose of meeting 
with the Debtor, investigating the conditions of Debtor's 
business and making recommendations to the Referee on 
the question of the advisability of the appointment of a 
Receiver herein and such other matters as may presently 
be pertinent to the said application and to the matter of 
continuing the business of the Debtor and the matter of 
continuing the Debtor in possession, and good cause ap- 
pearing therefor, 



18 George T. Goggin, etc. 

It Is Hereby Ordered that the committee appointed 
by the said creditors, as aforesaid, shall be, and is 
hereby, appointed, temporarily until the further order 
of the Referee, an informal creditors' committee to meet, 
examine into, consider and make recommendations upon 
the condition of the business of the Debtor, the matters 
and things set forth in the Debtor's petition on file herein, 
the question of the advisability of continuing the Debtor in 
possession and the question of the advisability of the ap- 
pointment of a Receiver herein and other matters perti- 
nent, relevant and material to the foregoing, the said com- 
mittee to be advisory to this Referee and to make its 
recommendations to this Referee as soon as may be prac- 
ticable ; 

It Is Further Ordered that said committee shall con- 
sist of M. W. Engleman, representing the creditors 
generally, T. E. Thai, representing Thalco, a corpo- 
ration, J. Hayden Chapman, representing Coast Coil 
Springs Co., Rollie Pierce, representing Greeno Company, 
and Lester C. Nielson, representing Lester C. Nielson Co.. 
with the right to those of the said creditors so designated 
to substitute other officers or representatives of said cred- 
itors ; 

It Is Further Ordered that the Debtor, A. Moody 
& Co., Inc., shall furnish to said committee all in- 
formation pertaining to the matters and things set forth 
in its petition in bankruptcy on file herein and the infor- 
mation therein contained, all information relating to the 
present business of the Debtor, its methods of conducting 
the business, [19] its contracts and commitments, its 
liabilities, fixed and contingent, and its assets. 



vs. H. L. Byram, etc. 19 

It Is Further Ordered that this matter is continued 
for further hearing to 2:00 o'clock P. M., Friday, Feb- 
ruary 14, 1947. 

Dated this 12th day of February, 1947. 

HUBERT F. LAUGHARN 
Referee in Bankruptcy [20] 

Received copy of the within Order etc., this 12th day 
of February, 1947. Cobb & Utley, by F. J., Attorneys for 
Debtor. 

[Endorsed] : Filed Aug. 3, 1948. Edmund L. Smith, 
Clerk. [21] 



[Title of District Court and Cause] 

ORDER APPOINTING RECEIVER 

Thalco, a corporation, and an unsecured creditor here- 
in, having filed its petition for an order vacating order 
allowing debtor to remain in possession and for order 
appointing Receiver, and said matter having duly come 
on for hearing on the 10 day of February, 1947, said 
Thalco appearing by George R. Larwill, and the debtor 
appearing by its attorneys, Murchison, Myers & Gray and 
Cobb and Utley, by Francis B. Cobb, and said matter 
being continued from time to time to March 13, 1947, 
at which time there appeared said petitioner, by its counsel, 
and the debtor, by it counsel, and the Creditors' Commit- 
tee theretofore appointed by the Court appearing in per- 
son and by its counsel, George R. Larwill and Frank C. 
Weller, and evidence having been adduced, and said 
Creditors' Committee having recommended that the Re- 



20 George T. Goggin, etc, 

ceiver be appointed herein, and it appearing to the best 
interests of creditors of the estate that the prayer of said 
petition be granted; 

Now, Therefore, It Is Ordered that said order allow- 
ing [22] debtor to remain in possession be, and hereby is, 
vacated and George T. Goggin be, and he hereby is, ap- 
pointed Receiver of all property of whatsoever nature and 
wheresoever located, now owned by or in possession of 
said debtor, and all and any property wheresoever located 
and of whatsoever nature, being property of said debtor 
and in possession of any agent, servant, officer or repre- 
sentative of said debtor, with authority to take possession 
of, preserve, care for, inventory, insure, segregate and 
move all assets of said debtor until the appointment and 
qualification of a Trustee herein, and with the further 
authority to collect such accounts receivable as are due to 
said estate, and with further authority to conduct the 
business and sell the same as a going concern, if it can be 
done with benefit to said estate, and said Receiver is 
authorized to do all and any such acts and take all and 
any such proceedings as may enable him forthwith to 
obtain possession of all and any such property; and 

It Is Further Ordered that the duties and compen- 
sation of said Receiver are hereby specifically extended 
beyond those of a mere custodian within the meaning 
of Section 48 of the Bankruptcy Act to embrace the 
conduct of the business and marshalling of assets, prepar- 
ation of inventories, collection, sale and disposition of 
accounts and notes receivable, and conduct of the business 
of said debtor as hereinabove specifically authorized; and 

It Is Further Ordered that all persons, firms and 
corporations including said debtor, and all attorneys, 
agents, officers and servants of said debtor herewith de- 



vs. H. L. Byram, etc. 21 

liver to said Receiver all property of whatsoever nature 
and wheresoever located, including merchandise, accounts, 
notes and bills receivable, drafts, checks, moneys, securities 
and all other choses in action, account books, records, chat- 
tels, lands and buildings, life and fire and all other insur- 
ance policies in the possession of them or any of them, 
and owned by said debtor, and said debtor is ordered 
forthwith to deliver to said Receiver all and any such 
property now in the possession of said debtor; and [23] 
It Is Further Ordered that all persons, firms and 
corporations, including all creditors of said debtor and 
representatives, agents, attorneys and servants of all 
such creditors, and all sheriffs, marshals, and other offi- 
cers, and their deputies, representatives and servants are 
hereby enjoined and restrained from removing, transfer- 
ring, disposing of or selling or attempting in any way to 
remove, transfer or dispose of, sell or in any way interfere 
with any property, assets or eft'ects in possession of said 
debtor or owned by said debtor, and whether in possession 
of any officer, agents, attorneys or representatives of said 
debtor, or otherwise, and all said persons are further en- 
jointed from executing or issuing or causing the execution 
or issuance of suing out of any Court of any writ, process, 
summons, attachment, replevin or in any other proceeding 
for the purpose of impounding or taking possession of or 
interference with any property owned by or in possession 
of said debtor or owned by said debtor, and whether in 
possession of any agents, servants or attorneys of said 
debtor, or otherwise; and 

It Is Further Ordered that the said Receiver is 
directed and authorized, as provided under the Postal 
Laws and Regulations of the United States, to receive all 
mail matter addressed to the above named debtor; and 



22 George T, Goggin, etc. 

It Is Further Ordered that before entering upon his 
duties said Receiver shall furnish a bond conditioned for 
the faithful performance of his duties, with a good and 
sufficient surety or sureties, in the sum of $25,000.00. 

Done at Los Angeles, in the Southern District of Cali- 
fornia, this 14 day of March, 1947. 

HUBERT F. LAUGHARN 
Referee in Bankruptcy 

[Endorsed] : Filed Mar. 14, 1947. Hubert F. Laugharii, 
Referee. 

[Endorsed] : Filed Apr. 13, 1948. Edmund L. Smith, 
Clerk. [24] 



[Title of District Court and Cause] 

ORDER APPROVING NOMINATION OF TRUS- 
TEE UNDER PROVISIONS OF SEC. 338, 
CHAPTER XI IN THE EVENT OF LIQUI- 
DATION 

At Los Angeles, in said district on the 24th day of 
February, 1947. 

George T. Goggin of Los Angeles, having been nomi- 
nated by Creditors, as trustee of the estate of the above 
named debtor in the event it becomes necessary to ad- 
minister the estate in Bankruptcy, 

It Is Ordered that the nomination of said George 
T. Goggin, as trustee, be, and it hereby is approved, 
in case an Order of Adjudication in Bankruptcy 
is made herein, 
and / i-t shall b e come ncccGsary te administer the 
estate m -Baftk-y uptcy, he shall thereupon, without fof- 
theF order, fee appointe d trustee herein, aftd the amount 
e^ his bond upon his appointment, 4s fixed at . -• 



vs. H. L. Byram, etc. 23 

Dollar!.: provided tka^ 4^ at awy Ume the value of #»e 
property e-f 4^4^ f^awl cGtate, m th« posnession ni ftF 
und e r the control e-f tke fraid trustee, ohall exceed tl^ 
amount e4 #ie frftM bond, tl^ ftai4 truGtee shall forthwith 
liie a petition herein setting forth the facts afi4 pray 
iftg fei^ aft order directing h«ft to 64e £bft additional bond 
ift stteh amount as mscf fee proper. 

It Is Further Ordered that all claims filed at or before 
the first meeting of creditors in this matter be and they 
are hereby allowed, for voting purposes only, unless other- 
wise noted on said claims. 

HUBERT F. LAUGHARN 
Referee in Bankruptcy 

[Endorsed] : Filed Aug. 3, 1948. Edmund L. Smith, 
Clerk. [25] 



Receiver or Trustee Bond No. S-425423 

in Bankruptcy Premium : $100.00 per annum 

[Crest] 

ASSOCIATED INDEMNITY CORPORATION 

Head Office 

332 Pine Street, San Francisco 

In the District Court of the United States for the 

Southern District of CaHfornia 

Central Division 

No. 44737-WM In Bankruptcy 

In the Matter of A. MOODY & CO., INC., a corporation, 

Bankrupt. 
BOND OF TRUSTEE 
Know All Men By These Presents, That we, George T. 
Goggin, of Los Angeles, California, as Principal, and 
Associated Indemnity Corporation, a corporation organ- 



24 George T. Goggin, etc. 

ized and existing under the laws of the State of Cali- 
fornia and having its principal office in the City and 
County of San Francisco, State of California, as surety, 
are held and firmly bound unto the United States of 
America, in the sum of Twenty-Five Thousand and 
No/100 Dollars ($25,000.00), in lawful money of the 
United States, to be paid to the said United States, for 
which payment, well and truly to be made, we bind our- 
selves and our heirs, executors, administrators, successors 
and assigns, jointly and severally, by these presents. 

Signed and Sealed, this 18th day of March, A. D. 1947. 

The Condition of this obligation is such, that whereas 
the above named George T. Goggin was on the 18th day 
of March, A. D. 1947, appointed Trustee in the case 
pending in bankruptcy in the said Court, wherein A. 
Moody & Co., Inc., a corporation is the Bankrupt, and he, 
the said George T. Goggin has accepted said trust with 
all the duties and obligations pertaining thereto: 

Now, Therefore, if the said George T. Goggin as afore- 
said, shall obey such orders as said Court may make in 
relation to said trust, and shall faithfully and truly account 
for all the moneys, assets and effects of the estate of the 
said Bankrupt which shall come into his hands and pos- 
session, and shall in all respects faithfully perform all his 
official duties as said Trustee, then this obligation to be 
void; otherwise to remain in full force and virtue. 
GEORGE T. GOGGIN [Seal] 

ASSOCIATED INDEMNITY CORPORATION 
By H. S. Vreeland [Seal] 

Attorney-in-Fact 

Signed and sealed in the presence of 



vs. H. L. Byram, etc. 25 

State of California 

County of Los Angeles — ss. 

On this l(Sth day of March in the year one thousand 
nine hundred and forty-seven before me, H. W. Smith, a 
Notary Public in and for said County, State aforesaid, 
residing therein, duly commissioned and sworn, person- 
ally appeared H. S. Vreeland, known to me to be the 
Attorney in Fact of the Associated Indemnity Corpora- 
tion, the corporation described in and that executed the 
within and foregoing instrument, and known to me to 
be the person who executed the said instrument on behalf 
of the said corporation, and he duly acknowledged to me 
that such corporation executed the same. 

In Witness Whereof, I have hereunto set my hand and 
affixed my official seal, at my office, in the said County of 
Los Angeles, the day and year in this certificate first 
above written. 

[Seal] H. W. SMITH 

Notary Public in and for the County of Los Angeles, 
State of California 
My Commission Expires Sept. 22, 1947. 

Examined and Recommended for Approval 
as provided in Rule 28. 

Approved the 20 day of March, A. D. 1947. 

HUBERT F. LAUGHARN 

Referee in Bankruptcy 

[Endorsed]: Filed Mar. 20, 1947. Hubert F. Laugharn, 
Referee. 

[Endorsed] : Filed Mar. 24, 1947. Edmund L. Smith, 
Clerk. [26] 



26 George T. Goggin, etc, 

[Title of District Court and Cause] 

[CLAIM OF H. L. BYRAM] 

At the City of Los Angeles, County of Los Angeles, 
State of California, on the 28th day of May, 1947, came 
H. L. Byram, and made oath and says: 

That he is the duly appointed, qualified and acting Tax 
Collector of the County of Los Angeles, State of Cali- 
fornia, a body corporate and politic; 

That the said A. Moody & Co., Inc., who has filed a 
petition for adjudication in bankruptcy, was at twelve 
o'clock noon of the first Monday in March, 1947, the 
owner of the following described personal property, of the 
assessed value set forth, to wit: 

Assessment No. 36556— Money $ 220.00 

Goggin, George T., Trustee for Merchandise 126,950.00 

A. Moody & Co., Inc., Equipment 34,040.00 
354 S. Spring St. Rm. 817 

Los Angeles 13, Calif. Tax $ 9,979.86 

That thereafter pursuant to law, a tax in the sum of 
$9,979.86 was duly levied against said property for the 
year 1947. 

That said tax is now due and unpaid, and petitioner, 
on behalf of the County of Los Angeles, respectfully peti- 
tions this Court for its order directing the payment of 
said tax as a preferred claim. 

H. L. BYRAM 

Tax Collector for the County of Los Angeles 

By Geo. A. Shepard 

Deputy H.F.L. 



vs. H. L. Byrani, etc. 27 

Subscribed and sworn to before me this 28th day of 
May, 1947. 

(Seal) J. F. MORONEY 

County Clerk 

By F. B. Murphy 

Deputy [27] 

[Endorsed] : Filed May 31, 1947. Hubert F. Laugharn, 
Referee. 

[Endorsed]: Filed Apr. 13, 1948. Edmund L. Smith, 
Clerk. [28] 



[Title of District Court and Cause] 

ORDER AUTHORIZING TRUSTEE TO ABANDON 
BURDENSOME ASSETS 

The trustee herein, George T. Goggin, having filed his 
petition for order authorizing him to abandon certain as- 
sets hereinafter described and said petition having duly 
come on for hearing after notice to creditors and all other 
persons as provided for by law, said trustee appearing by 
his attorneys, Frank C. Weller and Russell B. Seymour, 
and no appearance having been made by other persons, 
and evidence having been adduced and it appearing to the 
court and the court so finds, that the date of bankruptcy 
herein is January 7th, 1947; that prior to the date of bank- 
ruptcy the bankrupt had placed certain personal property, 
to-wit: certain materials and supplies inventoried at approxi- 
mately $189,046.03, in the public warehouse of Haslett 
Warehouse Co. on the premises known as 5300 South San 
Pedro St., Los Angeles, California, and had received ware- 
house receipts for said goods and had pledged said ware- 



28 George T. Goggin, etc, 

house receipts with the Bank of America National Trust 
and Savings Association to secure [29] a certain indebted- 
ness owing to said bank which certain indebtedness at the 
date of bankruptcy amounted to approximately $117,- 
716.06; that said indebtedness was and is more than 
could, at the date of bankruptcy or at any time since, be 
obtained by the trustee for said personal property or said 
warehouse receipts; that said personal property and ware- 
house receipts at all times have been, and are now, a bur- 
densome asset of the estate in that there has never been 
any equity therein which could be realized by the estate 
or the trustee and there are heavy charges which have been 
and are accruing in connection therewith, including, among 
other things, asserted personal property taxes and ware- 
house charges ; that neither said personal property nor said 
warehouse receipts, nor any of them, have been taken 
over by the estate herein or the said trustee and therefore 
the court concludes and further finds that certain personal 
property and warehouse receipts are a burdensome asset 
and 

It Is Further Ordered, Adjudged and Decreed that said 
personal property and warehouse receipts are a burden- 
some asset of this estate and the said trustee is directed 
not to take over said assets or any of them. 

Dated this 20 day of August, 1947. 

HUBERT F. LAUGHARN 
Referee in Bankruptcy 

[Endorsed] : Filed Aug. 20, 1947. Hubert F. Laugh- 
arn, Referee. 

[Endorsed] : Filed Apr. 13, 1948. Edmund L. Smith, 
Clerk. [30] 



vs. H. L. Byram, etc. 29 

[Title of District Court and Cause] 

OBJECTIONS TO CLAIM OF H. L. BYRAM, 
COUNTY TAX COLLECTOR, AND NOTICE 
OF HEARING 

Comes now George T. Goggin, trustee herein, and ob- 
jects to the allowance of the claim of H. L. Byram, Tax 
Collector of the County of Los Angeles, State of Cali- 
fornia, on the following grounds, to-wit: (1) That neither 
the bankrupt nor the estate herein nor any officer of this 
court was either the owner of, or in possession of, any 
of the merchandise assessed in the sum of $126,950.00 on 
the first Monday in March, 1947; (2) that an order 
directing the trustee to abandon any interest of the estate 
in said merchandise has been duly and regularly made 
herein; and (3) that the amounts of the assessments of 
said merchandise and of equipment in the sum of $34,- 
040.00 and each of them are excessive. 

Notice Is Given that a hearing of the foregoing ob- 
jections will be had before the referee herein, at 343 Fed- 
eral Building, Temple and Spring Streets, Los Angeles, 
California, on the 2nd day of September, 1947, at the hour 
of 2 P. M., of said day. 

FRANK C. WELLER and 
RUSSELL B. SEYMOUR 
Attorneys for the Trustee 

[Endorsed] : Filed Aug. 26, 1947. Hubert F. Laugh- 
arn, Referee. 

[Endorsed: Filed Apr. 13, 1948. Edmund L. Smith, 
Clerk. [31] 



30 George T. Goggin, etc. 

[Title of District Court and Cause] 

ORDER, FINDINGS OF FACT, AND CONCLU- 
SIONS OF LAW RE CLAIM OF TAX COL- 
LECTOR 

The trustee herein, George T. Goggin, having filed 
objections to the allowance of the tax claim filed herein 
by H. L. Byram, Tax Collector of the County of Los 
Angeles, State of California, in the principal amount of 
$9,979.86, and said objections having duly come on for 
hearing before this Court on September 2, 1947, and 
thereafter, Russell B. Seymour and Frank C. Weller, by 
Russell B. Seymour, appearing for said trustee and 
Harold W. Kennedy, County Counsel, by Andrew O. Por- 
ter, Deputy County Counsel, appearing for said H, L. 
Byram, and evidence having been presented to the court 
and argument having been made by counsel, and the mat- 
ter submitted to the court for its findings of fact, con- 
clusions of law, and orders, now, therefore. 

The Court Makes Its Findings of Fact as Follows : 
1. That A. Moody & Co., Inc., a corporation, filed its 
petition for arrangement under the provisions of Chapter 
XI of the Bankruptcy Act, Section 322, on January 27, 
1947; that on the [32] 21st day of March, 1947, anj 
order of adjudication was made under the provisions of 
Section 376(2) of Chapter XI of the Bankruptcy Act 
and pursuant to Section 378(2) of said act the proceed- 
ing was thereafter conducted in like manner and efifect 
''as if a voluntary petition for adjudication in bankruptcy 
had been entered on the day when the petition under this 
chapter was filed"; and said George T. Goggin became 
the duly appointed, qualified, and acting trustee of the 
estate of said A. Moody & Co., Inc., bankrupt herein, and 



vs. H. L. Byram, etc. 31 

at all times since has been, and now is, the duly appointed, 
qualified, and acting trustee of the estate of said bankrupt. 

2. For several months prior to the filing of the peti- 
tion of the debtor, the debtor had been engaged in the 
business of manufacturing mattresses at 5300 South San 
Pedro Street, Los Angeles, California, and was so en- 
gaged at the time of the filing of the petition and con- 
tinued to be so engaged at said address, pursuant to order 
of the court, until the time of the appointment of the re- 
ceiver, who continued such operation until on or about 
March 18, 1947. 

3. Thereafter H. L. Byram, County Tax Collector for 
Los Angeles County, asserted a tax claim as an expense 
of administration against the trustee herein in the amount 
of $9,979.86. A portion thereof was based upon an as- 
sessment of $126,950.00, of which $88,118 of that amount 
represented materials which never came into the posses- 
sion of the trustee of the bankrupt estate, the same at 
all times being in the exclusive control of Haslett Ware- 
house Company upon premises leased by it and against 
which property there were issued, outstanding warehouse 
receipts. There was not at bankruptcy or at any later 
time any interest or asset of value in the property in the 
possession of the Haslett Warehouse Company and the 
trustee was not permitted to take over, or to assume, the 
same as an asset, excepting only that $992.82 thereof, at 
assessed valuation, was released to the trustee after the 
tax date upon pay- [^2>] ment by him to the pledgee of 
the warehouse receipts of the reasonable value of such 
goods so released. Subsequently in the administration of 
the bankrupt estate, the trustee was directed by proper 
order of this court to abandon, and did abandon the 
balance of the warehoused property. 



32 George T. Goggin, etc. 

4. On April 4, 1947, Ralph Owen, chief accountant 
for the bankrupt herein, made, verified, and filed with the 
Assessor on behalf of the trustee of said bankrupt, the 
statement required by Section 8 of Article XIII of the 
Constitution of California and by Section 441 of the 
Revenue & Taxation Code of California, showing as one 
item thereof "Mdse. at 5300 S. San Pedro St. value 
$126,950. Cotton-Ticking-Mattresses-etc." but the said 
statement was made without the sanction, approval, or 
direction of the referee in bankruptcy. 

5. The trustee prior to the hearing of these objections 
and pursuant to the order of the court sold all, or substan- 
tially all, of the remaining property included in said assess- 
ment for an amount greater than the amount of the total 
claim filed herein by said Tax Collector. 

And the Court Makes Its Conclusions of Law as Fol- 
lows : 

1. That the claim for personal property taxes upon 
that personal property which the trustee took over as an 
asset herein (including the item of $992.82 above indi- 
cated) is not a tax claim provable under Section 63 of 
the Bankruptcy Act but is a proper charge of adminis- 
tration and the same is allowed and the trustee ordered to 
pay the same in full, to-wit, in the sum of $4,589.96. 

2. That the tax in the amount of $5,389.90 upon the 
personal property which never came into the possession of 
the trustee and which the trustee was ordered to release 
for the reason that the same was not an asset, should be 
disallowed as a charge against the trustee as an alleged 
expense of administration herein. [34] 



vs. H. L. Byram, etc. 33 

3. It is the Referee's conclusion that the treatment of 
the said claim in the manner indicated does not come with- 
in the rule of law indicated by Glass v. Phillips, 139 Fed. 
(2) 1016; In re Ingersoll Co., 148 Fed. (2) 282; or 
Allied Enterprise, Inc., No. 44,758 of this Court. 

The Court Makes Its Order as Follows: 

It Is Ordered that the said claim be and hereby is re- 
duced to the sum of $4,589.96 and is allowed in that 
amount and the trustee is ordered to pay the said allowed 
amount in full. 

Dated this 2 day of February, 1948. 

HUBERT F. LAUGHARN 
Referee in Bankruptcy 

[Endorsed] : Filed Feb. 2, 1948. Hubert F. Laugharn, 
Referee. 

[Endorsed] : Filed Apr. 13, 1948. Edmund L. Smith. 
Clerk. [35] 



[Minutes: Tuesday, February 10, 1948] 

Present: The Honorable Paul J. McCormick, District 
Judge. 

It is ordered that all cases pending before Hubert F. 
Laugharn, Referee resigned, be transferred and re-re- 
ferred to David B. Head, as Referee in Bankruptcy. ['i6'\ 



32 George T. Goggm, etc. 

4. On April 4, 1947, Ralph Owen, chief accountant 
for the bankrupt herein, made, verified, and filed with the 
Assessor on behalf of the trustee of said bankrupt, the 
statement required by Section 8 of Article XIII of the 
Constitution of California and by Section 441 of the 
Revenue & Taxation Code of California, showing as one 
item thereof "Mdse. at 5300 S. San Pedro St. value 
$126,950. Cotton-Ticking-Mattresses-etc." but the said 
statem.ent was made without the sanction, approval, or 
direction of the referee in bankruptcy. 

5. The trustee prior to the hearing of these objections 
and pursuant to the order of the court sold all, or substan- 
tially all, of the remaining property included in said assess- 
ment for an amount greater than the amount of the total 
claim filed herein by said Tax Collector. 

And the Court Makes Its Conclusions of Law as Fol- 
lows: 

1. That the claim for personal property taxes upon 
that personal property which the trustee took over as an 
asset herein (including the item of $992.82 above indi- 
cated) is not a tax claim provable under Section 63 of 
the Bankruptcy Act but is a proper charge of adminis- 
tration and the same is allowed and the trustee ordered to 
pay the same in full, to-wit, in the sum of $4,589.96. 

2. That the tax in the amount of $5,389.90 upon the 
personal property which never came into the possession of 
the trustee and which the trustee was ordered to release 
for the reason that the same was not an asset, should be 
disallowed as a charge against the trustee as an alleged 
expense of administration herein. [34] 



vs. H. L. Byram, etc. 33 

3. It is the Referee's conclusion that the treatment of 
the said claim in the manner indicated does not come with- 
in the rule of law indicated by Glass v. Phillips, 139 Fed. 
(2) 1016; In re Ingersoll Co., 148 Fed. (2) 282; or 
Allied Enterprise, Inc., No. 44,758 of this Court. 

The Court Makes Its Order as Follows: 

It Is Ordered that the said claim be and hereby is re- 
duced to the sum of $4,589.96 and is allowed in that 
amount and the trustee is ordered to pay the said allowed 
amount in full. 

Dated this 2 day of February, 1948. 

HUBERT F. LAUGHARN 
Referee in Bankruptcy 

[Endorsed] : Filed Feb. 2, 1948. Hubert F. Laugharn, 
Referee. 

[Endorsed] : Filed Apr. 13, 1948. Edmund L. Smith, 
Clerk. [35] 



[Minutes: Tuesday, February 10, 1948] 

Present: The Honorable Paul J. McCormick, District 
Judge. 

It is ordered that all cases pending before Hubert F. 
Laugharn, Referee resigned, be transferred and re-re- 
ferred to David B. Head, as Referee in Bankruptcy. [36] 



34 George T. Goggin, etc. 

[Title of District Court and Cause] 

AFFIDAVIT FOR AND ORDER EXTENDING 
TIME WITHIN WHICH TO FILE PETITION 
FOR REVIEW 

State of California 

County of Los Angeles — ss. 

Andrew O. Porter, being first duly sworn, on oath de- 
poses and says: 

That he is one of the attorneys for the respondent 
herein, H. L. Byram, Tax Collector of the County of 
Los Angeles; 

That said respondent feels aggrieved by the order en- 
tered herein by the Referee herein, Hubert F. Laugharn, 
on the 2nd day of February, 1948, and desires to file a 
petition for review to the United States District Court 
of said Order made by said Referee on the 2nd day of 
February, 1948. 

Affiant further states that both he and his associates 
have had no opportunity to prepare said petition for re- 
view due to the pressure of other litigation and other 
work, and prays [37] that an order be made herein by 
this Court extending the time within which respondent 
herein may file his petition for review up to and includ- 
ing the 2nd day of March, 1948. 

ANDREW O. PORTER 

Subscribed and sworn to before me this 11th day of 
February, 1948. 

EARL LIPPOLD 

County Clerk 
By Marie E. McPherson 

Deputy County Clerk 



vs. H. L. Dyram, etc. 35 

ORDER 
Good cause appearing therefor, 

It Is Hereby Ordered that the respondent herein, H. L. 
Byram, Tax Collector of the County of Los Angeles, 
shall be and is hereby granted up to and including the 
2nd day of March, 1948, within which to file his petition 
for review of the order made by this Court on the 2nd 
day of February, 1948, to the United States District 
Court of this District in the above entitled proceeding. 

Dated: February 11, 1948. 

DAVID B. HEAD 
Referee in Bankruptcy 

[Endorsed]: Filed Feb. 11, 1948. David B. Head, 
Referee. 

[Endorsed]: Filed Apr. 13, 1948. Edmund L. Smith, 
Clerk. [38] 



[Title of District Court and Cause] 

PETITION FOR REVIEW OF REFEREE'S ORDER 

BY JUDGE 

To David B. Head, Esq., Referee in Bankruptcy: 

George T. Goggin, trustee for the bankrupt herein, 
having filed objections to the claim of H. L. Byram, Tax 
Collector of Los Angeles County, for $9,979.86; and said 
objections having duly come on for hearing on September 
2, 1947, Russell B. Se}^mour and Frank C. Weller. by 
Russell B. Seymour, appearing for said trustee, and 
Harold W. Kennedy. County Counsel, by Andrew O. 
Porter, Deputy County Counsel, appearing for H. L. 



36 George T. Goggin, etc. 

Byram, County Tax Collector; and evidence having been 
presented to the court and argument having been made by 
counsel, and the matter submitted to the Court for its 
Findings of Fact, Conclusions of Law, and Order, — the 
Court made the following Findings of Fact, Conclusions 
of Law, and order, in words and figures as follows: 

"The Court Makes Its Findings of Fact as Fol- 
lows : 

\. That A. Moody & Co., Inc., a corporation, filed 
its petition for arrangement under the provisions of 
Chapter XI [39] of the Bankruptcy Act, Section 
322, on January 27, 1947; that on the 21st day of 
March, 1947, anc? order of adjudication was made 
under the provisions of vSection 376(2) of Chapter 
XI of the Bankruptcy Act and pursuant to Section 
378(2) of said act the proceeding was thereafter con- 
ducted in like manner and effect 'as if a voluntary 
petition for adjudication in bankruptcy had been en- 
tered on the day when the petition under this chapter 
was filed'; and said George T. Goggin became the 
duly appointed, qualified, and acting trustee of the 
estate of said A. Moody & Co., Inc., bankrupt here- 
in, and at all times since has been, and now, is the 
duly appointed, qualified, and acting trustee of the 
estate of said bankrupt. 

2. For several months prior to the filing of the 
petition of the debtor, the debtor had been engaged 
in the business of manufacturing mattresses at 5300 
South San Pedro Street, Los Angeles, California, and 
was so engaged at the time of the filing of the peti- 
tion and continued to be so engaged at said address, 
pursuant to order of the court, until the time of the 



vs. II . L. /jyram, etc, Z7 

appointment of the receiver, who continued such r^jjer- 
ation until r^n or atx>»ut March 18, 1947. 

3. Thereafter Jf. \.. J>yram, County Tax G>I- 
lectr^r for Iy>s Anj^eles Onjnty, asserted a tax claim 
as an exi>en.sc of administration aj^ainst the trustee 
herein in the amrjunt of $9,979.86, A ]>f)rU<m there- 
of was based upon an assessment of $126,950.00, of 
which $88,118 of that amount rq/resented materials 
which never came into the jxDssession of the trustee 
of the bankrufit estate, the same at all times being in 
the exclusive control of Haslett Warehouse O^mpany 
ujxjn premises lea.sed by it and aj^ainst which proj^erty 
there were issued, outfitanding warehouse receipts. 
There was not at bankruptcy or at any later time 
any interest or asset of value in the [40] property 
in the possession of the Haslett Warehouse Company 
and the trustee was not permitted to take over, or to 
assume, the same as an asset, excepting only that 
$992.82 thereof, at assessed valuation, was released 
to the trustee after the tax date upon payment by 
him to the pledgee of the warehouse receipts of the 
reasonable value of such goods so released. Subse- 
quently in the administration of the bankrupt estate, 
the trustee was directed by proper order of this court 
to abandon, and did abandon the balance of the 
warehoused property. 

4. On April 4, 1947, Ralph Owen, chief account- 
ant for the bankrupt herein, made, verified, and filed 
with the Assessor on behalf of the trustee of said 
bankrupt, the statement required by Section 8 of 
Article XIII of the Constitution of California and by 
Section 441 of the Revenue & Taxation Code of Cali- 
fornia, showing as one item thereof 'Mdse. at 5300 



36 George T. Goggm, etc. 

Byram, County Tax Collector; and evidence having been 
presented to the court and argument having been made by 
counsel, and the matter submitted to the Court for its 
Findings of Fact, Conclusions of Law, and Order, — the 
Court made the following Findings of Fact, Conclusions 
of Law, and order, in words and figures as follows: 

"The Court Makes Its Findings of Fact as Fol- 
lows : 

1. That A. Moody & Co., Inc., a corporation, fiW 
its petition for arrangement under the provisions of 
Chapter XI [39] of the Bankruptcy Act, Section 
322, on January 27, 1947; that on the 21st day of 
March, 1947, anc/ order of adjudication was made 
under the provisions of Section 376(2) of Chapter 
XI of the Bankruptcy Act and pursuant to Section 
378(2) of said act the proceeding was thereafter con- 
ducted in like manner and effect 'as if a voluntary 
petition for adjudication in bankruptcy had been en- 
tered on the day when the petition under this chapter 
was filed'; and said George T. Goggin became the 
duly appointed, qualified, and acting trustee of the 
estate of said A. Moody & Co., Inc., bankrupt here- 
in, and at all times since has been, and now, is the 
duly appointed, qualified, and acting trustee of the 
estate of said bankrupt. 

2. For several months prior to the filing of the 
petition of the debtor, the debtor had been engaged 
in the business of manufacturing mattresses at 5300 
South San Pedro Street, Los Angeles, California, and 
was so engaged at the time of the filing of the peti- 
tion and continued to be so engaged at said address, 
pursuant to order of the court, until the time of the 



vs. H. L. Byram, etc. 37 

appointment of the receiver, who continued such oper- 
ation until on or about March 18, 1947. 

3. Thereafter H. L. Byram, County Tax Col- 
lector for Los Anj2^eles County, asserted a tax claim 
as an expense of administration against the trustee 
herein in the amount of $9,979.86. A portion there- 
of was based upon an assessment of $126,950.00, of 
which $88,118 of that amount represented materials 
which never came into the possession of the trustee 
of the bankrupt estate, the same at all times being in 
the exclusive control of Haslett Warehouse Company 
upon premises leased by it and against which property 
there were issued, outstanding warehouse receipts. 
There was not at bankruptcy or at any later time 
any interest or asset of value in the [40] property 
in the possession of the Haslett Warehouse Company 
and the trustee was not permitted to take over, or to 
assume, the same as an asset, excepting only that 
$992.82 thereof, at assessed valuation, was released 
to the trustee after the tax date upon payment by 
him to the pledgee of the warehouse receipts of the 
reasonable value of such goods so released. Subse- 
quently in the administration of the bankrupt estate, 
the trustee was directed by proper order of this court 
to abandon, and did abandon the balance of the 
warehoused property. 

4. On April 4, 1947, Ralph Owen, chief account- 
ant for the bankrupt herein, made, verified, and filed 
with the Assessor on behalf of the trustee of said 
bankrupt, the statement required by Section 8 of 
Article XIII of the Constitution of California and by 
Section 441 of the Revenue & Taxation Code of Cali- 
fornia, showing as one item thereof 'Mdse. at 5300 



38 George T. Goggin, etc. 

S. San Pedro St. value $126,950. Cotton-Ticking- 
i\Iattresses-etc.' but the said statement was made with- 
out the sanction, approval, or direction of the referee 
in bankruptcy. 

5. The trustee prior to the hearing of these ob- 
jections and pursuant to the order of the court sold 
all, or substantially all, of the remaining property 
included in said assessment for an amount greater 
than the amount of the total claim filed herein by 
said Tax Collector. 

And the Court Makes Its Conclusions of Law as 
Follows : 

1. That the claim for personal property taxes 
upon that personal property which the trustee took 
over as an asset herein (including the item of 
$992.82 above indicated) is not a tax claim provable 
under Section 63 of the Bankruptcy Act but is a 
proper charge of administration and the same is al- 
lowed and the trustee ordered to pay the same in full, 
to-wit, in the sum of $4,589.96. [41] 

2. That the tax in the amount of $5,389.90 upon 
the personal property which never came into the 
possession of the trustee and which the trustee was 
ordered to release for the reason that the same was 
not an asset, should be disallowed as a charge against 
the trustee as an alleged expense of administration 
herein. 

3. It is the Referee's conclusion that the treat- 
ment of the said claim in the manner indicated does 
not come within the rule of law indicated by Glass v. 
Phillips, 139 Fed. (2) 1016; In re Ingersoll Co., 148 
Fed. (2) 282; or Allied Enterprise, Inc., No. 44,748 
of this Court. 



vs. H. L. Byram, etc. 39 

The Court Makes Its Order as Follows: 
It Is Ordered that the said claim be and hereby is 
reduced to the sum of $4,589.96 and is allowed in 
that amount and the trustee is ordered to pay the 
said allowed amount in full. 

Dated this 2 day of February, 1948. 

HUBERT F. LAUGHARN 
Referee in Bankruptcy" 

That said Findings of Fact, Conclusions, and Order 
are erroneous for the following reasons: 

I. 

The Court erred in refusing to make the following 
Findings agreed to by counsel for the trustee and counsel 
for the tax collector: 

"3. Prior to the filing of the petition the said 
A. Moody & Co., Inc. had purchased certain mer- 
chandise and materials for use in the manufacture 
of mattresses and had placed said materials in a 
'field warehouse' owned and operated by Haslett [42] 
Warehouse Co. who issued non-negotiable warehouse 
receipts in conformity with the provisions of the 
Warehouse Receipts Act of the State of California. 
Prior to the filing of the petition said warehouse re- 
ceipts had been pledged by A. Moody & Co.. Inc. 
to secure an indebtedness owing by it in the sum of 
about $117,716.06 as of the date of bankruptcy and 
as of the tax date herein involved, to-wit, the first 
Monday in March, 1947, at 12 M. Said field ware- 
house was located at the same address, towit. at 5300 
South San Pedro Street, Los Angeles. California." 

"5. That the debtor had certain similar merchan- 
dise and materials in its factory on the tax date, to 



40 George T. Goggin, etc. 

wit, at noon on the first Monday in March, 1947. 
That the assessor lumped all of said merchandise and 
material, whether in the warehouse or in the factory, 
and assessed all of such merchandise and materials 
in one assessment at $126,950. That had the mer- 
chandise and materials in said warehouse been as- 
sessed separately by the Assessor, the assessed value 
thereof would have been $88,118. The tax based 
thereon would amount to $5,454.50." 

"6. On August 20, 1947, an order was made by 
the Court, after due notice to all creditors and other 
interested parties, directing and authorizing the 
abandonment by the trustee of any and all interest 
of the estate in and to said warehoused goods." 

II. 

That the Conclusions and Order are erroneous in dis- 
allowing a portion of the tax in the amount of $5,389.90 
for the reason that pursuant to the taxpayer's statement 
the Assessor assessed all of said merchandise in a single 
lot at the lump sum of $126,950.00 and a portion of said 
merchandise included in said [43] assessment coming into 
the hands of the receiver herein was sold for an amount 
greater than the amount of the total claim filed herein 
by said Tax Collector. (Finding 5.) 

III. 

That the Findings and Order are erroneous in con- 
cluding that this case is not governed by the interpretation 
of Section 64(a) 4 of the Bankruptcy Act as announced 
in — 

Glass V. Phillips (CCA 5), 139 F. (2) 1016, 54 

A. B. R. N. S. 771] 
In re Ingersoll Co. (CCA 10), 148 F. (2) 282, at 
284, 57 A. B. R. N. S. 677; 



vs. H. L. Byram, etc. 41 

In re Allied Enterprise, Inc., No. 44758-WM 
(Opinion of Referee Laugharn). 

IV. 

The trustee having filed a property statement with 
the County Assessor as required by law, showing the 
ownership of a single lot of merchandise, is now estopped 
to deny the ownership of all of such merchandise, or to 
ask this court to divide the lot. 

V. 

That the Trustee in Bankruptcy had ample opportunity 
to follow the remedy given by state law, that is, to ap- 
pear before the County Board of Equalization, a quasi- 
judicial body, but failed to do so, and is now estopped 
from questioning said assessment and tax, which have be- 
come final and have the force, finality, and eflfect of a 
judgment. 

VI. 

The liability for taxes can not be avoided by abandoning 
[44] property where a personal liability for the tax has 
accrued and because final under state law. 

VII. 

That a personal liability for taxes accruing while con- 
ducting a business under order of court cannot be avoided 
by subsequent abandonment of the property. 

VIII. 

That property taxes in California are determined as of 
the first Monday in March, and a subsequent abandon- 
ment of a portion of the property more than five months 
later, after the tax had become final under state law, is 
not efifective to avoid liability for the tax. 

IX. 

That said Order is erroneous, exceeds the jurisdiction 
of the bankruptcy court in assuming the authority to 



42 George T. Goggin, etc. 

redetermine the assessed valuation of property for county 
tax purposes by arbitrarily dividing the assessed valuation 
between the property in the bankrupt's factory at 5300 
South San Pedro Street, Los Angeles, and the property 
at the Haslett Warehouse Company at the same address; 
that by so doing the Court in effect is redetermining said 
assessment which was regularly made by the County As- 
sessor, a quasi-judicial officer, in accordance with the 
Constitution and laws of the State of California, equalized 
by the County Board of Equalization, a quasi-judicial 
body, and has become final under state law and has the 
force, finality, and effect of a judgment. 

Wherefore, petitioner prays for a review of said Find- 
ings, Conclusions, and Order by the Judge; that the 
Referee be directed to enter the Findings requested by 
petitioner [45] and to overrule the objections to petitioner's 
tax claim, and to enter an order for payment of said 
claim in full. 

Dated: March 2, 1948. 

H. L. BYRAM 

Tax Collector of the County of Los Angeles 

Petitioner 

HAROLD W. KENNEDY 

County Counsel, and 
ANDREW O. PORTER 
Deputy County Counsel 

Attorneys for Petitioner [46] 

[Verified.] [47] 

[Affidavit of Service by Mail.] 

[Endorsed] : Filed Apr. 13, 1948. Edmund L. Smith, 
Clerk. [48] 



vs. H. L. Byram, etc. 43 

[Title of District Court and Cause] 

REFEREE'S CERTIFICATE ON REVIEW 

To the Honorable William Mathes, Judge of the District 
Court of the United States, Southern District of 
California : 

I, David B. Head, one of the referees in bankruptcy of 
this court, before the above-entitled matter is pending, 
do hereby certify: 

That on the 2nd day of February, 1948, an order was 
made by Hubert F. Laugharn my predecessor, and the 
then-acting referee in bankruptcy in charge of the within 
proceeding, disallowing in part the claim of H. L, Byram, 
Tax Collector of Los Angeles County, filed in the sum 
of $9,979.86. 

Within the time prescribed by law, said claimant filed 
his Petition for Review of said Order. 

The undersigned referee hereby certifies to the Judge 
(1) the question presented, (2) a summary of the evi- 
dence relating thereto, and (3) the findings of the 
referee. [49] 

I. 

QUESTION PRESENTED 

The question involved appears to be: Whether the bank- 
ruptcy court has the power and right, in fixing an expense 
of administration, to eliminate personal property taxes 
assessed by the County Assessor on pledged personal prop- 
erty which never came into possession of the bankrupt 
estate and in which no equity existed at the date of 
bankruptcy or thereafter, where in the course of adminis- 
tration other personal property, included in the same as- 
sessment, was sold for an amount greater than the total 
assessed taxes. 



44 George T. Goggin, etc. 

II. 

STATEMENT OF EVIDENCE Vll 

The evidence, which was presented somewhat informally, 
in large part by statement of counsel and reference to 
orders earlier made herein, appears to have been as fol- 
lows: 

A. Moody & Co., Inc., the bankrupt herein, filed a 
petition for an arrangement under Section 322 of the 
Bankruptcy Act, on January 27, 1947, and on the same 
day an order was made herein "placing the debtor in pos- 
session" and permitting it to operate its business which 
was the manufacture and sale of mattresses, and in which 
business it had been engaged for several months prior 
to the date of bankruptcy, at 5300 South San Pedro Street, 
Los Angeles, California. At the date of bankruptcy, at 
the same address, a portion of the premises were under 
lease to Haslett Warehouse Company into whose ex- 
clusive custody and possession a large quantity of per- 
sonal property of the bankrupt had already been placed 
by the bankrupt, and against which personal property 
warehouse receipts had been issued by Haslett Ware- 
house Company in conformity to the provisions of the 
Warehouse Receipts Act of the State of California. Prior 
to the date of bankruptcy said warehouse receipts had 
been pledged by the bankrupt to secure an [50] indebted- 
ness owing by it in the sum of about $117,716.06 as of 
the date of bankruptcy and as of the tax date herein in- 
volved, to-wit, the first Monday in March, 1947, at 12 M., 
being March 3, 1947. The bankrupt had other personal 
property in its factory at the date of bankruptcy and on 
the tax date, some of which was similar to the ware- 
housed goods. The assessor assessed all personal property, 
whether in the ware house or in the factory, in one 



vs. H. L. Byram, etc. 45 

amount, to-wit: $126,950.00, the tax based thereeon being 
$9,979.86. If the pledged property had been assessed 
separately the assessed value thereof would have been 
$8(S,118.00, and the tax based thereon would have been 
$5454.50. The order permitting the debtor to remain in 
possession was vacated March 13, 1947, at which time 
George T. Goggin was appointed receiver with authority 
to operate the business. On March 18, 1947, an order of 
adjudication was made and said George T. Goggin became 
trustee in bankruptcy with authority to operate the busi- 
ness, as of March 20, 1947. On April 12, 1947, substan- 
tially all of the personal property of the estate (excepting 
the pledged property) was sold for about $27,000.00. On 
June 20, 1947, the trustee filed his petition for authority 
to abandon said pledged property, which authority was 
thereafter granted, after due notice to all parties. At no 
time on or after the date of bankruptcy was there any 
interest or asset of value for the bankrupt estate in the 
pledged goods, and neither the debtor, nor the receiver, 
nor the trustee ever took any part of the pledged goods 
into his possession (excepting that after the tax date there 
was released to the trustee $992.82 at assessed valuation 
of such goods upon payment by the trustee to the pledgee 
of the warehouse receipts, of the reasonable value of the 
goods so released), and nothing was ever realized by the 
estate from said pledged property. On April 4, 1947, 
Ralph Owen, chief accountant for the bankrupt, made, 
verified, and filed with the assessor on behalf of the 
trustee, the statement required by Section 8 of Article 
XIII of the Constitution of California and by Section 441 
of the Revenue & Taxation [51] Code of California, 
showing as one item thereof "mdse. at 5300 S. San Pedro 
St. value $126,950. Cotton-Ticking-Mattresses-etc." but 



46 ^ George T. Goggin, etc. 

the said statement was made without the sanction, ap- 
proval, or direction of the referee in bankruptcy. 

III. 
FINDINGS OF THE REFEREE 

The findings of the referee are set forth in the order 
under review and therefore are not now repeated. 

The undersigned referee transmits herewith the follow- 
ing: 

1. Claim of H. L. Byram, Tax Collector of Los An- 
geles, for $9,979.86. 

2. Objections of the trustee to said claim. 

3. Reporter's Transcript of the proceedings. 

4. Order date February 2, 1948. 

5. Petition for Review of Referee's Order by Judge, 
dated March 2, 1948. 

6. Petition and Order Extending Time within which 
to file Petition for Review. 

7. Exhibits: Declaration filed wuth Assessor (no 
number). Statement of trustee of pledged goods 
released after tax date (no number). 

8. Order of Appointment of Receiver. 

9. Order of Adjudication. 

10. Order Confirming Sale, dated April 12, 1947. 

11. Petition and Order of Abandonment. 

Dated this 13 day of April, 1948. 

DAVID B. HEAD 
Referee in Bankruptcy. 

[Endorsed] : Filed Apr. 13, 1948. Edmund L. Smith, 
Clerk. [52] 



vs. H. L. Byram, etc. 47 

[Title of District Court and Cause] 

STIPULATION AND ORDER RE 
SUPPLEMENTAL CERTIFICATE OF REFEREE 

It Is Stipulated by the undersigned that an order may 
be made by this Honorable Court directing David B. 
Head, Referee in Bankruptcy, to file herein his Supple- 
mental Certificate to Referee's Certificate on Review, 
dated April 13, 1948, whereby said referee shall transmit 
to this court the following: 

1. Order Placing Debtor in Possession. 

2. Order Vacating Order Placing Debtor in Posses- 
sion. 

3. Order Appointing Trustee. 

RUSSELL B. SEYMOUR and 
FRANK C. WELLER 
By Russell B. Seymour 
Attorneys for George T. Goggin, Trustee 

HAROLD W. KENNEDY 

County Counsel, and 
ANDREW O. PORTER 
Deputy County Counsel 
By Andrew O. Porter 
Attorneys for H. L. Byram, Tax Collector 

It Is So Ordered this 29th day of July, 1948. 

WM. C. MATHES 

Judge of the District Court of the United States 

[Endorsed] : Filed Jul. 29, 1948. Edmund L. Smith, 
Clerk. [53] 



48 George T. Goggin, etc. 

[Title of District Court and Cause] 

SUPPLEMENTAL CERTIFICATE OF REFEREE 

To the Honorable William Mathes, Judge of the District 
Court of the United States, Southern District of 
California : 

1. David B. Head, one of the referees in bankruptcy of 
this court, before whom the above-entitled matter is pend- 
ing, do hereby transmit the following documents, to-wit: 

L Order Placing Debtor in Possession. 

2. Order Vacating Order Placing Debtor in Posses- 
sion. 

3. Order Appointing Trustee, 

and certify that each constituted a part of the record of 
the proceedings before me in the above entitled matter. 

Dated this 29 day of July, 1948. 

DAVID B. HEAD 

Referee in Bankruptcy 



[Endorsed] : Filed Aug. 3, 1948. Edmund L. Smith, \ 
Clerk. [54] j 



vs. H. L. Byram, etc. 49 

In the District Court of the United States 

Southern District of California 

Central Division 

In Bankruptcy No. 44,737-WM 

In the Matter of A. MOODY & CO., INC., a corporation, 

Bankrupt. 

ORDER ON REVIEW OF REFEREE'S ORDER OF 
FEBRUARY 2, 1948 DISALLOWING IN PART 
THE CLAIM OF H. L. BYRAM, TAX COL- 
LECTOR OF THE COUNTY OF LOS AN- 
GELES, FOR PERSONAL PROPERTY TAXES 

Upon the petition for review filed March 2, 1948 by 
H. L. Byram, Tax Collector for the County of Los An- 
geles, State of California and upon the certificate of 
Referee David B. Head filed April 13, 1948; and upon 
the proceedings had before the referee as appears from 
his certificate; and upon hearing counsel for the parties; 
and it appearing to the court upon review, from the rec- 
ord of the hearing had before the referee on September 
2, 1947 and the referee's findings of fact dated February 
2, 1948 

(a) that in the year 1947, and subsequent to the 
date of filing of the original petition herein [Bank- 
ruptcy Act, §§ 322, 378(1) ; 11 U. S. C §§ 722, 77S] 
the tax assessor for the County of Los Angeles as- 
sessed against the bankrupt estate an ad valorem tax 
in the amount of $9,979.86 on all the i:)ersonal prop- 
erty of the bankrupt estate [55] situated within Los 
Angeles County as of noon on March 3, 1947. in- 
cluding certain personalty stored by the bankrupt in 



50 George T. Goggin, etc. 

the Haslett Warehouse, Los Angeles, prior to the 
petition ; 

(b) that the aforementioned assessment was in all 
respects accurate and made in accordance with the 
laws of the State of California as of the tax day 
(March 3, 1947) [Constitution of California, Art. 

■ XIII; Cal. Rev. & Tax Code, §§401-871]; 

(c) that the referee's order of abandonment dated 
August 20, 1947 — which directed the trustee in 
bankruptcy "not to take over" the aforenicntioned 
property stored in the Haslett Warehouse — did not \ 
affect the liability of the bankrupt estate under j 
§§ 62a(l) and 64a(l) of the Bankruptcy Act [11 \ 
U. S. C §§ 102a(l) and 104a(l)] for taxes legally \ 
assessed and accruing after bankruptcy [cf: In re i 
Humeston, 83 F. (2d) 187 (C. C. A. 2d, 1936); \ 
Robinson v. Dickey, 36 F. (2d) 147 (C. C. A. 3rd, i 
1929), cert. den. 281 U. S. 750 (1930)]; J 

(d) that the bankruptcy court, in approving a 
claim for taxes as an expense of administration, may ; 
review a tax assessment [see Arkansas Corp. v. i 
Commn. v. Thompson, 313 U. S. 132 (1940) and ; 
Gardner v. New Jersey, 329 U. S. 565 (1947)]; ; 
but may not, under §§62a(l) and 64a(l) of the ■ 
Bankruptcy Act [11 U. S. C. §§ 102a(l) and 104a \ 
( 1 ) ] reduce or disallow a claim for taxes legally i 
assessed under the laws of the taxing sovereign, ir- ' 
respective of whether or not the assessment has been ^ 
approved by judicial decree or by act of a quasi- \ 
judicial officer or tribunal [cf : Lyford v. City of ' \ 
New York, 137 F. (2d) 782 [56] (C. C. A. 2d, j 
1943)]; and ] 



vs. H, L. Byram, etc. 51 

(e) that accordingly the petitioner herein is en- 
titled to full payment of the $9,979.86 claim against 
the bankrupt estate for personal property taxes as an 
expense of administration [Bankruptcy Act, §§ 62a 
and 64a(l); 11 U. S. C §§ 102a(l) and 104a(l); 
3 Collier on Bankruptcy, pp. 1509-1519, 2077-2082]; 

It Is Ordered that the order of the referee, dated Feb- 
ruary 2, 1948, disallowing in part the claim of H. L. 
Byram, Tax Collector of the County of Los Angeles, be 
and said order is hereby vacated and set aside; and the 
matter is hereby recommitted to the referee with directions 
to enter an appropriate order allowing the claim in full 
as an expense of administration. 

It Is Further Ordered that the Clerk this day forward 
copies of this order by United States mail to 

(1) Referee David B. Head; 

(2) The attorney for the petitioner; and 

(3) The attorneys for the trustee. 
June 4, 1948. 

WM. C. MATHES 

United States District Judge 

Judgment entered Jun. 4, 1948. Docketed Jun. 4. 1948. 
C. O. Book 51, page 121. Edmund L. Smith, Clerk by 
Louis J. Somers, Deputy. 

[Endorsed] : Filed Jun. 4, 1948. Edmund L. Smith, 
Clerk. [57] 



52 George T. Goggin, etc. 

[Title of District Court and Cause] 

NOTICE OF APPEAL TO CIRCUIT COURT OF 
APPEALS, NINTH CIRCUIT 

Notice Is Hereby Given that George T. Goggin, as 
trustee of the estate of A. Moody & Co., Inc., a corpora- 
tion, Bankrupt, the respondent and trustee herein, hereby 
appeals to the Circuit Court of Appeals, for the Ninth 
Circuit, from the order of the Court herein, dated June 
4, 1948, made and entered in this action, vacating and 
setting aside the order of the referee in bankruptcy here- 
in dated February 2, 1948, which disallowed in part the 
claim of H. L. Byram, Tax Collector of the County of 
Los Angeles; and recommitting the matter to the referee 
with directions to enter an appropriate order allowing said 
claim in full as an expense of administration. 

FRANK C. WELLER and 

RUSSELL B. SEYMOUR 

By Russell B. Seymour 

Attorneys for George T. Goggin, as Trustee of the 
Estate of A. Moody & Co., Inc, a Corporation, 
Bankrupt 



[Endorsed] : Filed & mid. copy to County Counsel Jul. 
1, 1948. Edmund L. Smith, Clerk. [58] 



vs. H. L. Byram, etc. 53 

[Title of District Court and Cause] 

STATEMENT OF POINTS 
(Rule 75(d)) 

STATEMENT OF POINTS 

I. 

That the District Court erred in failing to find (if it 
did make independent findings or failed to adopt the find- 
ings of the referee in bankruptcy) as follows: 

'Thereafter (after March 18, 1947) H. L. Byram, 
County Tax Collector for Los Angeles County, as- 
serted a tax claim as an expense of administration 
against the trustee herein in the amount of $9,979.86. 
A portion thereof was based upon an assessment of 
$126,950.00, of which $88,118.00 of that amount 
represented materials which never come into the pos- 
session of the trustee of the bankrupt estate, the 
same at all times being in the exclusive control of 
Haslett Warehouse Company upon premises leased by 
it and against which property there were issued, [59] 
outstanding warehouse receipts. There was not at 
bankruptcy or at any later time any interest or asset 
of value in the property in the possession of the Has- 
lett Warehouse Company and the trustee was not 
permitted to take over, or to assume, the same as 
an asset, excepting only that $992.82 thereof, at as- 
sessed valuation, was released to the trustee after 
the tax date upon payment by him to the pledgee 
of the warehouse receipts of the reasonable value 



54 George T. Goggin, etc. 

of such goods so released. Subsequently in the ad- 
ministration of the bankrupt estate, the trustee was 
directed by proper order of this court to abandon, 
and did abandon the balance of the warehoused prop- 
erty." 

in that same is contrary to the evidence. 

II. 

That the District Court erred in its conclusion of law \ 
as follows : | 

"That the referee's order of abandonment dated \ 
August 20, 1947 — which directed the trustee in bank- j 
ruptcy 'not to take over' the aforementioned property \ 
stored in the Haslett Warehouse — did not affect the \ 
liability of the bankrupt estate under Sections 62a(l) ] 
and 64a(l) of the Bankruptcy Act (11 U. S. C. j 
102(a) 1 and 104a(l)) for taxes legally assessed ; 
and accruing after bankruptcy." I 



in that same is contrary to the law and not supported by 
the evidence. 

III. 
That the District Court erred in its conclusion of law 
that the bankruptcy court may not, under the foregoing 
sections reduce or disallow a claim for taxes legally as- 
sessed under the laws of the State of California when 
such tax or a portion thereof is based upon an assessment 
arising after the date of bankruptcy upon property which 
never came into the possession of the estate in bankruptcy 



vs. H. L. Byram, etc. 55 

and from which nothing was realized by the estate [60] 
and which after the tax date was abandoned by the trustee 
upon order of the court, the estate at no time having any 
interest of value in such property. The foregoing con- 
clusion of law is contrary to the law and is not supported 
by the evidence. 

IV. 
That the District Court erred in its conclusion of law 
that the claimant is entitled to full payment of the 
$9,979.86 claim against the bankrupt estate for personal 
property taxes as an expense of administration, in that 
same is contrary to the law. 

V. 

That the District Court erred in its order vacating and 
setting aside the order of the referee in bankruptcy and 
directing that the matter herein be recommitted to the 
referee with directions to enter an appropriate order al- 
lowing the claim in full as an expense of administration, 
in that the said order is contrary to the law. 

Dated this 20th day of July, 1948. 

RUSSELL B. SEYMOUR and 
FRANK C. WELLER 
By Russell B. Seymour 

Attorneys for Appellant [61] 

Received copy of the within Statement of Points this 
21st day of July, 1948. Harold W. Kennedy, County 
Counsel; by Andrew O. Porter, Deputy. 

[Endorsed]: Filed Jul. 22, 1948. Edmund L. Smith, 
Clerk. [62] 



56 George T. Gog gin, etc, 

[Title of District Court and Cause] 

CERTIFICATE OF CLERK 

I, Edmund L. Smith, Clerk of the District Court of 
the United States for the Southern District of California, ;: 
do hereby certify that the foregoing pages numbered from ] 
1 to 65, inclusive, contain full, true and correct copies 
of Petition Under Chapter XI of the Bankruptcy Act; 
Approval of Debtor's Petition and Order of Reference 
Under Section 322 of the Bankruptcy Act; Order of Ad- 
judication; Order Authorizing Debtor to Remain in Pos- 
session; Order on Petition of Thalco, a creditor, for Or- 
der Vacating Order Allowing Debtor to Remain in Pos- 
session and for Receiver; Order Appointing Receiver; 
Order Approving Nomination of Trustee Under Section 
2>2>S, Chapter XI of the Bankruptcy Act in Event of 
Liquidation; Bond of Trustee and Order Approving; 
Claim of H. L. Byram, Tax Collector; Order Authorizing 
Trustee to Abandon Burdensome Assets; Objections to 
Claim of H. L. Byram, County Tax Collector; Order, 
Findings of Fact and Conclusions of Law re Claim of 
Tax Collector; Minute Order Entered February 10, 1948; 
Affidavit for and Order Extending Time Within Which 
to File Petition for Review; Petition for Review of 
Referee's Order by Judge; Referee's Certificate on Re- 
view; Stipulation and Order re Supplemental Certificate 
of Referee; Supplemental Certificate of Referee; Order 
on Review of Referee's Order of February 2, 1948 Dis- 
allowing in Part the Claim of H. L. Byram, Tax Col- 
lector of the County of Los Angeles, for Personal Prop- 



vs. H. L. Byram, etc. 57 

erty Taxes; Notice of Appeal Statement of Points on 
Appeal and Designation of Record on Appeal, which con- 
stitute the Record on Appeal of Geo. T. Goggin, Trustee, 
to the Circuit Court of Appeals for the Ninth Circuit. 

I further certify that my fees for preparing, compar- 
ing, correcting and certifying the foregoing record amount 
to $16.25 which sum has been paid to me by appellant. 

Witness my hand and the seal of said District Court 
this 9 day of August, A. D. 1948. 

(Seal) EDMUND L. SMITH 

Clerk 

By Theodore Hocke 

Chief Deputy 



[Endorsed] : No. 12020. United States Circuit Court 
of Appeals for the Ninth Circuit. G€orge T. Goggin, as 
Trustee of the Estate of A. Moody & Co., Inc., Bankrupt, 
Appellant, vs. H. L. Byram, Tax Collector for the County 
of Los Angeles, State of California, Appellee. Transcript 
of Record. Upon Appeal From the District Court of the 
United States for the Southern District of California, 
Central Division. 

Filed August 12, 1948. 

PAUL P. O'BRIEN 
Clerk of the United States Circuit Court of Appeals for 
the Ninth Circuit 



I 



58 George T. Goggin, etc. 

United States Circuit Court of Appeals 
for the Ninth Circuit 

No. 12020 

GEORGE T. GOGGIN, as Trustee, etc. 

Appellant, 

vs. 

H. L. BYRAM, etc. 

Appellee. 1 

\ 

APPELLANT'S STATEMENT OF POINTS ON \ 

APPEAL I 

Comes now the appellant herein and adopts as his points i 
on appeal the statement of points appearing in the tran- 
script of the record. ■ 

RUSSELL B. SEYMOUR and j 

FRANK C. WELLER \ 

By Russell B. Seymour ' 

Attorneys for Appellant 

i 

i 

Service of copy of foregoing "Appellant's Statement of \ 

Points on Appeal" is acknowledged this 16th day of | 

August, 1948. Harold W. Kennedy, County Counsel, and ■ 

A. O. Porter, Deputy, RAF, Attorneys for Appellee. i 

[Endorsed] : Filed Aug. 17, 1948. Paul P. O'Brien, , 
Clerk. \ 




No. 12020 
IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



George T. Goggin, as Trustee of the Estate of A. Moody 
& Co., Inc., Bankrupt, 

Appellant, 



vs. 



H. L. Byram, Tax Collector for the County of Los Ange- 
les, State of California, 

Appellee. 



APPELLANT'S OPENING BRIEF. 



Frank C. Weller, 
111 West Seventh Street, Los Angeles 14, 

Russell B. Seymour, 
1120 Rowan Building, Los Angeles 13. 
Attorneys for Appellant. 



Parker & Company, Law Printers, Los Angeles. Phone TR.S206. 



TOPICAL INDEX 



PAGE 



I. 

Statement of the case 1 

II. 

Statement of pleadings and facts showing jurisdiction 2 

III. 
Opinion of the court below 4 

IV. 
Statement of the case 4 

V. 
Questions presented 10 

VI. 
Specifications of error 1 1 

VII. 
Summary of argument 13 

VIII. 
Argument 14 

Point I. The Bankruptcy Court had the power and right to 
eliminate taxes on personal property in which the bank- 
rupt estate had no interest and which did not come into the 
possession of the Bankruptcy Court, even though there was 
other personal property of value in the estate 14 

A. Jurisdiction to reduce tax claims under present facts 

is in the Bankruptcy Court 14 

B. The subject matter did not come into the possession 

of the Bankruptcy Court 20 

C. There was no value to the interest of the bankrupt 
estate in the property 21 



u. 



PAGE 

D. To consider other property in determining the value 
of the interest of the bankrupt estate is to emasculate 
the first proviso of Section 64a (4) 22 

Point II. Assuming, but not conceding, that such property 
was subject to taxation arising after bankruptcy the order 
of abandonment relieved the estate of liability 25 

Point III. The District Court erred in not accepting the 
findings of the referee (if such was the case) 26 

Point IV. That the District Court erred in its conclusion of 
law that the claimant is entitled to full payment of the 
$9,979.86 claim against the bankrupt estate for personal 
property taxes as an expense of administration, in that same 
is contrary to the law 26 

Conclusion 27 



111. 

TABLE OF AUTHORITIES CITED 

Cases page 

Arkansas Corp. Comm. v. Thompson, 313 U. S. 132 9, 15, 16 

Gardner v. New Jersey, 329 U. S. 565 9, 15, 16, 19, 20 

Glass V. Phillips, 139 F. 2d 1016 23. 24 

Helvey v. United States Building & Loan Ass'n, 81 Cal. App. 
2d 647 25 

Humeston, In re, 83 F. 2d 187 9, 25 

Ingersoll Co., Matter of, 148 F. 2d 282 23, 24 

Lyford V. City of New York, 137 F. 2d 782 9, 15, 18 

Robinson v. Dickey, 36 F. 2d 147 ; cert. den. 281 U. S. 750....9, 25 

Wiswall V. Campbell, 93 U. S. 347 19 

Statutes 

Bankruptcy Act of 1898, Sec. 64a 22, 23 

Bankruptcy Act, Sec. 2(a) 3 

Bankruptcy Act, Sec. 24(a) 4 

Bankruptcy Act, Sec. 62a(l) (11 U. S. C, Sec. 102a(l)) 

9, 15, 25 

Bankruptcy Act, Sec. 64a (amended May 27. 1926, 44 Stat. 
662) 22 

Bankruptcy Act, Sec. 64a(l) (11 U. S. C, Sec. l(>4a(l) 

9, 15, 25 

Bankruptcy Act, Sec. 64a(4) 7. 13. 14, 15, TJ 

Bankruptcy Act, Sec. 302 (11 U. S. C. A., Sec. 702) 3 

Bankruptcy Act, Sec. 312(2) (11 U. S. C. A.. Sec. 712(2)) 3 

Bankruptcy Act, Sec. 316 (11 U. S. C. A.. Sec. 716) 3 

Bankruptcy Act, Sec. 322 (11 U. S. C. A., Sec. yil) 2, 3, 4 

Bankruptcy Act, Sec. 376(2) 3 



IV. 

PAGE 

Bankruptcy Act, Sec. 378(2) (11 U. S. C. A., Sec. 788(2)) 3 

California Constitution, Art. XIII, Sec. 8 6, 7 

Revenue and Taxation Code, Sec. 441 6, 8 \ 

United States Code Annotated, Title 28, Sec. 41(19) 3 

United States Code Annotated, Title 28, Sec. 225(a), (c) 4 

Textbooks 

3 Collier on Bankruptcy, pp. 1509-1519, 2077-2082 9 \ 

3 Collier on Bankruptcy, 1926 Amendments, p. 2047 22 } 

3 Collier on Bankruptcy, p. 2049 (1938 Act (4)) 23 : 

8 Collier on Bankruptcy, Sec. 796 21 i 

9 Collier on Bankruptcy, Appendix, p. 1819 22, 23 j 



No. 12020 
IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



George T. Goggin, as Trustee of the Estate of A. Moody 
& Co., Inc., Bankrupt, 

Appellant, 



vs. 



H. L. Byram, Tax Collector for the County of Los Ange- 
les, State of California, 

Appellee. 



APPELLANT'S OPENING BRIEF. 



I. 

Statement of the Case. 

This is an appeal from an order of a District Judge of 
the Southern District of California reversing an order of 
a Referee in Bankruptcy of that district in respect to the 
partial disallowance, to the extent of $5389.90 of a tax 
claim hied by appellee as an expense of administration in 
the total amount of $9,979.86. The order of the District 
Court allowed the claim as filed. 



— 2— 

11. 

Statement of Pleadings and Facts Showing 

Jurisdiction. r 

The bankruptcy was commenced on January 27, 1947, j 
in the District Court of the United States, Southern Dis- j 
trict of California, Central Division, by the filing by A. -I 
Moody & Co., Inc., a corporation, the bankrupt herein, | 
of an original petition under Section 322, Chap. XI of the ] 
Bankruptcy Act (11 U. S. C. A.), for an arrangement ] 
between the corporation and its creditors [Tr. p. 2]. j 
Thereafter, and on the same day, the District Court ap- ; 
proved of the petition and referred the matter generally ' 
to one of the referees in bankruptcy of that court [Tr. ■ 
p. 12]. Th debtor, by order of the court, was permitted i 
to remain in possession, and to carry on its business [Tr. ! 
p. 14], which order, however, was vacated on March 14, 
1947, and a receiver was appointed [Tr. p. 19]. By order i 
dated March 21, 1947, the debtor was adjudged bankrupt i 
[Tr. p. 13] and George T. Goggin became the duly ap- \ 
pointed, qualified and acting trustee in bankruptcy [Tr. p. i 
23]. On May 31, 1947, the appellee, H. L. Byram, as I 
Tax Collector of the County of Los Angeles, filed in this \ 
proceeding his tax claim for $9,979.86, based on personal \ 
property owned by the debtor on the first Monday of 
March, 1947, and petitioned the court for its order direct- 
ing payment "as a preferred claim" [Tr. p. 26]. The 
trustee filed objections to the allowance of the claim [Tr. 
p. 29], hearings were had, and an order was made by the 
referee reducing the claim to the amount of $4,589.96 and 
directing the trustee to make payment thereof [Tr. p. 30]. 
A petition for review of such order was filed by the appel- 
lee [Tr. p. 35] and the District Court, after hearing, set 
aside the order of the referee and allowed the claim in full 



— 3— 

as filed as an expense of administration [Tr. ]). 49]. 
Within the time provided by law, notice of appeal to the 
Circuit Court of Appeals, Ninth Circuit, was filed by ap- 
pellant [Tr. p. 52]. 

Exclusive jurisdiction of proceedings in bankruptcy is 
vested in the Federal Courts. Section 2(a), Bankruptcy 
Act. 

The District Courts have original jurisdiction of all mat- 
ters and proceedings in bankruptcy. Section 41 ( 19), Title 
28, U. S. C. A. 

The original petition herein was filed by the debtor un- 
der section 322 of the Bankruptcy Act (11 U. S. C. A. 
722). Section 312(2) of the Bankruptcy Act (11 U. S. 
C. A. 712(2)) provides that the jurisdiction of the court 
shall be the same as though voluntary petition for adjudi- 
cation had been filed and a decree had been entered at the 
time the petition under Chapter XI was filed. The debtor 
was adjudicated a bankrupt under the provisions of section 
376(2) of the Bankruptcy Act and the proceedings were 
thereafter carried on pursuant to section 378(2) of the 
Bankruptcy Act (11 U. S. C. A. 788(2)). The pro- 
visions of Chapters I to VI of the Bankruptcy Act apply 
to proceedings under Chapter XI, where not inconsistent 
(Section 302, Bankruptcy Act (11 U. S. C A. 702)). 

This proceeding is a proceeding in bankruptcy, being the 
determination of a claim for the administration expense: 
and likewise is a matter involving in excess of $500.00. 

Statutes under which the Circuit Court of Appeals is 
given appellate jurisdiction over this matter are as follows: 

Section 316 of the Bankruptcy Act (11 U. S. C. A. 
716). provides that where not inconsistent with the pro- 



visions of Chapter XI, the jurisdiction of the appellate | 
courts shall be the same as in a bankruptcy proceeding, ; 

Section 225, subdivisions (a) and (c), Title 28, U. S. ■ 

C. A., grants to the Circuit Court of Appeals appellate j 

jurisdiction of the District Court interlocutory orders and ■ 

over all controversies in the District Court relating to 1 

bankruptcy. ] 

Section 24(a) of the Bankruptcy Act invests the Cir^ j 
cuit Court of Appeals with appellate jurisdiction over pro- 1 

ceedings in bankruptcy arising from courts of bankruptcy i 

) 

III. I 
Opinion of the Court Below. I 

The District Judge did not render any opinion other | 

than what might be contained in his order [Tr. p. 49]. ; 

The referee did not render any opinion other than what ' 

might be contained in his order [Tr. p. 30]. \ 

IV. i 
Statement of the Case. j 

(Note: In lieu of a reporter's transcript of the evi- 
dence, respective counsel agreed that the Statement of 
Evidence [Tr. p. 44], as set out in the Referee's Certifi- 
cate on Review [Tr. p. 43], would suffice and reference 
to evidence will be made accordingly. No additional evi- 
dence was presented to the District Court.) 

A. Moody & Co., Inc., the bankrupt herein, filed a 
petition for an arrangement under Section 322 of the 
Bankruptcy Act, on January 27, 1947, and on the same 
day an order was made herein ''placing the debtor in pos- 



— 5— 

session" and permitting it to operate its business which 
was the manufacture and sale of mattresses, and in which 
business it had been engaged for several months ])rior 
to the date of bankruptcy, at 5300 South San Pedro 
Street, Los Angeles, California. At the date of bankruptcy, 
at the same address, a portion of the premises were under 
lease to Haslett Warehouse Company into whose exclusive 
custody and possession a large quantity of personal prop- 
erty of the bankrupt had already been placed by the bank- 
rupt, and against which personal property warehouse re- 
ceipts had been issued by Haslett Warehouse Company 
in conformity to the provisions of the Warehouse Re- 
ceipts Act of the State of California. Prior to the date 
of bankruptcy said warehouse receipts had been pledged 
by the bankrupt to secure an indebtedness owing by it in 
the sum of about $117,716.06 as of the date of bank- 
ruptcy and as of the tax date herein involved, to-\vit, the 
first Monday in March, 1947, at 12 M., being March 3, 
1947. The bankrupt had other personal property in its 
factory at the date of bankruptcy and on the tax date, some 
of which was similar to the warehoused goods. The as- 
sessor assessed all personal property, whether in the ware- 
house or in the factory, in one amount, to-wit: $126,- 
950.00, the tax based thereon being $9,979.86. If the 
pledged property had been assessed separately the assessed 
value thereof would have been $88,118.00, and the tax 
based thereon would have been $5454.50. The order per- 
mitting the debtor to remain in possession was vacated 
March 13, 1947, at which time George T. Goggin was 
a])pointed receiver with authority to operate the business. 
On March 18, 1947, an order of adjudication was made 
and said George T. Goggin became trustee in bankruptcy 
with authority to operate the business, as of March 20, 



y. 



1947. On April 12, 1947, substantially all of the per- 
sonal property of the estate (excepting the pledged prop- 
erty) was sold for about $27,000.00. On June 20, 1947, 
the trustee filed his petition for authority to abandon said 
pledged property, which authority was thereafter granted, 
after due notice to all parties. At no time on or after the 
date of bankruptcy was there any interest or asset of 
value for the bankrupt estate in the pledged goods, and 
neither the debtor, nor the receiver, nor the trustee ever 
took any part of the pledged goods into his possession (ex- 
cepting that after the tax date there was released to the 
trustee $992.82 at assessed valuation of such goods upon 
payment by the trustee to the pledgee of the warehouse 
receipts, of the reasonable value of the goods so released), 
and nothing was ever realized by the estate from said 
pledged property. On April 4, 1947, Ralph Owen, chief 
accountant for the bankrupt, made, verified, and filed with 
the assessor on behalf of the trustee, the statement re- 
quired by Section 8 of Article XIII of the Constitution 
of California and by Section 441 of the Revenue & Taxa- 
tion Code of California, showing as one item thereof 
''mdse. at 5300 S. San Pedro St. value $126,950. Cotton- 
Ticking-Mattresses, etc." but the said statement was made 
without the sanction, approval, or direction of the referee 
in bankruptcy [Tr. pp. 44, 45, 46]. 

Thereafter on May 31, 1947, the appellee filed his claim 
for $9,979.86 in which he petitioned the Bankruptcy Court 
for its order directing the payment of said sum as a 
"preferred claim" [Tr. p. 26]. After a hearing of ob- 



jections filed by tlic trustee, the referee made his order 
reducing the claim to the sum of $4,589.96 [Tr. p. 30] . 
The objections were tried on the theory that the first 
proviso of Section 64a (4) of the Bankruptcy Act applied 
to the property in the warehouse and the referee found 
that a portion thereof was based upon an assessment of 
$126,950.00, of which $88,118 of that amount represented 
materials which never came into the possession of the 
trustee of the bankrupt estate, the same at all times being 
in the exclusive control of Haslett Warehouse Company 
upon premises leased by it and against which property 
there were issued, outstanding warehouse receipts and 
there was not at bankruptcy or at any later time any in- 
terest or asset of value in the property in the possession 
of the Haslett Warehouse Company and the trustee was 
not permitted to take over, or to assume, the same as an 
asset, excepting only that $992.82 thereof, at assessed val- 
uation, was released to the trustee after the tax date upon 
payment by him to the pledgee of the warehouse receipts 
of the reasonable value of such goods so released and sub- 
sequently in the administration of the bankrupt estate, the 
trustee was directed by proper order of this court to aban- 
don, and did abandon the balance of the warehoused 
property [Tr. p. 31]. 

The referee further found on April 4, 1947. Ralph 
Owen, chief accountant for the bankrupt herein, made, 
verified, and filed with the Assessor on behalf of the 
trustee of said bankrupt, the statement required by Sec- 
tion 8 of Article XIII of the Constitution of California 



and by Section 441 of the Revenue & Taxation Code of 
California, showing as one item thereof "Mdse. at 5300 
S. San Pedro St. value $126,950.00. Cotton-Ticking- 
Mattresses-etc." but the said statement was made without 
the sanction, approval, or direction of the referee in bank- 
ruptcy [Tr. p. 32]. 

The referee further found that the trustee prior to the 
hearing of these objections and pursuant to the order of 
the court sold all, or substantially all, of the remaining 
property included in said assessment for an amount greater 
than the amount of the total claim filed herein by said 
Tax Collector [Tr. p. 32]. 

The District Court, without any further evidence than 
has been adverted to above, set aside the order of the 
referee, made findings (a) and (b) of his order [Tr. p. 
49] to the effect that the appellee had assessed a tax in the 
amount of $9,979.86 on all of the personal property of the 
bankrupt estate situated in Los Angeles County on the tax 
date, including certain personalty stored by the bankrupt 
with Haslett Warehouse Company at Los Angeles, prior 
to the petition in bankruptcy [Tr. p. 49], and that the 
assessment was in all respects accurate and made in ac- 
cordance with the laws of the State of California [Tr. p. 
50]. No other findings of fact were made by the District 
Court. 

The District Court concluded that the referee's order of 
abandonment dated August 20, 1947 — which directed the 
trustee in bankruptcy "not to take over" the aforemen- 



— 9— 

tioned property stored in the Haslett Warehouse — did not 
affect the liability of the bankrupt estate under Sections 
62a(l) and 64a(l) of the Bankruptcy Act (11 U. S. C. 
Section 102a(l) and 104a(l)) for taxes legally assessed 
and accruing after bankruptcy {cf: In re Humeston, 83 
F. 2d 187 (C. C. A. 2d, 1936); Robinson v. Dickey, 36 
F. 2d 147 (C. C. A. 3rd, 1929), cert. den. 281 U. S. 
750 (1930)) [Tr. p. 50]. 

The District Court further concluded that the bank- 
ruptcy court, in approving a claim for taxes as an ex- 
pense of administration, may review a tax assessment 
(see Arkansas Corp. Commn. v. Thompson, 313 U. S. 132 
(1940) and Gardner v. New Jersey, 329 U. S. 565 
(1947)) ; but may not, under Sections 62a(l) and 64a(l) 
of the Bankruptcy Act (11 U. S. C. Sec. 102a(l) and 
104a(l)) reduce or disallow a claim for taxes legally as- 
sessed under the laws of the taxing sovereign, irrespective 
of whether or not the assessment has been approved by 
judicial decree or by act of a quasijudicial officer or 
tribunal (c/; Lyford v. City of New York, 137 F. 2d 782 
(56) (C. C. A. 2d 1943)) [Tr. p. 50]. 

The District Court then made its order that the appellee 
was entitled to full payment of the $9,979.86 claim against 
the bankrupt estate for personal property taxes as an ex- 
pense of administration (Bankruptcy Act, Sections 62a 
and 64a(l): 11 U. S. C. Sec. 102a(l) and 104a(l): 
3 Collier oil Bankruptcy, pp. 1509-1519, 2077-2082) [Tr. 
p. 51]. 



—10— 

V. 
Questions Presented. 

I. 

Whether the bankruptcy court has the power and right, 
in fixing an expense of administration, to eHminate per- 
sonal property taxes assessed by the County Assessor on 
pledged personal property which never came into posses- 
sion of the bankrupt estate and in which no equity existed 
at the date of bankruptcy or thereafter, where in the 
course of administration other personal property, included 
in the same assessment, was sold for an amount greater 
than the total assessed taxes. 

II. 

Did the order of abandonment of the foregoing personal 
property eliminate any tax liability that otherwise might 
have existed as an expense of administration. 

III. 
Did the District Court err in failing to adopt the find- 
ings of the referee in bankrupty. 

IV. 

Did the District Court err in its conclusion of law that 
the appellee is entitled to full payment of its claim as an 
expense of administration and in its order vacating the 
order of the referee in bankruptcy. 



—11— 

VI. 
Specifications of Error. 

Statement of points upon which appellant intends to rely 
upon appeal are set forth at pages 53-55 and 58 of the 
transcript. Each of said points is relied upon by appel- 
lant and such points are as follows : 

I. 

That the District Court erred in failing to find (if it 
did make independent findings or failed to adopt the find- 
ings of the referee in bankruptcy) as follows: 

'Thereafter (after March 18, 1947) H. L. Byram, 
County Tax Collector for Los Angeles County, as- 
serted a tax claim as an expense of administration 
against the trustee herein in the amount of $9,- 
979.86. A portion thereof was based upon as as- 
sessment of $126,950.00, of which $88,118.00 of that 
amount represented materials which never came into 
the possession of the trustee of the bankrupt estate, 
the same at all times being in the exclusive control of 
Haslett Warehouse Company upon premises leased by 
it and against which property there were issued, out- 
standing warehouse receipts. There was not at bank- 
ruptcy or at any later time any interest or asset of 
value in the property in the possession of the Haslett 
Warehouse Company and the trustee was not permit- 
ted to take over, or to assume, the same as an asset, 
excepting only that $992.82 thereof, at assesesd valua- 
tion, was released to the trustee after the tax date 
upon payment by hirn to the pledgee of the ware- 
house receipts of the reasonable value of such goods 
so released. Subsequently in the administration of 
the bankrupt estate, the trustee was directed by ])ro])er 
order of this court to abandon, and did abandon the 
balance of the warehoused property." 

in that same is contrary to the evidence. 



—12— 

II. 

That the District Court erred in its conclusion of law 
as follows: 

"That the referee's order of abandonment dated 
August 20, 1947 — which directed the trustee in bank- 
rupty 'not to take over' the aforementioned property 
stored in the Haslett Warehouse — did not affect the 
liability of the bankrupt estate under Sections 62a 
(1) and 64a(l) of the Bankruptcy Act (11 U. S. C. 
102a(l) and 104a(l) for taxes legally assessed and 
accruing after bankruptcy." 

in that same is contrary to the law and not supported by 
the evidence. 

III. 

That the District Court erred in its conclusion of law 
that the bankruptcy court may not, under the foregoing 
sections reduce or disallow a claim for taxes legally as- 
sessed under the laws of the State of California when 
such tax or a portion thereof is based upon an assessment 
arising after the date of bankruptcy upon property which 
never came into the possession of the estate in bankruptcy 
and from which nothing was realized by the estate and 
which after the tax date was abandoned by the trustee 
upon order of the court, the estate at no time having any 
interest of value in such property. The foregoing conclu- 
sion of law is contrary to the law and is not supported 
by the evidence. 

IV. 

That the District Court erred in its conclusion of law 
that the claimant is entitled to full payment of the $9,- 
979.86 claim against the bankrupt estate for personal prop- 
erty taxes as an expense of administration, in that same 
is contrary to the law. 



—13— 

VII. 
Summary of Argument. 

Point 1. The Bankruptcy Court had the power and 
right to cHminatc taxes on personal property in which the 
bankrupt estate had no interest and which did not come 
into the possession of the bankruptcy court, even though 
there was other personal property of value in the estate. 

A. Jurisdiction to reduce tax claims under present facts 
is in the bankruptcy court. 

B. The subject property did not come into possession 
of the bankruptcy court. 

C. There was no value to the interest of the bankrupt 
estate in the property. 

D. To consider other property in determining the value 
of the interest of the bankrupt estate is to emasculate the 
first proviso of Section 64a(4). 

Point II. Assuming, but not conceding, that such 
property was subject to taxation arising after bankruptcy, 
the order of abandonment relieved the estate of liability. 

Point III. The District Court erred in not accepting 
the findings of the referee (if such was the case). 

Point IV. Is dependent upon Points I, II and III and 
is not independently discussed. 



—14— 

VIII. 
ARGUMENT. 

POINT I. The Bankruptcy Court Had the Power and 
Right to Eliminate Taxes on Personal Property in 
Which the Bankrupt Estate Had No Interest and 
Which Did Not Come Into the Possession of the 
Bankruptcy Court, Even Though There Was 
Other Personal Property of Value in the Estate. 

A. Jurisdiction to Reduce Tax Claims Under Pres- 
ent Facts Is in the Bankruptcy Court. 

The basis for jurisdiction in respect to tax claims and 
claims of administration are derived from Section 64a of 
the Bankruptcy Act which, so far as material, reads as 
follows : 

"The debts to have priority, in advance of the pay- 
ment of dividends to creditors, and to be paid in full 
out of bankrupt estates, and the order of payment, 
shall be (1) . . .; the costs and expenses of ad- 
ministration ,..;... (4) taxes legally due 
and owing by the bankrupt to the United States or 
any State or any sub-division thereof: Provided, 
That no order shall be made for the payment of a tax 
assessed against any property of the bankrupt in 
excess of the value of the interest of the bankrupt 
estate therein as determined by the court: And pro- 
vided further, That, in case any question arises as to 
the amount or legality of any taxes, such question 
shall be heard and determined by the court; . . ." 

and Section 62a of the Bankruptcy Act which reads as 

follows : 

"The actual and necessary costs and expenses in- 
curred by officers in the administration of estates 
shall, except where other provisions are made for their 
payment, be reported in detail, under oath, and ex- 



—15— 

amined and approved or disapproved by the court. 
If approved, they shall be paid or allowed out of the 
estate in which they were incurred." 

The District Court ]:)roperly ruled "That the Bank- 
ruptcy Court, in approving a claim for taxes as an ex- 
pense of administration, may review a tax assessment," 
citing Arkansas Corporation Commission v. Thompson, 
313 U. S. 132 (1940) and Gardner v. New Jersey, 329 
U. S. 565 (1947), but in our opinion, erroneously con- 
cluded that the Bankruptcy Court "may not, under Sec- 
tions 62a(l) and 64a(l) of the Bankruptcy Act, reduce 
or disallow a claim for taxes legally assessed under the 
laws of the taxing sovereign, irrespective of whether or 
not the assessment has been approved by judicial decree 
or by the act of a quasi-judicial officer or tribunal," cit- 
ing Lyford v. City of New York, 137 F. 2d 782 (C. C. 
A. 2d 1943). 

It will be noted that nowhere does the District Court 
make even passing reference to the provisions of 64a(4) 
or particularly to the first proviso thereof : 

"Provided, That no order shall be made for the 
payment of a tax assessed against any propery of the 
bankrupt in excess of the value of the interest of the 
bankrupt estate therein as determined by the court:" 

Before we analyze the authorities of the District Court 
may we emphasize 

(1) That the referee did not attack the valuation 
of the property assessed by the Tax Collector. 

(2) That the referee did not reduce or modify 
the tax rate used by the assessor. 

(3) That the referee only followed the first pro- 
viso of Section 64a (4). 



—16- 

The essence of Arkansas Corporation Commission v. 
Thompson and of Gardner v. State of New Jersey are 
contained in the following quotations from the latter. 

* 'Third. We held in Arkansas Corporation Com- 
mission V. Thompson, supra, that the reorganization 
court lacked the power under Section 77 to rede- 
termine for state tax purposes the property value of 
a railroad where that value had already been de- 
termined in state proceedings which afforded ample 
protection to the railroad's rights. We adhere to that 
decision. Its ruling precludes redetermination by the 
reorganization court in this case of the valuations 
underlying the assessments made by the state authori- 
ties and the validity of those assessments used as the 
basis for the computation of the taxes. It may not 
therefore entertain the objections to New Jersey's 
claim which tender those issues. The proper tribunals 
where those issues may be litigated, if they are still 
open for any year, are the state agencies and courts 
and, under special circumstances, the federal courts." 

"Fourth. The rule of Arkansas Corporation Com- 
mission V. Thompson, supra, does not, however, pre- 
clude the reorganization court from adjudicating the 
other issues raised by the objections to New Jersey's 
claim. The contrary view, which the Circuit Court 
of Appeals apparently took, fails to recognize his- 
toric bankruptcy powers which, as we have already 
pointed out, are part of the arsenal of authority 
granted the reorganization court by Section 77. 

(1) The validity and priority of one lien, whether 
or not claimed by a State, as against other liens, are 
questions for the reorganization court. Illustrating 



—17— 

but not limiting: tlie ran^e of that inquiry are ques- 
tions whether local law creates the lien asserted : 
whether it was sufficiently perfected prior to the peti- 
tion for reorganization as to be good against other 
liens, cf. Nczv York v. Maclay, supra; United States 
V. Texas, supra; whether, if it were inchoate at that 
time, it could be perfected subsequent to the petition, 
Lyford v. State of New York, 140 F. 2d 840; and 
whether the lien, though paramount, is subordinate 
to administration expenses or other claims under 
either the general bankruptcy rule. City of New York 
V. Hall, 139 F. 2d 935, or the equity rule, 5 Collier 
on Bankruptcy (14th ed.) 77.21. See Warren v. 
Palmer, 310 U. S. 132. 

(2) The extent of the lien — to what property it 
applies, and whether it is restricted to realty or covers 
personal property or revenues as well — are also ques- 
tions for the reorganization court. See Ecker v. 
Western Pacific R. Corp., supra, pp. 489, 503. 

(3) The reorganization court may also adjudicate 
questions pertaining to the amount of a tax claim se- 
cured by a lien without crossing the forbidden line 
marked by Arkansas Corporation Commission v. 
Thompson, supra. There is, for example, the ques- 
tion whether the amount of the claim has been swollen 
by the inclusion of a forbidden penalty and thus to 
that extent does not meet the bankruptcy require- 
ments for proof and allowance of claims. Section 57j 
of the Bankruptcy Act provides that debts owing a 
State as a 'penalty or forfeiture' shall not be allow^ed. 
What claims accruing before bankruptcy and sought 
to be proved by a State are 'penalties'. New York v. 
Jcrsawit, 263 U. S. 493, and what are not. Mcilink 
V. Unemployment Reserves Commission, 314 U. S. 
564; the applicability of Section 57j to reorganizations 
under Section 77; the liability of the estate for pen- 



—18— 

allies incurred by the trustee in the operation of the 
business; Boteler v. Ingels, 308 U. S. 57; what in- 
terest, if any, accrues after the petition for reorgani- 
zation has been filed, Vanstoii v. Green, 329 U. S. 
, are all questions for the reorganization court." 

The Supreme Court, in the Gardner case, followed sub- 
stantially Lyford v. City of New York, supra, cited by the 
District Court. 

"Moreover, the questions here involved are ques- 
tions of law. The trustee asserts that all but a trivial 
amount of the tax is levied on nontaxable items as 
follows: Amounts owed the company by its sub- 
sidiaries as interest, but unpaid because it had not 
paid rentals due the subsidiaries, and hence amounts 
resulting at most from mere bookkeeping entries in 
the company's accounts. Southern Pac. Co. v. Lowe, 
247 U. S. 330, 337, 338, 38 S. Ct. 540, 62 L. Ed. 
1142; income from tax-exempt securities deposited 
with the Industrial Commissioner as security for the 
company's obligations under the Workman's Com- 
pensation Act; and demurrage receipts of the debtor, 
not taxable locally, since they came from interstate 
shipments of merchandise into New York. Also in- 
cluded were penalties of $4,427.77, which are improper 
if Section 57j applies to these proceedings — a matter 
upon which lower federal courts are not in accord. 
Compare In re Denver & R. G. W. R. Co., supra (D. 
C, Colo.), 40 Am. B. R. (N. S.) 520, 27 F. Supp. 
983, with In re Chicago, M., St. P. & P. R. Co., 
supra. It would appear, therefore, that in any event 
these are not issues reserved to the state authorities, 
under the Thompson decision." 

Lyford v. City of New York, 137 F. 2d 782 (C. 
C. A. 2d 1943). 



—19^ 

The Tax Collector subjected himself to the effect of the 
first proviso by filing his claim. See Gardner v. State of 
New Jersey, supra. 

"When a State files a proof of claim in the reor- 
ganization court, it is using a traditional method of 
collecting a debt. A proof of claim is, of course, 
prima facie evidence of its validity. Whitney v. 
Dresser, 200 U. S. 532. But the bankruptcy court 
whose aid is sought for enforcement of an asserted 
claim is not bound to treat the tendered proof as con- 
clusive. When objections are made, it is duty bound 
to pass on them. That process is, indeed, of basic 
importance in the administration of a bankrujitcy 
estate whether the objective be liquidation or reorgani- 
zation. Without that sifting process, unmeritorious 
or excessive claims might dilute the participation of 
the legitimate claimants. 

It is traditional bankruptcy law that he who in- 
vokes the aid of the bankruptcy court by offering 
a proof of claim and demanding its allowance must 
abide the consequences of that procedure. Wiswall 
V. Campbell, 93 U. S. 347, 351. If the claimant is 
a State the procedure of proof and allowance is not 
transmuted into a suit against the State because the 
court entertains objections to the claim. The State 
is seeking something from the debtor. No judgment 
is sought against the State. The whole process of 
proof, allowance, and distribution is, shortly speaking, 
an adjudication of interests claimed in a res. It is 
none the less such because the claim is rejected in 
toto, reduced in part, given a priority inferior to that 
claimed, or satisfied in some way other than payment 
in cash. When the State becomes the actor and files 



—20— 

a claim against the fund, it waives any immunity 
which it otherwise might have had respecting the ad- 
judication of the claim. See Clark v. Barnard, 108 
U. S. 436, 447-448; Gunter v. Atlantic Coast Line, 
200 U. S. 273, 284, 289; Missouri v. Fiske, 290 U. 
S. 18, 24-25." 

Just as the Bankruptcy Court may determine any of the 
numerous items cited as expenses in the Gardner case, 
even though a quasi-judicial body has determined a tr.x, 
so may, so must, the Bankruptcy Court determine what is 
the interest of the bankrupt estate in the property which 
is the subject of the tax. We know of no agency or 
tribunal other than the Bankruptcy Court with authority 
to make such a determination. We know of no statute in 
California that permits taxation of an equity of a tax- 
payer. I 

B. The Subject Matter Did Not Come Into the 
Possession of the Bankruptcy Court. 

The property was not in the possession of the Bank- | 

ruptcy Court or of any officer thereof, or of the debtor, ] 

on either the tax date or at any time from before bank- ' 

ruptcy. j 

It is possible that the District Court assumed the ex- ; 

pression ''debtor in possession" (which was the status of \ 

the bankrupt on the tax date) to mean that the debtor was I 

physically in possession of the property. At all pertinent \ 

times the property was in the exclusive control of Haslett : 

Warehouse Company upon premises leased by it and i 



—21— 

against which property there were issued outstanding 
I warehouse receipts pledged before bankruptcy. See: 

8 Collier, 796. 

"Where a debtor continues 'in possession of his 

(property' pursuant to Section 342, it does not mean 
that he is entitled to possession of all his property 
regardless of who possessed it when the petition was 
filed. It means rather that the debtor continues in 
possession of the property of which he had possession 
when the petition was filed, and that he may acquire 
possession of property which he is entitled to possess. 
Nothing in Section 342 is warrant for disturbing the 
possession of a third party, such as a pledgee, who is 
lawfully in possession of the property of the debtor." 

C. There Was No Value to the Interest of the 
Bankrupt Estate in the Property. 

The evidence is clear in this respect and we believe the 
appellee will not controvert this point. 

At no time on or after the date of bankruptcy was there 
any interest or asset of value for the bankrupt estate in 
the pledged goods, and neither the debtor, nor the re- 
ceiver, nor the trustee ever took any part of the pledged 
goods into his possession (excepting that after the tax 
date there was released to the trustee $992.82 at assessed 
valuation of such goods upon payment by the trustee to 
the pledgee of the warehouse receipts, of the reasonable 
value of the goods so released), and nothing was ever 
realized by the estate from said pledged property [Tr. 
p. 45]. 



—22— 

D. To Consider Other Property in Determining 

THE Value of the Interest of the Bankrupt 

Estate Is to Emasculate the First Proviso of 

Section 64a (4). 

■( 
Section 64a of the Bankruptcy Act of 1898 was as 

follows : 

"a. The court shall order the trustee to pay all 
taxes legally due and owing by the bankrupt to the 
United States, State, county, district, or municipality 
in advance of the payment of dividends to creditors, 
and upon filing the receipts of the proper public offi- 
cers for such payment he shall be credited with the 
amount thereof, and in case any question arises as to 
the amount of legality of any such tax the same shall 
be heard and determined by the court." 

9 Collier p. 1819 Appendix. 

Numerous inequities appeared which required tax pay 
ments to be made on real property without value to the 
bankrupt estate. (3 Collier p. 2047, 1926 Amendments.) 
Section 64a, by Act of May 27, 1926, 44 Stat. 662, was 
amended to read: 



"a. The court shall order the trustee to pay all 
taxes legally due and owing by the bankrupt to the 
United States, State, County, district, or munici- 
pality, in the order of priority as set forth in para- 
graph (b) hereof: Provided, That no order simll be 
made for the payment of a tax assessed against real 
estate of a bankrupt in excess of the value of the 
interest of the bankrupt estate therein as determined 
by the court. Upon filing the receipts of the proper 
public officers for such payments the trustee shall be 



' 



—23— 

credited with the amounts thereof, and in case any 
question arises as to the amount or legality of any 
such tax the same shall be heard and determined by 
the court." 9 Collier p. 1819 Appendix. 

In 1938 the section was amended by striking out the 
word "real" so that the section, since 1938, has read: 

". . . Provided, That no order shall be made for 
the payment of a tax assessed against any pro]:)erty 
of the bankrupt in excess of the value of the interest 
of the bankrupt estate therein as determined by the 
court; ..." 3 Collier p. 2049, 1938 Act (4). 

Progressively, it will be noted, the right of taxing au- 
thorities was limited. From 1898 to 1926 any and all prop- 
erty taxes were payable; from 1926 to 1938 taxes on real 
property were payable only to an amount "in excess of the 
value of the interest of the bankrupt estate therein as de- 
termined by the court" ; in 1938 the same rule became ef- 
fective in respect to "any property of the bankrupt 
estate." 

It was the contention of appellee in the District Court, 
not passed on directly, however, that because other prop- 
erty of the bankrupt estate was sold for more than the 
amount of the tax on the pledged property and the other 
property, the total assessed tax should be paid. 

We have found no cases on this point by this court. 

There are two cases from other Circuits cited by appel- 
lee in the Court below, Glass v. Phillips, 139 F. 2d 1016 
(5th C. C. A.) and Matter of Ingersoll Co., 148 F. 2c\ 
282, which apparently are contrary to the position of the 
appellant here. 



—24— 

Glass V. Phillips involved personal property taxes which 
arose, apparently, prior to the 1938 Amendment to Section 
64(4). In any event, the court referred to the 1926 Amend- 
ment as the basis for its opinion. However, it does ar- 
rive at a result opposed to the contention of the appel- 
lant, and construes the 1926 amendment in the same 
fashion. 

Matter of Ingersoll Co., supra, also construes the first 
proviso in similar manner, although the court did indi- 
cate that no showing had been made by the trustee in 
that case that the tax involved exceeded in amount the 
value of the interest of the bankrupt in the land covered 
by the tax sale certificate in controversy. 



( 



Although confessing a probable inability to distinguish 
either the Glass or Ingersoll cases, we do not hesitate to 
contend that irrespective of the holding in either of them, 
they do not set out either what the first proviso directly 
and expressly commands or what was the undoubted in- 
tention of Congress when it passed first the 1926 amend- j 
ment and then the 1938 amendment, to reduce tax pay- ! 
ments on property of no value to the bankrupt estate. \ 
The 1926 amendment applied merely to real property; the 
1938 amendment applied to any property, real or personal. | 

Yet, if the rationale of the above holdings be adopted, i 

bankruptcy estates will be in the same situation as existed ,; 

prior even to the 1926 amendment, a tax must be paid '' 

on property in which the bankrupt estate has no interest 5 

of value. Why have the amendment? | 



—25— 

POINT II. Assuming, but Not Conceding, That 
Such Property Was Subject to Taxation Arising 
After Bankruptcy the Order of Abandonment Re- 
lieved the Estate of Liability. 

The District Court concluded that the order of abandon- 
ment of the warehouse property did not affect the habihty 
of the bankrupt estate under Sections 62a(l) and 64a(l) 
of the Bankruptcy Act for taxes legally assessed and ac- 
cruing after bankruptcy, and cited as authority In re 
Humeston, 83 F. 2d 187 (C. C. A. 2d 1936) and Robin- 
son V. Dickey, 36 F. 2d 147 (C. C. A. 3d 1929), cert, 
den. 281 U. S. 750 (1930). 

A reading of the Humeston case will disclose that pay- 
ment of the taxes was ordered because the trustee had oc- 
cupied and used the property involved, and as an expense 
for use and occupation and only for the period that he used 
the property, and further that the court neither ordered 
nor permitted the abandonment of the property involved. 

A reading of the case of Robinson v. Dickey discloses 
a similar situation arising from controversy between bond 
holders and the trustee in bankruptcy over payment of 
costs of operation where the trustee was actually and 
physically in possession of the property and making use 
thereof for the benefit of the general creditors. 

In the instant case neither the debtor, the receiver, nor 
the trustee, ever had the use of, or had possession of. or 
realized anything from, the property in question. 

A recent case in California, Helvey v. United States 
Building & Loan Ass'n, 81 Cal. App. 2d 647, lays down 
the accepted rules regarding the abandonment. 

"When assets have been abandoned by a trustee 
or a receiver, the property, in so far as the abandoner 
is concerned, is left as though he had ne\er owned 



—26— 

or claimed it and the 'title stands as if no assignment 
had been made.' 

The situation presented is analago.s to an una. 
cepted or a rejected gift — the title is left as though 
the gift had not been made {Brown v. Keefe, 300 
U. S. 598, 81 L. Ed. 827; In re Webb, 54 Fed. 2d 
1065; In re Moss, 21 Fed. Supp. 1019). . . . 
(742) Either a receiver or a trustee has the right to 
determine whether the assets are so burdensome or of 
such little value as to render the administration of the 
same unprofitable, and if he so determines, the court 
may upon his petition authorize the abandonment of 
the worthless property." 

POINT III. The District Court Erred in Not Ac- 
cepting the Findings of the Referee (if Such Was 
the Case). 

We are not certain that the District Court did refuse 
to accept the findings of the referee but the order, by im- 
plication, might indicate that such was the case. In view 
of the fact that there is no controversy as to the evidence 
before the referee and no additional evidence was received 
by the District Court we do not elaborate further, since 
the findings of the referee shall be accepted unless clearly 
erroneous. General Order No. 47. 

POINT IV. That the District Court Erred in Its Con- 
clusion of Lav^ That the Claimant Is Entitled to 
Full Payment of the $9,979.86 Claim Against the 
Bankrupt Estate for Personal Property Taxes as 
an Expense of Administration, in That Same Is 
Contrary to the Law. 

The foregoing point is, of course, dependent upon the 
validity of Points I, II and III, and is not independently 
discussed. 



—27-- 

Conclusion. 

The appellant respectfully urges that this Honorable 
Court should construe the first proviso of Section 64a (4) 
with a view of determining and effectuating the obvious 
intention of the Congress when it enacted, respectively, 
the Amendments of 1926 and of 1938, and that, regardless 
of the rulings of other Circuit Courts, and until such time 
as the Supreme Court of the United States has ruled ad- 
versely, this Court should hold that the Referee in Bank- 
ruptcy made a correct decision; and reverse the order of 
the District Court below. 

Respectfully submitted, 

Frank C. Weller and 
Russell B. Seymour, 
Attorneys for Appellant. 



No. 1 2020 

3nt{)e 
Mntteb States! 

Circuit Court of Appeals! 

Jf or tiie ^tnti) Circuit 



GEORGE T. GOGGIN, as Trustee of the 
Estate of A. Moody & Co., Inc., Bank- 
rupt, 

Appellant, 
vs. 
H. L. BYRAM, TAX COLLECTOR 
FOR THE COUNTY OF LOS AN- 
GELES, STATE OF CALIFORNIA, 

Appellee. 



Appellee's iBrief de 



HAROLD W. KENNEDY, 
County Counsel, 
and 
ANDREW 0. PORTER, 

Deputy County Counsel, ^ 

1100 Hall of Records, '\ 

Los Angeles 12, California, \ 

Attorneys for Appellee. : 



TOPICAL INDEX 

Page 

Statement of the Case 1 

Summary of the Argument 1 

Argument 3 

I. A Tax Claim May Not Be Reduced Under Section 64a(4) 
Bankruptcy Act, Unless the Tax Exceeds the Value of 
the Bankrupt's Interest in the Property. There Is No 
Authority for Dividing the Assessment Where Part of 

the Property Is Lost or Abandoned 3 

II. Abandonment Does Not Relate Back So as to Avoid a 
Personal Liability for Taxes Accrued While Conduct- 
ing the Business by Order of Court 5 

III. The Bankruptcy Court Is Without Power to Redeter- 
mine an Assessment, or to Arbitrarily Divide It, After 
Its Quasi-Judicial Determination Pursuant to California 

Law 9 

Conclusion 11 



TABLE OF CASES AND AUTHORITIES CITED 



Cases 

Arkansas Corporation Commission v. Thompson (1941), 313 

U. S. 132, 61 S. Ct. 888, 85 L. Ed. 1244 2, 3, 10 

Baumann v. Sheehan (1944) (C. C. A. 8th). 140 F. 2d 747, 

751 10 

Boteler v. Ingels, 308 U. S. 57, 60 S. Ct. 29, 84 L. Ed. 78 7 

Central Vermont R. Co. v. Marsch, 59 F. (2d) 59 (C. C. A. 1).... 8 
City of Los Angeles v. Glassell (1906), 4 Cal. App. 43, 87 Pac. 

241 7 

Commonwealth of Pennsylvania v. Avlward (1946) (C. C. A. 

8th), 154 F. 2d 714. 717 .' 10 

County of San Diego v. Davis (1934), 1 Cal. (2d) 145, 33 

Pac. (2d) 827 6 

Dawson v. County of L. A. (1940) 15 Cal. (2d) 77, 81, 93 

P. (2d) 1495 11 

Fitzgerald v. Herzer (1947) 78 Cal. App. (2d) 127, 131-132. 

177 P. (2d) 364 11 

Cardner v. New Jersey (1947), 329 U. S. 565, 67 S. Ct. 467, 

91 L. Ed. 504 10 



ii Index 

Page 

Glass V. Phillips (1943), 139 F. 2nd 1016 at 1017 4 

Guardianship of Jacobson (1947) 30 Cal. (2d) 326, 334, 182 

P. (2d) 545 11 

Hagar v. Reclamation Dist. No. 108 (1884), 111 U. S. 701, 

710, 4 S. Ct. 663, 28 L. Ed. 569 11 

In re Humeston (1936) (C. C. A. 2nd), 83 F. 2d 187 7 

In re Ingersoll Co. (1945) (C. C. A. 10th), 148 F. 2d 282, 284 

5, 10 

L. A. etc. Co. V. County of L. A. (1912) 162 Cal. 164, 121 

Pac. 384 11 

Lake County v. Mining Co. (1885). 68 Cal. 14, 8 Pac. 593 6 

Luce V. City of San Diego (1926) 198 Cal. 405, 245 Pac. 196.... 11 
MacGregor v. Johnson-Cowdin-Emmerich, Inc., 39 F. (2d) 

574, 576 (C. C. A. 2) 8 

Michigan v. Michigan Trust Co., 286 U. S. 334, 52 S. Ct. 512, 

76 L. Ed. 1136 7, 8 

Miller & Lux v. Sparkman (1932), 128 Cal. App. 449, at 453- 

454, 17 P. (2) 772 7 

People V. Stockton & C. R. R. Co. (1874), 49 Cal. 414 6 

People V. Goldtree (1872) 44 Cal. 323 11 

Prudential Ins. Co. v. Liberdar Holding Corporation, 74 F. 

(2d) 50 8 

RCA Photophone, Inc. v. Huffman (1935), 5 C. A. (2d) 401, 

42 Pac. (2d) 1059 5 

Robinson v. Dickey (1929) (C. C. A. 3rd). 36 F. (2d) 147 

cert, denied 281 U. S. 750 (1930) 8 

San Gabriel etc. Co. v. Witmer Bros. Co. (1892), 96 Cal. 623 at 

636, 29 Pac. 500, 502, 31 Pac. 588 7 

Sehwarts v. Hammer, 194 U. S. 441, 24 S. Ct. 695, 48 L. Ed. 

1060 7 

Siebe v. Superior Ct. (1896), 114 Cal. 551. 552, 46 Pac. 456 11 

Universal Consolidated Oil Co. v. Byram (1944) 25 Cal. (2d) 

353, 362, 153 Pac. (2d) 746 11 

U. S. V. Killoren (1941) (C. C. A. 8th), 119 F. 2d 364 6 

Codes, etc. 

Bankruptcy Act (11 U. S. C. A. Sec. 104a (4)) 2 

Bankruptcy Act, Sec. 64 3 

Bankruptcy Act, Sec. 64a (60 Stats. 330, 11 U. S. C. A. Sec. 

104a (4) 3, 10 

Calif. Const. Sees. 1 & 8, Art. XIII, Sec. 405 Rev. & Tax Code 5 

Res. Judgments, Sec. 68, P. 294, 302 11 

Rev. & Tax Code, Sees. 441, 454, 616, 617, 1601, 1614, 1646 11 

Rev. & Tax Code, Sees. 2800-2802 9 

Rev. & Tax Code, Sees. 2803-2808 9 



3Jntl)e 
Mniteb ^tateg 

Circuit Court of Appeals! 

Jf or tlje iSintfj Circuit 

GEORGIE T. GOGGIN, as Tmstee of the 
Estate of A. Moody & Co., Inc., Bank- 
rupt, 

Appellant, 
vs. > No. 12020 

H. L. BYRAM, TAX COLLECTOR 
FOR THE COUNTY OF LOS AN- 
GELES, STATE OF CALIFORNIA, 

Appellee. 

mppcUce'si prief 

Statement of the Case 

Appellee has no objection to appellant's stateznent 
of the pleadings and statement of the case as set forth 
in appellant's opening brief. 

Summary of the Argument 

It is respectfully submitted that the order of the 
Honorable Wm. C. Mathes, United States District 
Judge, ordering the referee to allow the appellee tax 
collector's claim in full as an expense of administra- 
tion, is correct and should be affirmed, for the fol- 
lowing reasons: 



1. A tax claim may not be reduced under the first 
proviso of section 64a (4) of the Bankruptcy Act (11 
U. S. C. A. Sec. 104a(4)) unless the tax exceeds the 
value of the bankrupt's interest in the property. Here 
the '* property " is one lot of merchandise, part of which 
was later abandoned to a mortgagee, but the remain- 
der of which came into the bankrupt estate and was 
sold for more than the amount of the tax. 

2. Abandonment does not relate back so as to 
avoid a personal liability for taxes accrued while con- 
ducting the business by order of court. The property 
was assessed as one unit at the request of the trustee. 
The liability attached as a personal obligation. Five 
months later the order of abandonment was made. A 
trustee or debtor in possession must pay current taxes 
as they accrue ; nothing in the act relieves him of this 
obligation. 

3. The bankruptcy court is without power to re- 
determine an assessment, or to arbitrarily divide it, 
after its quasi- judicial determination pursuant to 
California law. Dividing an assessment is not deter- 
mining the amount or legality of a tax under the sec- 
ond proviso of section 64a (4) of the Bankruptcy Act 
(11 U. S. C. A. sec. 104a(4)). It is redetermining the 
assessment. This the court may not do under Arkansas 
Corporation Comfnission v. Thompson (1941), 313 
U. S. 132, 61 S. Ct. 888, 85 L. Ed. 1244. The California 
procedure complies fully with the requirements of 
this case. 



3 
Argument 

I. 

A Tax Claim May Not Be Reduced Under Section 64a (4) 
Bankruptcy Act, Unless the Tax Exceeds the Value 
of the Bankrupt's Interest in the Property. There 
Is No Authority for Dividing the Assessment Where 
Part of the Property Is Lost or Abandoned. 
Section 64a (4) of the Bankruptcy Act (60 Stats. 

330, 11 U. S. C. A. sec. 104a (4), insofar as material 
here, reads as follows : 

''SEC. 64. DEBTS WHICH HAVE PRI- 
ORITY — a. The debts to have priority, in ad- 
vance of the payment of dividends to creditors, 
and to be paid in full out of bankrupt estates, and 
the order of payment, shall be . . . (4) taxes 
legally due and owing by the bankrupt to the 
United States or any State or any subdivision 
thereof; Provided, That no order shall be made 
for the payment of a tax assessed against any 
property of the banlvrupt in excess of the value 
of the interest of the bankrupt estate therein as 
determined by the court: ..." 

The Supreme Court has applied the provisos of 
sec. 64a (4) to tax claims which are entitled to first 
priority as expenses of administration under sec. 62(a) 
and sec. 64a(l) (11 U. S. C. A. sees. 102a and 104a(l)). 
(See: Arkansas Corporation Co)n)}iissio}i v. Thomp- 
son (1940), 313 U. S. 132, 61 S. Ct. 888, 85 L. Ed. 
1244.) 



4 

In applying the first proviso of sec. 64a (4), quoted 
above, the Circuit Court of Appeals for the Fifth Cir- 
cuit said in Glass v. Phillips (1943), 139 F. 2nd 1016, 
at 1017: 

"The referee and the court below misconceived 
the language and purpose of Sec. 64, sub. a. The 
language, 'Provided, That no order shall be made 
for the payment of a tax assessed against real 
estate of a bankrupt in excess of the value of the 
interest of the bankrupt estate therem as deter- 
mined by the court, ' does not provide that no order 
shall be made for the payment of a tax assessed 
against any property of the bankrupt in excess of 
the tax yielded by an assessment of the value of 
the interest of the bankrupt estate, but only that 
the court shall not make an order for the payment 
of taxes in excess of the value of the interest of 
any property of the bankrupt estate. If the bank- 
rupt has an interest in property but is not the 
owner of the whole of such property, no order shall 
be made to pay the entire tax against the property 
in excess of the value of the interest of the bank- 
rupt in such property. The language of the stat- 
ute is not susceptible of any other interpretation." 

In that case only 20% of a stock of merchandise on 
which an assessment had been made came into the 
hands of the trustee, but the value of the 20% ex- 
ceeded the amount of the tax. It was therefore held 
that the bankrupt estate must pay the entire tax, not 
merely its proportionate part thereof. 



See, to the same effect: In re IngersoU Co. (1945) 
(C. C. A. 10th), 148 F. 2d 282, at 284, where part of 
the land included in an assessment was sold before 
the intervention of bankruptcy and did not come into 
the custody of the trustee. 

In the case at bar, the portion of the merchandise 
assessed which did come into the possession of the 
trustee was sold for an amount greater than the amount 
of the total (daim filed by the tax collector, appellee, 
herein. (Finding 5 of the referee, Tr., p. 32.) It is 
submitted that the tax claim was therefore properly 
allowed in full by the Bankioiptcy Court. 



II. 



Abandonment Does Not Relate Back So as to Avoid a 
Personal Liability for Taxes Accrued While Conduct- 
ing the Business by Order of Court. 

Property taxes in California accrue on the first 
Monday in March. (Sees. 1 and 8, Art. XIII, Cal. 
C'onst., sec. 405 Cal. Rev. & Tax. Code.) Unsecm^ed 
personal property taxes are due and payable on the 
lien date, that is, on the first Monday in March. ( Sec. 
2901 Rev. & Tax. Code.) At that time the debtor (now 
the bankrupt herein) was in possession carrying on 
its business by order of court. (Tr., p. 14.) Personal 
i:>roperty may be assessed to the owner or person in 
possession on tax day. (RCA Photophone, Inc. v. 
Huffman (1935), 5 C. A. (2d) 401, 42 Pac. (2d) 1059; 
County of San Diego v. Davis (1934), 1 Cal. (2d) 145, 



6 

33 Pac. (2d) 827.) It was thus properly assessed to 
the debtor. 

Taxes accruing during an attempted reorganiza- 
tion must be paid as expenses of administration in 
subsequent bankruptcy liquidation. Z7. *S'. v. Killoren 
(1941) (C. C. A. 8th), 119 F. 2d 364. 

The trustee is estopped to deny that the debtor 
(now the bankrupt herein) was the owner or person in 
possession on tax day. (See People v. Stockton & 
C. B. R. Co. (1874), 49 Cal. 414; Lake County v. Min- 
ing Co. (1885), 68 Cal. 14, 8 Pac. 593.) 

The trustee herein on April 4, 1947, filed a verified 
statement with the tax assessor showing the property 
owned, possessed or controlled by the debtor on tax 
day. Such a statement is required by section 8, Art. 
XIII California Constitution and section 441 Revenue 
& Taxation Code. In the statement he listed as one 
item: 

^'Mdse. at 5300 S. San Pedro St. $126950. 

Cotton-ticking-mattresses-etc. " (Finding 4, Tr., 
p. 32.) 

This included both the merchandise in the factory and 
that subject to warehouse receipts in the Hazlett Ware- 
house, (located in the same building). The tax as- 
sessor followed the taxpayer's statement and made one 
assessment of merchandise at 5300 S. San Pedro 
Street at a value of $126,950. 



The taxes in question were unsecured. (Tr., p. 26.) 
'J'he assessee of an unsecured pei'sonal property tax 
is personally liable for the tax. 

Revenue and Taxation Code, Sec. 3003 and 3004. 

See cases under prior but similar statutes : 

6W Gabriel etc. Co. v. Witmer Bros. Co. 
(1892), 96 Cal. 623 at 636, 29 Pac. 500, 502, 31 Pac. 
588; 

City of Los Angeles v. Glassell (1906), 4 Cal. 
App. 43, 87 Pac. 241; 

Miller dc Lux v. Sparkwan (1932), 128 Cal. 
App. 449, at 453-454, 17 P. (2) 772. 

A debtor or trustee in possession must pay cuiTent 
taxes as they accrue. 

Schivarts v. Hammer, 194 U. S. 441, 24 S. Ct. 
695, 48 L. Ed. 1060; 

Boteler v. Ingels, 308 U. S. 57, 60 S. Ct. 29, 84 
L. Ed. 78. 

In the case of In re Humeston (1936) (C. C. A. 
2nd), 83 F. 2d 187, the trustee took possession of real 
property belonging to the bankrupt, collected the rents 
but failed to pay the taxes as they fell due. Then he 
attempted to abandon the property to the mortgagees, 
and the Court said (at p. 189) : 

"However, they were entitled to some relief. 
Such taxes as fell due during the period of the 
trustee's occupation were part of the expenses of 
that occupation and should be borne by the estate. 
Michigan v. Michigan Trust Co., 286 U. S. 334, 52 



8 

S. Ct. 512, 76 L. Ed. 1136; MacGregor v. Johnson- 
Cowdin-Emmerich, Inc., 39 F. (2d) 574, 576 (C. 
C. A. 2) ; Central Vermont R. Co. v. Marsch, 59 
F. (2d) 59 (C. C. A. 1) ; Prudential Ins. Co. v. 
Liberdar Holding Corporation, supra, 74 F. (2d) 
50. . . . When on the other hand the mort- 
gagor's trustee continues the occupation, he neces- 
sarily means to exploit it for profit, and the gToss 
returns must pay the running expenses. Thus 
taxes which became payable between November 1, 
1933, and May 21, 1935, must be paid, and not only 
the entire face of these, but all interest and penal- 
ties accumulated upon them. It was the trustee's 
duty to pay them when they fell due, and the estate 
must suffer from his failure. The first order 
will therefore be modified to conform to this dis- 
position. ' ' 

See: 

BoUnson v. Dickey (1929) (C. C. A. 3rd), 36 
F. (2d) 147, cert, denied 281 U. S. 750 (1930). 

Here neither the debtor nor the trustee paid the 
tax, due on the first Monday in March. The order 
of abandonment was not made until August 20, 1947, 
(Tr., p. 28) five months later. 

It is respectfully submitted that imder these cir- 
cumstances no provision of the Bankruptcy Act re- 
lieves the bankrupt estate of an obligation once ac- 
crued to pay taxes. 



9 
III. 

The Bankruptcy Court Is Without Power to Redeter- 
mine an Assessment, or to Arbitrarily Divide It, After 
Its Quasi-Judicial Determination Pursuant to Cali- 
fornia Law. 

Nothing in California law permits a taxj^ayer to 
divide a personal property assessment between various 
items included in a single assessment. There is how- 
ever specific statutory authority under certain cir- 
cumstances for the division of an assessment on real 
property. (Sees. 2803-2808, Rev. & Tax. Code.) The 
mode is prescribed, requiring full payment of the tax 
on personal property and possessory interests, the fil- 
ing of an affidavit with the officer having custody 
of the tax roll and the payment of a fee. The fact 
that there is specific authority regarding only real 
property negatives the existence of any such authority 
as to personal property. 

Nothing in California law pennits a taxpayer to 
pay part of a personal property tax without paying 
the entire tax. Again there is specific authority re- 
garding real property only. (Sees. 2800-2802, Rev. & 
Tax. Code.) 

Thus if a bankruptcy court or its referee has power 
to divide an assessment or to pay part of a tax on 
personal property, some authority therefor must be 
found in the Bankruptcy Act. It is respectfully sub- 
mitted that there is no such authority. The only possi- 
ble applicable provisions are the two provisos of sec. 



10 

64a (4). (11 U. S. C. A. sec. 104a (4).) The first 
proviso has been discussed under point I, supra. 

The second proviso of section 64a (4) reads as fol- 
lows: 

'' . . . And provided further, That, in case 
any question arises as to the amount or legality j 
of any taxes, such question shall be heard and de- < 
termined by the court ; ..." S 

Dividing an assessment is not determining the ] 

amount or legality of a tax. It is redetermining the \ 

assessed valuation and proportioning the tax accord- ; 

mgiy. This the bankruptcy court has no power to do. j 

Arkansas Corporation C orrbinission v. Thomp- ' 
son (1941), 313 U. S. 132, 61 S. Ct. 888, 85 L. Ed. j 
1244; ' 

Baiimann v. Sheehan (1944) (C. C. A. 8th), | 
140F. 2d747, 751; j 

Commonwealth of Pennsylvania v. Aylward \ 
(1946) (C. C. A. 8th), 154 F. 2d 714, 717; \ 

In re Ingersoll Co. (1945) (C. C. A. 10th) 148 • 
F. 2d 282, 284. 

In Gardner v. New Jersey (1947), 329 U. S. 565, 
67 S. Ct. 467, 91 L. Ed. 504, the Supreme Court re- 
affirmed its holding in the Arkansas case (329 U. S. 
at p. 578) and listed a nmnber of things that the court 
was authorized to do regarding tax claims. (329 U. S. 
at pp. 579-582.) The power to redetermine or to divide 
an assessed valuation is not one of them. 

The California procedure complies with the re- 
quirements of the Arkansas case. (See sections 405, 



11 

441, 454, 616, 617, 1601, 1614, 1646 Rev. & Tax. Code; 
Siebe v. Superior Ct. (1896), 114 Cal. 551, 552, 46 Pac. 
456; Ilagar v. Reclamation Dist. No. 108 (1884), 111 
U. S. 701, 710, 4 S. Ct. 663, 28 L. Ed. 569; People v. 
Goldtree (1872), 44 Cal. 323; L. A. etc. Co. v. County 
of L. A. (1912), 162 Cal. 164, 121 Pac. 384, 9 A. L. R. 
1277; Universal Consolidated Oil Co. v. Byram (1944), 
25 Cal. (2d) 353, 362, 153 Pac. (2d) 746.) The finality 
of the quasi- judicial determination of the county board 
of equalization is not affected by the failure of the 
taxpayer to avail himself of his right to review. (Luce 
V. City of San Diego (1926), 198 Cal. 405, 245 Pac. 196; 
Dawson v. County of L. A. (1940), 15 Cal. (2d) 77, 
81, 98 P. (2d) 495. See Guardianship of Jacobson 
(1947), 30 Cal. (2d) 326, 334, 182 P. (2d) 545; Fitz- 
gerald V. Herzer (1947), 78 Cal. App. (2d) 127, 131- 
132, 177 P. (2d) 364; Res., Judgments, sec. 68, p. 294, 
302.) 

Conclusion 

It is submitted that the order of the United States 
District Judge is correct and should be affirmed. 

Respectfully submitted, 

HAROLD W. KENNEDY, 
County Counsel, 
and 
ANDRE\V 0. PORTER, 
Deputy County Counsel, 
Attorneys for Appellee. 



No. 12020 
IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



Georgk T. Goggin, as Trustee of the Estate of A, Moody 
& Co., Inc., Bankrupt, 

Appellant, 



vs. 



H. L. Byram, Tax Collector for the County of Los An- 
geles, State of California, 

Appellee. 



Petition of Appellant for Rehearing With Argument 
and Points and Authorities in Support Thereof. 



Frank C. Weller, 
111 West Seventh Street, Los Angeles 14, 

Russell B. Seymour, 
1120 Rowan Building, Los Angeles 13. 
Attorneys £Q£,*Appellant,^ 

MAR '^ :- IPAQ 

Parker & Company. Law Printers, Los Angc^clWIlDilft^iy B BttgN, 

OLUHK 



TOPICAL INDEX 



PAGE 



Petition of appellee for rehearing" 1 

Argument, points and authorities 3 

Conclusion 11 



TABLE OF AUTHORITIES CITED ,; 

Cases page \ 

Arkansas Corporation Commission v. Thompson, 313 U. S. 132 8 « 

Boteler v. Ingels. 308 U. S. 57 7 { 

California Celvey v. United States Building & Loan Ass'n, 81 ] 
Cal. App. 2d 647 7 i 

Gardner v. State of New Jersey, 329 U. S. 565 8 j 

3 
Hennepin County v. M. W. Savage, 83 F. 2d 453 5, 7 ; 

Humeston, In re, 83 F. 2d 187 7 ' 

Northumberland County et al. v. Philadelphia & Readmg Coal ■ 

& Iron Co., 131 F. 2d 562 7 \ 

i 

Quinn v. Aero Services, Inc. (9th Cir.), decided Jan. 24, 1949.... 10 ' 

I 
Robinson v. Dickey, 36 F. 2d 147 7 i 

Swarts V. Hammer, 194 U. S. 441 7 ' 

United States v. Killoren, 119 F. 2d 364 7 | 

Statutes ' 

Bankruptcy Act, Sec. 57j 10 ; 

Bankruptcy Act, Sec. 62 2, 10 

Bankruptcy Act, Sec. 64 2 ' 

Textbooks ' 

3 CoUier on Bankruptcy, pp. 2137-2138 5 | 



No. 12020 
IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



George T. Goggin, as Trustee of the Estate of A. Moody 
& Co., Inc., Bankrupt, 

Appellant, 
vs. 

H. L. Byram, Tax Collector for the County of Los An- 
geles, State of California, 

Appellee. 



PETITION OF APPELLANT FOR REHEARING. 



To the Honorable Judges of the United States Circuit 
Court of Appeals for the Ninth Circuit: 

Comes now your petitioner, George T. Goggin, as 
Trustee in Bankruptcy for the estate of A. Moody & Co., 
Inc., bankrupt, and petitions the Court for a rehearing 
and reconsideration of the opinion and decree rendered by 
this Court on February 21, 1949, in the above entitled 
action affirming the judgment and order of the District 
Court and allowing appellee's claim in full as an adminis- 
tration expense as prayed for by appellee, for the reason 
that the said opinion and decree appear to your petitioner 
to have been based on a seriously erroneous conception 
of the contentions of the appellant and petitioner and of 
the law applicable thereto; and to some extent upon an 
erroneous conception of certain facts, as will hereafter 
a])pear in a]>pcllant's argument. And for the further rea- 
son that said opinion, in fact, will have the result oi unduly 



— 2— 

narrowing the intended purposes of Section 62 and of the j 
first proviso of Section 64 of the Bankruptcy Act. i 

Wherefore, the appellant prays that a rehearing be j 
granted herein. '■& 

/s/ George T. Goggin, j 

■i 

Appellant. § 
Frank C. Weller and 
Russell B. Seymour, 

By /s/ Russell B. Seymour, 
Attorneys for Appellant. 

United States of America, 

Southern District of California, 

Central Division, 

County of Los Angeles, ' 

State of California. 

George T. Goggin, being duly sworn, deposes and says: 
That he is the appellant in the foregoing entitled matter; 
that he has read the Petition of Appellant for Rehearing 
and knows the contents thereof; that the same is true of 
his own knowledge, except as to the matter which are 
therein stated upon his information of belief, and as to 
those matters, that he believes them to be true 

/s/ George T. Goggin. 

Subscribed and sworn to before me this 21st day of 

March, 1949. ; 

(Seal) /s/ Irene Garcia, \ 

Notary Public in and for the County of Los Angeles, • 

State of California. ] 



No. 12020 
IN THE 



United States Court of Appeals 



FOR THE NINTH CH^CUIT 



George T. Goggin, as Trustee of the Estate of A. Moody 
& Co., Inc., Bankrupt, 

Appellant, 



vs. 



H. L. Byram, Tax Collector for the County of Los An- 
geles, State of California, 

Appellee. 



ARGUMENT, POINTS AND AUTHORITIES. 



An examination of the opinion of this Court hied in 
connection with the afhrmance of the judgment and order 
of the District Court indicates to us that in the prepara- 
tion of the opinion the Court was laboring under a serious 
misapprehension of the contentions of the appellant and 
petitioner herein and of the law applicable thereto, and to 
some extent an erroneous conception of certain facts, as 
will hereafter appear. 

The Court commencing with the first sentence of the 
second paragrapli on page 3 of its opinion, states: 

(Note: For clarity and con\enience ( ) have been 
added by counsel.) 



4- 



i 



(1) 'The trustee's argument, as we understand it, 
is that the first proviso of this statute prohibits the 
payment of a tax to the extent that it is based on an 
assessment in excess of the vakie of the interest of the 
bankrupt estate in the property. We disagree. The 
proviso confers no authority on the court to reduce a 
tax claim unless the tax exceeds the value of the bank- 
rupt's interest in the property. Glass v. Phillips, 5 
Cir., 139 F. 2d 1016; In re Ingersoll, 10 Cir., 148 F. 
2d 282. Such was not the case here. The property 
assessed was one lot of goods, part of which had come 
into the possession of the estate and was sold for 
more than the amount of the total tax." 

Perhaps counsel have illy stated themselves, but we be- 
lieve that at no point has the trustee contended that the 
first proviso prohibits the payment of a tax to the extent 
that it is based on an assessment in excess of the value 
of the interest of the bankrupt estate in the property. 
Our contention, as is indicated in Questions Presented 
I and II, at page 10 of Appellant's Opening Brief, and, 
we think, in the course of the oral argimient, is directed 
to an application and a definition of the word "property" 
in the phrase "property of the bankrupt" contained in the 
First Proviso, i. e., whether the pledged property should 
be included as a part of the assets of the estate upon which 
the assessed tax should be paid, when — first, neither the 
debtor, receiver, or trustee ever put the pledged property 
to any use or received anything from it, or even came into 
possession of it, and second, when an order of abandon- 
ment of that property was later made by the bankruptcy 
court. 



— 5— 

Let us put the matter another way. 

The free property was assessed for considerably more 
than the sum of about $27,000.00, the amount which the 
trustee received from a sale of the free property. The 
ap{)ellant is making no argument that the assessment of 
the free property should be reduced to the sum received 
for it ; but on the other hand at all times has conceded that 
the full tax based on a full assessment of the free property 
should be paid, even though that assessment was actually 
higher than the amount which the appellant received from 
the free property. 

But the appellant does complain when he is required to 
pay a tax on the pledged property, no matter what the 
amount of the assessment might have been, when no part 
of the pledged property ever came into the possession of, 
or under the control of, or brought any benefit to. the 
debtor, the receiver, or the trustee, and was actually 
abandoned within a reasonable time after the appointment 
of the trustee. Hennepin County, Miim. v. M. W. Savage, 
8 Cir., 83 F. 2d 453. And see also 3 Collier on Bank- 
ruptcy, pp. 2137-38: 

"Under the ])roviso as extended by the 1938 Act 
to include both real and personal property, a needed 
element has been sujiplied. Any personal property in- 
cumbered, as by a chatel mortgage, or depreciated in 
value, may be abandoned by the trustee: or in the 
alternative evaluated as to the extent of the bank- 
rupt's interest, as by a sale, and taxes paid on the 
basis of such evaluation." 



— 6— 

(2) "We agree with the trial court that the sub- 
sequent abandonment of the pledged property did not 
operate to avoid the personal liability for taxes ac- 
crued while the debtor and the trustee were conduct- 
ing the business pursuant to court order." 

A major premise of the Court's opinion seems to be 
that the subsequent abandonment of the pledged property 
did not operate to avoid the personal liability for taxes 
accrued while the debtor and the trustee were conducting 
the business pursuant to court order. 

May we point out that the trustee was not operating the 
business on the tax date. And also that neither the debtor 
in possession, nor the receiver, nor the trustee ever made 
any use of the pledged property at any time, particularly 
on the tax date. At no time was the pledged property 
utilized in respect to the operation of the business. 

A discussion of the law relating hereto will be included 
under the next quotation from the opinion of the Court. 

(3) "We find nothing in the Act which relieves the 
trustee or the debtor in possession from the payment 
of current taxes as they accrue. Cf. Boteler v. In- 
gels, 308 U. S. 57: Swarts v. Hammer, 194 U. S. 
441 ; United States v. Killoren, 8 Cir., 119 F. 2d 364." 

There do not appear to be any cases, referred to by 
either the api^ellee or the Court, which have allowed a tax 
as an expense of administration in any situation when at 
the tax date the trustee, receiver, or debtor in possession 
was neither in possession of the asset taxed nor made some 
use of such asset. 



— 7— 

Boteler v. Ingels, supra, involved a tax on automobiles 
which on tlie tax date were actually being used by the 
trustee in the ()|jeration of the business. 

Smarts v. Hammer, supra, involved a tax on projierty 
(money) in the possession of the trustee on the tax 
date; and also was decided long prior to the enactment of 
the First proviso. 

United States 2>. Killoren, supra, merely holds that all 
claims of administration, including tax claims held to be 
administration expense, were of the same priority. 

We have heretofore distinguished, and apparently this 
Court has disregarded, the authorities of the District 
Court supporting its theory on the effect of the order of 
abandonment, /// re Humeston, 8v^ F. 2d 187, and Robin- 
son V. Dickey, 36 F. 2d 147, by pointing out that in each 
case the trustee or receiver was in possession of and utiliz- 
ing the asset taxed. 

We have heretofore cited and quoted from a decision of 
the Third Circuit, Northumberland County et al. v. Phila- 
delphia & Reading Coal & Iron Co., 131 F. 2d 562, sup- 
ported by a decision from the Eighth Circuit, Hennepin 
County V. Savage, 83 F. 2d 453, to the effect that taxes 
are an expense of administration only "when the trustee or 
debtor actually utilizes in the operation of the business the 
land upon which the taxes are assessed." 

We have also quoted from a recent case in California, 
Helvey v. Un-ited States Building & Loan Ass'n, 81 Cal. 
App. 2d 647, which lays down the accepted rules regarding 
the abandonment. 

"When assets have been abandoned by a trustee or 
a receiver, the property, in so far as the abandoner is 



concerned, is left as though he had never owned or 
claimed it and the 'title stands as if no assignment had 
been made.' 

The situation presented is analogous to an unac- 
cepted or a rejected gift — the title is left as though 
the gift had not been made (Brozvii v. Keefe, 300 
U. S. 598, 81 L. Ed. 827; In re Webb, 54 Fed. 2d 
1065; hi re Moss, 21 Fed. Supp. 1019). . . . (742) 
Either a receiver or a trustee has the right to deter- 
mine whether the assets are so burdensome or of 
such little value as to render the administration of the 
same unprofitable, and if he so determines, the court 
may upon his petition authorize the abandonment of 
the worthless property." 

We respectfully request that the Court will reconsider 
its ruling in the light of these authorities. 

(4) "The Bankruptcy Court is given no authority 
to redetermine an assessment, or to divide it arbi- 
trarily, after it has been quasi-judicially determined 
pursuant to state law. Arkansas Corporation Com- 
mission V. Thompson, 313 U. S. 132. Assuming the 
doubtful proposition that the trustee was entitled to 
any relief, his remedy was by application to the 
county board of equalization. Quinn v. Aero Serv- 
ices, Inc., 9 Cir., decided January 24, 1949." 

We likewise respectfully submit that this Court has mis- 
construed the effect of Arkansas Corporation Commission 
V. Thompson, supra: for, in Gardner v. State of New 
Jersey, 329 U. S. 565, the Supreme Court itself consider- 
ably delimited many apparent generalities contained in the 
former decision. The essence of the two cases, as stated in 



— 9— 

the latter, is set out at pa^es 16 to 20 of Apf)ellant's 
Opening' Brief. Hy way of emphasis in an effort to assist 
the Court, may vvc aj^ain set out a portion of our original 
quotation : 

"Fourth. The rule of Arkansas Corporation Com- 
mission V. Thompson, supra, does not, however, pre- 
clude the reorganization court from adjudicating the 
other issues raised by the objections to New Jersey's 
claim. The contrary view, which the Circuit Court of 
Appeals apparently took, fails to recognize historic 
bankruptcy powers which, as we have already pointed 
out, are part of the arsenal of authority granted the 
reorganization court by Section 77 . . . (3) The 
reorganization court may also adjudicate questions 
pertaining to the amount of a tax claim secured by a 
lien without crossing the forbidden line marked by 
Arkansas Commission v. Thompson, supra. There 
is, for example, the question whether the amount of 
the claim has been swollen by the inclusion of a for- 
bidden penalty and thus to that extent does not meet 
the bankruptcy recjuirement for proof and allowance 
of claims. Section 57j of the Bankruptcy Act pro- 
vides that debts owing a State as a 'penalty or for- 
feiture' shall not be allowed. What claims accruing 
before bankruptcy and sought to be proved by a State 
are 'penalties', New York v. Jersawit, 263 U. S. 493, 
and what are not. Meilink v. Unemployment Re- 
serves Commission, 314 U. S. 564; the applicabilitv 
of Section 57j to reorganizations under Section 77: 
the liability of the estate for penalties incurred by the 
trustee in the operation of the business; Boteler v. 
Tngels, 308 U. S. 57; what interest, if any, accrues 
after the petition for reorganization has been tiled. 
Vanston v. Green. 329 U. S. . . . are all questions 
for the reorganization court." 



—10— : 

The appellant belie\es that this Court has overlooked 
"the historic bankruptcy powers which . . . are part 
of the arsenal of authority" of the bankruptcy court. The 
bankruptcy court is precluded from attacking the valua- 
tions underlying an assessment or the validity of such 
assessment used as the basis for the computation of taxes. 
However, the bankruptcy court may determine whether 
the payment of such taxes is affected by any matter similar 
to those matters referred to in the previous quotation. 
Just as Section 57j provides that no penalty shall be paid, 
even though a taxing agency has said that it should be 
paid, so the first proviso provides that no part of a tax, 
even though otherwise properly assessed shall not be paid 
if the tax is on property in which the bankrupt estate has 
no interest of value. And so Section 62 provides that only 
proper expenses of administration shall be paid, even 
though based on a tax properly assessed. 

Appellant points out that Quinn v. Aero Services, Inc., 
supra, is dissimilar to the instant case in that in the Quinn 
case the assessment was made prior to the filing of the 
petition in bankruptcy; and involves neither the first pro- 
viso nor the feature of abandonment contained herein. 

The appellant likewise calls to the attention of the Court 
that the last sentence on page 1 of the opinion, "The bal- 
ance of the bankrupt's goods, of like character with those 
in the field warehouse. . . ." should read ''The balance 
of the bankrupt's goods, some of like character with those 

in the field warehouse " the word "some" having 

been omitted. [Tr. p. 44, third line from bottom.] 



—11— 

Conclusion. 

The appellant respectfully submits that a rehearing of 
the within matter should be granted and the order of the 
referee should be sustained. 

Dated: March 21, 1949. 

Frank C. Weller and 
Russell B. Seymour, 

By Russell B. Seymour, 

Attorneys for Appellant. 

I, Russell B. Seymour, a mem])er of the Bar of this 
Court and one of the attorneys for the appellant, hereby 
certify that the foregoing petition for rehearing is made 
in good faith and without any intent to hinder or delay 
appellant. 

Russell B. Seymour. 



No. 12023 
(Hanrt of KppmiB 

for tifc Nitttti (Hirrott 



UNITIi:D STATES OF AMERICA, 

Appellant, 

vs. 

HONOLULU PJ.ANTATION COMPANY, 

Ai>pellee. 
and 

HONOLULU PLANTATION COMPANY, 

Appellant, 

vs. 
UNITED STATES OF AMERICA, 

Appellee. 



©ranarript of ISin^ 

(in Four Volumes) > 



LEO 



VOLUME I DtC 3 1 1348 

(Pages 1 to 432) 



Appeal from the United States District Court 
for the District of Hawaii 






Type Press, 398 Pacific, San Francisco 12-17-48 — 60 



i 



No. 12023 
(Hanrt nf Appeals 

for tl?r Ntntlr (flirrnit 



UNJTEl) STA^rKS OF AMP]RICA, 

A])i)('llant, 
vs. 
HONOLULU PLANTATION COMPANY, 

Ap]j(41ee. 
and 

HONOT>ULU PLAN1\\170N COMPANY, 

Aijpellaiit, 

vs. 

TNITED STATES OF AMERICA, 

Appellee. 



SrattBrript nf U^rorJi 



(In Four Volumes) 

VOLUME I 

(Pages 1 to 432) 



Appeal from the United States District Court 
for the District of Hawaii 



INDEX 

[Clerk's Note: Wlien deemed likely to be of an important nature, 
errors or dou!)tful matters appearing in the original certified record 
are printed literally in italic; and, likewise, cancelled matter appear- 
ing in the original certified record is printed and cancelled herein 
accordingly. When possible, an omission from the text is indicated by 
printing in italic tlie two words between which the omission seems 
to occur.] 

PAGE 

Answer of Honolulu Plantation Company : 

Civil No. 514 ,M 

Civil No. 521 64 

Civil No. 525 83 

Civil No. 527 106 

Civil No. 536 319 

Civil No. 540 350 

Civil No. 684 423 

Appeal : 

Bond for Costs on 521 

Certificate of Clerk to Statement on 9 

Designation of Record on (DC) 513 

Designation by Cross-Appellant of Record 

on (DC) 518 

Notice of 508 

Notice of Cross 509 

Orders Extending Time to Docket Record on 

(DC) 510, 511 

Orders Extending Time to Docket Record on 

(USCA) 1616, 1617 

Order for Transmittal of Original Exliiliits 

on (DC) 525 

Order re 520 

Statement of Points on (DC) 512 

Statement of Points on Cross (DC) 516 



11. 

PACE j 

Appeal — (Con'td) \ 

Statement of Points and Desi^ation of Ree- i 

ord on (United 8tates-USCA) 1617 j 

Statement of Points and Designation of Rec- i 

ord on (Honolulu Plantation Co.-USCA) . 1618 1 

Stipulation re 519 ^ 

Stipulation and Application for Transmittal 

of Original Exhibits on (USCA) 1619 j 

Bond for Costs on Appeal 521 j 

Cei-tificate of Clerk to Statement 9 ' 

Clerk's Statement 5 ! 

Decision 461 ! 

li 

i 

Designation of Record on Axjjjeal (DC) 513 | 

Designation by Cross-Apjjellant of Additional \ 

Portions of Record on Appeal (DC) 518 ' 

I 

Designation by Honolulu Plantation Co. of I 
Record on Appeal, Statement of Points and 

(USCA) 1618 j 

Designation by United States of America of j 

Record on Appeal, Statement of Points and i 

(CSCA) 1617 ! 

Declaration of Taking: ! 

Ci^il No. 514 23 \ 

Ci^-il No. 521 51 \ 

Civil No. 521 — Amended Declaration of | 

Taking 66 ' 

Civil No. 525 84 ! 

Civil No. 527 101 i 



Civil No. 529 17 



111. 

PAGE 

Declaration of Takinj;- — (Con'td) 

Civil No. 5;};} 210 

Civil No. 535 275 

Civil No. 536 31:3 

Civil No. 540 338 

Civil No. 544 3lJ4 

Civil No. 548 3.s3 

Civil No. ()84 409 

JudiiiTKMit ( Feb. 17, 1945) 437 

Jii(l,i;inoiit (Nov. 5, 1947) 504 

Minutes of Court: 

Nov. 14, 1946 — Motion for Consolidation 

Granted 458 

Nov. 26, 1946— Motion for 13ill of Particular 

Denied 459 

Motion for Bill of Particulars 456 

Motion for Consolidation: 

Feb. 17, 1945 427 

Oct. 9, 1946 442 

Motion for Order Amending Petition in Con- 
demnation : 

Civil No. 529 181 

Civil No. 533 218 

Civil No. 535 282 

Civil No. 536 310, 315 

Civil No. 540 345 

Civil No. 548 387 

Motion for Order Amending Petition and Or- 
der and Judgment on Declaration of Taking 

(Civil No. 684) 419 



11. 

PAGE 

Appeal — (Con 'td) 

Statement of Points and Designation of Rec- 
ord on (United States-USCA) 1617 

Statement of Points and Designation of Rec- 
ord on (Honolulu Plantation Co.-USCA) . 1618 

Stij^ulation re 519 

Stipulation and Application for Transmittal 
of Original Exhibits on (USCA) 1619 

Bond for Costs on Appeal 521 

Certificate of Clerk to Statement 9 

Clerk's Statement 5 

Decision 461 

Designation of Record on Appeal (DC) 513 

Designation by Cross- Appellant of Additional 
Portions of Record on Appeal (DC) 518 

Designation by Honolulu Plantation Co. of 
Record on Appeal, Statement of Points and 
(USCA) 1618 

Designation by United States of America of 
Record on Appeal, Statement of Points and 
(USCA) 1617 

Declaration of Taking: 

Civil No. 514 23 

Civil No. 521 51 

Civil No. 521 — Amended Declaration of 

Taking 66 

Civil No. 525 84 

Civil No. 527 101 

Civil No. 529 173 



HI. 

Declaration of Taking — (Con'td) 

Civil No. 533 210 

Civil No. 535 275 

Civil No. 536 313 

Civil No. 540 338 

Civil No. 544 3()4 

Civil No. 548 :]H:] 

Civil No. 684 409 

Judgment (Feb. 17, 1945) 437 

Judgment (Nov. 5, 1947) 504 

Minutes of Court: 

Nov. 14, 1946 — Motion for Consolidation 

Granted 458 

Nov. 26, 1946— Motion for Bill of Particular 

Denied 459 

Motion for Bill of Particulars 456 

Motion for Consolidation: 

Feb. 17, 1945 427 

Oct. 9, 1946 442 

Motion for Order Amending Petition in Con- 
demnation : 

Civil No. 529 181 

Civil No. 533 218 

Civil No. 535 282 

Civil No. 536 310, 315 

Civil No. 540 345 

Civil No. 548 387 

Motion for Order Amending Petition and Or- 
der and Judgment on Declaration of Taking 

(Civil No. 684) 419 



IV. 

PAGE 

Karnes and Addresses of Attorneys 1 

Notice of Appeal 508 

Notice of Cross-Appeal 509 

Order Amending Petition in Condemnation: 

Civil No. 529 188 

Civil No. 533 220 

Civil No. 535 288 

Civil No. 536 311, 316 

Civil No. 540 346 

Civil No. 548 390 

Civil No. 684 421 

Order Amending Petition and Order and Judg- 
ment on Declaration of Taking (Civil No. 

684) 421 

Order and Judgment on Declaration of Taking : 

Civil No. 514 29 

Civil No. 521 61 

Civil No. 521 — On Amended Declaration of 

Taking 68 

Civil No. 525 87 

Civil No. 527 104 

Civil No. 529 190 

Civil No. 533 222 

Civil No. 535 294 

Civil No. 536 317 

Civil No. 540 348 

Civil No. 544 368 

Civil No. 548 394 

Civil No. 684 414 



i 



V. 

FACE 

Orders Extending Time to Docket Record on 
Appeal (DC) 510, 511 

Orders Extending Time to Docket Record on 

Appeal (USCA) 1616, 1617 

Orders for Consolidation: 

Feb. 17, 1945 4:];3 

Nov. 22, 1946 459 

Order for Transmittal of Original Exhibits 

(DC) 525 

Order Re Appeal 520 

Petition for Condemnation: 

Civil No. 514 10 

Civil No. 521 36 

Civil No. 525 70 

Civil No. 527 90 

Civil No. 529 110 

Civil No. 529— Order Amending 188 

Civil No. 532 195 

Civil No. 533 200 

Civil No. 533 — Order Amending 220 

Civil No. 535 225 

Civil No. 535— Order Amending 288 

Civil No. 536 297 

Civil No. 536— Order Amending 311, 316 

Civil No. 540 323 

Civil No. 540 — Order Amending 346 

Civil No. 544 354 

Civil No. 548 371 

Civil No. 548— Order Amending 390 

Civil No. 684 397 



VI. 

PAGE 

Satisfaction of Judgment 440 

Statement of Points on Appeal (DC) 512 

Statement of Points on Cross- Ai:)peal (DC) . . 516 

Statement of Points and Designation of Record 
on Appeal (USCA) : 

Honolulu Plantation Company 1618 

United States of America 1 617 

Stipulation and Application for Order re Orig- 
inal Exhibits on Appeal (USCA) 1619 

Stipulation for Consolidation, Feb. 17, 1945 . . . 431 

Stipulation for Judgment 434 

Stipulation re Appeal 519 

Transcript of Testimony and Proceedings. . . . 526 

Exhibits for Honolulu Plantation Co. : 

4-A — Power of Attorney, Honolulu Planta- 
tion Co. to P. E. Spalding, L. D. Larsen, 
W. Jamieson and H. T. Kay, Sept. 26, 
1941 1287 

4-B— Power of Attorney, Nov. 28, 1944, 
Honolulu Plantation Co. to P. E. Sjjald- 
ing, S. L. Austin and/or H. T. Kay. ... 1293 

6 — Sunmiary of Areas taken by the United 

States from Honolulu Plantation Co. . . 1300 

7 — Honolulu Plantation Co., Statement of 

Lands, Dec. 31, 1944 1304 



Vll. 

PACE 

Exhibits for Honolulu Plantation Co. — (Cont'd) 
9A— Letter dated Aug-. 18, 1941, E. Uenner, 
Jr., to C. Urevvor ic Co., and l^^ase dated 
Oct. 20, 1909, L. J.. McCandless tu Hono- 
lulu mantation Co 1305 

9B — Agieenient dated Nov. 6, 1939, Hono- 
lulu Plantation Co. with L. L. McCand- 

less 1315 

Exchange J^ease dated Oct. 20, 1909, 
Honolulu Plantation Co. with L. L. Mc- 
Candless 1320 

9C— Lease dated Dec. 28, 1929, L. L. Mc- 

Candless to Honolulu Plantation Co. . . . 1329 

9D — Lease dated Nov. 5, 1936, Francis H. I. 

Brown to Honolulu Plantation Co 1335 

Extension of Lease, September, 1941. . . 1339 

9E — Lease, Noa W. Aluli to Honolulu 

Plantation Co., May 28, 1935 1340 

Extension of Lease, August, 1939 1343 

Extension of Lease, May, 1942 1 344 

9F — Sub-Lease, Oahu Sugar Co., Ltd., to 
Honolulu Plantation Co. dated Jan. 17, 
1941 1345 

9G — Amendment of Lease, Estate of Ber- 
nice P. Bishop, by Trustees, with Hono- 
lulu Plantation Co., Dec. 2, 1943 1382 

Lease No. 6600, dated July 1, 1940, Trus- 
tees Estate of Bernice P. Bishop, de- 
ceased, to Honolulu Plantation Co 1385 



VIU. 

PAGE 

Exhibits for Honolulu Plantation Co. — (Cont'd) 
9H— Lease dated Dec. 15, 1941, Edith Aus- 
tin, et als., to Honolulu Plantation Co. . . 1354 

91— Lease dated July 24, 1936, Oahu Rail- 
way and Land Co. to Honolulu Planta- 
tion Co 1449 

9J — Lease dated March 12, 1937, Bruce 
Cartwright, Trustee, to Honolulu Planta- 
tion Co 1479 

9K— Lease dated June 27, 1927, Estate of 
S. M. Damon, by Trustees, to Honolulu 
Plantation Co 1513 

10— Main Hickam Field Taking 1534 

Admitted in Evidence 635 

11 — Prior Consolidated Takings 1535 

Admitted in Evidence 638 

12 — Summary from Exliibit 6 (Pi-esent Tak- 
ings) 1537 

Admitted in Evidence 639 

14 — Real Property Inventory Schedule, Jan. 

1, 1945, City and County of Honolulu. . . 1538 
Admitted in Evidence 847 

15 — Re : Sugar Cane Acreage, Territory and 

Oahu 1539 

Admitted in Evidence 850 

16 — Honolulu Plantation Co., Sugar Cane 

Acreage 1540 

Admitted in Evidence 852 



IX. 

PACK 

Exhibits for Honolulu Plantation Co. — (Cont'd) 
18— Letter dated Aug. 21, 1941, C. Brewer & 
Co. to "^rrustees under Will of Samuel 

Mills Damon, Deceased 1541 

Admitted in Evidence 1168 

19 — Report, No. 1313, Mr. Keogh of Commit- 
tee on Claims 1542 

Admitted in Evidence 1 282 

Exhibits for United States : 

A— Letter, Nov. 29, 1940, C. Drewer & Co. to 
Trustees under Will of Samuel Mills 

Damon, Deceased 1 567 

Admitted in Evidence 1257 

B — Copy of Lease by and between Trustees 
of Estate of Samuel M. Damon, De- 
ceased, with Honolulu Plantation Co. . . 1568 
Admitted in Evidence 1257 

C— Letter, May 5, 1941, C. Brewer & Co. to 
Trustees under the Will of Samuel Mills 

Damon, Deceased 1578 

Admitted in Evidence 1257 

D — Letter, May 12, 1941, addressed to C. 
Brewer & Co., Ltd., signed JW, Bishop 

Trust Co., Ltd 1580 

Admitted in Evidence 1258 

E— Letter, Aug. 15, 1941, Trustees, Estate S. 

M. Damon to C. Brewer i^: Co., Ltd 1581 

Admitted in Evidence 1259 



X. 

PAGE 

Exhi)3its for United States— (Cont'd) 

F— Copy of Letter, Dec. 16, 1941, Honolulu 

Plantation Co. to S. M. Damon Estate . . 1584 
Admitted in Evidence 1260 

a— Letter, Nov. 11, 1943, C. Brewer & Co. to 
Public Works Officer, Commandant, 

Navy No. 128 1586 

Admitted in Evidence 1261 

H— Letter, Sept. 16, 1943, C. Brewer & Co. 

to Commandant 14th Naval District . . . 1588 
Admitted in Evidence 1261 

I — Letter, Jan. 3, 1945, Honolulu Plantation 
Co. to Vice-Admiral Robert Lee Gborm- 

ley, U.S.N 1590 

Admitted in Evidence 1262 

J — ^Letter, Jan. 12, 1944, Vice-Admiral Rob- 
ert Lee Ghormley to C. Brewer & Co. . . . 1603 
Admitted in Evidence 1262 

K— Letter, Nov. 29, 1946, Oahu Sugar Co. to 

Honolulu Plantation Co 1605 

Admitted in Evidence 1263 

L — Letter, Dec. 3, 1946, Oahu Sugar Co. to 

Honolulu Plantation Co 1608 

Admitted in Evidence 1263 

M — Letter, Dec. 6, 1946, Oahu Sugar Co. to 

Honolulu Plantation Co 1609 

Admitted in Evidence 1263 

N-1 — Letter, Jan. 1, 1947, Honolulu Planta- 
tion Co. to Oahu Sugar Co 1 610 

Admitted in Evidence 1264 



XI. 

I'ACt 

Exhibits for United States— (Cont'd) 

N-2 — Resolution Authorizing Sale oi* l^iop- 

erties ^^^'^ 

Admitted in Evidence 1264 

Witnesses for Defendants: 
Austin, Stafford J... 

—direct 526, 555 

— cross 586 

— redirect 634 

— recross 647 

— re-redirect 662 

Crozier, Charles Campbell 

— direct 835 

-cross 878, 927 

Schmutz, George L. 

—direct 669 

-cross 692, 709 

— redirect ^784 

— recross 810 

Spalding, Philip Edmund 

—direct lOiO, 1043 

—cross 1086, 1107, 1158 

—redirect 1165; 1202 

—recross 1183, 1206 

Witness for Petitioner: 

Child, Jr., John Francis 

—direct 1214 

— cross 1242 



NAMES AND ADDRESSP^S OF ATTORNEYS 
OF RECORD 



For the Petitioner, United States of America, 

TOM C. CLARK, 

Attorney General of the United States, 
Washington, D. C. 

CHARLES F. RATHBUN, 
WILLIAM H. DRIVER, 

Special Assistants to the Attorney General. 

c/o W. BRAXTON MILLER, 

Special Assistant to the Attorney Gen- 
eral, Department of Justice, Federal 
Building, Honolulu, T. H. 

For the Defendant, Honolulu Plantation Company, 
Limited, 

PRATT, TAVARES & CASSIDY, 
Alexander & Baldwin Building, 
Honolulu, Hawaii, fl*] 



• Page numbering appearing at foot of page of original 
certified Transcript of Record. 



2 United States of America vs. 

In the United States District Court for the 
District of Hawaii 

Civil No. 514 
UNITED STATES OF AMERICA, 

Petitioner, ■ 

vs. • I 

257.654 ACRES OF LAND, more or less, at Moana- ! 
hia and Halawa Oahu, Territory of Hawaii; ; 
et al., \ 

Defendants. 

Civil No. 521 ; 

UNITED STATES OF AMERICA, ! 

Petitioner, | 

vs. 

49.058 ACRES OF LAND more or less, McGrew | 
Point, Kalauao, Ewa, Oahu, Hawaii; et al., | 

Defendants. ] 

Civil No. 525 | 

IGNITED STATES OF AMERICA, i 

Petitioner, 

vs. \ 

216.124 ACRES OF LAND, more or less, in Moana- ; 
lua, Honolulu, Oahu, Territory of Hawaii; et al.. 

Defendants. 

Civil No. 527 ■ 

X'NITED STATES OF AMERICA, J 

Petitioner, ! 
vs. 

93.355 ACRES OF LAND, more or less, in Moana- i 

lua, Honohilu, Oahu, Hawaii; et al., | 

Defendants. [2] | 



Honolulu Plantation Co. 3 

Civil No. 529 
ITNTTED STATES OF AMERICA, 

Petitioner, 
vs. 
:m.893 ACRES OF T^AND, more or less, at Manana 
and Waiwa, Ewa, Oahu, Territory of Hawaii; 
et al., 

Defendants. 

Civil No. 532 
UNITED STATES OF AMERICA, 

Petitioner, 
vs. 
8.279 ACRES OF LAND, more or less, at Halawa, 
Oahu, Territory of Hawaii ; et al.. 

Defendants. 

Civil No. 533 
UNITED STATES OF AMERICA, 

Petitioner, 
vs. 
218.349 ACRES OF LAND, more or less, at 
Waiawa Gulch, Waiawa, Oahu, Territory oT 
Hawaii; et al., 

Defendants. 

Civil No. 535 
UNITED STATES OF AMERICA, 

Petitioner, 
vs. 
145.848 ACRES OF LAND, more or less, situate 
at Halawa and Aiea, Ewa, Oahu, Territory of 
Hawaii; et al.. 

Defendants. 



4 United States of America vs. 

Civil No. 536 
UNITED STATES OF AMERICA, 

Petitioner, 
vs. 
26.22 ACRES OF LAND, more or less, situate at \ 
Waiawa, Waimalu, Ewa, Oahii, Territory of j 
Hawaii; et al., j 

Defendants. [3] i 

CivH No. 540 \ 

UNITED STATES OF AMERICA, ^ 

Petitioner, :. 

124.914 ACRES OF LAND, more or less, situate j 

in Haiku Valley, Heeia, Koolaupoko, Oahu, Ter- '\ 

ritory of Hawaii; et al., ! 

Defendants. i 

Civil No. 544 | 

UNITED STATES OF AMERICA, ' 

Petitioner, \ 

vs. '■ 

317.705 ACRES OF LAND, more or less, situate | 

at Moanalua, Honolulu, Oahu, Territory ol. ! 

Hawaii; et al., i 

Defendants. j 

Civil No. 548 I 

UNITED STATES OF AMERICA, j 

Petitioner, j 

vs. : 

63.725 ACRES OF LAND, more or less, situate at i 

Moanalua, Honolulu, Oahu, Territory of Ha- ■ 

waii; et al., ■ 
"^ Defendants. 



Honolulu Plantation Co. 5 

Civil No. 684 
UNITPJD STATES OF AMERICA, 

Petitioner, 
vs. 
29.891 ACRES OF LAND, more or less, in Moana- 
lua and Halawa, Ewa, Oahu, Territory of Ha- 
waii; et al., 

Defendants. 

CLERK'S STATEMENT 

Time of Commencing Trial: December 2, 1946. 
As consolidated. [4] 

Names of Original Parties at Trial: United 
States of America, Petitioner; Honolulu Planta- 
tion Company, Limited, Defendant. 

Dates of Filing Pleadings: 

Civil No. 514: June 21, 1944, Petition for Con- 
demnation; February 10, 1945, Declaration of Tak- 
ing, Order and Judgment on Declaration of Tak- 
ing; February 17, 1945, Answer of Honolulu Plan- 
tation Company. 

Civil No. 521: July 17, 1944, Petition for Con- 
demnation, Declaration of Taking, Order and Judg- 
ment on Declaration of Taking ; August 7, 1944, An- 
swer of Honolulu Plantation Company ; October 30, 
1945, Amended Declaration of Taking, Order and 
Judgment on Amended Declaration of Taking. 

Civil No. 525: August 10, 1944, Petition for Con- 
demnation; November 2, 1944, Answer of Hono- 
lulu Plantation Company; February 10, 1945, Dec- 
laration of Taking, Order and Judgment on Decla- 
ration of Taking. 



6 United States of America vs. 

Civil No. 527: August 28, 1944, Petition for Con- 
demnation; March 9, 1945, Declaration of Taking, 
Order and Judgment on Declaration of Taking: 
June 18, 1946, Answer of Honolulu Plantation 
Company. [5] 

Civil No. 529: September 7, 1944, Petition for 
Condemnation; September 17, 1945, Declaration of 
Taking, Motion for Order Amending Petition in 
Condemnation, Order Amending Petition in Con- 
demnation, Order and Judgment on Declaration of 
Taking. 

Civil No. 532: September 16, 1944, Petition for 
Condemnation. 

Civil No. 533: September 21, 1944, Petition for 
Condemnation; August 13, 1945, Declaration of 
'^^Paking, Motion for Order Amending Petition, Or- 
der Amending Petition, Order and Judgment on 
Declaration of Taking. 

Civil No. 535: October 11, 1944, Petition for Con- 
demnation ; August 27, 1945, Declaration of Tak- 
ing, Motion for Order Amending Petition in Con- 
demnation, Order Amending Petition in Condem- 
nation, Order and Judgment on Declaration of 
Taking. 

Civil No. 536: October 20, 1944, Petition for Con- 
demnation; February 27, 1945, Motion for Order 
Amending Petition in Condemnation; February 28, 
1945, Order Amending Petition in Condemnation; 
August 20, 1945, Declaration of Taking, Motion for 
Order Amending Petition in Condemnation, Order 
Amending Petition in Condemnation, Order and 



Honolulu Plantation Co. 7 

Judf^mont on Declaration of Taking; [6] Juno 18, 
1946, Answer of Honolulu Plantation Company. 

Civil No. 540: October 30, 1944, Petition for Con- 
demnation; October 5, 1945, Declaration of Taking, 
Motion for Order Amending Petition in Condemna- 
tion, Order Amending Petition in Condemnation, 
Order and Judgment on Declaration of Taking; 
June 18, 1946, Answer of Honolulu Plantation 
Company. 

Civil No. 544: November 28, 1944, Petition for 
Condemnation; January 29, 1945, Declaration of 
Taking, Order and Judgment on Declaration of 
Taking. 

Civil No. 548: January 18, 1945, Petition for 
Condemnation; November 1, 1945, Declaration of 
Taking, Motion for Order Amending Petition in 
Condemnation, Order Amending Petition in Con- 
demnation, Order and Judgment on Declaration o? 
Taking. 

Civil No. 684: December 6, 1945, Petition for 
Condenniation, Declaration of Taking, Order and 
Judgment on Declaration of Taking; April 22, 
1946, Motion for Order Amending Petition and Or- 
der and Judgment on Declaration of Taking: [7] 
April 22, 1946, Order Amending Petition and Order 
and Judgment on Declaration of Taking; June 18, 
1946, Answer of Honolulu Plantation Company. 

Civil Nos. 514, 525, 529, 533, 535, 544, and 548: 
February 17, 1945, Motion for Consolidation, Affi- 
davit of Consolidation, Stipulation for Consolida- 
tion, Order for Consolidation, Stipulation, Juda- 



8 United States of America vs. 

ment; February 19, 1945, Satisfaction of Judg- ■ 
ment. ] 

Civil Nos. 514, 521, 525, 527, 529, 532, 533, 535, | 

536, 540, 544, 548, and 684: October 9, 1946, Motion \ 

for Consolidation; November 6, 1946, Motion for < 

Bill of Particulars; November 22, 1946, Order for ' 

Consolidation; August 22, 1947, Decision; Novem- | 
ber 5, 1947, Judgment. 

Times When Proceedings Were Had: As Con- ' 
solidated — November 14, 1946, Motion for consoli- ' 
dation granted; November 26, 1946, Motion for bill ' 
of particulars denied; December 2, 3, 5, 6, 9, 10, j 
11, 12, 19, 20, 1946, January 6, 8, 9, 10, 14, and 15, \ 

1947, Trial. ! 

Proceedings in the above entitled matter were ; 
had before the Honorable J. Frank McLaughlin, 1 
District Judge, District of Hawaii. [8] \ 

Dates of Filing Appeal Documents: February 3, 

1948, Notice of Appeal, Notice of Cross-Appeal to ; 
Circuit Court of Appeals from Part of Judgment: i 
February 26, 1948, Order Extending Time to Docket ; 
Record on Appeal (U.S.) ; March 4, 1948, Order j 
Extending Time to Docket Record on Appeal i 
(Hono. Plan.) ; March 5, 1948, Statement of Points i 
on Appeal, Designation of Record on Appeal: j 
March 15, 1948, Statement of Points on Cross- j 
Appeal, Designation by Cross- Appellant of Addi- | 
tional Portions of Record on Appeal; March 19, | 
1948, Stipulation (re appeal). Order (re appeal), \ 
Bond for Costs on Appeal ; July 7, 1948, Order for " 
Transmittal of Original Exhibits. ' 



Honolulu Plantation Co. 9 

CERTIFICATE OF CLERK TO THE ABOVE 
STATEMENT 

ITiiitid States of America, 
District of Hawaii — ss: 

I, Wm. F. Thompson, Jr., Clerk of the United 
States District Court for the District of Hawaii, 
do Iiereby certify the foregoing to be a full, true 
and correct statement showing the time of com- 
mencement of the trial of the above-entitled causes, 
the names of the original parties at trial, the dates 
when the respective pleadings were filed, the tim(^s 
when proceedings were had as consolidated, the 
name of the judge [9] presiding, and the dates 
when appeal pleadings were filed in the above- 
< entitled causes. 

In Witness Whereof, I have hereunto set my 
l>and and affixed the seal of said District Court, this 
4th day of August, 1948. 

(Seal) /s/ WM. F. THOMPSON, JR., 

Clerk, United States District Court, District of 
Hawaii. [10] 



10 United States of America vs. 

In the District Court of the United States for the 
District of Hawaii 



Petitioner, 



vs. 



257.654 ACRES OF LAND, more or less, at Moana- 
hia and Halawa, Oahu, Territory of Hawaii; 
Charles Maner Hite, Trustee under the Will and 
of the Estate of Emma Kaleleonalani, deceased ; 
John Waterhouse, Ernest Hay Wodehouse, 
Walter Francis Frear, John Edward Russell, 
Trustees under the Will and of the Estate of 
Samuel M. Damon, deceased; Honolulu Planta- 
tion Company; The Hawaiian Electric Com- 
pany, Limited, a Hawaiian corporation; Samuel 
Renny Damon; City and County of Honolulu 
and Territory of Hawaii, 

Defendants. 

PETITION FOR CONDEMNATION 

To the Honorable, the Presiding Judges of the 
United States District Court for the District of 
Hawaii : 

Now comes the United States of America, by 
Charles F. Rathbun, Special Assistant to the At- 
torne}^ General, acting under the instructions of 
the Attorney General of the United States and at 
the i-equest of the Secretary of Navy of the United 
States, and respectfully represents to the Court: 



April Term, 1944 i 

Civil No. 514 j 

UNITED STATES OF AMERICA, < 



Honolulu Plantation Co. 11 

I. 

That this proceeding is instituted under the au- 
thority of divers and sundry Acts of Congress, 
among them the following: 

The Act of Congress approved March 27, 
1942 (Public Law 507— 77th Congress) 

The Act of Congress approved April 28. 
1942 (Public Law 528— 77th Congress) 

and that the Secretary of Navy, acting under au- 
thority vested in him by law and pursuant to law, 
has dotorinined that it is necessary to acquire for 
th(» United States of America by condemnation, 
imder judicial process, certain land more particu- 
larly described in Exhibits *'A" and **B'^, hereto 
annexed and made a part hereof as though set forth 
at length. [12] 

II. 

That the land sought to be condemned is located 
at Moanalua and Halawa, Oahu, Territory of Ha- 
waii, and lies wholly within the jurisdiction of the 
United States District Court for the Territory of 
Hawaii, together with all improvements thereon 
and appurtenances thereunto belonging, as de- 
scribed in said Exhibits '^A" and ''B'^ 

III. 

That attached hereto and made parts hereof are 
maps or plats marked Exhibits ''C" and ''D", de- 
lineating said property. 

rv. 

That the interest sought to be condemned is the 
full fee simple title to said land and all improve- 



12 United States of America vs. 

ments thereon and appurtenances thereunto belong- 
ing, subject to public utility, pipe line and irriga- 
tion and drainage easements, if any. 

Y. 

That the said land and improvements thereon 
and appurtenances thereunto belonging are to be 
acquired under the authority of and for the pur- 
poses set forth in the various Acts of Congress 
hereinabove mentioned, and particularly for use 
in connection with Officers' Housing Area and for 
Enlisted Men's Housing Area. 

VI. 

That Charles Maner Hite, Trustee under the 
Will and of the Estate of Emma Kaleleonalani, 
deceased; John Waterhouse, Ernest Hay Wode- 
house, Walter Francis Frear, John Edward Rus- 
sell, Trustees under the Will and of the Estate of 
Samuel M. Damon, deceased; Honolulu Plantation 
Company; The Hawaiian Electric Company, Lim- 
ited, a Hawaiian corporation; Samuel Renny Da- 
mon; City and County of Honolulu and Territory 
of Hawaii are the owners of or claim to have some 
interest in said land. 

Petitioner herein by naming any person, com- 
pany or corporation as a defendant herein does not 
concede that said person, company or corporation 
has any right, title, estate or interest in or to the 
land described, nor does the petitioner concede the 
title, claim or interest of any of said persons, com- 
panies or corporations against any other person, 
company or corporation, but prays the determina- 
tion [13] of the interest, title, estate, lien, claim or 



Honolulu Plantation Co. 13 

charge of any and all such persons, companies or 
cori)orations, including that of the petitioner, by 
the Court according to law. 

That the Secretary of Navy of the United Stater, 
lias determined that the utmost haste in expediting 
this project is vital to the War purposes of the 
Ignited States and he has therefore determined thai 
immediate possession of said land and all improve- 
ments thereon and ap])urtenances thereunto belong- 
ing, to the extc^nt of the interest to be acquired 
therein, is necessary by the United States and thn^ 
certain and adequate provisions have been made 
for the payment of just compensation which may 
be adjudged due for the condemnation of the land 
described in said Exhibits ''A", ''B", '*C" and 

Wherefore, your petitioner prays this Honor- 
able Court to take jurisdiction of this cause and 
to make and enter all orders, judgments and de- 
crees necessary to determine title of said real estate 
condemned, or any part thereof: and to fix and 
determine the just compensation due for the con- 
demnation of the aforesaid lands; that the Court 
adjudge and determine that the immediate posses- 
sion of said lands be taken to the extent of th(> 
interest being acquired herein for the War and 
Naval purposes of the United States: that u])on 
])a>niient into the registry of this Court for thf- 
United States for the use of the persons entitled 
thereto of the sum adjudged to be full com] sensa- 
tion for the said condemnation of said land, that 
title to said land be vested in the United States 
of America in fee simple; and that the Court make 



14 United States of America vs. 

distribution of the final awards among the persons 
entitled thereto as expeditiously as may be and for 
such other and further relief as to the Court may 
seem just and proper in the premises. 

UNITED STATES OF 
AMERICA, 

By /s/ CHARLES F. RATHBUN, 

Special Assistant to the Attorney 
Greneral. 

(Duly Verified.) [14] 

EXHIBIT "A" 

Being portions of Lots E, F, J, W and G of Land 
Court Application 1074; a portion of Lot 1-A 
of Land Court Application 966 at Moanalua, 
Honolulu and Hala\Ya, Ewa, Island of Oahu, 
T. H. 

Beginning at a point on the Westerly boundary 
between the Lands of Moanalua (Land Court Ap- 
plication 1074) and Halawa (Land Court Applica- 
tion 966) and the co-ordinates of said point of be- 
ginning referred to Government Survey Triangu- 
lation Station "Salt Lake" being 4299.39 feet South 
and 8022.07 feet West, and thence running by 
azimuths measured clockwise from True South: 

1. 165° 23'— 70.80 feet along the remainder of Lot 
1-A of Land Court Application 966; 

2. 128° 23' — 41.45 feet along the remainder of Lot 
1-A of Land Court Application 966; 



Honolulu Plantation Co. 15 

3. 192° 58' 30"— 63.81 feet alonj^ tlic i-emainder of 
Lot 1-A of Land Court Application 966 ; 

4. 202° 50—58.50 feet along the remainder of Lot 
1-A of Land Court Application 966; 

5. 211° 49'— 155.60 feet along the remainder of 
Tjot 1-A of Land Court Application 966 ; 

6. 198° 13' 30"— 170.52 feet along the remainder 
of Lot 1-A of Land Court Application 966 ; 

7. 206° 59' 30"— 71.70 feet along the remainder of 
Lot 1-A of Land Court Application 966 ; 

8. 225° 37'— 136.35 feet along the remainder of 
Lot 1-A of Land Court Application 966 ; 

9. 240° 49'— 152.07 feet along the remainder of 
Lot 1-A of Land Court Application 966 ; 

10. 244° 05' 30"— 130.00 feet along the remainder 
of Lot 1-A of Land Court Application 966; 

11. 256° 15'— 123.90 feet along the remainder of 
Lot 1-A of Land Court Application 966 ; 

12. 248° 48'— 67.78 feet along the remainder of Lot 
1-A of Land Court Application 966; [16] 

13. 240° 16'— 85.10 feet along the remainder of Lot 
1-A of Ijand Court Application 966; 

14. 236° 49'— 207.40 feet along the remainder of 
Lot 1-A of Land Court Application 966 ; 

15. 249° 49'— 99.80 feet along the remainder of 
Lot 1-A of Land Court Application 966 ; 

16. 240° 52'— 45.50 feet along the remainder of Lot 
1-A of Land Court Application 966; 

17. 228° 08'— 406.50 feet along the remainder of 
Lot 1-A of Land Court Application 966; 

18. 223° 06'— 58.23 feet along the remainder of Lot 
1-A of Land Court Aiiplication 966; 



16 United States of America vs. 

19. 215° 31—96.00 feet along the remainder of Lot 
1-A of Land Court Application 966; 

20. 208° 55—189.08 feet along the remainder of 
Lot 1-A of Land Court Application 966; 

21. 202° 32' 30' —94.55 feet along the remainder of 
Lot 1-A of Land Court Application 966; 

22. 190° 33 30"— 79.25 feet along the remainder of 
Lot 1-A of Land Court Application 966; 

23. 188° 27'— 158.11 feet along the remainder of 
Lot 1-A of Land Court Application 966; 

24. 244° 26' 30"— 54.63 feet along the remainder of 
Lot 1-A of Land Court Application 966; 

25. 345° 54' 50"— 1998.64 feet along the Southwest 
side of Alternate Highway from Honolulu to 
Schofield (100 feet wide) ; being remainders of 
Lot 1-A of Land Court Application 966; and 
Lots J and F of Land Court Application 1074 
and passing over the boundary between Halawa 
and Moanalua at 314.33 feet; 

26. Thence along the Southwest side of Alternate 
Highway from Honolulu to Schofield (100 feet 
wide) ; being the remainder of Lot J of Land 
Court Application 1074, on a curve to the left 
with a radius of 1960.08 feet, the direct azimuth 
and distance being 336° 54' 50" 613.25 feet; 

27. 327° 54' 50"— 550.90 feet along the Southwest 
side of Alternate Highway from Honolulu to 
Schofield (100 feet wide) ; being the remainders 
of Lots J and E of Land Court Application 
1074; [17] 

28. Thence along the Southwest side of Alternate 
Highway from Honolulu to Schofield (100 feet 



Honolulu Plantation Co. 17 

wide) ; being the remainders of Lots E and J 
of Land Court Application 1074, on a curve to 
the left with a radius of 1196,28 feet, the direct 
azimuth and distance being 313° 00' 50. 615.20 
feet; 

29. 298° 06' 50"— 2628.83 feet along the Southwest 
side of Alternate Highway from Honolulu to 
Schofield (100 feet wide) ; being the remainder 
of Lot J of Land Court Application 1074 ; 

30. 48° 56'— 75.00 feet along the remainder of Lot 
J of Land Court Apj)lication 1074; 

31. 33° 00'— 170.45 feet along the remainder of Lot 
J of Land Court Application 1074; 

32. 11° 46'— 207.86 feet along the remainder of Lot 
J of Land Court Ai)plication 1074; 

33. 352° 31'— 229.25 feet along the remainder of 
Lot J of Land Court Application 1074; 

34. 341° 59'— 87.63 feet along the remainder of Lot 
J of Land Court Application 1074; 

35. 11° 22'— 113.72 feet along the remainder of Lot 
J of Land Court Application 1074; 

36. 31° 41'— 99.20 feet along the remainder of Lot 
J of Land Court Application 1074; 

37. 14° 20'— 104.92 feet along the remainder of Lot 
J of Land Court Application 1074; 

38. 356° 44'— 98.27 feet along the remainder of Lot 
J of Land Court Application 1074 ; 

39. 333° 32'— 111.35 feet along the remainder of 
Lot J of Land Court Application 1074; 

40. 80° 55' 30"— 325.02 feet along the remainders 
of Lot J and G of Land Court Application 
1074; 



18 United States of America vs. 

41. 133° 15'-^35.82 feet along the remainders of 
Lots G and W of Land Court Application 1074 ; 

42. 146° 26' 30"— 496.50 feet along the remainders 
of Lots W and E of Land Court Application 
1074; 

43. 184° 37—129.47 feet along the remainder of 
Lot E of Land Court Application 1074; 

44. 161° 45—147.18 feet along the remainder of 
Lot E of Land Court Application 1074; [18] 

45. 57° 25' 30"— 432.28 feet along the remainder of 
Lot E of Land Court Application 1074; 

46. 115° 38'— 140.00 feet along the remainder of 
Lot E of Land Court Application 1074; 

47. 181° 39' 30.— 183.00 feet along the remainder 
of Lot E of Land Court Application 1074; 

48. 141° 19'— 184.71 feet along the remainder of 
Lot E of Land Court Application 1074; 

49. 49° 20' 30"— 281.42 feet along the remainder 
of Lot E of Land Court Application 1074; 

50. 97° 57'— 196.66 feet along the remainder of Lot 
E of Land Court Application 1074 ; 

51. 166° 12'— 241.81 feet along the remainder of 
Lot E of Land Court Application 1074; 

52. 182° 36'— 81.96 feet along the remainder of 
Lot E of Land Court Application 1074; 

53. 113° 29'— 148.57 feet along the remainder of 
Lot E of Land Court Application 1074; 

54. 32° 32' 30"— 156.57 feet along the remainder of 
Lot E of Land Court Application 1074; 

55. 100° 33'— 73.67 feet along the remainder of 
Lot E of Land Court Application 1074; 

56. 159° 07'— 143.45 feet along the remainder of 
Lot E of Land Court Application 1074; 



Honolulu Plantation Co. 19 

57. 52° 01' 30' —238.58 feet along the remainder of 
Lot E of Land Court Application 1074; 

58. 64° 19' 30"— 162.60 feet along the remainder of 
Lot E of Land Court Application 1074; 

59. 133° 50' — 198.56 feet along the remainder of 
Lot E of Land Court Application 1074; 

60. 87° 21' 30"— 252.62 feet along the remainder of 
Lot E of Land Court Application 1074 ; 

61. 116° 09'— 274.03 feet along the remainder of 
Lot E of Land Court Application 1074; 

62. 89° 04'— 153.58 feet along the remainder of 
Lot E of Land Court Application 1074; 

63. 109° 38' 30"— 380.00 feet along the remainder 
of Lot E of Land Court Application 1074; [19] 

64. 123° 13' 30"— 248.58 feet along the remainder 
of Lot E of Land Court Application 1074 ; 

65. 108° 14' 30"— 226.57 feet along the remaindei- 
of Lot E of Land Court Application 1074; 

66. 147° 54'— 304.63 feet along the remainder of 
Lot E of Land Court Application 1074; 

67. 168° 21' 30"— 102.09 feet along the remainder 
of Lot E of Land Court Application 1074 ; 

68. 156° 40'— 238.42 feet along the remainder of 
Lot E of Land Court Application 1074; 

69. 140° 04' 30"— 385.00 feet along the remainder 
of Lot E of Land Court Application 1074 ; 

70. 159° 20' 30"— 440.75 feet along the remainder 
of Lot E of Land Court Application 1074; 

71. 173° 39' 30"— 173.96 feet along the remainder 
of Lot E of Land Court Application 1074; 

72. 162° 51' 30"— 299.22 feet along the remainder 
of Lot E of Land Court Application 1074: 



20 United States of America vs. 

73. 133° 35' — 378.66 feet along the remainder of 
Lot E of Land Court Application 1074; 

74. 179° 01' 30" — 166.20 feet along the remainder 
of Lot E of Land Court Application 1074 to 
the point of beginning and containing an area 
of 244.065 acres. 

But, subject to portions of Hawaiian Electric 
Company's 50-foot easement for transmission line 
and Easement 5 of Land Court Application 966 
(5 feet wide in favor of the U. S. Army) as shown 
on attached plan. 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 

Surveyor. 

Honolulu, T. H., March 2, 1944. [20] 

EXHIBIT ^'B" 

PARCEL E-1 

Being a portion of Lot 1-A of Land Court Applica- 
tion 966 Situated at Halawa, Ewa, Oahu, T. H. 

Beginning at the Northeast corner of this piece 
of land, the co-ordinates of said point of beginning 
referred to Government Survey Triangulation Sta- 
tion "Salt Lake" being 4165.45 feet South and 
8053.97 feet West, and thence rumiing by azimuths 
measured clockwise from True South: 

1. 14° 36'— 92.78 feet along the remainder of Lot 
1-A of Land Court Application 966; 



Honolulu Plantation Co. 2 1 

2. 46° 59—1203.07 feet along the remainder of 
Lot 1-A of Land Court Application 966; 

3. Thence still along the remainder of Lot 1-A 
of Land Court Application 966, on a curve to 
the right with a radius of 40.0 feet, the direct 
azimuth and distance })eing 107° 42' 69.78 feet ; 

4. 168° 25—385.48 feet along the East side of 
Kamehameha Highway; 

5. 218° 25—843.69 feet along Lot B-3-A of Land 
Court Application 966 (U. S. Naval Reserva- 
tion) ; 

6. 308° 25—50.58 feet along the remainder of Lot 
1-A of Land Court Ai:)i:)lication 966 ; 

7. 280° 44' 30"— 113.40 feet along the remainder 
of Lot 1-A of Land Court Application 966; 

8. 284° 36'— 384.00 feet along the remainder of 
Lot 1-A of Land Court Application 966 to the 
point of beginning and containing an area of 
11.394 acres. 

Subject, however, to railroad easements in favor 
of the Honolulu Plantation Company (15.0 feet 
wide) and U. S. Army (20.0 feet wide) as shown 
on attached plan. 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 
Surveyor. 

Honolulu, T. H., April 7, 1944. [21] 



22 United States of America vs. 

PARCEL E-2 

Being a portion of Lot 1-A of Land Court Appli- 
cation 966 at Halawa, Ewa, Oahu, T. H. 

Beginning at a point on the East corner of this 
parcel of land, on the boundary between the Lands 
of Moanalua (Land Court Application 1074) and 
Halawa (Land Court Application 966), the co- 
ordinates of said point of beginning referred to 
Government Survey Triangulation Station ''Salt 
Lake" being 4299.39 feet South and 8022.07 feet 
West, and thence running by azimuths measured 
clockwise from True South: 

1. 46° 59—1327.46 feet along Lot E of Land 
Court Application 1074 (Pearl Harbor Naval 
Hospital) ; 

2. 168° 25'— 153.36 feet along the East side of 
Kamehameha Highway; 

3. Thence along the remainder of Lot 1-A of 
Land Court Application 966, on a curve to the 
left with a radius of 40.0 feet, the direct azi- 
muth and distance being 287° 42' 69.78 feet; 

4. 226° 59'— 1203.07 feet along the remainder of 
Lot 1-A of Land Court Application 966; 

5. 194° 36'— 92.78 feet along the remainder of Lot 
1-A of Land Court Application 966 ; 

6. 320° 35'— 31.61 feet along the remainder of Lot 
1-A of Land Court Application 966; 

7. 8° 23' — 41.45 feet along the remainder of Lot 
1-A of Land Court Application 966 ; 

8. 345° 23'— 70.80 feet along the remainder of Lot 
1-A of Land Court Application 966 to the point 



Honolulu Plantation Co. 23 

of beginning and containing an area of 2.195 
acres. 

But, subject to a portion of Easement 5 of Land 
Court Application 966 in favor of the U. S. Army 
(5.0 feet wide) as shown on attached jjlan. 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 

Surveyor. 

Honolulu, T. H., April 7, 1944. 
[Endorsed] : Filed June 21, 1944. [22] 



[Title of District Court and Cause No. 514.] 
DECLARATION OF TAKING 

Whereas, pursuant to the Acts of Congress ap- 
proved March 27, 1942 (Public Law 507, 77th Con- 
gress), and April 28, 1942 (Public Law 528, 77th 
Congress), the above-styled condemnation proceed- 
ing has been instituted. 

Now, Therefore, pursuant to the provisions of 
the Act of Congress approved February 26, 1931 
(46 Stat. 1421), I, Secretary of the Na^^, do hereby 
make and cause to be filed this declaration of tak- 
ing, and by virtue of authority thereof do hereby 
state that the lands selected for acquisition aggre- 
gate 257.654 acres, more or less, at Moanalua and 
Halawa, Oahu, Territory of Hawaii, more particu- 
larly described in Exhibit ''A" attached hereto and 
made a part hereof. The lands are delineated on a 
map entitled '^Composite Boundary Map, Portions 



26 United States of America vs. 

EXHIBIT ''A" 

PARCEL E-1 

Being a portion of Lot 1-A of Land Court Appli- 
cation 966 Situated at Halawa, Ewa, Oahu, 
T. H. 

Beginning at the Northeast corner of this piece 
of land, the co-ordinates of said point of beginning 
referred to Government Survey Triangulation Sta- 
tion ''Salt Lake" being 4165.45 feet South and 
8053.97 feet West, and thence running by azimuths 
measured clockwise from True South: 

1. 14° 36' — 92.78 feet along the remainder of Lot 
1-A of Land Court Application 966 ; 

2. 46° 59—1203.07 feet along the remainder of 
Lot 1-A of Land Court Application 966 ; 

3. Thence still along the remainder of Lot 1-A of 
Land Court Application 966, on a curve to the 
right with a radius of 40.0 feet, the direct 
azimuth and distance being 107° 42' 69.78 feet ; 

4. 168° 25—385.48 feet along the East side of 
Kamehameha Highway; 

5. 218° 25'— 843.69 feet along Lot B-3-A of Land 
Court Application 966 (IT. S. Naval Reserva- 
tion) ; 

6. 308° 25' — 50.58 feet along the remainder of Lot 
1-A of Land Court Application 966; 

7. 280° 44' 30"— 113.40 feet along the remainder 
of Lot 1-A of Land Court Application 966; 

8. 284° 36'— 384.00 feet along the remainder of 
Lot 1-A of Land Court Application 966 to the 



Honolulu Plantation Co. 27 

point of l)eginning and containing an area of 

11.394 acres. 
Subject, however, to railroad easements in favor 
of the Honoluki Plantation Company (15.0 feet 
wide) and U. S. Army (20.0 feet wide) as shown 
on attached plan. [29] 

PARCEL E-2 

Being a portion of Lot 1-A of Land Court Applica- 
tion 966 at Halawa, Ewa, Oahu, T. H. 
Beginning at a point on the East comer of this 
parcel of land, on the boundary between the Lands 
of Moanalua (Land Court Application 1074) and 
Halawa (Land Court Application 966), the co-or- 
dinates of said point of begining referred to Gov- 
ernment Survey Triangulation Station "Salt Lake'^ 
being 4299.39 feet South and 8022.07 feet West, and 
thence running by azimuths measured clockwise 
from True South: 

1. 46° 59—1327.46 feet along Lot E of Land Court 
Application 1074 (Pearl Harbor Naval Hos- 
pital) ; 

2. 168° 25—153.36 feet along the east side of 
Kamehameha Highway; 

3. Thence along the remainder of Lot 1-A of Land 
Court Application 966, on a curve to the left 
vnth a radius of 40.0 feet, the direct azimuth 
and distance being 287° 42' 69.78 feet; 

4. 226° 59'— 1203.07 feet along the remainder of 
Lot 1-A of Land Court Application 966; 

5. 194° 36'— 92.78 feet along the remainder of Lot 
1-A of Land Court Application 966; 



28 United States of America vs. 

6. 320° 35' — 31.61 feet along the remainder of Lot 
1-A of Land Court Application 966 ; 

7. 8° 23'— 41.45 feet along the remainder of Lot 
1-A of Land Court Application 966; 

8. 345° 23'— 70.80 feet along the remainder of Lot 
1-A of Land Court Application 966 to the point 
of beginning and containing an area of 2.195 
acres. 

But, subject to a portion of Easement 5 of Land 
Court Application 966 in favor of the U. S. Army 
(5.0 feet wide) as shown on attached plan. [30] 

PARCELS E-3 and D-1 

Being portions of Lots E, F, J, W and G- of Land 
Court Application 1074 and a portion of Lot 
1-A of Land Court Application 966. 

At Moanalua, Honolulu and Halawa, Ewa, Island 
of Oahu, T. H. 

Beginning at a point of the Westerly boundary 
between the Lands of Moanalua (Land Court Ap- 
plication 1074) and Halawa (Land Court Applica- 
tion 966) and the co-ordinates of said point of be- 
ginning referred to Government Survey Triangula- 
tion Station ''Salt Lake" being 4299.39 feet South 
and 8022.07 feet West, and thence running by azi- 
muths measured clockwise from True South: 

1. 165° 23'— 70.80 feet along the remainder of Lot 
1-A of Land Court Application 966, (along 
Parcel E-2) ; 

2. 188° 23'-^1.45 feet along the remainder of Lot 



Honolulu Plantation Co. 29 

1-A of Land Court Aijplication 966, along Par- 
cel E-2; 

[Printer's Note: Balance of Exhibit "A" (de- 
scription of Parcels E-3 and D-1) attached to 
Declaration of Taking is similar to Exhibit "A'' 
attached to the Petition for Condemnation and 
printed at pages 14 to 20.] 

[Endorsed] : Filed Feb. 10, 1945. [35] 



In the District Court of the United States 
for the District of Hawaii 

Civil No. 514 

UNITED STATES OF AMERICA, 

Petitioner, 
vs. 

257.654 ACRES OF LAND, more or less, at Moana- 
lua and Halawa, Oahu, Territory of Hawaii; 
CHARLES MANER HITE, Trustee under the 
Will and of the Estate of Emma Kaleleonalani, 
deceased; et al.. 

Defendants. 

ORDER AND JUDGMENT ON DECLARATION 
OF TAKING 

It appearing that on the 21st day of Jmie, 1944, 
the United States of America filed a petition for 
condenmation of certain lands described and shown 
on Exhibits ^'A" and ''B" attached to Declaration 
of Taking; and 



28 United States of America vs. 

6. 320° 35' — 31.61 feet along the remainder of Lot 
1-A of Land Court Application 966; 

7. 8° 23'— 41.45 feet along the remainder of Lot 
1-A of Land Court Application 966; 

8. 345° 23'— 70.80 feet along the remainder of Lot 
1-A of Land Court Application 966 to the point 
of beginning and containing an area of 2.195 
acres. 

But, subject to a portion of Easement 5 of Land 
Court Application 966 in favor of the U. S. Army 
(5.0 feet wide) as shown on attached plan. [30] 

PARCELS E-3 and D-1 

Being portions of Lots E, F, J, W and Gr of Land 
Court Application 1074 and a portion of Lot 
1-A of Land Court Application 966. 

At Moanalua, Honolulu and Halawa, Ewa, Island 
of Oahu, T. H. 

Beginning at a point of the Westerly boundary 
between the Lands of Moanalua (Land Court Ap- 
plication 1074) and Halawa (Land Court Applica- 
tion 966) and the co-ordinates of said point of be- 
ginning referred to Government Survey Triangula- 
tion Station "Salt Lake" being 4299.39 feet South 
and 8022.07 feet West, and thence running by azi- 
muths measured clockwise from True South: 

1. 165° 23'— 70.80 feet along the remainder of Lot 
1-A of Land Court Application 966, (along 
Parcel E-2) ; 

2. 188° 23'— 41.45 feet along the remainder of Lot 



Honolulu Plantation Co. 29 

1-A of Land Court Application 966, along Par- 
cel E-2; 

[Printer's Note: Balance of Exhibit "A" (de- 
scription of Parcels E-3 and D-1) attached to 
Declaration of Taking is similar to Exhibit "A'' 
attached to the Petition for Condemnation and 
printed at pages 14 to 20.] 

[Endorsed] : Filed Feb. 10, 1945. [35] 



In the District Court of the United States 
for the District of Hawaii 

Civil No. 514 

UNITED STATES OF AMERICA, 

Petitioner, 
vs. 

257.654 ACRES OF LAND, more or less, at Moana- 
lua and Halawa, Oahu, Territory of Hawaii; 
CHARLES MANER HITE, Trustee under the 
Will and of the Estate of Emma Kaleleonalani, 
deceased; et al., 

Defendants. 

ORDER AND JUDGMENT ON DECLARATION 
OF TAKING 

It appearing that on the 21st day of Jmie, 1944, 
the United States of America filed a petition for 
condemnation of certain lands described and shown 
on Exliibits ''A" and ''B" attached to Declaration 
of Taking; and 



30 United States of America vs. 

It further appearing that there was filed on the 
10th day of February, 1945, a Declaration of Tak- 
ing signed by James Forrestal, Secretary of the 
Navy, under and pursuant to provisions of the Act 
of Congress approved February 26, 1931 (46 Stat. 
1421), declaring taken the full fee simple title, to- 
gether with all improvements thereon and appurten- 
ances thereimto belonging, as limited in the Declara- 
tion of Taking; that the uses of said land and im- 
provements thereon and appurtenances thereunto 
belonging are those described in the said Decla- 
ration of Taking and in the Petition; and that the 
said Declaration of Taking sets forth the estimate 
of just compensation made pursuant to law and 
that contemporaneously with the filing of said Dec- 
laration of Taking, there was deposited in the reg- 
istry of this Court for the use of the persons en- 
titled thereimto the sum of one hundred eight thou- 
sand, nine hundred seventy-two dollars and ten 
cents ($108,972.10), [37] 

It Is Ordered, Adjudged and Decreed that by 
virtue of the filing of said Declaration of Taking 
and the deposit of said money, fee simple title to 
the lands described and shown on Exhibits ''A" and 
^'B", attached to said Declaration of Taking, in- 
cluding all improvements and appurtenances upon 
said lands, as limited by the said Declaration of 
Taking, is indefeasibly vested in the United States 
of America; and 

It Is Further Ordered that a copy of this Order 
be promptly served by the United States Marshal 
upon each of the defendants named and upon each 



Honolulu Plmitation Go. 31 

and evoiy person, company or corj^oration in pos- 
session of said land at the time possession was sur- 
rendered to the petitioner. The Marshal is further 
ordered to post a copy hereof in a conspicuous jjlace 
on the i)remises and to forthwith make due return 
of his said service to this Court. 

Dated; Honolulu, T. H., this 10th day of Feb- 
ruary, 1945. 

/s/ J. FRANK McLaughlin, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Feb. 10, 1945. [38] 



[Title of District Court and Causes Nos. 514, 525, 
529, 533, 535, 544, 548.] 

ANSWER OF HONOLULU PLANTATION 
COMPANY 

Comes now Honolulu Plantation Company, a cor- 
poration organized under the laws of the State of 
California and doing business in the Territory of 
Hawaii, one of the defendants in each of the above 
entitled causes and for consolidated answer to each 
of the petitions which have been filed in these con- 
solidated causes, says: 

I. 

That it admits the allegations contained in para- 



32 United States of America vs. 

graphs I of the petitions heretofore filed in said 
causes insofar as they allege that the United States 
has power to condemn the property which it is seek- 
ing to take but insofar as the other allegations con- 
tained therein are concerned denies that it has 
knowledge or information sufficient to form a be- 
lief as to the allegations therein set forth and there- 
fore neither admits nor denies the same but leaves 
the petitioner to its proof thereof. 

II. 

That except as hereinafter admitted it denies that 
it has knowledge or information sufficient to form 
a belief as to the allegations set forth and contained 
in paragraphs II to V, II to VI and II to VII 
of said petitions and therefore it neither admits or 
denies the same but leaves the petitioner to its proof 
thereof; [40] 

TIL 

That with respect to the allegations in each of 
said petitions that it claims an interest in the prop- 
erty described in said petition this defendant admits 
the same and alleges that at the time of the filing of 
said petitions and until judgments or orders were 
entered on declaration of taking filed in said causes 
it was the owner of an interest in the lands and in 
some of the improvements thereon and also admits 
that its various lessors have an interest in the lands 
described in said petition which are under lease to 
this defendant that the various leases creating in- 
terests and estates will be submitted to the Court 
on the trial of said causes. 



Honolulu Plantation Co. 33 

And this defendant further alleges as follows: 

That for and during a ijeriod of over forty years 
this defendant has been continuously oi)erating and 
conducting and is now conducting and oi>erating a 
sugar mill and plantation at Aiea in the District 
of Ewa, Island of Oahu, T. H., and has at all times 
during said period been and now is engaged in the 
business of growing sugar cane and manufacturing- 
sugar therefrom; 

That of the total acreage of land taken are, by 
reason of the fertility of the soil thereon, their low 
elevation, and the comparatively small expense with 
which they can be irrigated, i)eculiarly adapted to 
the cultivation and growth of sugar cane, and that 
this defendant was at the time of the filing of the 
petitions in these various causes and until the dates 
fixed for the surrendering of possession by the 
judgments or orders on the Declaration of Taking 
entered in these causes and for many years prior 
thereto had been profitably using said lands for the 
cultivation and growth of sugar cane; 

That the lands included within the parcels of land 
sought to be condemned which are held by this 
defendant under lease as aforesaid have a special 
and enhanced value by reason of the establishment 
by this defendant of a sugar mill and works, in 
close proximity to said lands, for the manufacture 
of sugar cane grown and cultivated thereon and on 
other lands owned and/or leased by this defendant 
and by reason of the development of a water sup- 
ply for the irrigation of said lands, and other lands 



34 United States of America vs. 

as aforesaid by means of artesian wells, pumping 
machinery and otherwise ; [41] 

That for the purpose of cultivating the said 
lands, this defendant has at great expense con- 
structed improvements thereon in some of which 
it owned an interest at the time it surrendered its 
possession of said lands pursuant to the judgments 
or orders entered on the Declaration of Taking filed 
in these causes; 

That the parcels of land sought to be condemned 
by said petitions in which this defendant has lease- 
hold interests were at the times of the filing of the 
various petitions in these consolidated causes and 
imtil judgments or orders were entered on Decla- 
ration of Taking filed in these causes, and for many 
years prior thereto had been, occupied and culti- 
vated by this defendant as integral parts of the 
sugar plantation operated and conducted by it at 
Aiea aforesaid and in connection with other large 
and contiguous tracts situated outside of the lands 
described in said petitions but comprised within the 
said plantation and demised to this defendant by a 
number of leases and that by the taking of said 
lands described in the said petitions the integrity 
of said sugar plantation will be destroyed and the 
unitary value of the leasehold interests and estates 
of this defendant in such other and contiguous 
tracts of land will be greatly impaired and di- 
minished : 

Wherefore this defendant prays (1) that the 
damages suffered by this defendant by reason of 
the taking of the lands and properties described in 



Honolulu Plantation Co. 35 

said petitions may be determined and the amomit 
thereof be awarded to and paid to this defendant, 
and (2) for such other and general relief as may 
])e meet and proper in the premises. 

Dated: Honolulu, T. H., February 17, 1945. 

HONOLULU PLANTATION 
COMPANY, 

By /s/ STANLEY, VITOUSEK, 
PRATT AND WINN, 
Its Attorneys. 
Defendants above named. 

[Endorsed] : Filed Feb. 17, 1945. [42] 



'. ! '> United States of America vs. 

In the District Court of the United States 
for the District of Hawaii 

April Term 1944 

Civil Xo. 521 

UNITED STATES OF A^IERICA, 

Petitioner, 
vs. 

49.058 ACRES OF LAXD, more or less, McOrew 
Point, Kalauao, Ewa, Oahu, Hawaii, and 
KATHARIXE McGREW COOPER, et al.. 

Defendants. 

PETITION FOR COXDEMXATIOX 

To the Honorable, the Presiding Judges of the 
United States District Court for the District of 
Hawaii : 

Xow comes the United States of America, by 
Charles F. Rathbun, Special Assistant to the At- 
torney General, acting under the instructions of the 
Attorney Greneral of the United States and at the 
request of the Secretary of Xavy of the United 
States and respectfully represents to the Court: 

I. 

That this proceeding is instituted imder the au- 
thority of divers and sundry Acts of Congress, 
among them the following: 

The Act of Congress approved February 26, 
1931 (46 Stat. 1421), and acts supplementary 
thereto and amendatory thereof; 



Honolulu Plantation Co. 37 

The Act of Congress approved March 27, 
1942 (Public J.aw 507 - 77th Congress) ; 

The Act of Congress api)roved January 28, 
1944 (Public Law 224 - 78th Congress) 
and that the Secretary of Navy, acting under au- 
thority vested in him by law, has determined that 
it is necessary and advantageous to acquire for the 
United States by condemnation, under judicial 
process, certain land more particularly described 
in Exhibit "A", hereto annexed and made a part 
hereof as though set forth at length. 

II. 
That the land sought to be condemned is located 
at McGrrew Point, Kalauao, Ewa, Oahu, Territory 
of Hawaii, and lies wholly within the jurisdiction 
of the United States District Court for the District 
of Hawaii, together with all improvements thereon 
and appurtenances thereunto belonging as de- 
scribed [44] in said Exhibit ''A". 

III. 
That attached hereto and made a part hereof is 
a map or plat marked Exhibit " B ", delineating said 
property. 

IV. 
That the interest sought to be condemned is the 
full fee simple title to said land and all improve- 
ments thereon and appurtenances thereunto be- 
longing; subject to existing public utility easements. 

V. 

That the land is to be acquired for use to provide 

for the establishment of Base Hospital No. 8 for 

Mobile Hospital Unit, and said land is required for 

immediate use, and that the Secretary of Navy, 



38 United States of America vs. 

pursuant to law, has selected the land described 
Exhibit ''A" as necessary to be acquired by the 
United States of America for the uses and pur- 
poses aforesaid; 

VI. 

That contemporaneously herewith there has been 
filed a Declaration of Taking and a deposit made 
of certain funds, therein described and allocated, 
all pursuant to the Acts of Congress in such case 
made and provided. 

VII. 

That the petitioner has been in the actual and 
exclusive possession of said premises mentioned in 
said Exhibits ''A" and ''B", hereto attached, con- 
tinuously from and after the following dates to the 
present time: 

Parcel Nimaber Date of Possession 

lA September 1, 1943 

IB December 1, 1943 

2A and 2B September 28, 1943 

3A, 3B, 3C and 4 October 1, 1943 

VIII. 
That Katharine McGrew Cooper ; Honolulu Plan- 
tation Company; A. Lester Marks, Elizabeth Loy 
Marks and Elizabeth Janet Cartwright McCandless, 
Trustees under the Will and of the Estate of Lin- 
coln Loy McCandless, deceased; Aima N. Aluli, 
Auwae L. Aluli and Noa T. Aluli, Trustees under 
the WiU and of the Estate of Noa W. Aluli; Oahu 
Railway and Land Company, a corporation; may 
have or claim to have some interest in said land 
and that there are or may be certain persons, com- 



Honolulu Plantation Co. 39 

panies or corporations owning, having or claiming 
some [45] right, title, estate, interest, lien, encum- 
brance, claim or charge in, to or upon the land con- 
demned, which said persons, companies or coi'pora- 
tions are unknown to the petitioner and are desig- 
nated as "Unknown Owners" and as John Does 
One to Fifty and Mary Roes One to Fifty, and are 
named as defendants in this proceeding. 

Wherefore, your petitioner prays this Honorable 
Court to take jurisdiction of this cause and to make 
and enter all orders, judgments and decrees neces- 
sary to determine title to said real estate con- 
demned, or any part thereof; and to fix and de- 
termine the just compensation due for the condem- 
nation of the land aforesaid; and to do any and 
all things necessary or required to vest in the 
United States of America a fee simple title in and 
to the land described in said Exhibit "A" to the 
exclusion of any and all persons, companies or cor- 
porations, subject to existing public utility ease- 
ments ; and to make distribution of the final awards 
and the amount of the deposit among those persons 
entitled thereto as expeditiously as may be; and to 
confirm the actual possession of the said premises 
by the petitioner as of the dates hereinabove set 
forth; and for such other and further relief as to 
the Court may seem just and proper in the premises. 
UNITED STATES OF 

AMERICA, 
By /s/ CHARLES F. RATHBUN, 

Special Assistant to the 

Attorney General. 
(Duly Verified) [46] 



40 United States of America vs. 

EXHIBIT ''A" 

Parcel 1-A 

Katharine McGrew Cooper 

Description of Lots 1-A, 1-B, 1-C and a portion of 
Lot 1-D of Land Coui't Application 334 Situat- 
ed along the South Side of Oahu Railway and 
Land Comj)any's right-of-way at Paaiau and 
Kapuai, Kalauao, Ewa, Oahu, T. H. 

Beginning at a point at highwater mark, the 
coordinates of said point of beginning referred to 
a concrete monument being the initial point of Land 
Comt Application 334 being 21.81 feet North and 
292.49 feet West and the true azimuth and distance 
from said concrete monument to Government Sur- 
vey Triangulation Station ''Salt Lake" being 297° 
59' 30" 1008.67 feet, and thence running by azimuths 
measui'ed clockwise from true South: 

along highwater mark 
along highwater mark 
along highwater mark 
along highwater mark 
along highwater mark 
along highwater mark 
along highwater mark 
along highwater mark 
along highwater mark 
along highwater mark 
along highwater mark 
along highwater mark 
along highwater mark 



1. 


73° 


55'- 


- 33.03 feet 


2. 


52° 


00'- 


-164.80 feet 


3. 


35° 


30'- 


-100.00 feet 


4. 


58° 


00'- 


-200.00 feet 


5. 


94° 


30'- 


-160.00 feet 


6. 


90° 


00'- 


-100.00 feet 


7. 


71° 


40'- 


-100.00 feet 


8. 


53° 


10'- 


-300.00 feet 


9. 


38° 


30'- 


-100.00 feet 


10. 


18° 


40'- 


-150.00 feet 


11. 


32° 


50'- 


-198.00 feet 


12. 


131° 


10'- 


-260.00 feet 


13. 


118° 


30'- 


-403.00 feet 



Honolulu Plantation Co. 41 

14. 132° 20'— 170.00 feet along highwater mark 

15. 158° 30—100.00 feet along highwater mark 

16. 186° 50'— 280.00 feet along highwater mark 

17. 203° 20—100.00 feet along highwater mark 

18. 214^ 50'— 130.00 feet along highwater mark 

19. 189° 20'— 100.00 feet along highwater mark 

20. 161° 50'— 200.00 feet along highwater mark 

21. 146° 00'— 150.00 feet along highwater mark 

22. 220° 00'— 221.70 feet along Grant 171 to Kuaana 
and passing over a concrete monument at 17.60 
feet, and passing over another concrete monu- 
ment at 195.30 feet; 

23. 296° 00'— 65.30 feet along Grant 171 to Kuaana 
to a concrete monument; 

24. 284° 00'— 140.60 feet along Grant 171 to Kuaana 
to a concrete monument; 

25. 225° 30'— 99.00 feet along Grant 171 to Kuaana 
to a concrete monmnent; 

26. 183° 10'— 31.70 feet along Grant 171 to Kuaana 
to a concrete monument ; 

27. 248^^ 20'— 58.20 feet along Grant 171 to Kuaana 
to a concrete monument; 

28. 277° 35'— 198.50 feet along the South side of 
Oahu Railway and Land Company's right-of- 
way; 

29. 324° 40'— 558.00 feet along Grant 171 to Kuaana 
and R. P. 743, I. C. Aw. 7450-B to Kaiaka ; 

30. 221° 30'— 270.00 feet along R. P. 743, I. C. Aw. 
7450-B to Kaika and Grant 169 to WilUam E. 
Gill; 

31. 225° 28'— 227.40 feet along Grant 169 to Wil- 
liam E. Gill and Grant 171 to Kuaana : 



42 United States of America vs. 

32. Thence along the South side of Oahu Railway 
and Land Company's right-of-way, on a curve 
to the right with a radius of 1402.69 feet, the 
direct azimuth and distance being 283° 39' 30" 
307.2 feet; 

33. 19° 57—10.00 feet along Oahu Railway and 
Land Company's right-of-way; [48] 

34. Thence along the South side of Oahu Railway 
and Land Company's right-of-way, on a curve 
to the right with a radius of 1392.69 feet, the 
direct azimuth and distance being 293° 50' 30" 
189.04 feet; 

35. 48° 00'— 32.03 feet along the remainder of Lot 
1-D of Land Court Application 334; 

36. 300° 48'— 167.96 feet along the remainder of 
Lot 1-D of Land Court Application 334; 

37. 312° 16' 30"— 101.13 feet along the remainder 
of Lot 1-D of Land Court Application 334; 

38. Thence along the remainder of Lot 1-D of Land 
Court Application 334, on a curve to the right 
with a radius of 136.08 feet, the direct azimuth 
and distance being 19° 20' 126.09 feet; 

39. 46° 56'— 132.00 feet along the remainder of Lot 
1-D of Land Court Application 334; 

40. 342° 00'— 151.60 feet to the point of beginning 
and containing a gross area of 45.427 Acres; 
exclusive of R. P. 114, L. C. Aw. 5878, Apana 
1 to Kukiiahu (0.697 Acre), R. P. 114, L. C. 
Aw 5878, Apana 2 to Kukiiahu (0.443 Acre), 
owned by the Aluli Estate; R. P. 6428, L. C. 
Aw. 5669, Apana 1 to Kupihea (0.470 acre) 
R. P. 6428, L. C. Aw. 5669, Apana 2 to Kupihea 



Honohdu Plantation Co. 43 

(0.107 Acre) owned by the Honolulu Planta- 
tion Company, leaving a net area of 43.710 
Acres. 

WRIGHT, HARVEY «& 
WRIGHT, 
By /s/ FRED E. HARVEY, 
Surveyor. 

Honolulu, T. H., October 29, 1943. [49] 

Parcel 2-A 

Honolulu Plantation Company 

Being R. P. 6428, L. C. Aw. 5669, Apana 1 to 
Kupihea, situated near the South side of Oahu 
Railway and Land Company's right-of-way, at 
Paaiau, Kalauao, Ewa, Oahu, T. H. 

Beginning at a concrete monument at the North 
corner of this piece of land, said point of beginning- 
being also the end of Course 26 of Land Court Ap- 
plication 334, and thence running by azimuths meas- 
ured clockwise from True South: 

1. 324° 30—594.00 feet along Lot 1-B of Land 
Court Application 334; 

2. 68° 42—38.50 feet along Lot 1-B of Land Court 
Application 334; 

3. 147° 00'— 143.90 feet along Lot 1-B of Land 
Court Application 334; 

4. 142° 00—138.60 feet along Lot 1-B of Land 
Court Application 334; 

5. 195° 00—17.80 feet along Lot 1-B of Land 
Court Application 334; 



44 Uiiited States of America vs. 

6. 129° 00—66.00 feet along Lot 1-B of Land 
Court Application 334; 

7. 146° 40—222.40 feet along Lot 1-B of Land 
Court Application 334; 

8. 225° 30—33.00 feet along Grant 171 to Kuaana 
to the point of begiiming and containing an 
area of 20,465 square feet or 0.47 acre. 

WRIGHT, HARVEY & 
WRIGHT, 
By /s/ FRED E. HARVEY, 
Surveyor. 

Honolulu, T. H., October 29, 1943. [50] 

Parcel 3-A 

Aluli Estate 

Being R. P. 743, L. C. Aw. 7450-B to Kaiaka, sit- 
uated near the South side of Oahu Railway 
and Land Company's right-of-way, at Paaiau, 
Kalauao, Ewa, Oahu, T. H. 

Beginning at the South corner of this piece of 
land, being also the South corner of R. P. 743, 
L. C. Aw. 7450-B to Kaiaka and the North corner 
of R. P. 114, L. C. Aw. 5878, Apana 2 to Kukiiahu, 
said point of beginning being also the end of Course 
30 of Land Court Application 334, and thence run- 
ning by azimuths measured clockwise from True 
South : 

1. 144° 40'^70.00 feet along Lot 1-B of Land 
Court Application 334 and R. P. 114, L. C. Aw. 
5878, Apana 1 to Kukiiahu; 



Honolulu Plant at io7i Co. 45 

2. 265° 40—118.00 feet along Grant 171 to 
Kuaana ; 

3. 304° 46—378.04 feet along Grant 169 tb Wil- 
liam E. Gill; 

4. 41° 30—236.00 feet along Lot 1-B of Land 
Court Api)lication 334 to the point of begin- 
ning and containing an area of 1.558 acres, 
more or less. 

Compiled by: 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 
Surveyor. 

Honolulu, T. H., November 3, 1943. [51] 

Parcel 1-B 

Katharine McGrew Cooper 

Being Lot 3-A of Land Court Application 334, 
situated between the Southwest side of Kame- 
hameha Highway and the Northeast side of 
Oahu Railway and Land Company's right-of- 
way, at Paaiau, Kalauao, Ewa, Oahu, T. H. 

Beginning at the Southwest corner of this piece 
of land and on the Northeast side of Oahu Railway 
and Land Company's right-of-way, and thence rmi- 
ning by azimuths measured clockwise from True 
South : 

1. 184° 59'— 8.50 feet along Grant 169 to William 
E. Gill to a ''><" cut in rock set in concrete; 



46 United States of America vs. 

2. 232° 34' 30"— 112.86 feet along Grant 169 to 
William E. GiU; 

3. Thence along the South side of Kamehameha 
Highway, on a curve to the right with a radius 
of 3295.55 feet, the direct azimuth and distance 
being 299° 40' 45.5" 368.52 feet; 

4. 32° 53' 04"— 5.00 feet along Kamehameha High- 
way; 

5. Thence still along the South side of Kame- 
hameha Highway, on a curve to the right with 
a radius of 3290.55 feet, the direct azimuth and 
distance being 304° 08' 25.5" 144.25 feet; 

6. Thence along the North side of Oahu Railway 
;\nd Land Company's right-of-way, on a curve 
to the left with a radius of 1472.69 feet, the 
direct azimuth and distance being 115° 55' 31.5" 
305.77 feet ; 

7. 19° 58'— 10.00 feet along Oahu Railway and 
Land Company's right-of-way; 

8. Still along the North side of Oahu Railway 
and Land Company's right-of-w^ay, on a curve 
to the left with a radius of 1462.69 feet, the 
direct azimuth and distance being 104° 55' 
257.50 feet to the point of beginning and con- 
taining an area of 22,897 square feet or 0.526 
acre. 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 
Surveyor. 

Honolulu, T. H., October 29, 1943. [52] 



Honolulu Plantation Co. 47 

Parcel 2-B 

Honolulu Plantation Comi)any 

Being R. P. 6428, L. C. Aw. 5669, Apana 2 to 
Kupihea, situated about 750 feet in a Souther- 
ly direction from Oahu Railway and Land 
Company's right-of-way at Paaiau, Kalauao, 
Ewa, Oahu, T. H. 

Beginning at the North corner of this piece of 
land, the true azimuth and distance to the end of 
Course 30 of Land Court Ai^plication 334 being 
231° 40' 425.00 feet to the above described initial 
point, and thence running by azimuths measured 
clockwise from True South: 

1. 328° 00—79.20 feet along Lot 1-B of I^and 
Court Application 334; 

2. 60° 00'— 60.70 feet along Lot 1-B of Land 
Court Application 334; 

3. 148° 28'— 75.00 feet along Lot 1-B of Land Court 
Application 334; 

4. 236° 00'— 60.10 feet along Lot 1-B of Land 
Court Application 334 to the point of begin- 
ning and containing an area of 4,653 square 
feet or 0.107 acre. 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 
Surveyor. 

Honolulu, T. H., October 29, 1943. [53] 



48 United States of America vs. 

Parcel 3-B 

Aluli Estate 

Being a portion of R. P. 114, L. C. Aw. 5878, Apana 
to Kukiiahu, situated on the South side of 
Oahu Railway and Land Company's right-of- 
way at Paaiau, Kalauao, Ewa, Oahu, T. H. 

Beginning at a concrete monument at the North 
corner of this piece of land and on the south side 
of Oahu Railway and Land Company's right-of- 
way, said point of beginning being also the end of 
Course 29 of Land Court Application 334, and 
thence running by azimuths measured clockwise 
from True South: 

1. 324° 40—398.00 feet along portion of Grant 
171 to Kuaana and R. P. 743, L. C. Aw. 7450-B 
to Kaiaka ; 

2. 72° 21—97.00 feet along Lot 1-B of Land Court 
Application 334; 

3. 150° 06'— 419.50 feet along Lot 1-B of Land 
Court Application 334; 

4. 277° 35—72.00 feet along the South side of 
Oahu Railway and Land Company's right-of- 
way to the point of beginning and containing 
an area of 30,375 square feet or 0.697 acre. 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 
Surveyor. 

Honolulu, T. H., October 29, 1943. [54] 



Honolulu Plantation Co. -if) 

Parcel 3-C 

Aluli Estate 

Being R. P. 114, L. C. Aw. 5878, Apana 2 to Ku- 
kiiahu, situated about 500 feet in a Southerly 
direction from Oahu Railway and Land Com- 
pany's right-of-way at Paaiau, Kalauao, Ewa, 
Oahu, T. H. 

Beginning at the North corner of this piece of 
land, being also the North corner of R. P. 114, 
L. C. Aw. 5878, Apana 2 to Kukiiahu, said North 
corner being also the end of Course 30 of Land 
Court Application 334, and thence running by 
azimuths measured clockwise from True South: 

1. 319° 55—170.00 feet along Lot 1-B of Land 
Court Application 334; 

2. 51° 00—121.50 feet along Lot 1-B of Land 
Court Application 334 ; 

3. 142° 30—157.70 feet along Lot 1-B of Land 
Court Application 334; 

4. 224° 50—114.80 feet along Lot 1-B of Land 
Court Application 334 to the point of begin- 
ning and containing an area of 19,297 square 
feet or 0.443 acre. 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 
Surveyor. 

Honolulu, T. H., October 29, 1943. [55] 



50 United States of America vs. 

Parcel 4 

L. L. McCandless 

Being portions of Grant 171 to Kuaana and Grant 
169 to William E. Gill, situated at Paaiau, 
Kalauao, Ewa, Oahu, T. H. 

Beginning at a concrete monument at the North- 
west corner of this piece of land and on the South 
side of Oahu Railway and Land Company's right- 
of-way, said point of begimiing being also the end 
of Course 29 of Land Court Application 334, and 
thence running by azimuths measured clockwise 
from True South: 

1. 277" 35—670.24 feet along the South side of 
Oahu Railway and Land Company's right-of- 
way; 

2. 7° 35—5.00 feet along the South side of Oahu 
Railway and Land Company's right-of-way; 

3. 45° 28—227.40 feet along Lot 1-B of Land 
Court Application 334; 

4. 41° 30—34.00 feet along Lot 1-B of Land Court 
Application 334; 

5. 124° 46—378.04 feet along R. P. 743, L. C. Aw. 
7450-B toKaiaka; 

6. 85° 40—118.00 feet along R. P. 743, L. C. Aw. 
7450-B to Kaiaka; 

7. 144° 40—88.00 feet along R. P. 114, L. C. Aw. 



Honolulu Plantation Co. 51 

5878, Apana 1 to Kukiiahu to the point of be- 
ginning and containing an area of 1.547 acres, 
more or less. 

Compiled by: 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 
Surveyor. 

Honolulu, T. H., November 3, 1943. 

[Endorsed] : Filed July 17, 1944. [56] 



[Title of District Court and Cause No. 521.] 

DECLARATION OF TAKING 

Whereas, pursuant to the authority of the Acts 
of Congress approved March 27, 1942 (Public Law 
507, 77th Congress) and January 28, 1944 (Public 
Law 224, 78th Congress), the above-styled condem- 
nation proceeding has been instituted. 

Now, therefore, pursuant to the provisions of the 
Act of Congress approved February 26, 1931 (46 
Stat. 1421), I, Secretary of the Navy, do hereby 
make and cause to be filed this declaration of tak- 
ing, and by virtue of authority thereof do hereby 
state that the lands selected for acquisition aggre- 
gate 49.058 acres, more or less, on McGrew Point, 
Kalauao, Ewa, Oahu, Hawaii, more particularly 
described in Exhibit ''A" attached hereto and made 
a part hereof and are delineated on a map entitled, 



52 United States of America vs. 

''Boundary Map of Base Hospital No. 8 on Mc- 
Grew Point, Kalauao, Ewa, Oahu," 14th N.D. 
Drawing No. OA-Nl-785, approved December 2, 
1943, revised February 17, 1944, attached hereto as 
Exhibit '^B" and made a part hereof. 

And I do declare said lands to be taken under 
authority of the aforesaid Acts of Congress; that 
the use to which said lands are to be put is the 
establishment of Base Hospital No. 8 for Mobile 
Hospital [58] Unit, as authorized by said Acts; and 
that the estate hereby taken in said lands for the 
public use aforesaid is a fee simple title, subject 
to public utility easements, pipe lines, and irriga- 
tion lines, if any. 

And I do hereby state that the sum of money es- 
timated by me to be just compensation for said 
lands, improvements thereon and appurtenances 
thereunto belonging, is fifty-five thousand, nine 
hundred and twenty-six dollars ($55,926.00) which 
is hereby deposited into the registry of the court 
for the use and benefit of the persons entitled there- 
to, and that the amounts estimated to be just com- 
pensation for each ownership are shown on Sched- 
ule "A" attached hereto and made a part of this 
declaration of taking. 

I am of the opinion that the ultimate award for 
the taking of said lands will be within the limits 
prescribed by Congress. 

In Witness Whereof, the petitioner, by and 
through the Secretary of the Navy, has caused this 
declaration of taking to be signed and the seal of 



Honolulu Plantation Go. 53 

the Department of the Navy to be affixed hereto 
on the 20th day of June, 1944, in the City of Wash- 
ington, District of Columbia. 

UNITED STATES OF 
AMERICA, 

(Seal) By /s/ JAMES FORRESTAL. [59] 

SCHEDULE ''A" 

The names and addresses of the persons having 
title to or other interest in the lands described in 
the within declaration of taking, and the amounts 
estimated to be just compensation for each respec- 
tive ownership, including improvements thereon 
and appurtenances thereunto belonging, are as fol- 
lows: 



*arcel 


Acres 




Estimated Fair 


umber 


Area 


Owner 


Compensation 


lA 


43.710 


Katherine McGrew Cooper 


$ 55,000.00 


IB- 


.526 






2A 


.470 


Honolulu Plantation Company 


25.00 


2B 


.107 






3A 


1.558 


Aluli Estate 


350.00 


3B 


.697 






3C 


.443 






4 


1.547 


L. L. McCandless Estate 


551.00 



49.058 Totals $ 55,926.00 



54 United States of America vs. 

EXHIBIT '^A" 

49.058 Acres more or less located at Kalauao, Ewa, 
Oahu, Territory of Hawaii. 
Parcel No. 1 (Part ''A") 43.710 Acres 

Description of Lots 1-A, 1-B, 1-C and a portion 
of Lot 1-D of Land Court Application 334, situated 
along the south side of Oahu Railway and Land 
Company's right-of-way at Paaiau and Kupuai, 
Kalauao, Ewa, Oahu, T. H. 

Beginning at a point at highwater mark, the co- 
ordinates of said point of beginning referred to a 
concrete monument being the initial point of Land 
Court Application 334 being 21.81 feet north and 
292.49 feet west and the true azimuth and distance 
from said concrete monument to Government Sur- 
vey Triangulation Station ''Salt Lake" being 297° 
59' 30", 1008.67 feet, and thence running along the 
highwater mark by azimuths measured clockwise 
from true south, as follows: 73° 55', 33.03 feet; 52° 
00', 164.8 feet; 35° 30', 100.00 feet; 58° 00', 200.00 
feet; 94° 30', 160.00 feet; 90° 00', 100.00 feet; 71° 
40', 100.00 feet; 53° 10', 300.00 feet; 38° 39', 100.00 
feet; 18° 40', 150.00 feet; 32° 50', 198.00 feet; 131° 
10', 260.00 feet; 118° 30', 403.00 feet; 132° 20', 170.00 
feet; 158° 30', 100.00 feet; 186° 50', 280.00 feet; 
203° 20', 100.00 feet; 214° 50', 130.00 feet; 189° 20', 
100.00 feet; 161° 50', 200.00 feet; 146° 00', 150.00 
feet; thence along Grant 171 to Kuaana as follows: 
220° 00', 221.70 feet passing over a concrete monu- 
ment at 17.60 feet, and passing over another con- 
crete monument at 195.30 feet; 296° 00', 65.30 feet; 



Honolulu Plantation Co. 55 

284° 00', 140.60 feet; 225° 30', 99.00 feet; 183° 10', 
31.70 feet; 248° 20', 58.20 feet to a concrete monu- 
ment on the south side of Oahu Railway and Land 
Company right-of-way; 277° 35', 198.50 feet along 
the south side of Oahu Railway and Land Com- 
pany's right-of-way; 324° 40', 558.00 feet along 
Grant 171 to Kuaana and R. P. 743, L. C. Aw. 
7450-B to Kaiaka; 221° 30', 270.00 feet along R. P. 
743, L. C. Aw. 7450-13 to Kaiaka and Grant 169 to 
WiUiam E. Gill; 225° 28', 227.40 feet along Grant 
169 to William E. Gill and Grant 171 to Kuaana, 
to the south side of Oahu Railway and Land Com- 
pany's right-of-way; thence along the south side 
of Oahu Railway and Land Company's right-of- 
way, on a curve to the right with a radius of 1402.69 
feet, the direct azimuth and distance of the chord 
being 283° 39' 30", 307.20 feet; 19° 57', 10.00 feet 
along Oahu Railway and Land Company's right-of- 
way; thence along the south side of Oahu Railway 
and Land Company's right-of-way, on a curve to 
the right with a radius of 1392.69 feet, the direct 
azimuth and distance of the chord being 293° 50' 
30", 189.04 feet; thence along the remainder of Lot 
1-D of Land Court Application 334, as follows : 48° 
00', 32.03 feet; 300° 48', 167.96 feet; 312° 16' 30", 
101.13 feet; thence on a curve to the right with a 
radius of 136.08 feet, the direct azimuth and dis- 
tance of the chord being 19° 20', 126.09 feet; [61] 
46° 56', 132.00 feet; 342° 00', 151.60 feet to the point 
of beginning. 



56 United States of America vs. 

Containing within the ahove described perimiter, 
a gross area of 45.427 acres, before deducting the 
following exceptions : 

Parcel No. 2 (Part A) 0.470 Acre 

Parcel No. 2 (Part B) 0.107 Acre 

Parcel No. 3 (Part B) 0.697 Acre 

Parcel No. 3 (Part C) 0.443 Acre 

Containing after said exceptions, 43.710 acres. 

Parcel No. 1 (Part "B") 0.526 Acre 

Being Lot 3-A of Land Court Application 334, 
situated between the southwest side of Kamaha- 
meha Highvv^ay and the northeast side of Oahu Rail- 
way and Land Company's right-of-way, at Paaiau, 
Kalauao, Ewa, Oahu, T. H. 

Beginnina: at the southwest corner of this nioce 
of land and on the northeast side of Oahu Railwav 
and Land Company's right-of-way, and thence run- 
ni:ifX by azimuths measured clockwise from true 
soTitli: 184° 59', 8.50 feet along Orant 169 to Wil- 
liam E. Gill to a '' t " cut in rock set in concrete; 
232° 34' 30", 112.86 feet alono- Grant 169 to William 
E. Gill: thence along the south side of Kamaha- 
meha HighAva}^, on a curve to the right with a 
radius of 3295.55 feet, the direct azimuth and dis- 
tance of the chord being 299° 40' 45.5", 368.52 feet ; 
32° 53' 04", 5.00 feet along Kamehameha Highway; 
tlienco still along the south side of Kamahameha 
Highway, on a cur^'e to the right with a radius, of 
.3290.55 feet, the direct azimuth and distance of 
the chord, being 304° 08' 25.5", 144.25 feet; thence 
along the north side of Oahu Railway and Land 
Company's right-of-way, on a curve to the left with 



Honolulu Plantation Co. 57 

a radius of 1472.69 foet, the direct azimntli and 
distance of the chord being 115° 55', 31.5", 305.77 
U^vi; 19° 58', 10.00 feet akmg Oahu Railway and 
Ijand Com])any's ric^ht-of-way ; still along the nortli 
side of Oahu Railway and Land Company's right- 
of-way, on a curvc^ to the left with a radius of 
1462.69 fe(^t, the direct azimuth and distance of 
the chord being 104° 55', 257.50 feet to the point 
of 1)eginning and containing an area of 22,897 
s({uare feet or 0.526 acre. 

Parcel No. 2 (Part ^'A") 0.470 Acre 

Being R.P. 6428, L. C. Aw. 5669, Apana 1 to 
Ku])ihea, situated near the south side of Oahu Rail- 
way and Land Company's right-of-way at Paaiau, 
Kalauao, Ewa, T. H. 

Beginning at a concrete monument at the north 
corner of this piece of land, said point of begin- 
ning being also the end of course 26 of Land Court 
Application 334, and thence running by [62] azi- 
nuiths measured clockwise from true south along 
Lot 1-B of Land Court Application 334 as follows: 
324° 30' 594.00 feet; 68° 42' 38.50 feet; 147° 00' 
143.90 feet; 142° 00' 138.60 feet; 195° 00' 17.80 
feet; 129° 00' 66.00 feet; 146° 40', 222.40 feet; 225° 
30', 33.00 feet along Grant 171 to Kuaana to the 
point of beginning and containing an area of 20,465 
square feet or 0.47 acre. 

Parcel No. 2 (Part ''B") 0.107 Acre 

Being R. P. 6428, L. C. Aw. 5669, Apana 2 to 
Kupiahea, situated about 750 feet in a southerly 



58 United States of America vs. 

direction from Oahu Railway and Land Company's 
:]'ight-of-way at Paaiau, Kalauao, Ewa, Oahu, T.H. 
Beginning at the north corner of this piece of 
land, the true azimuth and distance from the end 
of Course 30 of Land Court Application 334 being 
231° 40', 425.00 feet to the above described initial 
point, and thence running by azimuths measured 
clockwise from true south along Lot 1-B of Land 
Court Application 334, as follows: 328° 00', 79.20 
feet; 60° 00', 60.70 feet; 148° 28' 75.00 feet; 236° 
00', 60.10 feet to the point of beginning and con- 
taining an area of 4,653 square feet or 0.107 acre. 

Parcel No. 3 (Part ''A") 1.558 Acres 

Being R. P. 743, L.C.Aw. 7450-B to Kaiaka, situ- 
ated near the south side of Oahu Railway and Land 
Company's right-of-way at Paaiau, Kalauao, Ewa, 
Oahu, T. H. 

Beginning at the south corner of this piece of 
land, being also the south corner of R.P. 743, 
L. C. Aw. 7450-B to Kaiaka and the north corner 
of R.P. 114, L. C. Aw. 5878, Apana 2 to Kukiiahu, 
said point of beginning being also the end of Course 
30 of Land Court Application 334, and thence run- 
ning by azimuths measured clockwise from true 
south; 144° 40', 470.00 feet along Lot 1-B of Land 
Court Application 334 and R. P. 114, L. C. Aw. 
5878, Apana 1 to Kukiiahu; 265° 40', 118.00 feet 
along Grant 171 to Kuaana; 334° 46', 378.04 feet 
along Grant 169 to William E. Gill; 41° 30', 236.00 
feet along Tjot 1-B of Land Court Application 334 
to the point of beginning and containing an area 
of 1.558 acres, more or less. 



Honolulu Plantation Co. 59 

Parcel No. 3 (Part ''B") 0.697 Aero 

Being a portion of R. P. 114, L.C.Aw. 5878, 
Apana 1 to Kukiiahu, situated on the south side 
of Oahu Railway and Land Company's right-of-way 
at Paaiau, Kalauao, Ewa, Oahu, T. H. 

Beginning at a concrete monument at the nortli 
corner of this piece of land and on the south side 
of Oahu Railway and Land Company's [63] right- 
of-way, said point of beginning being also the c^nd 
of Course 29 of Land Court Application 334, and 
thence running by azimuths measured clockwise 
from true south: 324° 40', 398.00 feet along portion 
of Grant 171 to Kuaana and R. P. 743, L. C. Aw. 
7450-B to Kaiaka; 72° 20', 97.00 feet along Lot 1-B 
of Land Court Application 334; 150° 06', 419.50 
feet along Lot 1-B of Land Court Application 334; 
277° 35', 72.00 feet along the south side of Oahu 
Railway and Land Company's right-of-way to the 
point of beginning and containing an area of 30,375 
f^quaro feet or 0.697 acre. 

Parcel No. 3 (Part '^C") 0.443 Acre 

Being R. P. 114, L.C. Aw. 5878, Apana 2 to 
Kukiiahu, situated about 500 feet in a southei'ly 
direction from Oahu Railway and Land Company's 
I'ight-of-way at Paaiau, Kalauao, Ewa, Oahu, T. H. 

Beginning at the north corner of this piece of 
land, being also the north corner of R.P. 114, L.C. 
Aw. 5878, Apana 2 to Kukiiahu, said north corner 
being also the end of Course 30 of I^and Court 
Application 334, and thence running by azimuths 
and measured clockwise from true south, along 



60 United States of America vs. 

Lot 1-B of Land Court Application 334, as follows: 
319° 55', 170.00 feet; 51° 00', 121.50 feet; 142° 30', 
157.70 feet; 224° 50', 114.80 feet to the point of 
beginning and containing an area of 19,297 square 
feet or 0.443 acre. 

Parcel No. 4, 1.547 Acres 

Being portions of Grant 171 to Kuaana and 
Grant 169 to William E. Gill, situated at Paaiau, 
Kalauao, Ewa, Oahu, T. H. 

Beginning at a concrete monument at the north- 
west corner of this piece of land and on the south 
.side of Oahu Railway and Land Company's right- 
of-way, said point of beginning being also the end 
of Course 29 of Land Court Application 334, and 
thence running by azimuths measured clockwise 
from true south: 227° 35', 670.24 feet along the 
south side of Oahu Railway and Land Company's 
right-of-way: 7° 35', 5.00 feet along the south side 
of Oahu Railway and Land Company's right-of- 
way; 45° 28', 227.40 feet along Lot 1-B of Land 
Court Application 334; 41° 30', 34.00 feet along 
Lot 1-B of Land Court Application 334; 124° 46'. 
378.04 feet along R.P. 743, L.C.Aw. 7450-B to 
Kaiaka: 85° 40', 118.00 feet along R.P. 743, L.C.Aw. 
7450-B to Kaiaka: 114° 40' 88.00 feet along R.P. 
114, L.C. Aw. 5878, Apana 1 to Kukiiahu to the 
point of beginning and containing an area of 1.547 
acres, more or less. 

Containing in all the above described parcels, 
49.058 acres, more or less, as delineated on that cer- 
tain plat entitled "Base Hospital No. 8, on McGrew 



Honolulu Plantation Co. 61 

Point, Kalauao, Ewa, Oahu" — Drawing No. OA- 
Nl-785 — approved December 2, 1943, — altered Feb- 
ruary 17, 1944. 

[Endorsed] : Filed July 17, 1944. [64] 



In the District Court of the United States 
for the District of Hawaii 

April Term 1944 

Civil No. 521 

TTNTTED STATES OF AMERICA, 

Petitioner, 

vs. 

49.058 ACRES OF LAND, more or less, McGrew 
Point, Kalauao, Ewa, Oahu, Hawaii, and Kath- 
arine McGrew Cooper, et al.. 

Defendants. 

ORDER AND JUDGMENT ON DECLARATION 
OF TAKING 

It a])pearing to the Court that on the 17th day 
of July, 1944, the United States of America filed 
herein a Petition for Condemnation of certain land 
described in Exhibit ''A" hereto annexed and made 
a part hereof as though set forth at length; 

That contemporaneously therewith there was 
filed a Declaration of Taking signed by James For- 
restal. Secretary of Navy of the United States, 
under and pursuant to the provisions of the Act 
of Congress approved February 26, 1931 (46 Stat., 
1421), and acts supplementary thereto and amenda- 
tory thereof, and under the further authority of 



62 United States of America vs. 

the Act of Congress approved March 27, 1942 (Pub- 
lic Law 507 — 77th Congress), and the Act of Con- 
gress approved January 28, 1944 (Public Law 224 
— 78th Congress), for the taking of the fee simple 
title in and to the lands described in said Exhibit 
''A", subject to existing public utility easements; 
and that the uses of said land being acquired are 
described in said Acts of authority and in said 
Declaration of Taking and in the verified Petition 
of the United States of America filed herein, and 
that said Declaration of Taking further sets forth 
the estimate of just compensation, made pursuant 
to law ; and that contemporaneously therewith there 
was deposited in the registry of this court for the 
use of the persons entitled thereto, the sum of 
Fifty-five thousand, nine hundred and [67] twenty- 
six dollars ($55,926.00) ; and for good cause shown 
and the Court being fully advised in the premises, 

It is ordered, adjudged and decreed that by 
virtue of the filing of the said Declaration of Tak- 
ing as aforesaid, and upon the premises aforesaid. 
That title of the land described in said Exhil:)it 
''A", be and it is hereby indefeasibly vested in the 
United States of America in fee simple, subject to 
existing public utility easements; and 

It is further ordered and adjudged that the 
owners, claimants and occupants of said land on 
every part and parcel thereof, forthwith deliver 
to the Petitioner herein and to its duly authorized 
agents the immediate and exclusive possession of 
said lands; and it appearing that the petitioner 
has been in the exclusive and continuous possession 
of said lands from and since the dates set forth 



Honolulu Plantation Co. 63 

in the petition herein to the present time, such x^os- 
session of the United States of America is hereby 
confirmed as of the following dates: 

Parcel Number — Date of Possession 

lA— September 1, 1943 
IB— December 1, 1943 
2A and 2B— September 28, 1943 
3A, 3B, 3C and 4— October 1, 1943; 
and 

It is further ordered that a certified copy of this 
Order with the Certificate of the Clerk of this 
Court showing the payment into the Registry of 
this Court of the sum hereinabove set forth, 1)(^ 
l)romptly served by the United States Marshal, 
upon each of defendants named and upon each and 
every person, company or corporation in possession 
of said premises, and the Marshal is ordered to 
post a certified copy hereof at a conspicuous place 
on the premises and to forthwith make due return 
of his said service to this Court. 

Dated: Honolulu, T.H., this 17th day of July, 
1944. 

/s/ J. FRANK McLaughlin, 

Jud^c of the District Court of the United States 
for the District of Hawaii. 

[Printer's Note: Exhibit ''A" (description of 
land) attached to Order and Judgment on De- 
claration of Taking is similar to Exhibit ** A" at- 
tached to the Petition for Condemnation and 
set out at pages 40-51 of this printed Record.] 

[Endorsed] : Filed July 17, 1944. [68] 



64 United States of America vs. 

[Title of District Court and Cause No. 521.] 

ANSWER OF HONOLULU PLANTATION 
COMPANY 

Comes now Honolulu Plantation Company, one 
of the defendants named in the above entitled mat- 
ter, and for answer to the petition for condemna- 
tion filed herein admits, denies and alleges as 
follows : 

I. 

That with respect to the allegations contained in 
paragraphs I, II, III, IV, V, VI, VII and VIII 
of said petition, except as hereinafter alleged, this 
defendant has insufficient information to either ad- 
mit or deny the same and leaves the petitioner to 
its proof thereof. 

II. 

That with respect to the allegations contained 
in paragraph VIII of said petition this defendant 
admits that it is the owner in fee simple of Parcels 
2-A and 2-B described in said petition and is lessee 
of the Noa W. Aluli Estate of Parcels 3-A, 3-B 
and 3-C under unrecorded Lease dated May 28, 
1935, as extended by Extension of Lease dated 
August 25, 1939 and May 8, 1942 for a term to 
expire five (5) years from January 1, 1944. 

III. 

That by way of further answer to the allegations 
contained in paragraphs VI and VIII, this defend- 
ant alleges that it has been served with a copy of 
the Declaration of Taking therein mentioned, at- 
tached to which as [80] Schedule ''A" is a state- 



Honolulu Plantation Co. 65 

merit of the petitioner's estimated fair compensa- 
tion for the taking of the property of this defend- 
ant; that said Schedule **A" does not show the 
just compensation for the taking of the property 
of this defendant; that the value of said propt^rty 
and the interests of this defendant therein and the 
just compensation for the taking thereof is greatly 
in excess of the amounts stated in said Schedule, 
and this defendant denies that the amounts set 
fortli therein are just compensation for said pro})- 
erty and the interests therein of this defendant as 
owner and as lessee as aforesaid. 

Wherefore this defendant prays that the Court 
determine the estate and interest of this defendant 
in and to the parcels of land hereinabove men- 
tioned, described or referred to and the compensa- 
tion and damages to be awarded to this defendant 
for the taking of its property and leaseholds and 
in the improvements thereon ; and that this defend- 
ant be allowed its costs herein and such other and 
further relief as the Court may deem meet and 
just in the premises. 

Dated: Honolulu, T. H., August 5th, 1944. 

HONOLULU PLANTATION 
COMPANY, 
By /s/ P. E. SPALDING, 

Its Attorney-in-fact. 

(Duly Verified.) 

[Endorsed] : Filed Aug. 7, 1944. [81] 



1 



66 United States of America vs. 

[Title of District Court and Cause No. 521.] 
AMENDED DECLARATION OF TAKING 

Whereas, pursuant to the authority of the Acts 
of Congress approved March 27, 1942 (Public Law 
507, 77th Congress) and January 28, 1944 (Public 
Law 224, 78th Congress), the above-styled condem- 
nation proceeding has been instituted. 

Now, therefore, pursuant to the provisions of 
the Act of Congress approved February 26, 1931 
(46 Stat. 1421), I, Secretary of the Navy, do hereby 
make and cause to be filed this amended declara- 
tion of taking, and by virtue of authority thereof 
do hereby state that the lands selected for acquisi- 
tion aggregate 49.058 acres, more or less, on Mc- 
Grew Point, Kalauao, Ewa, Oahu, Hawaii, more 
particularly described in Exhibit "A" attached 
hereto and made a part hereof, and are relineated 
on a map entitled, ''Boundary Map of Base Hos- 
pital No. 8 on McGrew Point, Kalauao, Ewa, 
Oahu," 14th N.D. Drawing No. OA-Nl-785, ap- 
proved December 2, 1943, revised February 17, 
1944, attached hereto as Exhibit "B" and made a 
part hereof. 

And I do declare said lands to be taken under 
authority of the aforesaid Acts of Congress; that 
the use to which said lands are to be put is the 
establishment of Base Hospital No. 8 for Mobile 
Hospital Unit, [82] as authorized by said Acts ; and 
that the estate hereby taken in said lands for the 
jjublic use aforesaid is a fee simple title, subject to 
existing public utility easements. 



Honolulu Plantation Co. 61 

And I do hereby state that the sum of money 
estimated by m(> to be just comj^ensation for said 
lands, improvements thereon and appurtenancoB 
thereunto belonging, is Ninety-seven thousand, fi\(' 
hundred dollars ($97,500.00), which is hereby de- 
posited into the registry of the court for the use 
and benefit of the persons entitled thereto, and that 
the amounts estimated to be just compensation for 
each ownership are shown on Schedule "A" at- 
tached hereto and made a part of this amended 
declaration of taking. 

I am of the opinion that the ultimate award for 
the taking of said lands will be within the limits 
prescribed by Congress. 

In Witness Whereof, the petitioner, by and 
through the Secretary of the Navy, has caused this 
amended declaration of taking to be signed on the 
twenty-seventh day of August, 1945, in the City 
of Washington, District of Columbia. 

UNITED STATES OF 
AMERICA, 

By /s/ JAMES FORRESTAL. [83] 

SCHEDULE ^'A" 

The names and addresses of the persons having 
title to or other interest in the lands described in 
the within declaration of taking, and the amoimts 
estimated to be just compensation for each respec- 
tive owTiership, including improvements thereon 
and appurtenances thereunto belonging, are as fol- 
lows: 



68 United States of America vs. 



Parcel Acres 




Estimated Fair 


Nnmber Area 


Owner 


Compensation 


lA 43.710 


Katharine McGrew Cooper 


$ 95,513.00 


IB .526 






2A .470 


Honolulu Plantation Company 


155.00 


2B .107 






3A 1.558 


Aima N. Aluli 


922.00 


3B .697 


Auwae L. Aluli 




3C .443 


Noa T. Aluli 





Trustees under the Will and of the 
Estate of Noa W. Aluli 
1.547 A. Lester Marks 910.00 

Elizabeth Loy Marks 

Elizabeth Janet Cartwright McCandless 
Trustees under the Will and of 
the Estate of Lincoln Loy Mc- 
Candless, deceased 



49.058 Totals $ 97,500.00 

[Printer's Note: Exhibit "A" (description of 
land) attached to Amended Declaration of Tak- 
ing is similar to Exhibit "A" attached to Peti- 
tion for Condemnation and set out at pages 40- 
51 of this printed Record.] 
[Endorsed] : Filed Oct. 30, 1945. [84] 



[Title of District Court and Cause No. 521.] 
ORDER AND JUDGMENT ON AMENDED 

DECLARATION OF TAKING 
It appearing to the Court that on the 17th day 
of July, 1944, the United States of America filed 
a Petition for Condemnation of certain land de- 
scribed in said Petition and the Exhibits attached 
thereto and that there was filed in the above cause 
a Declaration of Taking signed by James Forres- 
tal, Secretary of the Navy of the United States, 
and it further appearing that on the 30th day of 
October, 1945, there was filed an Amended Declara- 
tion of Taking in the above cause, signed by James 



Honolulu Plantation Co. 69 

Forrestal, Secretary of the Navy of the United 
States, and that said amended Declaration of Tak- 
ing sets forth a new estimate of just compensation 
made pursuant to law, and that contemporaneously 
with the filing of said amended Declaration of Tak- 
ing there was deposited in the registry of this 
Court for the use of the persons entitled thereto 
the sum of Forty-One Thousand, Five Hundred 
Seventy-four Dollars ($41,574.00) as an additional 
amount for the use of the persons entitled thereto 
and good cause show^n and the Court being fully 
advised in the premises, [96] 

Tt Is Ordered, Adjudged and Decreed that by 
virtue of the filing of said amended Declaration of 
Taking as aforesaid, that title of the land described 
m Exhibit ''A" and delineated on the map attached 
thereto as Exhibit '^B" has been and is hereby 
indefeasibly vested in the United States of America 
in fee simple, subject to existing public utility ease- 
ments; and 

Tt Is Further Ordered that a co])y of this Order 
be promptly served by the United States Mai'shal 
u])on eacli of the defendants in this cause. The 
Marshal is further ordered to post a copy hereof 
in a conspicuous place on the premises and to forth- 
with make due return of his said service to this 
Court. 

Dated Honolulu, T. H., this 30th day of October, 
1945. 

/s/ D. E. METZGER. 
Judge of tlie United States District Court for the 
District of Hawaii. 

[Endorsed] : Piled Oct. 30, 1945. [97] 



70 United States of America vs. 

In the District Court of the United States 
For the District of Hawaii 

April Term 1944 

Civil No. 525 

UKETED STATES OF AMERICA, 

Petitioner, 
vs. 

216.124 ACRES OF LAND, more or less, in Moan- 
alua, Honolulu, Oahu, Territory of Hawaii, 
John. Waterhouse, Ernest Hay Wodehouse, 
Walter Francis Frear and John Edward Rus- 
sell, Trustees under the Will and of the Estate 
of Samuel M. Damon, deceased, et al., 

Defendants. 

PETITION FOR CONDEMNATION 

To the Honorable, the Presiding Judges of the 
United States District Court for the Distri(;t of 
Hawaii : 

Now comes the United States of America, by 
Charles F. Rathbun and Robert S. Tarnay, Special 
Assistants to the Attorney General, acting under 
the instructions of the Attorney General of the 
United States and at the request of the Secretary 
of Navy of the United States, and respectfully 
represents to the Court: 

I. 

That this proceeding is instituted under the auth- 
ority of divers and sundry Acts of Congress, among 
them the following: 



Honolulu Plantation Co. 71 

The Act of Congress ai)proved March 27, 
1942 (Public Law 507— 77th Congress) 

The Act of Congress approved January 28; 
1944 (Public Law 224— 78th Congress) 

and that the Secretary of Navy, acting under auth- 
ority vested in him by law and pursuant to law, 
has determined that it is necessary to acquire for 
the United States of America by condemnation, un- 
der judicial process, certain land more particularly 
described in Exhibits ''A" and **B", hereto an- 
nexed and made a part hereof as though set forth 
at length. [99] 

II. 

That the land sought to be condemned is located 
in Moanalua, Honolulu, Oahu, Territory of Hawaii, 
and lies wholly within the jurisdiction of the 
United States District Court for the Territorv of 
Hawaii, together with all improvements thereon 
and appurtenances thereunto belonging, as de- 
scribed in said Exhibits "A" and '*B". 

III. 

That attached hereto and made a part hereof is 
a map or plat marked Exhibit ''B'', delineating 
said property. 

IV. 

That the interest sought to be condemned is the 
full fee simple title to said land and all improve- 
ments thereon and appurtenances thereimto belong- 
ing, subject to existing public utility, pipe line, 
and irrigation and drainage easements. 



72 United States of America vs. 

V. 

That the said land and improvements thereon 
and appurtenances thereunto belonging are to be 
acquired under the authority of and for the pur- 
poses set forth in the various Acts of Congress 
hereinabove mentioned, and particularly for use 
in connection with storage facilities and as a site 
for Camp Catlin. 

VI. 

That John Waterhouse, Ernest Hay Wodehouse, 
Walter Francis Frear and John Edward Russell, 
Trustees under the Will and of the Estate of 
Samuel M. Damon, deceased; Samuel Renny Dam- 
on; Honolulu Plantation Company; City and 
County of Honolulu and Territory of Hawaii are 
the owners of or claim to have some interest in 
said land, and that other persons interested therein 
are to the petitioner unknown, and any and all 
persons, companies or corporations o^\Tling, having 
or claiming any right, title, estate, interest, )ien, 
encumbrance, claim or charge in. to or upon the 
land are described as ''Unknown Owners" and are 
designated [100] as John Does One to Fifty and 
Mary Roes One to Fifty, and are named as de- 
fendants in this proceeding. 

VII. 

That the Secretary of Navy of the United States 
has determined that the utmost haste in expediting 
this project is vital to the War purposes of the 
United States and he has therefore determined 
that unmediate possession of said land and all im- 



Honolulu Plantation Co. 



t'i 



provements thereon and api^urtenances thereunto 
belonging, to the extent of the interest to be ac- 
quir(^d therein, is necessary by the United States 
and that certain and adequate provisions have been 
made for the payment of just compensation which 
may be adjudged due for the condemnation of the 
land described in said Exhibits "A" and ''B"; and 
that the petitioner has been in actual possession 
of Parcel D-4, described and shown in said Ex- 
hibits "A" and *'B", from and since July 7, 1942 
under a right of entry granted by John Water- 
house, Ernest Hay Wodehouse, Walter Francis 
Frear and John Edward Russell, Trustees under 
the Will and of the Estate of Samuel M. Damon, 
deceased, and consented to by the Honolulu Plan- 
tation Company; and has likewise been in posses- 
sion of Parcel D-6, described and shown in said 
Exhibits ''A" and **B", under a lease executed 
between the petitioner and John Waterhouse, Er- 
nest Hay Wodehouse, Walter Francis Frear and 
John Edw\ard Russell, Trustees imder the Will and 
of the Estate of Samuel M. Damon, deceased, dated 
June 12, 1942 demising a term beginning July 21, 
1941, which lease as extended expired June 30, 
1944, and that petitioner has remained in posses- 
sion from the date of expiration of said lease ex- 
tended until the present time. That by said right 
of entry, it was provided that in case the Govern- 
ment should undertake to acquire any interest in 
the premises or any part thereof by condenmation 
proceedings, that the said John Waterhouse, Er- 
nest Hav Wodehouse, Walter Francis Frear and 



1 
74 United States of America vs. \ 

John Edward Russell, Trustees under the Will I 
and of the Estate of Samuel M. Damon, deceased, ; 
would claim no damages or any interest in any 
improvements made to the premises by the [101] ' 
petitioner, and further providing that the condi- ; 
tion of the said premises as of the date of the right i 
of entry should be taken for valuation purposes as | 
the condition of the premises on the date of taking 
in said proceedings ; that it was stipulated and ; 
agreed in said lease, that on July 21, 1941 the ; 
property, described herein, w^as unimproved, un- ; 
cleared and unleveled, and that no claim would be : 
made by the lessor for any damages or interest in I 
any improvements placed upon the land by the i 
Government or for any clearing, leveling, utility | 
installations or roads placed thereon by the United I 
States. 

Wherefore, your petitioner prays this Ho)ior- 
able Court to take jurisdiction of this cause and ; 
to make and enter all orders, judgments and de- 1 
crees necessary to determine title of said real es- 
tate condemned, or any part thereof ; and to fix and " 
determme the just compensation due for the con- 
denmation of the aforesaid lands ; that the Court 
adjudge and determine that the immediate posses- : 
sion of said lands be taken to the extent of the 
interest being acquired herein for the War and ; 
Naval purposes of the United States; that upon 
pa\Tnent into the registry of this court for the I 
United States for use of the persons entitled there- ! 
to of the sum adjudged to be full compensation | 
fur the said condemnation of said land, that title j 



Honolulu Plantation Co. 75 

of said land be vested in the United States of 
America in fee simple absolute, subject to the ex- 
ceptions set forth in paragraph IV; and that the 
court make distribution of the final awards among 
the persons entitled thereto as expeditiously as may 
be and for such other and further relief as to the 
Court may seem just and proper in the premises. 

UNITED STATES 
OF AMERICA, 

By /s/ CHAKLES F. RATHBUN, 

Special Asst. to Atty. General. 

By /s/ ROBERT S. TARNEY, 

Special Asst, to Atty. General. 

(Duly Verified.) [102] 

EXHIBIT ''A" 

PARCEL D-4 

Being portions of Lots G and H of Land Court 
Application 1074 Situated at Moanalua, Hono- 
lulu, Oahu, T. H. 

Beginning at the South corner of this parcel 
of land, at the intersection of the new niauka line 
of Kamehameha Highway, said line established by 
Territory of Hawaii Condemnation Law No. 17049, 
and the Ewa boundary of Puuloa Road (Exclusion 
14 of Land Court Application 1074), the true azi- 
muth and distance from a City and County Survey 
Street Monument being 244° 09' 190.74 feet and the 
co-ordinates of said City and Comity Survey Street 
Monument referred to Government Survey Trian- 



76 United States of America vs. 

gulation Station ''Salt Lake" being 10085.47 feet, 
South and 1487.34 feet East, and thence running , 
by azimuths measured clockwise from True South; 
from the above described initial point: \ 

1. 99° 04'— 1635.89 feet along the new mauka iine' 
of Kamehameha Highway, said line established! 
by Territory of Hawaii Condemnation Law No., 
17049; I 

2. 99" 03' 20"— 1812.37 feet along the new maukai 
line of Kamehameha Highway, said line es-' 
tablished by Territory of Hawaii Condemna-I 
tion Law No. 17049; j 

3. Thence on a curve to the left with a radius; 
of 50.00 feet along the remainder of Lot G of' 
Land Court Application 1074, the direct azi-i 
muth and distance being 235° 46' 10" 68.56 feet;! 

4. 192° 29'— 288.52 feet along the remainder of 
Lot G of Land Court Application 1074 ; [104] ] 

5. 189° 04'— 802.03 feet along the remainders of' 
Lots G and H of Land Court Application 1074;! 

6. 276° 20' 40"— 2882.96 feet along the remainder^ 
of Lot H of Land Court Application 1074, : 
along Parcel D-6; i 

7. 9° 04'^84.09 feet along the remainder of Lot ^ 
H of Land Court Application 1074; I 

8. 348° 26'— 337.76 feet along Lot H of Land; 
Court Application 1074; ■ 

9. 273° 14'— 74.80 feet along Lot H of Land Court ; 
Application 1074; j 

10. 251° 39'— 171.50 feet along Lot H of Land; 
Court Application 1074; 



Honolulu Plantation Co. 77 

11. 275° 28'— 97.96 feet along Lot H of Land Court 
Application 1074; 

12. 327° 00—485.39 feet along Lot H of Land 
Court Application 1074; 

13. Thence on a curve to the right with a radius 
of 885.36 feet along the Ewa boundary of 
Puuloa Road (Exclusion 14 of Land Court Ap- 
plication 1074), the direct azimuth and distance 
being 61° 24' 01" 336.82 feet to the point of 
beginning and containing an area of 87.724 
acres. 

WRIGHT, HARVEY & 
WRIGHT, 
By /s/ FRED E. HARVEY, 

Surveyor. [105] 

Honolulu, T. H. June 28, 1944. 

PARCEL D-6 

Being portions of Lots H and J of Land Court 
Application 1074 Situated at Moanalua, Hono- 
lulu, Oahu, T. H. 

Beginning at the most Westerly corner of this 
parcel of land, the co-ordinates of said point of be- 
ginning referred to Government Survey Triangula- 
tion Station ''Salt Lake" being 8298.51 feet South 
and 1945.23 feet West, and thence runnins: by azi- 
muths measured clockwise from true South: 

1. 211° 59' 30"— 190.64 feet along the remainder 
of Lot H and along Lot J of Land Court Ap- 
plication 1074; 



78 United States of America vs. 

2. 221° 03'— 321.00 feet along Lot J of Land 
Court Application 1074 ; 

3. 222° 51'— 283.80 feet along Lot J of Land 
Court Application 1074; 

4. 201° 10'— 473.50 feet along Lot J of Land 
Court Application 1074; 

5. 207° 05'— 82.51 feet along Lot J of Land Court 
Application 1074 to a pipe; 

6. 263° 08' 30"— 185.88 feet along the remainder 
of Lot H of Land Court Application 1074 to a 
pipe; 

7. 234° 54'— 81.89 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe; 

8. 284° 11' — 264.11 feet along the remainder of 
Jjot H of Land Court Application 1074 to a 
pipe ; i 

9. 273° 42' 30"— 228.00 feet along the remainder 
of Lot H of Land Court Application 1074 to a 
pipe ; i 

10. 253° 53' 30"— 353.58 feet along the remainder j 
of Lot H of Land Court Application 1074 to a 
pipe; 

11. 250° 29'— 379.28 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe ; 

12. 233° 54'— 232.37 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe; 

13. 313° 05'— 52.75 feet along the remainder of Lot 
J of Land Court Application 1074 to a pipe; 

14. 310° 07' 30"— 311.80 feet along the remainder 



Honolulu Plantation Co. 79 

of Lots J and H of Land Court Application 
1074 to a pipe ; [106] 

15. 287° 04'— 111.76 feet along the remainders of 
Lots H and J of Land Court Application 1074 
to a pipe; 

16. 261° 29' 30"— 212.56 feet along the remainder of 
Lot J of Land Court Application 1074 to a pii)e ; 

17. 269° 46' 30"— 532.18 feet along the remainder 
of Lot J of Land Court Application 1074 to a 
pipe; 

18. 249° 15'— 184.30 feet along the remainder of 
Lot J of Land Court Application 1074 to a 
pipe ; 

19. 261° 24'— 293.95 feet along the remainder of 
Lot J of Land Court Application 1074 to a 
pipe; 

20. 225° 11'— 365.11 feet along the remainder of 
Lot J of Land Court Application 1074 to a 
pipe; 

21. 300° 44'— 28.55 feet along the remainder of 
Lot J of Land Court Application 1074 to a 
nail driven in rock; 

22. 353° 50'— 135.00 feet along the remainder of 
Lot J of Land Court Application 1074 to a 
nail driven in rock; 

23. 333° 34'— 223.39 feet along the remainder of 
Lot J of Land Court Application 1074 to a 
pipe; 

24. 295° 25'— 238.48 feet along the remainder of 
Lot J of Land Court Application 1074 to a 
pipe; 

25. 46° 04' 30"— 153.24 feet along the remainder of 



80 United States of America vs. 

Lot J of Land Court Application 1074 to a 
pipe; 

26. 36^ 56'— 142.30 feet along the remainder of Lot 
J of Land Court Application 1074 to a pipe; 

27. 10° 49'— 257.90 feet along the remainder of 
Lot J of Land Court Application 1074 to a 
pipe; 

28. 102° 20'— 67.80 feet along the remainder of 
Lot J of Land Court Application 1074 to a 
pipe; 

29. 75° 08' 30"— 57.98 feet along the remainder of 
Lot J of Land Court Application 1074 to a 
pipe ; 

30. 15° 31' 30"— 55.92 feet along the remainder of 
Lot J of Land Court Application 1074 to a 
pipe; 

31. 344° 17'— 97.50 feet along the remainder of Lot 
J of Land Court Application 1074 to a pipe; 

32. 18° 46'— 290.80 feet along the remainders of 
Lots J and H of Land Court Application 1074 
to a pipe; 

33. 133° 40' 30"— 222.30 feet !ilong the rem.ainder 
of Lot H of Land Court Application 1074 to a 
pipe; [107] 

34. 66° 25' 30"— 209.34 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe ; 

35. 337° 22'— 230.59 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe; 

36. 21° 06'— 163.70 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe ; 



Honolulu Plantation Co. 81 

37. 326° 04'— 69.39 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe; 

38. 307° 00' 30"— 123.55 feet along the remainder 
of Lot H of Land Court Application 1074 to a 
pipe; 

39. 253° 02' 30"— 117.89 feet along the remainder 
of Lot H of Land Court Application 1074 to a 
pipe; 

40. 271° 06'— 87.69 feet along the remainder of Lot 
H of Land Court Application 1074 to a pipe; 

41. 353° 16' 30"— 8508 feet along the remainder of 
Lot H of Land Court Application 1074 ^o a 

pipe; 

42. 348° 28'— 213.58 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe; 

43. 345° 06' 30"— 137.92 feet along the remainder 
of Lot H of Land Court Application 1074 to a 
pipe; 

44. 357° 25'— 231.17 feet aloni>- the remainder of 
Lot IT of Land Court Application 1074 to a 
pipe; 

45. 71° 43' 30"— 180.37 feet along the remainder 
of Lot H of Land Court Application 1074 to a 
pipe; 

46. 99° 25' 30"— 149.31 feet along thp remainder of 
Lot H of Land Court Application 1074 to a 
pipe; 

47. 190° 28'— 340.98 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe; 



82 United States of America vs. 

48. 210° 40' 30"— 87.71 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe; 

49. 135° 48' 30"— 216.24 feet along the remainder 
of Lot H of Land Court Application 1074 to a 
pipe; 

50. 82° 01'— 110.23 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe; 

51. 177° 13'— 92.00 feet along the remainder of 
Lot H of Land Court Application 1074 to a 
pipe; 

52. 145° 24' 30"— 125.58 feet along the remainder 
of Lot H of Land Court Application 1074 to a 
pipe; [108] 

53. 116° 48'— 136.72 feet along the remainder of 
Lor, H of Land Court Application 1074 to a 
spike ; 

54. 20° 38' 30"— 385.00 feet along the remainder of 
Lot H of Land Court Application 1074 ; 

55. 96° 20' 40"— 3415.67 feet along the remainder 
of Lot H of Land Court Application 1074. 
along Parcel D-4 to the point of beginning and 
containing an area of 128.40 acres. 

Honolulu, T. H. June 28, 1944. 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 
Surveyor. 

' [Endorsed] : Filed Aug. 10, 1944. [109] 



Honolulu Plantation Co. 83 

[Title of District Court and Cause No. 525.1 

ANSWER OF HONOLULU PLANTATION CO. 

Comes now Honolulu Plantation Company, one 
of the defendants named in the above entitled mat- 
ter, and for answer to the petition for condemna- 
tion filed herein admits, denies and alleges as fol- 
lows : 

I. 

That with respect to the allegations cotjtained 
in paragraphs I, II, III, IV, V. VI, and VII, 
except as hereinafter alleged, this defendant has 
insufficient information to either admit or deny the 
same and leaves the petitioner to its proof there- 
of. 

11. 

That with respect to the allegations contained in 
paragraph VII of said petition this defendant al- 
leges that it holds a leasehold interest in certain 
of the properties described in the exhibits attached 
to said petition. 

Wherefore this defendant prays tl lat the court 
determine [112] the interest and estate of this de- 
fendant in and to the parcels of land sought to be 
condemned by the petitioner in these proceedings, 
and that the court determine the compensation and 
damages to be awarded to this defendant for the 
taking of its property, and that this defendant be 
allowed its costs herein and such other and fur- 



84 United States of America vs. 

ther relief as the court may deem meet and just 
in the premises. 

Dated Honolulu, T. H., October 24, 1944. 

HONOLULU plantatio:n 

COMPANY, 

(Seal) By /s/ P. E. SPALDING, 
Attorney-in-Fact. 

(Duly Verified.) 

[Endorsed] : Filed Nov. 2, 1944. [113] 



[Title of District Court and Cause No. 525.] 

DECLARATION OF TAKING 

Whereas, pursuant to the Acts of Congress ap- 
proved March 27, 1942 (Public Law 507, 77th Con- 
gress), and January 28, 1944 (Public Law 224, 
78th Congress), the above-styled condemnation pro- 
ceeding has been instituted. 

Now, Therefore, pursuant to the provisions of the 
Act of Congress approved February 26, 1931 (46 
Stat. 1421), I, Secretary of the Navy, do hereby 
make and cause to be filed this declaration of tak- 
ing, and by virtue of authority thereof do hereby 
state that the lands selected for acquisition ag- 
gregate 216.124 acres, more or less, at Moanalua, 
Honolulu, Oahu, Territory of Hawaii, more par- 
ticularly described in Exhibit ''A" attached hereto 
and made a part hereof. The lands are delineated 
on a map entitled, "Composite Boundary Map, 



H 



Honolulu Plantation Co. 85 

Portions of the Lands of the Estate of Emma Kale- 
leonalani, Deceased, at Halawa, Ewa, Oahu, T. H., 
and the Estate of S. M. Damon, deceased, at Moan- 
ahia, Honolulu, Oahu, T. H., "desit^nated as .14th 
N. D. Dwg. No. OA-Nl-942, attached hereto as 
Exhibit "B" and made a part hereof. [114] 

And I do declare said lands to be taken under 
the authority of the aforesaid Acts of Congress; 
that the uses to which said lands are to be put are 
a storage area and a site for Camp Catlin and 
Fleet School, as authorized by said Acts; and that 
the estate hereby taken in said lands is a fee simple 
title, subject to existing public utility, pipe line, 
irrigation and drainage easements. 

And I, Secretary of the Navy, do hereby state 
that the sum of money estimated by me to be just 
compensation for said lands and all improvements 
thereon and appurtenances thereunto belonging is 
Sixty-five thousand, four hundred four dollars and 
sixty-five cents ($65,404.65), which sum is hereby 
deposited into the registry of the court for the use 
and benefit of the persons entitled thereto, and 
that the names of the owners of said property and 
improvements thereon which are hereby taken are 
shown on Schedule '^A" which is attached hereto 
and made a part of this declaration of taking. 

I am of the opinion that the ultimate award for 
the taking of said lands will be within the limits 
prescribed by Congress. 

In Witness Whereof, the Petitioner, by and 
through the Secretary of the Navy, has caused this 
declaration of taking to be signed and the seal of 



86 United States of America vs. 

the Navy Department to be affixed hereto in the 
City of Washington, District of Cohimbia, this fif- 
teenth day of January, 1945. 

UNITED STATES 
OF AMERICA, 

(Seal) By /s/ JAMES FORRESTAL. [115] 

SCHEDULE ''A" 

The names of the persons having title to or other 
interest in the lands described in the within declar- 
ation of taking, and the amounts estimated to be 
fair compensation for each respective o\\Tiership, 
including all improvements thereon, are as follows: 





Estimated Just 


Parcel Name of Owner Acres 


Compensation 


D-4 Estate of Samuel M. Damon 87.724 


$ 29,069.12 


Honolulu Plantation Co., Lessee 


10,655.53 


D-6 Estate of Samuel Damon 128.400 


25,680.00 


216.124 


$ 65,404.65 



[Printer's Note: Exhibit "A" (description of 
land) attached to Declaration of Taking is sim- 
ilar to Exhibit ''A" attached to Petition for Con- 
demnation and set out at pages 75-82 of this 
printed Record.] 

[Endorsed] : Filed Feb. 10, 1945. [116] 



Honolulu Plantation Co. 87 

In the District Court of the United States 
For the District of Hawaii 

Civil No. 525 

UNITED STATES OF AMERICA, 

Petitioner, 
vs. 

216.124 ACRES OF LAND, more or less, in Moan- 
alua, Honolulu, Oahu, Territory of Hawaii; 
John Waterhouse, Ernest Hay Wodehouse, 
Walter Francis Frear and John Edward Rus- 
sell, Trustees under the Will and of the Estate 
of Samuel M. Damon, Deceased, et aL, 

Defendants. 

ORDER AND JUDGMENT ON DECLARA- 
TION OF TAKING 

It appearing- that on the 10th day of August, 
1944, the United States of America filed a petition 
for condemnation of certain lands described and 
shown on Exhibits ''A" and ''B" attached to De- 
claration of Taking; and 

It further appearing that there was filed on the 
10th day of February, 1945, a Declaration of Tak- 
ing signed by James Forrestal, Secretary of the 
Navy, imder and pursuant to provisions of the 
Act of Congress approved February 26, 1931 (46 
Stat. 1421), declaring taken the full fee simple 



88 United States of America vs. 

title, together with all improvements thereon and 
appurtenances thereunto belonging, as limited in 
the Declaration of Taking; that the uses of said 
land and improvements thereon and appurtenances 
thereunto belonging are those described in the said 
Declaration of Taking and in the Petition ; and 
that the said Declaration of Taking sets forth the 
estimate of just compensation made pursuant to 
law and that contemporaneously with the filing of 
said Declaration of Taking, there was deposited in 
the registry of this Court for the use of the [124] 
persons entitled thereunto the sum of Sixty-five 
Thousand, Four Hundred Four Dollars and Sixty- 
five Cents ($65,404.65), 

It Is Ordered, Adjudged and Decreed that by 
virtue of the filing of said Declaration of Taking 
and the deposit of said money, fee simple title to 
the lands described and showTi on Exhibits "A'* 
and ''B", attached to said Declaration of Taking, 
including all improvements and appurtenances up- 
on said lands, as limited by the said Declaration 
of Taking, is indefeasibly vested in the United 
States of America; and 

It Is Further Ordered that a copy of this Order 
be promptly served by the United States Marshal 
upon each of the defendants named and upon each 
and every person, company or corporation in pos- 
session of said land at the time possession was sur- 
rendered to the petitioner. The Marshal is further 
ordered to post a copy hereof in a conspicuous 



Honolulu Plantation Co. 89 

place on the premises and to forthwith make due 
return of his said service to this Court. 

Dated Honolulu, T. H., this 10th day of P'ebru- 
ary, 1945. 

/s/ J. FRANK Mclaughlin, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Feb. 10, 1945. [125] 



90 United States of America vs. 

In the District Court of the United States 
For the District of Hawaii 

April Term 1944 

Civil No. 527 

UNITED STATES OF AMERICA, 

Petitioner, 

vs. 

93.355 ACRES OF LAND, more or less, in Moan- 
alua, Honolulu, Oahu, Hawaii, John Water- 
house, Ernest Hay Wodehouse, Walter Francis 
Frear and John Edward Russell, Trustees im- 
der the Will and of the Estate of Samuel M. 
Damon, deceased, et al.. 

Defendants. 

PETITION FOR CONDEMNATION 

To the Honorable, the Presiding Judges of the 
United States District Court for the District of 
of Hawaii: 

Now^ comes the United States of America, by 
Charles F. Rathbun and Robert So Tarney, Special 
Assistants to the Attorney General, acting under 
the instructions of the Attorney General of the 
United States and at the request of the Secretary 
of Navy of the United States, and respectfully 
represents to the Court: 

I. 

That this proceeding is instituted under the auth- 
ority of divers and sundry Acts of Congress, among 
them the following: 



Honolulu Plantation Co. 91 

The Act of Congress approved March 27, 
1942 (Public Law 507— 77th Congress) 

The Act of Congress approved January 28, 
1944 (Public Law 22^^78th Congress) 

and that the Secretary of Navy, acting under auth- 
ority vested in him by law and pursuant to law, 
has determined that it is necessary to acquire for 
the United States of America by condemnation, un- 
der judicial ])rocess, certain land more particularly 
described in Exhibit '^A", hereto annexed and 
made a part hereof as though set forth at lencrth. 

IT. 

That the land sought to be condemned is loc ited 
in Moanalua, Honolulu, Oahu, Territory of Hawaii, 
and lies wholly within the jurisdiction of the 
United States District Court for the Territory of 
Hawaii, together with all improvements thereon 
and appurtenances thereunto belonging, as de- 
scribed in said Exhibit ^'A". 

III. 

That attached hereto and made a part hereof is 
a may) or plat marked Exhibit ''B", delineating 
said property. 

IV. 

That the interest sought to be condemned is the 
full fee simple title to said land ancl all improve- 
ments thereon and appurtenances thereunto belong- 
ing, subject to existing public utility, pipe line, 
and irrigation and drainage easements and subject 
to the right of the public to use the boundary 
roads to the area. 



92 United States of America vs. 

Y. 

That the said land and improvements thereon and 
appurtenances thereunto belonging are to be ac- 
quired under the authority of and for the purposes 
set forth in the various Acts of Congress herein- 
above mentioned, and particularly for use as a 
storage area and in connection with the Naval Air 
Station, Honolulu, Hawaii. 

IV. 

That the interests sought to be condemned is the 
title in fee simple absolute. [JFMc Amended 3-9- 
45] 

V. 

That the said land is to be acquired under the 
authority of and for the purposes set forth in the 
various Acts of Congress hereinabove mentioned, 
and particularly for use as a storage area and in 
connection with the Naval Air Station, Honolulu, 
Hawaii. [JFMc Amended 3-9-45] 

VI. 

That John Waterhouse, Ernest Hay Wodehouse, 
Walter Francis Frear and John Edward Russell, 
Trustees mider the Will and of the Estate of 
Samuel M. Damon, deceased; Honolulu Plantation 
Company, Albert Waterhouse, Gretchen Water- 
house, City and County of Honolulu and Territory 
of Hawaii are the owners of or claim to have some 
interest in said land. 

VII. 

That the Secretary of Navy of the United States 
has determined that the utmost haste in expediting 
this project is vital to the War purposes of the 



Honolulu Plantation Co. 93 

United States and he has therefore determined that 
immediate [128] possession of said land and all im- 
provements thereon and appurtenances thereimto 
belonging, to the extent of the interest to be ac- 
quired therein, is necessary by the United States 
and that certain and adequate provisions have been 
made for the payment of just compensation which 
may be adjudged due for the condemnation of the 
land described in said Exhibits "A" and ''B'', and 
that the j^etitioner has been in actual possession 
of Parcels D-9 and D-10 described and shown in 
said Exhibits "A" and ''B", from and since Oc- 
tober 1, 1943 under a right of entry granted by 
John AVaterhouse, Ernest Hay Wodehouse, Wal- 
ter Francis Frear and John Edward Russell, 
Trustees under the Will and of the Estate of Sam- 
uel M. Damon, deceased; and has likewise been 
in possession of Parcels D-7 and D-8, described 
and shown in said Exhibits ^'A" and ''B", under 
a lease executed between the petitioner and John 
AVaterhouse, Ernest Hay Wodehouse, Walter 
Francis Frear and John Edward Russell, Tj'ustees 
under the Will and of the Estate of Sam.uei M. 
Damon, deceased, dated May 1, 1942, demising a 
teriii beginning on that date, which lease as ex- 
tended expired June 30, 1944, and that petitioner 
has remained in possession from the date of ex- 
piration of said lease extended until the present 
time. That by said right of entry, it was provided 
that in case the Government should undertake to 
acquire any interest in the premises or any part 
thereof by condemnation proceedings, that the said 



94 United States of America vs. 

John Waterhouse, Ernest Hay Wodehouse, Walter 
Francis Frear and John Edward Russell, Trustees 
under the Will and of the Estate of Samuel M. 
Damon, deceased, would claim no damages or any 
interest in any improvements made to the premises 
by the petitioner, and further providing that the 
condition of the said premises as of the date of 
the right of entry should be taken for valuation 
purposes as the condition of the premises on the 
date of taking in said proceedings; that it was 
stipulated and agreed in said lease that on May 1, 
1942, the property described herein was unimproved 
and vacant and that no claim would be made by 
tlie lessor for any damages or interest in any im- 
provements placed upon the land by the Govern- 
ment or for any clearing, leveling or utility in- 
stallations placed thereon by the United States. 

Wherefore, your petitioner prays this Honorable 
Court to take jurisdiction of this cause and to make 
and enter all orders, judgments and decrees neces- 
sary to determine title of said real estate con- 
demned, or any part thereof; and to fix and deter- 
mine the just compensation due for the condemna- 
tion of the aforesaid lands ; that the Court adjudge 
and determine that the immediate possession of said 
lands be taken to the extent of the interest being 
acquired herein for the War and Naval purposes 
of the United States; that upon payment into the 
registry of this Court for the United States for 
the use of the persons entitled thereto the sum ad- 
judged to be full compensation for the said con- 
demnation of said land, that in said lands there 



Honolulu Plantation Co. 95 

be vested in the United States of America title in 
fee simple absolute; and that the Court make dis- 
tribution of the final awards among the persons 
entitled thereto as expeditiously as may be and for 
such other and further relief as to the Court may 
seem just and proper in the premises. 

UNITED STATES 
OF AMERICA, 

By /s/ CHARLES F. RATHBUN, 

Special Asst. to the Atty. Gen. 

By /s/ ROBERT S. TARNAY, 

Special Asst. to the Atty. Gen. 

(Duly Verified.) [130] 

EXHIBIT ''A" 

PARCEL D-7 

Being a portion of Lot C of Land Court Application 
1074 at Moanalua, Honolulu, Oahu, T. H. 

Beginning at the Northeast corner of this parcel 
of land, on the new makai line of Dillingham Bou- 
levard, said line established b}^ Territory of Hawaii 
Condenmation Law No. 17049, filed June 19, 1943, 
and the co-ordinates of said i:>oint of beginning re- 
ferred to Government Survey Triangulation Sta- 
tion '^Salt Lake'' being 9396.08 feet South and 
3763.31 feet West and thence running by azimuths 
ineasured clockwise from True South: 

1. 9° 07'— 1361.60 feet along Lots B-484 to B- 
493 (inclusive) of Land Court Application 
1074; 

2. 97° 19'— 1809.23 feet along the remainder of 



96 United States of America vs. 

Lot C of Land Court Application 1074, along 
Parcels D-11, D-10 and D-8; 

3. 186° 35' 30"— 39.65 feet along the remainder 
of Lot C of Land Court Application 1074, 
along the East side of Territory of Hawaii 
Project No. DA-NR 10 (2), the same being 
established by Territory of Hawaii Condemna- 
tion Law No. 17194, filed November 26, 1943; 

4. 189° 03' 20"— 1329.58 feet along the remain- 
der of Lot C of Land Court Application 1074, 
along the East side of Territory of Hawaii 
Project No. DA-NR 10 (2), the same being 
established by Territory of Hawaii Condemna- 
tion Law No. 17194, filed November 26, 1943 ; 

5. Thence along the remainder of Lot C of Land 
Court Application 1074, along Territory of 
Hawaii Project No. DA-NR 10 (2), the same 
being established by Territory of Hawaii Con- 
demnation Law No. 17194, filed November 26, 
1943, on a curve to the right with a radius of 
50.00 feet, the direct azimuth and distance be- 
ing 234° 03' 20" 70.71 feet: [131] 

6. 279° 03' 20"— 1761.44 feet along the new makai 
line of Dillingham Boulevard, said line estab- 
lished by Territory of Hawaii Condemnation 
Law No. 17049, filed June 19, 1943 to the point 
of beginning and containing an area of 57.728 
Acres. 

Honolulu, T. H. July 24, 1944. 

WRIGHT, HARVEY & 
WRICHT, 
By /s/ FRED E. HARVEY, 

Surveyor. [132] 



Honolulu Plantation Co. 97 

PARCEL D-8 

Being a portion of I^ot C of Land Court Applica- 
tion 1074 at Moanalua, Honolulu, Oahu, 'J.'. H. 

Beginning at the Northeast corner of this parcel 
of land, being also the Northwest corner of Parcel 
D-10, the co-ordinates of said point of beginning 
referred to Government Survey Triangulation Sta- 
tion ''Salt Lake" being 10,673.43 feet South and 
5401.24 feet West and thence running by azimuths 
measured clockwise from True South: 

1. f}° 07'— 600.00 feet along the remainder of Lot 
C of Land Court Application 1074, along Par- 
cel D-10; 

2. 97° 19'— 1153.64 feet along the remainder of 
Lot C of Land Court Application 1074, along 
Parcel D-9; 

3. 189° 03' 20"— 58.55 feet along thp remairder of 
Lot C of Land Court Application 1074, along 
the East side of Territory of Hawaii Project 
No. DA-NR 10 (2), the same being established 
by Territory of Hawaii Condemnation Law No. 
17194, filed November 26 ; 1943 ; 

4. Thence along the remainder of Tiot C of Land 
Court Application 1074, along Territory of 
Hawaii Project No. PA-NR 10 (2), the same 
being established by Territory of Hawaii Con- 
demnation Law No. 17194, filed November 26, 
1943, on a curve to the ri^ht ^^ith a radius of 
109-91 feet, the direct azimuth and distance be- 
ing 142° 49' 25" 152.06 feet; 

5. 186° 35' 30"— 432.74 feet along the remainder 



98 United States of America vs. 

of Lot C of Land Court Application 1074, 
along the East side of Territory of Hawaii 
Project No. DA-NR 10 (2), the same being 
established by Territory of Hawaii Condemna- 
tion Law No. 17194, filed November 26, 1943; 
6. 277° 19'— 1282.75 feet along the remainder of 
Lot C of Land Court Application 1074, along 
Parcel D-7 to the point of beginning and con- 
taining an area of 17.281 Acres. 

Honolulu, T. H. July 24, 1944. 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 

Surveyor. [133] 

PARCEL D-9 

Being a portion of Lot C of Land Court Applica- 
tion 1074 At Moanalua, Honolulu, Oahu, T. H. 

Beginning at the Northeast corner of this parcel 
of land, the co-ordinates of said point of beginning 
referred to Government Survey Triangulation Sta- 
tion ''Salt Lake" being 11,265.85 feet South and 
4596.31 feet West and thence running by azimuths 
measured clockwise from True South- 

1. 9° 07'— 252.35 feet along the remainder of Lot 
C of Land Court Application 1074, along Par- 
cel D-10; 

2. 46° 30' 30"— 288.98 feet along John Rodgers 
Airport ; 

3. 90° 00'— 1048.80 feet along United States Mili- 
tary Reservation; 



Honolulu Plantation Co. 99 

4. 180° 00—563.89 feet along United States Mili- 
tary Reservation; 

5. Thence along the remainder of Lot C of Land 
Court Application 1074, along Territory of 
Hawaii Project No. DA-NR 10 (2), the same 
being established by Territory of Hawaii Con- 
demnation Law No. 17194, filed November 26, 
1943, on a curve to the right with a radius of 
804.51 feet, the direct azimuth and distance 
being 273° 46' 30" 148.08 feet; 

6. 189° 03' 20"— 41.45 feet along the remainder 
of Lot C of Land Court Application 1074, 
along the East side of Territory of Hawaii 
Project No. DA-NR 10 (2), the same bemg 
established by Territory of Hawaii Condemna- 
tion Law No. 17194, filed November 26, 1943; 

7. 277° 19'— 1153.64 feet along the remainder of 
Lot C of Land Court Application 1074, along 
Parcel D-8 to the point of beginning and con- 
taining an area of 14.914 Acres. 

Honolulu, T. H. July 25, 1944. • 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 

Surveyor. [134] 



100 United States of America vs. 

PARCEL D-10 

Being a portion of Lot C of Land Court Applica- 
tion 1074 At Moanalua, Honolulu, Oahu, T. H. ;| 

Beginning at the Northwest corner of this parcel 
of land, being also the Northeast corner of Parcel 
D-8, the co-ordinates of said point of beginning 
referred to Government Survey Triangulation Sta- 
tion ''Salt Lake" being 10,673.43 feet South and 
4501.24 feet West and thence running by azimuths 
measured clockwise from True South: 

1. 277° 19'— 225.37 feet along the remainder of 
Lot C of Land Court Application 1074, along 
Parcel D-7; 

2. 9° 07'— 509.78 feet along the remainder of Lot 
C of Land Court Application 1074, along Par- 
cel D-11; 

3. 99° 07'— 97.70 feet along the remainder of 
Lot C of Land Court Application 1074, along 
Parcel D-11; 

4. 9° 07' — 255.44 feet along the remainder of I^ot 
C of Land Court Application 1074, along Par- 
cel D-11; 

5. 122° 30' 30"— 45.49 feet along John Rodgers 
Airport ; 

6. 46° 30' 30"— 141.32 feet along John Rodgers 
Airport ; 

7. 189° 07'— 852.35 feet along the remainder of 



Honolulu Plantation Co. 101 

Lot C of Land Court AiJplication 1074, along 
Parcels D-9 and D-8 to the point of beginning 
and containing an area of 3.432 Acres. 

WRIGHT, HARVEY & 
WRIGHT, 

By /s/ FRED E. HARVEY, 
Surveyor. 

Honolulu, T. H. July 24, 1944. 

[Endorsed] : Filed Aug. 28, 1944. [135] 



[Title of District Court and Cause No. 527.] 

DECLARATION OF TAKING 

Whereas, pursuant to the Acts of Congress ap- 
])roved March 27, 1942 (Public Law 507, 77th Con- 
gress), and January 28, 1944 (Public Law 224, 
78th Congress), the above-styled condemnation pro- 
ceeding has been instituted. 

Now, Therefore, pursuant to the provisions of 
the Act of Congress approved February 26, 1931 
(46 Stat. 1421), I, Secretary of the Navy, do hereby 
make and cause to be filed this declaration of tak- 
ing, and by virtue of authority thereof do hereby 
state that the lands selected for acquisition aggre- 
gate 93.355 acres, more or less, at Moanalua, Hono- 
lulu, Oahu, Hawaii, more particularly described 
in Exhibit "A" attached hereto and made a part 
hereof. The lands are delineated on a map en- 
titled, ''Composite Boundary Map, Portions of the 



102 United States of America vs. 

Lands of the Estate of Emma Kaleleonalani, De- 
ceased, at Halawa, Ewa, Oahu, T. H., and the j 
Estate of S. M. Damon, Deceased, at MoanaJua, i 
Honolulu, Oahu, T. H.," designated as 14th N. D. j 
Dwg. No. OA-Nl-942, attached hereto as Exhibit | 
*'B" and made a part hereof. [137] /> 

And I do declare said lands to be taken under ■ 

the authority of the aforesaid Acts of Congress; ; 

that the use to which said lands are to be put is ' 

a storage area for use in connection with the Naval j 

Air Station, Honolulu, Hawaii, as authorized by | 
said Acts ; and that the estate hereby taken in said 

lands is title in fee simple absolute. ' 

And 1, Secretary of the Navy, do hereby state \ 
that the sum of money estimated by me to be just ; 
compensation for said lands and all improvements I 
thereon and appurtenances thereunto beloni>ing is ^ 
Forty-four thousand, eight hundred and ten dollars 
and forty cents ($44,810.40), which sum is hereby ' 
deposited into the registry of the court for the use ; 
and benefit of the persons entitled thereto, and that ! 
the names of the owners of said property and im- 
provements thereon which are hereby taken are i 
shown on Schedule ^^A" which is attached hereto i 
and made a part of this declaration of taking. i 

I am of the opinion that the ultimate awai'd for 

the taking of said lands will be within the limits ; 

preseiibed by Congress. ' 

In Witness Whereof, the Petitioner, by and i 

through the Secretary of the Navy, has caused this - 



Honolulu Plantation Co. 103 

declaration of taking to be signed and the :v ai of 
the Navy Department to be affixed hereto the thir- 
teenth day of February, 1945, in the City of Wash- 
ington, District of Columbia. 

UNITED STATES 
OF AMERICA, 

(Seal) By /s/ RALPH A. BARD, 

Acting Secretary of the Navy. 

SCHEDULE ''A" 

The names of the persons having title to or other 
interest in the lands described in the within decla- 
ration of taking, and the amounts estimated to ])i' 
Pair compensation for each respective ownership, 
including all improvements thereon, are as follows: 









Estimated Just 


Parcel 


Name of Owner 


Acres 


Compensation 


D-7 


Samuel M. Damon Estate 


57.728 


$ 44,810.40 


U-8 


( ( a 


17.281 




D.9 


(( (t 


14.914 




D-10 


< ( ( ( 

Totals 


3.432 






93.355 


$ 44,810.40 



[Printer's Note: Exhibit ^'A" (description of 
land) attached to Declaration of Taking is sim- 
ilar to Exhibit ''A" attached to Petition for Con- 
demnation and set out at pages 95 to 100 of this 
printed Record.] 

[Endorsed] : Filed Mar. 9, 1945. [139] 



104 United States of America vs. 

In the District Court of the United States 
for the District of Hawaii 

October Term 1944 

Civil No. 527 

UNITED STATES OF AMERICA, 

Petitioner, 

vs. 

93.355 ACRES OF LAND, more or less, in Moana- 
lua, Honolulu, Oahu, Hawaii, John Waterhouse, 
Ernest Hay Wodehouse, Walter Francis Frear 
and John Edward Russell, Trustees under the 
Will and of the Estate of Samuel M. Damon, 
deceased, et al.. 

Defendants. 

ORDER AND JUDGMENT ON DECLARATION 
OF TAKING 

It appearing that on August 28, 1944, the United 
States of America filed a petition for condemna- 
tion of certain lands described and shown on Ex- 
hibits ''A" and "B", attached to the Declaration 
of Taking; and 

It further appearing that there was filed on the 
9t]i day of March, 1945, a Declaration of Taking 
signed by James Forrestal, Secretary of the Navy, 
undei* and pursuant to provisions of the Act of 
Congress approved February 26, 1931 (46 Stat. 
1421), declaring taken the title in fee simple abso- 
lute: that the uses of said land are those described 
in the said Declaration of Taking and in the Peti- 



Honolulu Plantation Co. 105 

lion; iind that the said Declaration of Taking sets 
forth the estimate of just compensation made pur- 
suant to law and that contemporaneously with the 
filing- of said Declaration of Taking, there was 
deposited in the registry of this Court for the use 
of the persons entitled thereunto the sum of Forty- 
Four Tliousand Eight Hundred Ten and 40/100 
Dollars ($44,810.40), 

It is ordered, adjudged and decreed that by 
virtue of the filing of said Declaration of Taking 
and the deposit of said money, title in fee sim])le 
[147] absolute to the lands described and shown 
on Exhibits "A" and ''B", attached to the said 
Declaration of Taking, is indefeasibly vested in 
the United States of America; and 

It is further ordered that a copy of this Order 
be promptly served by the United States Marshal 
upon each of the defendants named and upon each 
and every person, company or corporation in pos- 
session of said land at the time possession was sur- 
rendered to the petitioner. The Marshal is further 
ordered to x^ost a copy hereof in a conspicuous 
place on the premises and to forthwith made due 
return of his said service to this Court. 

Dated: Honolulu, T. H., this 9th day of March, 
1945. 

/s/ J. FRANK IMcLAUGHI^IN, 
Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed]: Filed Mar. 9, 1945. [148] 



106 United States of America vs. 

[Title of District Court and Cause No. 527.] 

ANSWER OF HONOLULU PLANTATION 
COMPANY 

ONE OF THE DEFENDANTS ABOVE NAMED 

Comes now Honolulu Plantation Company, a 
corporation, organized under the laws of the State 
of California, and doing business in the Territory 
of Hawaii, one of the defendants in the above 
entitled cause, and for answer to the petition filed 
herein says: 

L 

That it has neither knowledge or information 
sufficient to form a belief as to the allegations set 
forth and contained in Paragraphs I, III, IV, V, 
A^I and VII of said petition, and therefore it 
neither admits nor denies the same but leaves the 
petitioner to its proof thereof. 

II. 

That it admits the allegations contained in Para- 
graph II of said petition. 

III. 

That with respect to the allegations of said peti- 
fiou that it claims an interest in the property de- 
scribed in said petition this defendant admits the 
same and alleges that at the time of the [150] filing- 
of said petition and until judgment or order was 
entered on declaration of taking filed in said causes 
it was the owner of an interest in the lands and in 
some of the improvements thereon and also admits 
that its lessor has an interest in the lands described 
in said petition which are under lease to this de- 



Honolulu Plantation Co. 107 

fendaiit; that the lease creating such interest and 
estate will be submitted to the Court on the trial 
of said causes. 

And this defendant further alleges as follows: 

That for and during a period of over forty years 
this defendant has been continuously operating and 
conducting and is now operating and conducting 
a sugar mill and plantation at Aiea in the District 
of Ewa, Island of Oahu, T. H., and has been at all 
times during said period and now is engaged in 
the business of growing sugar cane and manufac- 
turing sugar therefrom; 

That most of the acreage of land taken, by rea- 
son of the fertility of the soil thereon, their low 
elevation, and the comparatively small expense 
with which they can be irrigated, is peculiarly 
adapted to the cultivation and growth of sugar 
(*ane, and that this defendant was at the time of 
the filing of the petition in this cause and until 
the date fixed for the surrendering of possession 
])y the judgment or order on the Declaration of 
Taking ent(^red in this cause and for many years 
prior thereto had been profitably using said lands 
for the cultivation and growth of sugar cane: 

That the lands included within the area sought 
to be condemned which are held by this defendant, 
under lease as aforesaid have a special and en- 
hanced value by reason of the establishment by 
this defendant of a sugar mill and works, in close 
proximity to said lands, for the manufacture of 
sugar from cane grown and cultivated thereon and 



108 United States of America vs. 

on other lands OAvned and/or leased by this de- 
fendant and by reason of the development by this 
defendant of a water supply [151] for the irriga- 
tion of said lands, and other lands as aforesaid by 
means of artesian wells, pumping machinery and 
otherwise ; 

That for the purpose of cultivating the sand 
lands, this defendant has constructed improvements 
thereon ; 

That the parcel of land sought to be condemned 
by said petition in which this defendant has lease- 
hold interest was at the time of the filing of the 
said petition in this cause and until judgment or 
order was entered on Declaration of Taking filed 
in this cause, and for many years prior thereto 
had been, occupied and cultivated by this defend- 
ant as integral parts of the sugar plantation oper- 
ated and conducted by it at Aiea aforesaid and in 
connection mth other large and contiguous tracts 
situated outside of the lands described in said peti- 
tion but comprised within the said plantation and 
demised to this defendant by a number of leases 
and that by the taking of said lands described in 
the said petitions the integrity of said sugar planta- 
tion will be destroyed and the unitary value of the 
leasehold interests and estates of this defendant 
in such other and contiguous tracts of land will be 
greatly impaired and diminished. 

AATierefore this defendant prays (1) that the 
damages suffered by this defendant by reason of 
tlie taking of the lands and properties described 



Honolulu Plantation Co. 109 

in said petitions may be determined and the amount 
thereof be awarded to and paid to this defendant, 
and (2) for such other and general relief as may 
be meet and proper in the premises. 

Dated: Honolulu, T. H., June 18, 1946. 

HONOLULU PLANTATION 
COMPANY, 

By VITOUSEK, PRATT & WINN, 
Its Attorneys, 

Defendant above named. 

[Endorsed] : Filed June 18, 1946. [152] 



110 United States of America vs. 

In the District Court of the United States 
for the District of Hawaii 

April Term 1944 

Civil No. 529 

UNITED STATES OF AMERICA, 

Petitioner, 
vs. 

344.893 ACRES OF LAND, more or less, at Ma- 
nana and Waiawa, Ewa, Oahii, Territory of 
Hawaii; Oahii Railway and Land Company, an 
Hawaiian Corporation, et al.. 

Defendants. 

PETITION FOR CONDEMNATION 

To the Honorable, the Presiding Judges of the 
LTnited States District Court for the District of 
Hawaii. 

Now comes the United States of America, by 
Robert S. Tarnay, Special Assistant to the Attor- 
ney General, acting under the instructions of tho 
Attorney General of the United States and at the 
request of the Secretary of Navy and respectfully 
represents to the Court 

I. 
That this proceeding is instituted under the au- 
thority of divers and simdry acts of Congress, 
among them the following: 

The Act of Congress approved March 27, 1942 

(Public Law 507— 77th Congress) 
The Act of Congress approved April 28, 1942 
(Public Law 528— 77th Congress) 



Honolulu Plantation Co. Ill 

The Act of Congress approved June 26, lf)43 
(Public Law 92— 78th Congress) 
and that the Secretary of Navy, acting under au- 
thority vested in liim by law has determinefl tha^ 
it is necessary that the United States of America 
acquire by condemnation by judicial process certain 
land, more particularly described in Exhibit "A'', 
hereto annexed and made a part hereof as though 
set forth at length and shown upon the map marked 
Exhibit *'B", also attached hereto. [154] 

II. 

That the lands sought to be condemned are lo- 
cated at Manana and Waiawa, Ewa, Oahu, T. H., 
and lie wholly within the jurisdiction of this Court. 

III. 

That the interests sought to be condemned in this 
action are as follows: 

Parcels A-1, A-2, A-3, A-4, A-5, A-6, B-1, B-2, 
C-1 and C-2, described and shown on Exhibits ''A'' 
and '^B" — full fee simple title and all improve- 
uK^nts thereon and appurtenances thereunto be- 
longing: 

Parcel B-3, described and shown on Exhibits 
"A'' and ''B" — fee simple title to said land and 
all iinprovements thereon and appurtenances there- 
unto belonging, subject to public utility and pipe- 
line easements and irrigation and drainage rights- 
of-way, if any, and also subject to the right of the 
])ublic to use the boundary roads of the area; 

Parcels A-7, A-8, A-9, A-10, B-4, B-5, B-6, B-7, 
B-8, B-9, E-1, E-2, E-3, E-4, E-5, F-1, F-2 and T-1, 
described and shown on Exhibits ''A'' and ''B'' — 



112 United States of America vs. 

fee simple title to said land and all improvements 
thereon and appurtenances thereunto belonging, 
subject to public utility, pipeline irrigation and 
drainage easements, and railroad easements, if any, 
and subject also to the right of the public to use 
the road delineated as Parcel B-7 and described 
and shown on Exhibits "A" and "B", attached 
hereto. 

IV. 

That the said land and improvements thereon 
and appurtenances thereunto belonging are to be 
acquired under the authority [155] of and for the 
purposes set forth in the various acts of Congress, 
hereinabove mentioned and particularly for use in 
connection vdth the Manana Construction Battalion 
Camp and Storage Area. 

Y. 

That the Oahu Railway and Land Company, an 
Hawaiian corporation, the Hawaiian Land and Im- 
provement Company, an Hawaiian corporation; 
George Miles Collins, John Kirkwood Clarke, 
Frank Elbert Midkiff, Edmn Puahaulani Murray, 
and Joseph Boyd Poindexter, Trustees of the 
Estate of Bernice P. Bishop, deceased; A. Lester 
Marks, Elizabeth Loy Marks, and Elizabeth Janet 
Cartwright McCandless, Trustees under the Will 
and Estate of L. L. McCandless, deceased; A. Les- 
ter Marks, Executor of the Estate of L. L. Mc- 
Candless, deceased; and Bishop Trust Company, 
Ltd., an Hawaiian corporation. Administrator with 
the Will Annexed of the Estate of L. L. McCand- 
less, deceased; Territory of Hawaii, City and 



Honolulu Plantation Co. 113 

County of* Honolulu; Honolulu Plantation Com- 
pany, an Hawaiian corporation; the Hawaiian 
Land & Trust Company, Ltd., Honolulu, T. H., 
Trustee under the Will and of the Estate of Ka- 
haTui Meek, deceased; B. Nishioka, Meleiton Bur- 
tudaso, Temotio T. Tantel, Nonelon Balomalake, 
Semion Sapoan, Stanley Shimabukuro, K. vShima- 
])ukuro, Shiko Toma, Shizen Toma, Labuno Yama- 
shiro, Kiki Asato, Tsumosuke Ishikawa, Kichini 
Yaboku, and Joseph Carvalho are the owners of, 
or claim to have some interest in, said land. 

VI. 

That the Secretary of Navy of the United States 
lias determined that the utmost haste in expediting- 
this project is vital to the war purposes of tlu^ 
Ignited States and he has, therefore, determined 
that immediate possession of Parcels B-4, B-5, 
B-6, B-7, B-8, A-7, A-8, A-9 and T-1 and all im- 
provements thereon and appurtenances thereunto 
belonging, to the extent of the interest to be ac- 
quired therein, is necessary by the United [156] 
States and that certain and adequate provisions 
have been made for the paJ^nent of just compensa- 
tion which may be adjudged due for the condemna- 
tion of the land described in and shown on said 
Exhibits ''A" and '^B". 

That the Petitioner, under rights of entry, occu- 
])ied two parts of Parcels B-3, thought at the time 
of tlie granting of said rights of entry to aggre- 
gate approximately five acres and fifty acres and 
subs(^quently found, upon survey, to aggregate in 
fact 7.84 and 56.96 acres, and Petitioner has been 



114 United States of America vs. 

in possession of said parts of Parcel B-3 from and 
since March 8, 1943 and February 12, 1944, re- 
spectively. 

That the Petitioner has been in possession of 
Parcels A-1, A-3, A-4, A-5, A-6, B-1, B-2, C-1 and 
C-2 from and since April 20, 1944 under rights of 
entry. 

That the Petitioner has been in possession of 
Parcels B-9, E-1, E-2, E-3, E-4, E-5, F-1 and F-2 
from and since July 3, 1944 under rights of entry. 

That the Petitioner has been in possession of 
Parcels A-2 and A-10 from and since June 17, 
1942, under lease between the Petitioner and the 
Honolulu Plantation Company, dated June 17, 1942. 

Wherefore, your Petitioner prays this Honor- 
able Court to take jurisdiction of this cause and 
enter all orders, judgments and decrees necessary 
to determine title of said real estate condemned, 
or any part thereof, and to fix and determine that 
the continued possession of the lands identified in 
paragraph YI is necessary for the War and Naval 
purposes of the United States and that the imme- 
diate possession of the lands also identified in para- 
graph VI is likewise necessary for the War and 
Naval purposes of the United States; that upon 
payment into the registry of this Court for the 
use of the persons entitled thereunto of the sum 
adjudged to be full compensation for the [157] 
condemnation of said land, that title to said land 
be vested in the United States of America in fee 
simple, subject to the exceptions set forth in Para- 
graph III, and that the Court make distribution 



Honolulu Plantation Co. 115 

of tlio final awards among the persons entitled 
thereto as expeditiously as may be and for such 
other and further relief as to the Court may seem 
just and proper in the j) remises. 

UNITED STATES OF 
AMERICA, 

By /s/ ROBERT S. TARNAY, 
Special Assistant to the 
Attorney General. 

(Duly Verified.) [158] 

EXHIBIT '*A" 

PARCEL A-1 

Jjand Situated at Manana Uka, Ewa, Oahu, T. H. 

Being a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning at a pipe at the South corner of this 
])arcel of land, being also the East corner of Parct^l 
A-6, the coordinates of which referred to Govern- 
ment Survey Triangulation Station '^Ewa Church" 
being 938.04 feet North and 2,918.36 feet East, and 
3'unning by azimuths measured clockwise from true 
South. 

1. 110" 19' 30'— 203.83 feet along Parcel A-6, 
being also a remainder of Grant 2060 to T. 
Raymond and L. Bernard; 

2. 131° 41'— 671.91 feet along Parcel B-1, being 
also a portion of L. C. Aw. 7713, Apana 48 to 

> y. Kamamalu; 



116 United States of America vs. 

3. 188° 06'— 1254.00 feet along Parcel B-1, the 
land of Waiawa, L. C. Aw. 7713, Apana 46 to 
V. Kamamalu; 

4. 188° 14—717.29 feet along Parcel B-1, the land 
of Waiawa, L. C. Aw. 7713, Apana 46 to V. 
Kamamalu ; 

5. 292° 00'— 1373.33 feet along a remainder of Grant 
2060 to J. Raymond and L. Bernard and along 
Parcel A-9, being also a remainder of Grant 
2060 to J. Raymond and L. Bernard, to a pipe ; 

6. 22° 00'— 457.26 feet along Parcel A-2, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to a pipe; 

7. 292° 00'— 435.00 feet along Parcel A-2, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Barnard, to a pipe; 

8. 22° 00'— 967.74 feet along Parcels A-4 and A-3, 
being also remainders of [159] Grant 2060 to 
J. Raymond and L. Bernard; 

9. 112° 00'— 60.00 feet along Parcel C-1, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

30. 22° 00'— 225.00 feet along Parcel C-1, ])eing 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

11. 112° 00'— 440.00 feet along a remainder of 
Grant 2060 to J. Raymond and L. Bernard; 

12. 22° 00'— 484.33 feet along a remainder of 
Grant 2060 to J. Raymond and L. Bernard to 



Honolulu Plantation Co. 117 

the point of beginning and containing a gross 
area of 63.893 acres and a net area of 62.852 
acres, after excluding Exclusion 1 hereinafter 
described, and as delineated on 14th Naval Dis- 
trict Drawing No. OA-Nl-939. 

Subject to Easements 1 and 2 hereinafter de- 
scribed, said easements being delineated on the 
afoi'esaid drawing. 

EXCLUSION 1 

City and County Reservoir Lot 

Being a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning at a pipe at the East corner of this 
])arcel of land, the coordinates of which referred 
to Government Survey Triangulation Station ''Ewa 
Church" being 2,501.80 feet North and 3,418.00 
feet East, and running by azimuths measured clock- 
wise from true South: 

1. 22° 00— 101.00 feet along a remainder of Grant 
2060 to J. Raymond and L. Bernard to a pipe : 

2. 51° 20—170.00 feet along a remainder of Grant 
2060 to J. Raymond and L. Bernard to a pipe; 

3. 141° 20—169.96 feet along a remainder of 
Grant 2060 to J. Raymond and L. Bernard to 
a pipe; 

4. 202° 00—165.93 feet along a remaindor of 
Grant 2060 to J. Raymond and L. Bernard to a 
pipe; 



118 United States of America vs, 

5. 292° 00'— 231.45 feet along a remainder of 
Grant 2060 to J. Raymond and L. Bernard to 
the point of beginning and containing an area 
of 1.041 acres, and as delineated on 14tli N"aval 
District Drawing No. OA-Nl-QSQ. [161] 

PARCEL A-2 

Land Situated at Manana Uka, Ewa, Oahu, T. H. 

Being a portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning at a pipe at the South corner of this 
parcel of land, being also the North corner of Par- 
cel A-4 and the West corner of Parcel A-5, the 
coordinates of which referred to Government Sur- 
vey Triangulation Station ''Ewa Church" being 
2,305.69 feet North and 4,010.18 feet East, and 
running by azimuths measured clockwise from true 
South : 

1. 112° 00'— 435.00 feet along Parcel A-1, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to a pipe; 

2. 202° 00'— 457.26 feet along Parcel A-1, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to a pipe; 

3. 292° 00'— 435.00 feet along Parcel A-10, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to a pipe; 

4. 22° 00'— 457.26 feet along Parcel A-5, being 
also a portion of Grant 2060 to J. Raymond 
and L. Bernard, to the point of beginning and 



Honolulu Plantation Co. 119 

containing an area of 4.566 acres, and as de- 
lineated on 14th Naval District Drawing No. 
OA-Nl-939. [162] 

PARCEL A-3 

Ijand Situated at Manana Uka, Ewa, Oahu, T. H. 

Being a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning at the North corner of this parcel of 
land, being also the West corner of Parcel A-4 and 
on the Easterly boundary of Parcel A-1, the co- 
ordinates of which referred to Government Survey 
Triangulation Station ^'Ewa Church" being 
2,268.60 feet North and 3,995.20 feet East, and 
running by azimuths measured clockwise from ti'ue 
South : 

1. 292° 00—10.00 feet along Parcel A-4, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

2. 22° 00—927.74 feet along the West side of 
Waimano Home Road; 

3. 112° 00— 10.00 feet along Parcel C-2, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

4. 202° 00—927.74 feet along Parcel A-1, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to the point of beginning and 
containing an area of 9,277 square feet, and 

' as delineated on 14th Naval District Drawing 
"^ No. OA-Nl-939. [163] 



120 United States of America vs. 

PARCEL A-4 

Land Situated at Manana Uka, Ewa, Oahu, T. H. 

Being a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning at a pipe at the North corner of this 
parcel of land, being also the East corner of Parcel 
A-1, the South corner of Parcel A-2 and the West 
corner of Parcel A-5, the coordinates of which re- 
ferred to Government Survey Triangulation Sta- 
tion "Ewa Church" being 2,305.69 feet North and 
4,010.18 feet East, and running by azimuths meas- 
ured clockwise from true South: 

1. 292° 00'— 10.00 feet along Parcel A-5, being 
also a remainder of Grant 2060 to J. Rajrmond 
and L. Bernard; 

2. 22° 00'— 40.00 feet along the West side of Wai- 
mano Home Road; 

3. 112° 00'— 10.00 feet along Parcel A-3, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

4. 202° 00'— 40.00 feet along Parcel A-1, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to the point of beginning, and 
containing an area of 400 square feet, and as 
delineated on 14th Naval District Drawing 
No. OA-Nl-939. [164] 



Honolulu Plantation Co. 121 

PARCEL A-5 

Land Situated at Mariana Uka, Ewa, Oahn, T. H. 

I>(nng a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning at a pipe at the West corner of this 
l^arcel of land, being also the East corner of Parcel 
A-1, the South corner of Parcel A-2 and the North 
corner of Parcel A-4, the coordinates of which re- 
ferred to Government Survey Triangulation Sta- 
tion "Ewa Church" being 2,305.69 feet North and 
4,0]0.18 feet East, and running by azimuths meas- 
ured clockwise from true South: 

1. 202° 00'— 457.26 feet along Parcel A-2, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard to a pipe; 

2. 292° 00—10.00 feet along a remainder of Grant 
2060 to J. Raymond and L. Bernard; 

3. 22° 00—457.26 feet along the West side of 
Waimano Home Road; 

4. 112° 00'— 10.00 feet along Parcel A-4, bein.o- 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to the point of beginning and 
containing an area of 4,573 square feet, and 
as delineated on 14th Naval District Drawing 
No. OA-Nl-939. [165] 



122 United States of America vs. 

PARCEL A-6 

Jjand Situated on the Northeast Side of Kamaha- 

meha Highway at Manana Uka, 

Ewa, Oahu, T. H. 

Being' a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning at a pipe at the East corner of this 
parcel of land, being also the South corner of Par- 
cel A-1, the coordinates of which referred to Gov- 
ernment Survey Triangulation Station "Ewa 
Church" being 938.04 feet North and 2,918.36 feet 
East, and running by azimuths measured clockwise 
from true South: 

1. 22° 00'— 42.02 feet along a remainder of Grant 
2060 to J. Raymond and L. Bernard; 

2. 110° 19' 30"— 95,20 feet along the Northeast 
side of Kamehameha Highway; 

3. 131° 41'— 115.32 feet along Parcel B-2, being 
also along L. C. Aw. 7713, Apana 48 to V. 
Kamamalu ; 

4. 290° 19' 30"— 203.83 feet along Parcel A-1, 
being also a remainder of Grant 2060 to J. 
Raymond and L. Bernard, to the point of be- 
ginning and containing an area of 6,280 square 

-^ feet, and as delineated on the 14th Naval Dis- 
trict Drawing No. OA-Nl-939. [166] 



Honolulu Plantation Co. 123 

PARCEL A-7 

Land Situated at Manana Uka, Ewa, Oahu, T. H. 

Being a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning- at a pipe at the West corner of this 
parcel of land, also the North corner of Parcel A-5, 
the East corner of Parcel A-2 and the South cornei* 
of Parcel A-10, the coordinates of which referred 
to Government Survey Triangulation Station ''Ewa 
Church" being 2,729.65 feet North and 4,181.47 feet 
East, and running by azimuths measured clockwise 
from true South. 

1. 202° 00—659.80 feet along Parcel A-10, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

2. 292° 00— 10.00 feet along Parcel A-8, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

3. 22° 00—659.80 feet along the West side of 
Waimano Home Road; 

4. 112° 00— 10.00 feet along Parcel A-5, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to the point of beginning and 
containing an area of 6,598 square feet, and 
as delineated on 14th Naval District Drawing 
No. OA-Nl-939. [167] 



124 United States of America vs. 

PARCEL A-8 

Land Situated at Manana Uka, Ewa, Oahii, T. H. 

Being a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning at a pipe at the North corner of this 
parcel of land, being also the East corner of Parcel 
A-9, the coordinates of which referred to Govern- 
ment Survey Triangulation Station ''Ewa Chui'ch" 
being 3,656.65 feet North and 4,556.01 feet East, 
and running by azimuths measured clockwise from 
true South: 

1. 292° 00' — 10.00 feet along a remainder of Grant 
2060 to J. Raymond and L. Bernard; 

2. 22° 00—340.00 feet along the West side of 
Waimano Home Road; 

3. 112° 00'— 10.00 feet along Parcel A-7, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

4. 202° 00'— 340.00 feet along Parcel A-9, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to the point of beginning and 
containing an area of 3,400 square feet, and 
as delineated on 14th Naval District Drawing 
No. OA-Nl-939. [168] 



Honolulu Plantation Co. 125 

PARCEL A-9 

Tiaiid Situated at Manaria Uka, Ewa, Oahu, T. H. 

Being' a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning at a pipe at the East corner of this 
])arcel of land, being also the North corner of Par- 
cel A-8, the coordinates of which referred to Go\- 
ernnient Survey Triangulation Station ''Ewa 
Church" Ix^ing 3,656.65 feet North and 4,556.01 
feet East, and running by azimuths measured clock- 
wise from true South: 

1. 22° 00—340.00 feet along Parcel A-8, beino; 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

2. 112° 00'— 435.00 feet along Parcel A-10, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

3. 22° 00—659.80 feet along Parcel A-10, bein- 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to a pipe; 

4. 112° 00—1239.58 feet along Parcel A-1, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to a pipe; 

5. 202° 00—115.35 feet along a remainder of 
Grant 2060 to J. Raymond and L. Bernard to 
a pipe; 

6. 212° 40—900.00 feet along a remainder of 
Grant 2060 to J. Raymond and L. Bernard to 
a pipe; 



126 United States of America vs, 

7. 292° 00' — 1508.00 feet along a remainder of 
Grant 2060 to J. Raymond and L. Bernard to 
the point of beginning and containing an area 
of 30.155 acres, and as delineated on llth Naval 
District Drawing No. OA-Nl-939. [169] 

PARCEL A-10 

Land Situated at Manana Uka, Ewa, Oahu, T. H. 

Being a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning at a pipe at the South corner of this 
parcel of land, being also the East corner of Parcel 
A-2, the North corner of Parcel A-5 and the West 
corner of Parcel A-7, the coordinates of which re- 
ferred to Government Survey Triangulation Sta- 
tion ''Ewa Church" beieng 2,729.65 feet North and 
4,181.47 feet East, and running by azimuths meas- 
ured clockwise from true South: 

1. 112° 00'— 435.00 feet along Parcel A-2, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to a pipe; 

2. 202° 00'— 659.80 feet along Parcel A-9, beinn 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

?y. 292° 00'— 435.00 feet along Parcel A-9, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard; 

4. 22° 00'— 659.80 feet along Parcel A-7, being 

\ also a remainder of Grant 2060 to J. Raymond 

and L. Bernard, to the point of beginning and 



Honolulu Plantation Co. 127 

containing an area of 6.589 acres, and as de- 
lineated on 14th Naval District Drawing No. 
OA-Nl-939. 

/s/ R. M. TOWILL, 
Registered Professional Surveyor, Certificate Num- 
ber 151. 

Honolulu, T. H., August 22, 1944. [170] 

PARCEL B-1 

Land Situated at Manana Iki and Waiwa, Ewa,. 
Oahu, T. H. 

Being a Portion of Royal Patent 4475, Land 
Commission Award 7713, Apana 46 to V. Kama- 
ma] u and a Portion of Royal Patent 4475, Land 
Commission Award 7713, Apana 48 to V. Kama- 
malu. 

Beginning at a ])ipe at the Southwest corner of 
this parcel of land, being also the North corner of 
Parcel B-2, and on the new Northeast side of 
Tvamahameha Highway, the coordinates of which 
referred to Government Survey of Triangulation 
Station ''Ewa Church" being 1,207.78 feet North 
and 2,190.14 feet East, and running by azimuths 
measured clockwise from true South: 

1. 188° 06—55.33 feet along a remainder of L. C. 
Aw. 7713, Apana 46 to V. Kamamalu; thence 
following along the middle of railroad track 
along Parcel B-4, being also a remainder of 
L. C. Aw. 7713, Apana 46 to V. Kamamalu, for 
the next eight (8) courses; on a curve to the 



128 United States of America vs. 

left, with a radius of 260.54 feet, the chord 
azimuth and distance being, 

2. 121° 4r 13"— 143.22 feet; 

3. 105° 50'— 143.10 feet; thence on a curve to the 
right, with a radius of 309.79 feet, the chord 
azimuth and distance being, 

4. 130° 45'— 261.03 feet; 

5. 155° 40'— 281.50 feet; [171] thence on a curve 
to the left, with a radius of 521.07 feet, the 
chord azimuth and distance being, 

6. 145° 28'— 184.55 feet; 

7. 135° 16' — 491.60 feet; thence on a curve to the 
left, with a radius of 286.57 feet, the chord azi- 
muth and distance being, 

8. 124° 16'— 109.36 feet; 

9. 113° 16'— 186.63 feet; thence 

10. 234° 00'— 1760.22 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu; 

11. 292° 00'— 181.67 feet along a remainder of L. C. 
Aw. 7713, Apana 46 to V. Kamamalu; 

12. 8° 14'— 717.29 feet along Parcel A-1, being also 
along Grant 2060 to J. Raymond and L. Ber- 
nard; 

13. 8° 06'— 1254.00 feet along Parcel A-1, being 
also along Grant 2060 to J. Raymond and L. 
Bernard ; 

14. 311° 41'— 671.91 feet along Parcel A-1, being 
also along Grant 2060 to J. Rajrmond and L. 
Bernard ; 

35. 110° 19' 30"— 572.74 feet along Parcel B-2, 
])eing also a remainder of L. C. Aw. 7713. 



Honolulu Plantation Co. 129 

Apana 48 to V. Kamamalu, to the point of be- 
ginning and containing an area of 40.424 acres, 
and as delineated on 14th Naval District Draw- 
ing No. OA-Nl-939. [172] 

PARCEL B-2 

Land Situated on the Northeast Side of Kameha- 
meha Highway at Manana Iki, Ewa, Oahu, 
T.H. 

Being a Portion of Royal Patent 4475, Land 
Commission Award 7713, Apana 48 to V. Kama- 
]nalu. 

Beginning at a pipe at the North corner of this 
parcel of land, being also the Southwest corner 
of Parcel B-1, and on the new Northeast side of 
Kamahameha Highway, the coordinates of which 
referred to Government Survey Triangular Sta- 
tion "Ewa Church" being 1,207.78 feet North and 
2,190.14 feet East, and running by azimuths meas- 
ured clockwise from true South: 

1. 290° 19' 30"— 572.74 feet along Parcel B-1, 
being also a remainder of L. C. Aw. 7713, 
Apana 48 to V. Kamamalu; 

2. 311° 41'— 115.32 feet along Parcel A-6, being 
also along Grant 2060 to J. Raymond and L. 
Bernard ; 

3. 110° 19' 30"— 671.04 feet along the Northeast 
side of Kamehameha Highway; 

4. 188° 06'— 42.97 feet along the boundary be- 
tween Manana Iki and Waiwa to the point of 
beginning and containing an area of 26,119 



130 United States of America vs. 

square feet, and as delineated on 14th Naval 
District Drawing No. OA-Nl-939. [173] 

PARCEL B-3 

Land Situated at Waiwa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 4475, Land ,; 

Commission Award 7713, Apana 46 to V. Kama- | 

malu. ] 

i 

Beginning at a pipe at the East corner of this 

parcel of land, the coordinates of w^hich referred ' 

to Government Survey Triangulation Station ^'Ewa ' 

Church" being 3,770.52 feet North and 1,309.72 j 

feet East, and running by azimuths measured clock- '< 

Avise from true South: j 

1. 26° 30'— 144.00 feet along Parcel B-4, being ' 
also a remainder of L. C. Aw. 7713, Apana 46 \ 
to V. Kamamalu; i 

2. 35° 30'— 225.00 feet along Parcel B-4, being I 
also a remainder of L. C. Aw. 7713, Apana 46 j 
to V. Kamamalu; thence along Parcel B-4, j 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the ! 
right, Avith a radius of 600 feet, the chord 

azimuth and distance being, '• 

I 

3. 47° 40'— 252.91 feet; | 

4. 59° 50'— 504.00 feet along Parcel B-4, being \ 
also a remainder of L. C. Aw. 7713, Apana 46 j 
to V. Kamamalu; thence along Parcel B-4, ' 

i . being also a remainder of L. C. Aw. 7713, i 
Apana 46 to V. Kamamalu, on a curve to the 



Honolulu Plantation Co. 131 

left, with a radius uf 220.00 feet, the chord 
azimuth and distance being, 

5. 40° 20—146.88 feet; thence along Parcel B-4, 
being [174] also a remainder of L. C. Aw. 7718, 
Apana 46 to V. Kamamalu, on a curve to the 
right, with a radius of 350.00 feet, the chord 
azimuth and distance being, 

6. 28° 30—93.39 feet; 

7. 36° 10—778.00 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to Y. Kamamalu; thonce along Parcel B-4, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to Y. Kamamalu, on a curve to the 
right, with a radius of 220.00 feet, the chord 
azimuth and distance being, 

8. 61° 05'— 185.37 feet; thence along Parcel B-4, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to Y. Kamamalu, on a curve to the 
right, with a radius of 420.00 feet, the chord 
azimuth and distance being, 

9. 126° 15'— 542.74 feet; thence along Parcel B-4, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to Y. Kamamalu, on a curve to the left, 
with a radius of 200.00 feet, the chord azinuith 
and distance being, 

10. 108° 45'— 338.29 feet; 

11. 51° 00'— 38.00 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to Y. Kamamalu; thence along Parcel B-4, 
being also a remainder of L. C. Aw. 7713, 



132 United States of America vs. 

Apana 46 to Y. Kamamalu, on a curve to the 
right, with a radius of 75.00 feet, the chord 
azimuth and distance being, 

12. 69° 45'— 48.22 feet; [175] 

33. 88° 30—106.00 feet along Parcel B-4, being 
also a remainder of L, C. Aw. 7713, Apana 46 
to V. Kamamalu; thence along Parcel B-4, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
right, with a radius of 60.00 feet, the chord 
azimuth and distance being, 

14. 127° 30—75.52 feet; 

15. 166.° 30'— 128.00 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to Y. Kamamalu; thence along Parcel B-4, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to Y. Kamamalu, on a curve to the 
right, with a radius of 180.00 feet, the chord 
azimuth and distance being, 

16. 192° 32'— 158.00 feet; 

17. 218° 34'— 352.00 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to Y. Kamamalu; 

18. 208° 40'— 180.00 feet along Parcel B-4, being 
also a remainder of L, C. Aw. 7713, Apana 46 
to Y. Kamamalu; 

19. 217° 30'— 180 feet along Parcel B-4, being also 
a remainder of L. C. Aw. 7713, Apana 46 to 
Y. Kamamalu; 

20. 230° 20'— 203.00 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to Y. Kamamalu; 



Honolulu Plantation Co. 133 

21. 240° 00—300.00 fvvt along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 40 
to V. Kamamalu; 

22. 225° 20'— 322.00 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 4f; 
to V. Kamamalu; thence along Parcel B-4, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
left, with a radius of 250.00 feet, the chord 
[176] azimuth and distance being, 

23. 210° 30—128.00 feet; 

24. 195° 40—130.00 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamahi; thence along Parcel B-4, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
right, with a radius of 300.00 feet, the chord 
azimuth and distance being, 

25. 209° 49' 45'— 146.80 feet; thence along Parcel 
B-7, being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
right, with a radius of 230.00 feet, the chord 
azimuth and distance being, 

26. 253° 51'— 144.56 feet; 

27. 272° 10'— 57.62 feet along Parcel B-7, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, to a pipe; 

28. 295° 17'— 575.57 feet along Parcel B-6, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to Y. Kamamalu, to a pipe; 

29. 295° 46'— 691.20 feet along a remainder of 
Jj. C. Aw. 7713, Apana 46 to V. Kamamalu to 



134 United States of America vs. 

the point of beginning and containing an area 
of 64.801 acres, and as delineated on 14th Naval 
District Drawing No. OA-Nl-939. [177] 

PARCEL B-4 

Land Situated at Waiawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 4475, Land 
Commission Award 7713, Apana 46 to V, Kama- 
malu. 

Beginning at a pipe at the Northeast corner of 
this parcel of land, being also the North corner of 
Parcel B-1, the coordinates of which referred to 
Government Survey Triangulation Station '^Ewa 
Church" being 3,475.11 feet North and 2,336.38 
feet East, and running by azimuths measured clock- 
wise from true South: 

1. 54° 00'— 1760.22 feet along Parcel B-1, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu; thence following along the 
middle of railroad track along Parcel B-1, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, for the next eight 
(8) courses; 

2. 293° 16'— 186.63 feet; thence on a curve to the 
right, with a radius of 286,57 feet, the chord 
azimuth and distance being, 

3. 304° 16'— 109.36 feet; 

4. 315° 16'— 491.60 feet; thence on a curve to the 
right, with a radius of 521.07 feet, the chord 
azimuth and distance being, 

5. 325° 28'— 184.55 feet; 



Honolulu Plantation Co. 135 

6. 335° 40—281.50 feet; thence on a curve to the 
left, [178] with a radius of 309.79 feet, the 
chord azimuth and distance being, 

7. 310° 45—261.03 feet; 

8. 285° 50—143.10 feet; thence on a curve to the 
right, with a radius of 260.54 feet, the chord 
azimuth and distance being, 

9. 301° 47' 13"— 143.22 feet; thence 

10. 8° 06—55.33 feet along Parcel B-1, being also 
a remainder of L. C. Aw. 7713, Apana 48 to 
V. Kamamalu, to a pipe; 

11. 110° 19' 30"— 194.97 feet along the Northeast 
side of Kamehameha Highway to a pipe: 
thence along the Northeast side of Kameha- 
meha Highway, on a curve to the left, with a 
radius of 5,712.72 feet, the chord azimuth and 
distance being, 

12. 108° 52' 15"— 289.95 feet to a pipe; 

13. 107° 25—1426.77 feet along the Northeast side 
of Kamehameha Highway and Waiawa Cut- 
Off Road; 

14. 165° 00'— 47.35 feet along Parcel B-8, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu; 

15. 224° 23'— 87.62 feet along Parcel B-8, being 
also along L. C. Aw. 10942, Apana 1 to William 
Wallace ; 

16. 130° 21'— 148.30 feet along Parcel B-8, being 
also along L. C. Aw. 10942, Apana 1 to William 
Wallace ; 

17. 43° 16'— 81.90 feet along Parcel B-8, being 
also along L. C. Aw. 10942, Apana 1 to William 
Wallace ; 



136 United States of America vs. 

18. 121° 04' 30'— 59.65 feet along Parcel B-8, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu; [179] 

19. 88° 40'— 50.00 feet along Parcel B-8, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to Y. Kamamalu; 

20. 87° 06'— 202.11 feet along Parcel B-8, being 
also along L. C. Aw. 10942, Apana 2 to William 
"Wallace ; 

21. 107° 25'— 594.72 feet along the Northeast side 
of Waiawa Cut-Off Road to a pipe; 

22. 17° 25'— 30.00 feet along Waiawa Cut-Off 
Road to a pipe; 

23. 107° 25'— 550.62 feet along the Northeast side 
of Waiawa Cut-Off Road to a pipe; thence 
along the Northeast side of Waiawa Cut-Oif 
Road and 100-foot roadway, on a curve to the 
right, with a radius of 269.52 feet, the chord 
azimuth and distance being, 

24. 131° 12' 30"— 217.46 feet; 

25. 155° 00'— 74.75 feet along 100-foot roadway; 
thence along 100-foot roadway, on a curvf^ to 
the right, with a radius of 450.00 feet, the chord 
azimuth and distance being. 

26. 183° 50'— 434.04 feet; 

27. 212° 40'— 936.96 feet along 100-foot roadway; 
thence along Parcel B-7, being also a remain- 
der of L. C. Aw. 7713, Apana 46 to V. Kama- 
malu, on a curve to the right, with a radius 
of 75.00 feet, the chord azimuth and distance 
being, 

28. 238° 55'— 66.34 feet; 



Honolulu Plantation Co. 137 

29. 2()r)° 10'— 82.53 f'(!ot along Parcel B-7, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalii; thence along Parcel B-7, 
being also a remainder of L. C. Aw. 77KJ, 
Apana 46 to V. Kamamalu, [180] on a curve 
to the left, with a radius of 240.00 feet, the 
chord azimuth and distance being, 

30. 253° 40—95.70 feet, 

31. 242° 10—247.00 feet along Parcel B-7, being 
also a remainder of L. C. Aw. 7713, Apana 48 
to V. Kamamalu; thence along Parcel B-7, 
being also a remainder of L. C. Aw. 7713, Apana 
46 to V. Kamamalu, on a curve to the left, with 
a radius of 420.00 feet, the chord azimuth and 
distance being, 

32. 227° 25—213.87 feet; 

33. 212° 40—211.00 feet along Parcel B-7, beini> 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu; thence along Parcel B-7, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
right, with a I'adius of 230.00 feet, the chord 
azimuth and distance being, 

34. 224° 06—91.18 feet; thence along Parcel B-3, 
being also a remainder of L, C- Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
left, with a radius of 300.00 feet, the chord 
azimuth and distance being, 

35. 29° 49' 45"— 146.80 feet; 

36. 15° 40'— 130.00 feet along Parcel B-3, bcinu 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu; thence along Parcel B-3. 



138 United States of America vs. 

being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
right, with a radius of 250.00 feet, the chord 
azimuth and distance [181] being, 

37. 30° 30—128.00 feet, 

38. 45° 20'— 322.00 feet along Parcel B-3, being also 
a remainder of L. C. Aw. 7713, Apana 46 to 
Y. Kamamalu, 

39. 60° 00'— 300.00 feet along Parcel B-3, being also 
a remainder of L. C. Aw. 7713, Apana 46 to 
V. Kamamalu, 

40. 50° 20'— 203.00 feet along Parcel B-3, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, 

41. 37° 30'— 180.00 feet along Parcel B-3, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, 

42. 28° 40'— 180.00 feet along Parcel B-3, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, 

43. 38° 34'— 352.00 feet along Parcel B-3, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, thence along Parcel B-3, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
left, with a radius of 180.00 feet, the chord 
azimuth and distance being, 

44. 12° 32'— 158.00 feet, 

45. 346° 30'— 128.00 feet along Parcel B-3, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, thence along Parcel B-3, 
being also a remainder of L. C. Aw. 7713, 



Honolulu Plantation Co. 139 

Apana 46 to V. Kamamalu, on a curve to tho 
loft, with a radius of 60.00 feet, the chord azi- 
muth and distance being, 

46. 307° 30—75.52 feet, 

47. 268° 30—106.00 feet along Parcel B-3, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, [182] thence along Parcel 
B-3, being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
left, with a radius of 75.00 feet, the chord azi- 
muth and distance being, 

48. 249° 45'— 48.22 feet; 

49. 231° 00—38.00 feet along Parcel B-3, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, thence along Parcel B-3. 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
right, with a radius of 200.00 feet, the chord 
azimuth and distance being, 

50. 288° 45—338.29 feet, thence along Parcel B-3, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
left, with a radius of 420.00 feet, the chord azi- 
muth and distance being, 

51. 306° 15—542.74 feet; thence along Parcel B-3, 
))eing also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
left, with a radius of 220.00 feet, the chord azi- 
muth and distance being, 

52. 241° 05—185.37 feet: 

53. 216° 10—778.00 feet along Parcel B-3, beino- 
also a remainder of L. C. Aw. 7713, Apana 46 



140 United States of America vs. 

to y. Kamamalu, thence along Parcel B-3, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
left, with a radius of 350.00 feet, the chord azi- 
muth and distance being, [183] 

54. 208° 30—93.39 feet; thence along Parcel B-3, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
right, with a radius of 220.00 feet, the chord 
azimuth and distance being, 

55. 220° 20'— 146.88 feet; 

56. 239° 50.— 504.00 feet along Parcel B-3, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu; thence along Parcel B-3, 
being also a remainder of L. C. Aw, 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
left, with a radius of 600.00 feet, the chord azi- 
muth and distance being, 

57. 227° 40—252.91 feet; 

58. 215° 30—225.00 feet along Parcel B-3, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu; 

59. 206° 30'— 144.00 feet along Parcel B-3, being 
also a remainder of L. C. Aw, 7713, Apana 46 
to V. Kamamalu; 

60. 286° 03' 10"— 1068.32 feet along a remainder 
of L. C. Aw. 7713, Apana 46 to V. Kamamalu 
to the point of beginning and containing an 
area of 68.672 acres, and as delineated on 14th 
Naval District Drawing No. OA-Nl-939. 

Subject to a portioon of Easement 3- A and the 
whole of Easement 3-B hereinafter described, said 



Honolulu Plantation Co. 141 

cascincnts Ix'iiig delineated on the aforesaid dr-aw- 
irm-. [184] 

PARCEL B-5 

Land Situated at Waiawa, Ewa, Oahu, T. IJ. 

I3eing a Portion of Royal Patent 4475, Land 
Commission Award 7713, Apana 46 to V. Kam- 
amalu. 

Beginning at a pipe at the East corner of thLs 
parcel of land, being also the East comer of Par- 
cel B-7, the coordinates of which referred to Gov- 
ernment Survey Triangulation Station *'Ewa 
Church" being 4,277.29 feet North and 694.87 feet 
East, and running by azimuths measured clock- 
wise from true South: 

1. SS"* 44—74.75 feet along Parcel B-7, being also 
a remainder of L. C. Aw. 7713, Apana 46 to 
V. Kamamalu, thence along Parcel B-7, being 
also a remainder of L. C. Aw. 7713, Apana 
46 to V. Kamamalu, on a curve to the ri2^ht, 
with a radius of 360.00 feet, the chord azi- 
muth and distance being, 

2. 98° 57—188.98 feet; 

3. 114° 10—56.71 feet along Parcel B-7, being 
also a remainder of L. C. Aw. 713, Apana 46 
to V. Kamamalu; thence along Parcel B-7, be- 
ing also a remainder of L. C. Aw. 7713, Apana 
46 to V. Kamamalu, on a curve to the left, 
with a radius of 370.00 feet, the chord azimuth 
and distance being, 

4. 103° 10—141.20 feet: 



142 United States of America vs. 

5. 92° 10'— 134.00 feet along Parcel B-7, being 
also a remainder of L. C. Aw. 7713, [185] 
Apana 46 to V. Kamamalu, thence along Par- 
cel B-7, being also a remainder of L. C. Aw. 
7713, Apana 46 to V. Kamamalu, on a curve 
to the left, with a radius of 270.00 feet, the 
chord azimuth and distance being, 

6. 62° 25—267.96 feet, 

7. 32° 40'— 211.00 feet along Parcel B-7, being 
also a remainder of L. C. Aw, 7713, Apana 46 
to V. Kamamalu, thence along Parcel B-7, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to 
the right, with a radius of 380.00 feet, the 
chord azimuth and distance being, 

8. 47° 25—193.50 feet, 

9. 62° 10'— 247.00 feet along Parcel B-7, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, thence along Parcel B-7, be- 
ing also a remainder of L. C. Aw. 7713, Ajmna 
46 to V. Kamamalu, on a curve to the right, 
with a radius of 200.00 feet, the chord azimuth 
and distance being, 

10. 73° 40'— 79.75 feet; 

11. 85° 10'— 17.85 feet along Parcel B-7, being also 
a remainder of L. C. Aw. 7713, Apana 46 to 
V. Kamamalu, thence along Parcel B-7, being 
cilso a remainder of L. C. Aw 7713, Apana 46 
to V. Kamamalu, on a curve to the right with a 
radius of 35.00 feet, the chord azimuth and dis- 
tance being, 

12. 148° 55'— 62.78 feet; 



Honolulu Plantation Co. 143 

13. 212° 40'— 149.04 feet along 100-foot roadway; 
[186] thence along 100-foot roadway, on a 
curve to the right, with a radius of 930.00 feet, 
the chord azimuth and distance being, 

14. 228° 35' 30"— 510.34 feet; 

15. 244° 31'— 826.50 feet along 100-foot roadway; 

16. 351° 00'— 55.10 feet along U. S. Naval Reser- 
vation, being also a remainder of Jj. C. Aw. 
7713, Apana 46 to V. Kamamalu; 

17. 300° 00'— 200.00 feet along U. S. Naval Reser- 
vation, being also a remainder of L. C. Aw. 
7713, Apana 46 to V. Kamamalu; 

18. 352° 00'— 230.00 feet along U. S. Naval Reser- 
vation, being also a remainder of L. C. Aw 
7713, Apana 46 to V. Kamamalu, to the point 
of beginning and containing an area of 7.143 
acres, and as delineated on 14th Naval District 
Drawing No. OA-Nl-939. [187] 

PARCEL B-6 

Land Situated at Waiawa, Ewa. Oahu, T. H. 

Being a Portion of Royal Patent 4475, Lund 
Commission Award 7713, Apana 46 to V. Kama- 
malu. 

Beginning at a pipe at the South corner of this 
l)areel of land, being also on the Northeast boun- 
dary of Parcel B-3, the coordinates of which re- 
ferred to Government Survey Triangulation Sta- 
tion ''Ewa Church" being 4,105.68 feet North and 
613.83 feet East, and running by azimuths meas- 
ured clockwise from true South: 



144 United States of America vs. 

1. 115° 17'— 494.36 feet along Parcel B-3, being 
also a remainder of L. C. Aw, 7713, Apana 
46 to V. Kamamalu; 

2. 272° 10—76.38 feet along Parcel B-7, being 
also a remainder of L. C. Aw, 7713, Apana 46 
to V, Kamamalu, thence along Parcel B-7, be- 
ing also a remainder of L. C. Aw. 7713, Apana 
46 to V. Kamamalu, on a curve to the right, 
with a radius of 330.00 feet, the chord azi- 
muth and distance being, 

3. 283° 10'— 125.93 feet; 

4. 294° 10'— 56.71 feet along Parcel B-7, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, thence along Parcel B-7, be- 
ing also a remainder of L. C. Aw. 7713, Apana 
46 to V. Kamamalu, on a curve to the left, 
with a radius of 400.00 feet, the chord azimuth 
and distance being, 

5. 278° 57'— 209.98 feet; [188] 

6. 263° 44'— 50.19 feet along Parcel B-7, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, 

7. 25° 17' — 142.85 feet along a remainder of L. 
C. Aw. 7713, Apana 46 to V, Kamamahi to 
the point of beginning and containing an area 
of 0.717 acre, and as delineated on 14th Naval 
District Drawing No. OA-Nl-939. [189] 



Honolulu Plantation Co. 145 

PARCEL B-7 

Land Situated at Waiawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 4475, Land 
Commission Award 7713, Apana 46 to V. Kama- 
malu. 

Beginning at a pipe at the East corner of this 
parcel of land, being also the Southeast corner of 
Parcel B-5, the coordinates of which referred to 
Government Survey Triangulation Station *'Ewa 
Church" being 4,277.29 feet North and 694.87 feet 
East, and rmming by azimuths measured clockwise 
from true South: 

1. 25° 17'— 46.94 feet along a remainder of L. C. 
Aw. 7713, Apana 46 to V. Kamamalu, 

2. 83° 44—50.19 feet along Parcel B-6, being also 
a remainder of L. C. Aw. 7713, Apana 46 to 
V. Kamamalu, thence along Parcel B-6, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, on a curve to the right, with 
a radius of 400.00 feet, the chord azimuth and 
distance being, 

3. 98° 57—209.98 feet, 

4. 114° 10'— 56.71 feet along Parcel B-6, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, thence along Parcel B-6, be- 
ing also a remainder of L. C. Aw. 7713, Apana 
46 to V. Kamamalu, on a curve to the left, 
with a radius of 330.00 feet, the chord azimuth 
and distance being, 

5. 103° 10'— 125.93 feet; [190] ' 



146 United States of America vs. 

6. 92° 10'— 134.00 feet along Parcels B-6 and B- 
3 being also remainders of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, thence along Par- 
cels B-3 and B-4, being also remainders of L. 
C. Aw. 7713, Apana 46 to Y. Kamamalu, on 
a curve to the left, with a radius of 230.00 feet, 
the chord azimuth and distance being, 

7. 62° 25—228.26 feet; 

8. 32° 40'— 211.00 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, thence along Parcel B-4, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to Y. Kamamalu, on a curve to the 
right, with a radius of 420.00 feet, the chord 
azimuth and distance being, 

9. 47° 25—213.87 feet; 

10. 62° 10'— 247.00 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to Y. Kamamalu, thence along Parcel B-4, be- 
ing also a remainder of L. C. Aw. 7713, Apana 46 
to Y. Kamamalu, on a curve to the right, with 
a radius of 240.00 feet, the chord azimuth and 
distance being, 

11. 73° 40—95.70 feet; 

12. 85° 10'— 82.53 feet along Parcel B-4, being also 
a remainder of L. C. Aw. 7713, Apana 46 to 
Y. Kamamalu, thence along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to Y. Kamamalu, on a curve to the left, with 
a radius of 75.00 feet, the chord azimuth and 
distance being, 

13. 58° 55'— 66.34 feet, [191] 



Honolulu Plantation Co. 147 

212° 40'— 158.38 feet along 100-foot roadway, 
thence along Parcel B-5, being also a remain- 
der of L. C. Aw. 7713, Apana 46 to V. Kama- 
malu, on a curve to the left, with a radius of 
35.00 feet, the chord azimuth and distance be- 
ing, 

328° 55—62.78 feet; 

265° 10'— 17.85 feet along Parcel B-5, being 
also a remainder of L. C. Aw. 7713, Apann 46 
to V. Kamamalu, thence along Parcel B-5, be- 
ing also a remainder of L. C. Aw. 7713, Apana 
46 to V. Kamamalu, on a curve to the left, 
with a radius of 200.00 feet, the chord azimuth 
and distance being, 
253° 40'— 79.75 feet; 

242° 10'— 247.00 feet along Parcel B-5, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to y. Kamamalu, thence along Parcel B-5, be- 
ing also a remainder of L. C. Aw. 7713, Apana 
46 to V. Kamamalu, on a curve to the left, 
with a radius of 380.00 feet, the chord azimuth 
and distance being, 
227° 25'— 193.50 feet; 

212° 40'— 211.00 feet along Parcel B-5, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, thence along Parcel B-5, be- 
ing also a remainder of L. C. Avr. 7713, Apana 
46 to V. Kamamalu, on a curve to the right 
with a radius of 270.00 feet, the chord azimuth 
and distance being, 
242° 25'— 267.96 feet; 
272° 10'— 134.00 feet along Parcel B-3, bcins: 



148 United States of America vs. 

also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, on a curve to the right, with 
a radius of 370.00 feet, the chord azimuth and 
distance being, 

23. 283° 10—141.20 feet; 

24. 294° 10—56.71 feet along Parcel B-5, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, thence along Parcel B-5, 
being also a remainder of L. C. Aw. 7713, 
Apana 46 to V. Kamamalu, on a curve to the 
left, with a radius of 360.00 feet, the chord azi- 
muth and distance being, 

25. 278° 57—188.98 feet, 

26. 263° 44—74.75 feet along Parcel B-5, being 
also a remainder of L. C. Aw, 7713, Apana 
46 to V. Kamamalu, to the point of beginning 
and containing an area of 1.597 acres, and as 
delineated on 14th Naval District Drawing No. 
OA-Nl-939. [193] 

PARCEL B-8 

Land Situated at Waiawa, Ewa, Oahu, T. H. 

Being the Whole of Royal Patent 402, Land 
Commission Award 10942, Apana 1 to William 
Wallace, a Portion of Royal Patent 402, Land 
Commission Award 10942, Apana 2 to William 
Wallace and a Portion of Royal Patent 4475, Land 
Commission Award 7713, Apana 46 to V. Kama- 
malu. 

Beginning at the South corner of this parcel of 
land, on the Northeast side of Waiawa Cut-OfP 



Honolulu Playitation Co. ] 4.9 

Road near the intersection of same with Karae- 
hameha Highway, and on the Southwesterly boun- 
dary of Parcel B-4, the coordinates of which re- 
ferred to Government Survey Triangulation Sta- 
tion "Ewa Church" being 1,796.35 feet Nortli and 
371.60 feet East, and running by azimuths meas- 
ured clockwise from true South: 

1. 107° 25'— 63.76 feet along the Northeast side 
of Waiawa Cut-Off Road to a pipe, 

2. 197° 25—30.00 feet along Waiawa Cut-Off 
Road to a pipe; 

3. 107° 25'— 389.03 feet along the Northeast side 
of Waiawa Cut-Off Road, 

4. 267° 06'— 202.11 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, 

5. 268° 40'— 50.00 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu; [194] 

6. 301° 04' 30"— 59.65 feet along Parcel B-4, be- 
ing also a remainder of L. C. Aw\ 7713, Apana 
46 to V. Kamamalu, 

7. 223° 16'— 81.90 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, 

8. 310° 21'— 148.30 feet along Parcel B-4, being 
also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, 

9. 44° 33'— 87.62 feet along Parcel B-4, being also 
a remainder of L. C. Aw. 7713, Apana 46 to 
V. Kamamalu, 

10. 345° 00'— 47.35 feet along Parcel B-4, being 



150 United States of America vs. 

also a remainder of L. C. Aw. 7713, Apana 46 
to V. Kamamalu, to the point of beginning 
and containing an area of 0.792 acre, and as 
delineated on 14tli Naval District Drawing No. 
OA-Nl-939. 
Subject to a portion of Easement 3-A herein- 
after described, said easement being delineated on 
the aforesaid drawing. [195] 

PARCEL B-9 

Land Situated at Waiawa and Manana Iki, Ewa, 

Oahu, T. H. 

Being Portions of Royal Patent 4475, Land Com- 
mission Award 7713, Apanas 46 and 48 to V. Kam- 
amalu. The Whole of Royal Patent 209, Land Com- 
mission Award 9320 Apanas 1. 2 and 3 to Keoho 
and the Whole of Royal Patent 207, Land Commis- 
sion Award 9372, Apanas 1 and 2 to Keiki. 

Beginning at a pipe at the East corner of this 
parcel of land, on the Southwest side of Kame- 
hameha Highway, the coordinates of which referred 
to Grovernment Survey Triangulation Station "Ewa 
Church ' ' being 845.62 feet North and 2,845.45 feet 
East, and running by azimuths measured clockwise 
from true South: 

1. 46° 36—639.17 feet along Grant 3725 to Oahu 
Railway and Land Co. and the government 
land of Kalanihale, 

2. 145° 20—175.00 feet along Parcel E-5, being 
also Grant 159 to J. Lovell and L. C. Aw. 
9378, Apana 2 to Homaiikawaa ; 



Honolulu Plantation Co. 151 

3. 222° 33—316.40 feet along Parcel E-1, being 
also 1j. C. Aw. 7732, Apana 2 to Manuiki for 
Kapae ; 

4. 129° 20'— 30.00 feet alon.i,- Parcel E-1, b.nng 
also L. C. Aw. 7732, Apana 2 to Manuiki for 
Kapae ; 

5. 53° 30'— 61.50 feet along Parcel E-1, being 
also L. C. Aw. 7732, Apana 2 to Manuiki for 
Kapae ; 

6. 140° 30'— 20.00 feet along Parcel E-1, being 
also [196] L. C. Aw. 7732, Apana 2 to Manuiki 
for Kapae; 

7. 64° 30'— 45.00 feet along Parcel E-1, being also 
L. C. Aw. 7732, Apana 2 to Manuiki for Kapae ; 

8. 146° 28'— 40.24 feet along Parcel E-1, being 
also T.. C. Aw. 7732, Apana 2 to Manuiki for 
Kapae ; 

9. 43° 00'— 46.20 feet along Parcel E-1, being also 
L. C. Aw. 7732, Apana 2 to Manuika for Kapae ; 

10. 48° 30'— 155.00 feet along Parcel E-1, being 
also T.. C. Aw. 7732, Apana 2 to Manuiki for 
Kapae ; 

11. 323° 00'— 136.00 feet along Parcel E-1, being 
also L. C. Aw. 7732, Apana 2 to Manuiki for 
Kapae ; 

12. 72° 30'— 93.00 feet along Parcel E-5, being also 
along L. C. Aw. 9378, Apana 2 to Homaiika- 
waa; 

13. 45° 20'— 106.00 feet along Parcel E-5, being 
also along L. C. Aw. 9378, Apana 2 to Homaii- 
kawaa ; 



152 United States of America vs. 

14. 131° 00'— 41.60 feet along Parcel E-5, being 
also along Grant 159 to J. Lovell; 

15. 50° 30'— 52.20 feet along Parcel E-5, being also 
along Grant 159 to J. Lovell ; 

16. 309° 00'— 20.50 feet along Parcel E-5, being 
also along Grant 159 to J. Lovell ; 

17. 52° 00'— 140.60 feet along Parcel E-5, being 
also along Grant 159 to J. Lovell; 

18. 324° 00'— 43.00 feet along Parcel E-5, being 
also along Grant 159 to J. Lovell ; 

19. 58° 00'— 66.00 feet along Parcel E-5, being also 
along Grant 159 to J. Lovell : 

20. 140° 30'— 77.40 feet along Parcel E-5, being 
also along L. C. Aw. 7723, Apana 1 to Hopee, 

21. 63° 00'— 184.00 feet along Parcel E-5, being 
also along L. C. Aw. 7723, Apana 1 to Hopee 
and Grant 159 to J. Lovell, [197] 

22. 45° 30'— 300.00 feet along Parcel E-5, being also 
along L. C. Aw. 7723, Apana 2 to Hopee, to 
the Northeasterly edge of Waiawa Stream, 
thence following along the Northeasterly edge 
of Waiawa Stream along a remainder of the 
land of Waiawa for the next nine (9) courses, 
the direct azimuth and distances between points 
along edge of said stream being, 

-296.45 feet; 
-540.00 feet; 
-105.00 feet; 
-360.00 feet; 
-200.00 feet; 



23. 


106° 


09' 


24. 


123° 


40' 


25. 


160° 


00'- 


26. 


177° 


10' 


27. 


179° 


00'- 



Honolulu Plantation Co. 153 

28. 192° 48' :j()"— 139.:38 feet; 

29. 152° 15— 305.00 feet; 

30. 99° 00—350.00 feet; 

31. 125° 28—61.28 feet to the South side of Kame- 
hameha Highway, thence 

32. 178° 29—15.00 feet along Kamehameha High- 
way, 

33. 266° 29—128.37 feet along the South side of 
Kamehameha Highway, thence along the South 
side of Kamehameha Highway, on a curve to 
the right with a radius of 1,397.50 feet, the 
chord azimuth and distance being, 

34. 267° 41' 30"— 58.94 feet; 

35. 358° 54'— 20.00 feet along Kamehameha High- 
way, thence along the South side of Kame- 
hameha Highway, on a curve to the right, mth 
a radius of 1,377.50 feet, the chord azimuth and 
distance being, 

36. 271° 58' 30"— 147.78 feet; [198] 

37. 185° 03'— 20.00 feet along Kamehameha High- 
way, thence along the South side of Kame- 
hama Highway, on a curve to the right, with 
a radius of 1,397.50 feet, the chord azimuth 
and distance being, 

38. 281° 12'— 299.42 feet; 

39. 287° 21'— 100.03 feet along the Southwest side 
of Kamehameha Highway, 

40. 287° 25'— 289.76 feet along the Southwest side 
of Kamehameha Highway, 

41. 17° 15' — 5.00 feet along Kamehameha Highway, 

42. 287° 25'— 250.00 feet along the Southwest side 
of Kamehameha Highway, 



154 United States of America vs. 

43. 197° 25'— 5.00 feet along Kamehameha High- 
way, 

44. 287° 25—250.00 feet along the Southwest side 
of Kamehameha Highway, 

45. 17° 25' — 5.00 feet along Kamehameha High- 
way, 

46. 287° 25—27.03 feet along the Southwest side 
of Kamehameha Highway; thence along the 
Southwest side of Kamehameha Highway, on 
a curve to the right with a radius of 5,595.72 
feet, the chord azimuth and distance being, 

47. 288° 52' 15"— 284.01 feet; 

48. 290° 19' 30"— 86.90 feet along the Southwest 
side of Kamehameha Highway, 

49. 200° 19' 30"— 5.00 feet along Kamehameha 
Highway, 

50. 290° 19' 30"— 848.37 feet along the Southwest 
side of Kamehameha Highway to the point of 
beginning and containing a gross area of 43.251 
acres and a net area of 40.330 acres, after de- 
ducting Parcels E-2, E-3, E-4 and F-1 herein- 
after described, and as delineated on 14th 
Naval District Dwg. No. OA-Nl-939. [199] 

Subject to Easements 3-D and 3-F and portions 
of Easements 3-C and 3-E hereinafter described, 
said easements being delineated on the aforesaid 
drawing. 

/s/ R. M. TOWILL, 
Registered Professional Survey Certificate Number 
151. 

Honolulu, T. H., August 22, 1944. [200] 



Honolulu Plantation Co. 155 

PARCEL C-1 

Land Situated at Manana Uka, Ewa, Oahu, T. IL 

Bein^ a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning- at a pipe at the vSouth corner of this 
parcel of land, being also the West corner of Parcel 
C-2, and on the West side of Waimano Home Road, 
the coordinates of which referred to Government 
Survey Triangulation Station ''Ewa Church" being 
1,199.80 feet North and 3,563.38 feet East, and run- 
ning by azimuths measured clockwise from true 
South : 

1. 112° 00' — 60.00 feet along a remainder of Grant 
2060 to J. Raymond and L. Bernard, 

2. 202° 00—225.00 feet along Parcel A-1, being also 
a remainder of Grant 2060 to J. Raymond and 
L. Bernard, 

3. 292° 00'— 60.00 feet along Parcel A-1, being 
also a i-emainder of Grant 2060 to J. Raymond 
and L. Bernard, 

4. 22° 00'— 225.00 feet along Parcel C-2, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, to the point of beginning and 
containing an area of 0.310 acres, and as de- 
lineated on 14th Naval District Drawing No. 
OA-Nl-939. [201] 



156 United States of America vs. 

PARCEL C-2 

Land Situated at Manana Uka, Ewa, Oahu, T, H. 

Being a Portion of Grant 2060 to J. Raymond 
and L. Bernard. 

Beginning at a pipe at the West corner of this 
parcel of land, being also the South corner of Par- 
cel C-1, and on the West side of Waimano Home 
Road, the coordinates of which referred to Govern- 
ment Survey Triangulation Station ''Ewa Church" 
being 1,199.80 feet North and 3,563.38 feet East, 
and running by azimuths measured clockwise from 
true South: 

1. 202° 00—225.00 feet along Parcel C-1, bemg 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, 

2. 292° 00'— 10.00 feet along Parcel A-3, being 
also a remainder of Grant 2060 to J. Raymond 
and L. Bernard, 

3. 22° 00—225.00 feet along the West side of 
Waimano Home Road; 

4. 112° 00'— 10.00 feet along Waimano Home 
Road to the point of beginning and containing 
an area of 2,250 square feet, and as delineated 
on 14th Naval District Drawing No. OA-Nl- 
939. 

/s/ R. M. TOWILL, 
Registered Professional Survey Certificate Number 
151. 

Honolulu, T. H., August 22, 1944. [202] 



Honolulu Plantation Co. 157 

PARCEL E-1 

]jand Situated at Manana Iki, Ewa, Oahu, T. H. 

Being the Whole of Royal Patent 871, Land Com- 
mission Award 7732, Apana 2 to Manuiki for 
Kapae. 

Beginning at the South corner of this parcel of 
land, being also the Northeast corner of Parcel E-5, 
and on the boundary of Parcel B-9, the coordinates 
of which referred to Government Survey Triangu- 
lation Station ''Ewa Church" being 550.38 feet 
North and 2,281.51 feet East, and running by azi- 
muths measured clockwise from true South : 

1. 143° 00'— 136.00 feet along Parcel B-9, being 
also a remainder of L. C. Aw. 7713, Apana 48 
to V. Kamamalu, 

2. 228° 30—155.00 feet along Parcel B-9, being 
also a remainder of L. C. Aw. 7713, Apana 48 
to V. Kamamalu, 

3. 223° 00'— 46.20 feet along Parcel B-9, being 
also a remainder of L. C. Aw. 7713, Apana 48 
to V. Kamamalu; 

4. 326° 28'— 40.24 feet along Parcel B-9, being 
also a remainder of L. C. Aw. 7713, Apana 48 
to V. Kamamalu; 

5. 244° 30'— 45.00 feet along Parcel B-9, being 
also a remainder of L. C. Aw. 7713, Apana 48 
to V. Kamamalu; 

6. 320° 30'— 20.00 feet along Parcel B-9, being 
also a remainder of L. C. Aw. 7713, Apana 48 
tn V. Kamamalu; 



158 United States of America vs. 

7. 233° 30'— 61.50 feet along Parcel B-9, being 
also a remainder of L. C. Aw. 7713, Apanci 48 
to V. Kamamalu; 

8. 309° 20'— 30.00 feet along Parcel B-9, being 
also [203] a remainder of L. C. Aw. 7713, Apana 
48 to V. Kamamalu ; 

9. 42° 33'— 316.40 feet along Parcel B-9, being 
also a remainder of L. C. Aw. 7713, Apana 48 
to Y. Kamamalu, to the point of beginning and 
containing an area of 0.700 acre, and as de- 
lineated on 14th Naval District Dramng No. 
OA-Nl-939. 

Subject to a portion of Easement 3-C hereinafter 
described, said easement being delineated on the 
aforesaid drawing. [204] 

PARCEL E-2 

Land Situated at Waiawa, Ewa, Oahu, T. H. 

Being the Whole of Royal Patent 875, Land Com- 
mission Award 9376, Apana 2 to Kupihea for Ku- 
maihiwa, the Whole of Royal Patent 208, Jjand 
Commission Award 9377, Apana 2 to Lio, and a 
Portion of Royal Patent 875, Land Commission 
Award 9376, Apana 1 to Kupihea for Kumaihiwa, 
Situated Wholly Within and to be Excluded from 
Parcel B-9. 

Beginning at the South corner of this parcel of 
land, being also the East corner of Parcel F-1. the 
coordinates of which referred to Government Sur- 
vey, Triangulation Station "Ewa Church" being 
763.90 feet North and 1,718.20 feet East, and run- 



Honolulu Plantation Co. 159 

ning by azimuths measured clockwise from true 
South: 

1. 102° 30—104.06 feet along Parcel F-1, being 
also a remainder of L. C. Aw. 9376, Ax)ana 1 
to Kupihea for Kumaihiwa ; 

2. 104° 52'— 42.00 feet along Parcel F-1, being 
also a remainder of L. C. Aw. 9376, Apana 1 
to Kupihea for Kumaihiwa ; 

3. 228° 00—107.34 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to V. 
Kamamalu, 

4. 117° 00—132.00 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to V. 
Kamamalu, [205] 

5. 207° 00—76.56 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to V. 
Kamamalu, 

6. 297° 00—132.00 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to Y. 
Kamamalu, 

7. 296° 00—132.00 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to Y. 
Kamamalu, 

8. 27° 00—76.56 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to Y. 
Kamamalu, 

9. 116° 00'— 13.09 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to Y. 
Kamamalu, 

10. 40° 00'— 69.18 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to Y. 



160 United States of America vs. 

Kamamalu, to the point of beginning and con- 
taining an area of 0.705 acre, and as delineated 
on 14th Naval District Drawing No. OA-Nl- 
939. 
Subject to portions of Easements 3-C and 3-E 
hereinafter described, said easements being deline- 
ated on the aforesaid drawing. [206] 

PARCEL E-3 

Land Situated at Waiawa, Ewa, Oahu, T. H. 

Being the Whole of Royal Patent 208, Ijand 
Commission Award 9377, Apana 1 to Lio. 

Situated Wholly Within and to be Excluded 
from Parcel B-9. 

Beginning at the East corner of this parcel of 
land, on the Southwest boundary of Parcel F-1, 
the coordinates of which referred to Government 
Survey Triangulation Station ^'Ewa Church" being 
622.62 feet North and 1,481.36 feet East, and run- 
ning by azimuths measured clockwise from true 
South ; 

1. 52° 30'— 63.36 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to V. 
Kamamalu, 

2. 329° 00'— 52.80 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to V. 
Kamamalu, 

3. 57° 00'— 62.70 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to V. 
Kamamalu, 

4. 330° 00'— 19.80 feet along Parcel B-9, being 



Honolulu Plantation Co. 161 

also along J.. C. Aw. 7713, Apana 46 to V. 
Kamamalu, 

5. 57° 00—314.16 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to V. 
Kamamalu, 

6. 102° 23—95.32 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to V. 
Kamamalu, 

7. 233° 30'— 250.14 feet along Parcel B-9, being 
also along L. C. Aw. 9320, Apana 2 to Keoha and 
L. C. Aw. 7713, Apana 46 to V. Kamamalu. 

8. 151° 00'— 33.00 feet along Parcel B-9, being also 
along L. C. Aw. 7713, Apana 46 to V. Kamamalu, 

9. 233° 00'— 242.57 feet along Parcel B-9, being also 
along L. C. Aw. 7713, Apana 46 to V. Kamamalu 
and L. C. Aw. 9320, Apana 1 to Keolio, 

10. 311° 00'— 57.68 feet along Parcel F-1, being also 
along L. C. Aw. 9376, Apana 1 to Kupihea for 
Kumailhiwa, to the point of beginning and con- 
taining an area of 0.976 acre, and as delineated 
on 14tli Naval District Drawing No. OA-Nl-939. 
Subject to a portion of Easement 3-E hereinafter 

described, said easement being delineated on the 

aforesaid drawing. 

PARCEL E-4 

Land Situated at Waiawa, Ewa, Oahu, T. H. 

Being the Whole of Royal Patent 223, Land Com- 
mission Award 9373 to Kamoku. 

Situated Wholly Within and to be Excluded from 
Parcel B-9. 

Beginning at the East corner of this parcel of 



164 United States of America vs. 

also along L. C. Aw. 7713, Apana 48 +o V. 
Kamamalu ; 

13. 238° 00—66.00 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 48 to V. 
Kamamalu ; 

14. 144° 00'— 43.00 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 48 to V. 
Kamamalu ; 

15. 232° 00'— 140.60 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 48 to V. 
Kamamalu ; 

16. 129° 00'— 20.50 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 48 to V. 
Kamamalu ; 

17. 230° 30'— 52.20 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 48 to V. 
Kamamalu ; 

18. 311° 00'— 41.60 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 48 to V. 
Kamamalu ; 

19. 225° 20'— 106.00 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 48 to V. 
Kamamalu ; 

20. 252° 30'— 93.00 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 48 to V. 
Kamamalu; [211] 

21. 325° 20'— 175.00 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 48 to V. 
Kamamalu ; 

22. 46° 36' — 254.45 feet along the government land 
of Kalanihale, partly along Governor's Execu- 
tive Order 910; 



Honolulu Plantation Co. 165 

23. 338° 27'— 92.20 feet along the government land 
of Kalanihale along Governor's Executive Or- 
der 910, 

24. 321° 55' 30"— 342.62 feet along the government 
land of Kalanihale along Governor's Executive 
Order 910 and partly along Parcel T-1 to the 
point of beginning and containing an area of 
10.073 acres, and as delineated on 14th Naval 
District Drawing No. OA-Nl-939. 

/s/ R. M. TOWILL, 
Registered Professional Surveyor Certificate Num- 
ber 151. 

Honolulu, T. H., August 22, 1944. [212] 

PARCEL F-1 

Land Situated at Waiav^a, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 875, Land Com- 
mission Award 9376, Apana 1 to Kupihea for 
Kumaihiwa. 

Situated Wholly Within and to be Excluded from 
Parcel B-9. 

Beginning at the East corner of this parcel of 
land, being also the South corner of Parcel E-2, 
the coordinates of which referred to Government 
Survey Triangulation Station "Ewa Church" be- 
ing 763.90 feet North and 1,718.20 feet East, and 
running by azimuths measured clockwise from true 
South. 
1. 40° 00'— 161.82 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to V. 
Kamamalu, 



166 United States of America vs, 

2. 316° 00'— 13.86 feet along Parcel P 0, being 
also along L. C. Aw. 7713, Apana 46 to V. 
Kamamalu ; 

3. 41° 00'— 99.00 feet along Parcel B-9, being also 
along L. C. Aw. 7713, Apana 46 to V. Kama- 
malu; 

4. 131° 00'— 169.60 feet along Parcel B-9, being 
also along L. C. Aw. 7713, Apana 46 to V. 
Kamamalu and also along Parcel E-3, being 
also L. C. Aw. 9377, Apana 1 to Lio and L. C. 
Aw. 9320, Apana 1 to Keoho; 

5. 228° 00'— 195.30 feet along Parcel B-9, being 
also along L. C. Aw. 9320, Apana 1 to Keoho 
and L. C. Aw. 7713, Apana 46 to V. Kamamalu ; 

6. 284° 52'— 42.00 feet along Parcel E-2, being 
also a remainder of L. C. Aw. 9376, [213] 
Apana 1 to Kupihea for Kumaihiwa; 

7. 282° 30'— 104.06 feet along Parcel E-2, being 
also a remainder of L. C. Aw. 9376, Apana 1 
to Kupihea for Kumaihiwa, to the point of 
beginning and containing an area of 0.770 
acre, and as delineated on 14th Naval District 
Drawing No. OA-Nl-939. 

Subject to a portion of Easement 3-E hereinafter 
described, said easement being delinated on the afore- 
said drawing. 

PARCEL F-2 

Land Situated at Manana Iki, Ewa, Oahu, T. H. 
Being the Whole of Royal Patent 238, liand 
Commission Award 9405 to Kanaau. 
Beginning at the Southeast corner of this parcel 



Honolulu Plantation Co. 167 

of land, and on the KSoutliorly boundary of Parcel 
E-5, the coordinates of which referred to Govern- 
ment Survey Triangulation Station '*Ev^a Church" 
being 335.79 feet South and 2,230.12 feet East, and 
running- by azimuths measured clockwise from true 
South: 

1. 91° 00—323.00 feet along Grant 222 to Na- 
heana to the edge of Waiawa Stream; thence 
following along the edge of Waiawa Stream, 
the direct azimuth and distance between points 
on edge of said stream being, 

2. 141° 31—63.00 feet, thence 

3. 244° 00—52.80 feet along Parcel E-5, being 
also along Grant 159 to J. Lovell; 

4. 263° 00—83.16 feet along Parcel E-5, being 
also along Grant 159 to J. Lovell; 

5. 252° 00—225.72 feet along Parcel E-5, being 
also along Grant 159 to J. Lovell; 

6. 331° 20—52.72 feet along Parcel E-5, being 
also along Grant 159 to J. Lovell; 

7. 4° 00'— 112.00 feet along Parcel E-5, being also 
along Grant 159 to J. Lovell, to the point of 
beginning and containing an area of 0.857 acre, 
and as delineated on 14th Naval District Draw- 
ing No. OA-Nl-939. 

/s/ R. M. TOWILL, 
Registered Professional Surveyor Certificate Num- 
ber 151. 

Honolulu, T. H., August 22, 1944. [215] 



168 United States of America vs. 

PARCEL T-1 

Land Situated at Manana Iki, Ewa, Oahu, T. H. 

Being a Portion of the Government Land of 
Kalanihale and Being Also a Portion of Governor's 
Executive Order 910. 

Beginning at a pipe at the South corner of this 
parcel of land, being also the East corner of Parcel 
E-5, the coordinates of which referred to Govern- 
ment Survey Triangulation Station "Ewa Church" 
being 123.84 feet South and 2,441.33 feet East, and 
running by azimuths measured clockwise from true 
South : 

1. 141° 55' 30' —93.33 feet along Parcel E-5, being 
also along Grant 159 to J. Lovell; 

2. 292° 00'— 78.91 feet along a remainder of the 
government land of Kalanihale, being also a 
remainder of Governor's Executive Order 910; 

3. 19° 34'— 46.60 feet along the land of Kaholona, 
being also L. C. Aw. 9305, Part 12 to P. Kanoa, 
to the point of beginning and containing an 
area of 1,837 square feet, and as delineated on 
14th Naval District Drawing No. OA-Nl-939. 

/s/ R. M. TOWILL, 
Registered Professional Surveyor Certificate Num- 
ber 151. 

Honolulu, T. H., August 22, 1944. [216] 

EASEMENT 1 

Being a Roadway Forty (40.0) Feet Wide in 
Favor of the City and County of Honolulu. 

Beginning at a pipe at the East corner of this 



Honolulu Plantation Go. 169 

parcel of land, being also the South corner of Par- 
cel A-2, the North corner of Parcel A-4 and tlir 
West corner of Parcel A-5, the coordinates of whicli 
referred to Government Survey Triangulation Sta- 
tion ''Ewa Church" being 2,305.69 feet North and 
4,010.18 feet East, and running by azimuths meas- 
ured clockwise from true South: 

1. 22° 00'— 40.00 feet along Parcel A-4, being also 
a remainder of Grant 2060 to J. Raymond and 
L. Bernard; 

2. 112° 00'— 853.98 feet along a remainder of 
Grant 2060 to J. Raymond and L. Bernard, 
partly along Exclusion 1, to a pipe; 

3. 202° 00'— 40.00 feet along a remainder of Grant 
2060 to J. Raymond and L. Bernard, 

4. 292° 00'— 853.98 feet along a remainder of 
Grant 2060 to J. Raymond and L. Bernard, 
partly along Parcel A-2, to the point of begin- 
ning and containing an area of 0.784 acre, and 
as delineated on 14th Naval District Drawing 
No. OA-Nl-939. [217] 

EASEMENT 2 

Description of Centerline of Pipeline Right-of- 
Way in Favor of the City and County of Honolulu. 

Beginning at the North end of this easement, on 
the Southeast boundary of Exclusion 1 (City and 
County Reservoir Lot), the coordinates of which 
referred to Government Survey Triangulation Sta- 
tion ^'Ewa Church" being 2,362.55 feet North and 
3,323.16 feet East, and rumiing by an azimuth 
measured clockwise from true South: 



170 United States of America vs. 

1. 12° 15'— 1002.58 feet to the Southerly boundary 
of Parcel A-1, and as delineated on 14th Naval 
District Drawing No. OA-Nl-939. 

EASEMENT 3-A 

Description of Centerline of Electric Transmis- 
sion Line for Hawaiian Electric Co., Ltd. 

Beginning at the East end of this easement, on 
the Southerly boundary of Parcel E-4, the coordi- 
nates of which referred to Government Survey Tri- 
angulation Station "Ewa Church" being 1,605.09 
feet North and 981.28 feet East, and running by 
azimuths measured clockwise from true South: 

1. 113° 41'— 83.86 feet; [218] 

2. 107° 14'— 231.79 feet; 

3. 114° 02'— 332.44 feet; 

4. 109° 40'— 1718.60 feet; 

5. 127° 12'— 152.39 feet to the Westerly boundary 
of Parcel B-4, the true azimuth and distance 
to a pipe marking the end of the 25th course 
of Parcel B-4 being 336° 54' 54" 30.07 feet, 
and as delineated on 14th Naval District Draw- 
ing No. OA-Nl-939. 

EASEMENT 3-B 

Description of Centerline of Electric Transmis- 
sion Line for Hawaiian Electric Co., Ltd. 

Beginning at the East end of this easement, on 
the Southerly boundary of Parcel B-4, the coor- 
dinates of which referred to Government Survey 
Triangulation Station "Ewa Church" being 2,024.05 
feet North and 254.08 feet West, and running by 
azimuths measured clockwise from true South. 



Honolulu Plantation Co. 171 

1. 110° 22— 27().58 feet; 

2. 109° 12—783.80 feet; 

3. 127° 12—86.87 feet to the Westerly boundary 
of Parcel B-4, the true azimuth and distance 
to a pipe marking the end of the 25th course 
of Parcel B-4 being 155° 00' 60.79 feet, and as 
delineated on 14th Naval District Drawing No. 
OA-Nl-939. [219] 

EASEMENT 3-C 

Description of Centerline of Electric Transmis- 
sion Line for Hawaiian Electric Co., Ltd. 

Beginning at the East end of this easement, on 
the Southeast boundary of Parcel B-9, the coor- 
dinates of which referred to Government Survey 
Triangulation Station ''Ewa Church" being 624.09 
feet North and 2,611.20 feet East, and running by 
an azimuth measured clockwise from true South: 
1. 105° 07—1964.40 feet to the edge of Waiawa 
Stream, the true azimuth and distance to the 
end of the 28th course of Parcel B-9 being 
192° 48' 30" 80.23 feet, and as delineated on 
14th Naval District Drawing No. OA-Nl-939. 

EASEMENT 3-D 

Description of Centerline of Electric Transmis- 
sion Line for Hawaiian Electric Co., Ltd. 

Beginning at the North end of this easement, on 
the Northeast boundary of Parcel B-9, the coordi- 
nates of which referred to Government Survey Tri- 
angulation Station ''Ewa Church" being 1,073.63 
feet North and 2,229.89 feet East, and running by 



172 United States of America vs. 

azimuths measured [220] clockwise from true 
South : 

1. r 40' 30"— 114.22 feet; 

2. 20° 51' 30"— 222.40 feet to the centerline of 
Easement 3-C, the true azimuth and distance 
to the initial point of Easement 3-C being 285° 
07' 492.80 feet, and as delineated on 14th Naval 
District Drawing No. OA-Nl-939. 

EASEMENT 3-E 

Description of Centerline of Electric Transmis- 
.sion Line for Hawaiian Electric Co., Ltd. 

Beginning at the Northeast end of this ease- 
ment, on the centerline of Easement 3-C, the true 
azimuth and distance from the initial point of 
Eastment 3-C being 105° 07' 858.70 feet, and the 
coordinates of said point of beginning referred to 
Government Survey Triangulation Station "Ewa 
Church" being 848.03 feet North and 1,782.21 feet 
East, and ruiming by an azimuth measured clock- 
wise from true South: 
1. 48° 33'— 955.20 feet to the edge of Waiawa 
Stream, the true azimuth and distance to the 
end of the 23rd course of Parcel B-9 being 
303° 40' 170.62 feet, and as delineated on 14th 
Naval District Drawing No. OA-Nl-939. [221] 

EASEMENT 3-F 

Description of Centerline of Electric Transmis- 
sion Line for Hawaiian Electric Co., Ltd. 

Beginning at the East end of this easement, on 
the Northeast boundary of Parcel B-9, the coor- 



Honolulu Plantation Co. 173 

(linates of which referred to Government Suivey 
Triangulation Station "Ewa Church" being 1,498.21 
feet Nortli and 947.75 feet East, and running by 
azimuths measured clockwise from true South: 

1. 105° 15—230.47 feet; 

2. 122° 39—14.15 feet to the Northeast boundary 
of Parcel B-9, the true azimuth and distance 
to the end of the 38th course of Parcel B-9 
being 284° 59' 30" 115.01 feet, and as delineated 
on 14th Naval District Drawing No. OA-Nl- 
939. 

/s/ R. M. TOWILL, 
Registered Professional Surveyor Certificate Num- 
ber 151. 

Honolulu, T. H., August 22, 1944. 

[Endorsed] : Filed Sept. 7, 1944. [222] 



[Title of District Court and Cause No. 529.] 
DECLARATION OF TAKING 

Whereas, pursuant to the authority of the Acts 
of Congress approved March 27, 1942 (Public Law 
507, 77th Congress), April 28, 1942 (Public Law 
528, 77th Congress), and June 26, 1943 (Public Law 
92, 78th Congress), the above styled condemnation 
proceeding has been instituted. 

Now, Therefore, pursuant to the provisions of 
the Act of Congress approved February 26, 1931 
(46 Stat. 1421), I, Secretary of the Navy, do hereby 
make and cause to be filed this declaration of tak- 
ing, and by virtue of authority thereof do hereby 
state that the lands selected for acquisition aggre- 



174 United States of America vs. 

gate 344.897 acres, more or less, at Manana and 
Waiawa, Ewa, Oahu, Territory of Hawaii, more 
particularly [224] Exhibit "A" attached hereto 
and made a part hereof. The lands are delineated 
on a map entitled ''Boundary Map, Manana C. B. 
Camp and Storage Area," 14th Naval District Dwg. 
No. OA-Nl-939, attached hereto as Exhibit ''B" 
and made a part hereof. 

And I do declare said lands to be taken under 
the authority of the aforesaid Acts of Congress; 
that the use to which said lands are to be put is 
in connection with the Manana Construction Bat- 
talion Camp and Storage Area; and that the estate 
hereby taken in said lands is as follows: 

''1. As to Parcels A-2, A-3, A-5, A-6, A-7, A-8, 
A-9, A-10, B-1, B-2, B-3, B-5, B-6, C-1, C-2, El, 
E-2, F-1 and F-2, including all improvements there- 
on and appurtenances thereunto belonging, full fee 
simple title ; 

2. As to Parcels A-1, A-4, B-4, B-7, B-8, B-9, 
E-3, E-4, E-5, and T-1, including all improvements 
thereon and appurtenances thereunto belonging, fee 
simple title, subject, however, to the following: 

Parcels A-1 and A-4 

(a) Perpetual access easement (to and from Ex- 
clusion 1 as delineated on Exhibit ''B") of the City 
and County of Honolulu acquired by deed dated 
July 25, 1932, recorded in Liber 1174, page 82 of 
the Bureau of Conveyances of the Territory of 
Hawaii ; said access easement being by way of Par- 
cel A-4 and along the right of way described 



Honolulu Plantation Go. 175 

in [225] Exhibit "A" and delineated on Exhibit 
*'B", both attached hereto, as Easement No. 1, and 
reserving to the said City and County of Honohilu 
the right to permit the operation, maintenance and 
repair of public utility facilities over, under and 
along said access easement, said access easement to 
be used in common with the Government and its 
permittees. 

Parcel A-1 

(b) Perpetual easement of the City and County 
of Honolulu, acquired by deed dated July 25, 1932, 
recorded in Liber 1174, page 82 of the Bureau of 
Conveyances of the Territory of Hawaii, for the 
operation, maintenance, and repair of a pipe line, 
together with the right of ingress and egress for 
such purposes, the centerline of which is described 
in Exhibit ''A'' and delineated on Exhibit ''B'^ 
attached hereto, as Easement 2. 

Parcels B-4, B-8 and B-9 

(c) The existing right of the Hawaiian Electric 
Company, Limited, its successors and assigns, to 
operate, maintain, and repair electric power trans- 
mission poles and wire lines, together with the right 
of ingress and egress for such purposes, over the 
rights of way, the centerlines of which are de- 
scribed in Exhibit ''A" and delineated on Exliibit 
"B", attached hereto, as Easements 3-A, 3-B, 
and [226] 3-F; said right having been acquired by 
the said Hawaiian Electric Company, Limited, from 
the Trustees under the Will and of the Estate of 



176 United States of Americi vs. 

Bernice P. Bishop, Deceased, by instrument dated 
July 31, 1944, and recorded in Liber 1852, pages 19 
and 29, in the Bureau of Conveyances of the Ter- 
ritory of Hawaii. 

(d) The right hereby reserved unto, 

(1) George Miles Collins, John Kirkwood Clarke, 
Frank Elbert Midkiff, Edwin Pauhaulani Murray, 
and Joseph Boyd Poindexter, as Trustees under the 
Will and of the Estate of Bernice P. Bishop, De- 
ceased, and to their successors in trust and assigns, 
as to Parcel B-9; and 

(2) A. Lester Marks, Elizabeth Loy Marks, and 
Elizabeth Janet Cartwright McCandless, as Trus- 
tees under the Will and of the Estate of L. L. Mc- 
Candless, Deceased, and to their successors in trust 
and assigns, as to Parcels E-3, E-4, and E-5; and to 

(3) The City and County of Honolulu, a munici- 
pal corporation of the Territory of Hawaii, and its 
assigns, as to Parcel T-1, to operate, maintain, and 
repair, electric power transmission poles and wire 
lines, together with the rights of way, the center- 
lines of which are described in Exhibit ''A", and 
delineated on [227] Exhibit "B", attached hereto, 
as Easement 3-C, for so long only as the said rights 
of way over which said facilities pass are used for 
such purposes. 

(e) The right hereby reserved to the present fee 
owners their successors, assigns, and permittees, to 
use Parcel B-7 as a roadway in common, however, 
with the United States of America and its per- 
mittees." 

And I, Secretary of the Navy, do hereby state 



Honolulu Plantation Co. Ill 

that the sum of money estimated by me to be just 
compensation for said lands and all improvements 
thereon and appurtenances thereunto belonging, is 
one hundred forty-three thousand two hundred four 
dollars and fifteen cents (|143,204.15), which sum 
is hereby deposited into the registry of the coui-t 
for the use and benefit of the persons entitled there- 
to, and that the names of the owners of said prop- 
erty and improvements thereon which are hereby 
taken are shown on Schedule ''A" attached hereto 
and made a part hereof. 

I am of the opinion that the ultimate award for 
the taking of said lands will be within the limits 
prescribed by Congress. 

In Witness Whereof, the petitioner, by and 
through the Secretary of the Navy, has caused this 
declaration of taking to be signed on the 18th day 
of August, 1945, in the City of Washington, Dis- 
trict of Columbia. 

UNITED STATES OF 
AMERICA, 

By /s/ JAMES FORRESTAL. [2281 

SCHEDULE *'A'' 

The names of the persons having title to or other 
interest in the lands described in the within decla- 
ration of taking, and the amounts estimated to be 
fair compensation for each respective ownership, 
including all improvements thereon, are as follows: 



178 United States of Amer 'ca vs. 









Estimated Just 


Parcel 


Natne of Owner 


Acres 


Compensation 


A-1 to A-10 


Hawaiian Land and 


104.862 


$ 47,187.90 


inclusive 


Improvement Co. Ltd. 






B-1 to B-9 


Trustees of B. P. Bishop 


225.081 


90,032.40 


inclusive 


Estate 






E-1 to E-5 


L. L. MeCandless Estate 


12.924 


5,169.60 


inclusive 








C-1 and C-2 


Oahu Railway & Land Co. 


0.361 


162.45 


F-1 and F-2 


Honolulu Plantation Co. 


1.627 


650.80 


T-1 


City and County of 
Honolulu 

Total 


0.042 


1.00 




344.897 


$143,204.15 



[Printer's Note: Exhibit "A" attached to 
Declaration of Taking is similar to Exhibit "A" 
attached to Petition for Condemnation and is 
set out at pages 115-171 with the exception of 
Easement 3-C which is set out below.] 

. EASEMENT 3-C 

Description of Centerline of Electric Transmis- 
sion Line for Hawaiian Electric Co., Ltd. 

J3eing easements twenty-two (22) feet wide, run- 
ning over and across Parcels T-1, E-5, B-9, E-3 
and E-4 of the U. S. Navy Acquisition imder Civil 
Suit No. 529, same being portions of Territorial 
Government land of Kalanihale, Grant 159 to J. 
Lovell, R. P. 6240, L. C. Aw. 7723, Apana 2 to 
Hopee, R. P. 4475, L. C. Aw. 7713, Apana 46 to V. 
Kamamalu, R. P. 208, L. C. Aw. 9377, Apana I to 
Lio, R. P. 209, L. C. Aw. 9320, Apana 2 to Keoho 
and R. P. 223, L. C. Aw. 9373 to Karaoku. 

Situated at Manana-Iki and Waiawa, Ewa, Oahu. 



Honolulu Plantation Co. 179 

Part 1 

Begiiming at the Easterly end of this center line, 
at a point on the East boundary of the U. 8. Navy 
Acquisition under Civil Suit No. 529 and on the 
Westerly end of Second St., the coordinates of said 
l^oint of beginning refei'red to Government Survey 
Triangulation Station "Ewa Church" being 131.26 
feet South and 2438.51 feet East and thence run- 
ning by azimuths measured clockwise from True 
South : 

1. 113" 01—141.14 feet; 

2. 112^^ 00'— 322.00 feet parallel to and twenty- 
two (22) feet Southwest of the proposed center 
line of Second St. Extension; 

3. 112" 00'— 845.24 feet parallel to and twenty- 
two (22) feet Southwest of the proposed center 
line of Second St. Extension; 

4. 112° 00'— 519.94 feet parallel to and twenty- 
two (22) feet Southwest of the proposed center 
line of Second St. Extension; [291] 

5. 179° 28'— 494.60 feet; 

6. 113° 08'— 41.46 feet to the West boundary of 
the U. S. Navy Acquisition and the Ea<^t bank 
of Waiawa Stream, said point being 1006.83 feet 
North and 701.55 feet East of Govermiient Sur- 
vey Triangulation Station ''Ewa Church". 

Part 2 

Beginning at the end of Course 1 of Part 1 above 
described and rmming therefrom: 

1. 273° 55'— 146.48 feet to the East boundarv of 



180 United States of America vs. | 

the IT. S. Navy Acquisition and the Westerly; | 
end of Second St. \ 

Part 3 i 

'i 

Beginning at the end of Course 2 of Part 1 above i 
described and running therefrom: 
1. 187° 02—65.00 feet. j 

Part 4 j 

Beginning at the end of Course 3 of Part 1 above ] 
described and running therefrom: 
1. 48° 13—217.09 feet to the South boundary of | 
the U. S. Navy Acquisition and the North bank 
of Waiawa Stream, said point being 216.54 feet 
North and 1064.48 feet East of Government 
Survey Triangulation Station '^Ewa Church". 

Together with an additional easement for guy 
puiposes on three areas, circular in shape, one 
circle each centering on the end of Courses 1, 4 and 
5 of Part 1 above described and having a radius 
of fifteen (15) feet, thirty (30) feet and forty (40) 
feet, respectively^; save and except any portions of 
said circular areas which conflict with the proposed 
extension of Second St. of which do not lie within 
the U. S. Navy Acquisition, and as delineated on 
Hth Naval District Drawing No. OA-Nl-939. 

[Endorsed] : Filed Sept. 17, 1945. [292] 



Honolulu Plantation Co. 181 

[Title of District Court and Cause No. 529] 

MOTION P^OR ORDER AMENDING 
PETITION IN CONDEMNATION 

Now comes the Petitioner, United States of 
America, by its Attorney, Charles F. Rath})un, Spe- 
cial Assistant to the Attorney (leneral, and moves 
that this Court enter an Order Amending the Petition 
in Condemnation herein by striking Exhibits ''A" 
and '*B" attached to said Petition and substituting 
therefore Exhibits ''C" and "D", hereto attached, 
as a part of said Petition, and by striking from 
said Petition in the 1st, 2nd, 3rd and 4th lines 
from the bottom of page 1 the following words: 
"more particularly described in Exhibit "A" 
hereto annexed and made a part hereof as 
though set forth at length and shown upon the 
map marked Exhibit "B", also attached here- 
to/* 
and substituting for said words after the words 
"certain land" in the 4th line from the bottom 
thereof, [294] 

"more particularly described in Exhibit "C" 
hereto annexed and made a part hereof as 
though set forth at length and showTi upon the 
map marked Exhibit "D'.', also attached here- 
to.'' 
and by striking all of Paragraph III of said Peti- 
tion in Condemnation and substituting therefore a 
new Paragraph III as follow^s: 

"That the estate sought to be taken in said lands 
is as follows: 



182 United States of Americr, vs. 

1. As to Parcels A-2, A-3, A-5, A-6, A-7, A-8, 
A-9, A-10, B-1, B-2, B-3, B-5, B-6, C-1, C-2, E-1, 
E-2, P-1 and F-2, including all improvements there- 
on and appurtenances thereunto belonging, full fee 
simple title: 

2. As to Parcels A-1, A-4, B-4, B-7, B-8, B-9, 
E-3, E-4, E-5, and T-1, including all improvements 
thereon and appurtenances thereunto belonging, fee 
simple title, subject, however, to the following: 

Parcels A-1 and A-4 

(a) Perpetual access easement (to and from Ex- 
clusion 1 as delineated on Exhibit ''D") of the 
City and Coimty of Honolulu acquired by deed 
dated July 25, 1932, recorded in Liber 1174, page 82 
of the Bureau of Conveyances of the Territory of 
Hawaii; said access easement being by way of Par- 
cel A-4 and along the right of way described in 
Exhibit ''C" and delineated on Exhibit "D'', both 
attached hereto, as Easement No. 1, and reserving 
to the said City and County of Honolulu the right 
to permit the operation, maintenance and repair of 
public utility facilities over, under and alotig said 
access easement, said [295] access easement to be 
used in common with the Grovernment and its per- 
mittees. 

Parcel A-1 

(b) Perpetual easement of the City and County 
of Honolulu, acquired by deed dated July 25, 1932, 
recorded in Liber 1174, Page 82 of the Bureau of 
Conveyances of the Territory of Hawaii, for the 



Honolulu Plantation Co. 183 

operation, maintenance and repair of a pipe line, 
together with the right of ingress and egress for 
such purposes, the centerline of which is described 
in Exhibit '*C" and delineated on Exhibit ^'D'' 
attached hereto, as Easement 2. 

Parcels B-4, B-8 and B-9 

(c) The existing right of the Hawaiian Electric 
Company, Limited, its successors and assigns, to 
operate, maintain, and repair electric power trans- 
mission poles and wire lines, together with the 
right of egress and ingress for such purposes, over 
the rights of way, the centerlines of which are de- 
scribed in Exhibit ^'C" and delineated on Exhibit 
*'D", attached hereto, as Easements 3- A, 3-B and 
3-F; said right having been acquired by the said 
Hawaiian Electric Company, Limited, from the 
Trustees under the Will and of the Estate of Ber- 
nice P. Bishop, Deceased, by instrmnent dated 
July 31, 1944, and recorded in Liber 1852, pages 
19 and 29, in the Bureau of Conveyances of the 
Territory of Hawaii. 

(d) The right hereby reserved unto, 

(1) George Miles Collins, John Kirkwood Clarke, 
Frank Elbert Midkiff, Edwin Pauhaulani Murray, 
and Joseph Boyd Poindexter, as Trustees under the 
Will and of the Estate of Bernice P. Bishop, "De- 
ceased, and to their successors in trust and assigns, 
as to Parcel B-9; and [296] 

(2) A. Lester Marks, Elizabeth Loy Marks, and 
Elizabeth Janet Cartwright McCandless, as 
Trustees under the Will and of the Estate of L. L. 



184 United States of America * vs, 

McCandless, Deceased, and to their successors in 
trust and assigns, as to Parcels E-3, E-4, and E-5; 
and to 

(3) The City and County of Honolulu, a muni- 
cipal corporation of the Territory of Hawaii, and 
its assigns, as to Parcel T-1, to operate, maintain, 
and repair, electric power transmission poles and 
wire lines, together with the rights of way, the cen- 
terlines of which are described in Exhibit '^C^' 
and delineated on Exhibit "D", attached hereto, 
as Easement 3-C, for so long only as the said rights 
of way over which said facilities pass are used for 
such purposes. 

(e) The right hereby reserved to the present fee 
owners, their successors, assigns, and permittees, to 
use Parcel B-7 as a roadway in common, however, 
with the United States of America and its per- 
mittees." 

Petitioner states that it is necessary that the 
Petition herein be amended to more accurately 
define the estate being taken. 

Dated Honolulu, T. H., this 17th day of Septem- 
ber, 1945. 

UNITED STATES 
OF AMERICA, 

Bj /s/ CHARLES F. RATHBUN, 

Special Asst. to the Atty. Gen. 



Honolulu Plantation Co. 185 

[Printer's Note] : Parcels A-1 to B-9 of Exhibit 
**C" are the same as A-1 to B-9 set out at pages 115- 
154 of this printed record, with exception of last 
paragraph of Parcel B-9 which reads as follows: 
"Subject to Easement 3-F and portion of Easement 
3-C, said easements being delineated on the afore- 
said drawing." 

Parcels C-1, C-2, E-1 and E-2 are the same as C-1, 
C-2, E-1 and E-2 set out at pages 155-160, with ex- 
ception of last paragraph of E-i and E-2 being 
deleted. 

Parcel E-3 same as E-3 set out at page 160 except 
last paragraph refers to Easement 3-C instead of 3-E. 

Parcels E-4 and E-5 are the same as E-4 and E-5 
set out at pages 161-2 with following paragraph 
added : "Subject to a portion of Easement 3-C herein- 
after described, said Easement being delineated on 
the aforesaid drawing." 

Parcel F-1 same as F-1 set out at page 165 with the 
exception of last paragraph being deleted. 

Parcel F-2 same as F-2 set out at page 166. 

Parcel T-1 same as T-1 set out at page 168 with 
following added: "Subject to a portion of Easement 
3-C hereinafter described, said Easement being de- 
lineated on the aforesaid drawing." 

Easements 1-2-3A and 3B same as 1-2-3A and 3-B 
set out at pages 168-171. 



186 United States of Amf lea vs. 

EASEMENT 3-C 

Description of Centerline of Electric Transmis- 
sion Line for Hawaiian Electric Co., Ltd. 

Being easements twenty-two (22) feet wide, run- 
ning over and across Parcels T-1, E-5, B-9, E-3 and 
E-4 of the U. S. Navy Acquisition under Civil Suit 
No. 529, same being portions of Territorial Govern- 
ment land of Kalanihale, Grant 159 to J. LovelL 
R. P. 6240, L. C. Aw. 7723, Apana 2 to Fopee, 
R. P. 4475, L. C. Aw. 7713, Apana 46 to V. Kama- 
malu, R. P. 208, L. C. Aw. 9377, Apana 1 to Lio, 
R. P. 209, L. C. Aw. 9320, Apana 2 to Keoho and 
R. P. 223, L. C. Aw. 9373 to Kamoku. 

Situated at Manana-Iki and Waiawa, Ewa, Oahu. 

Part 1 

Beginning at the Easterly end of this center line, 
at a point on the East boundary of the U. S. Navy 
Acquisition under Civil Suit No. 529 and on the 
Westerly end of Second St., the coordinates of said 
point of beginning referred to Government Survey 
Triangulation Station "Ewa Church" being 131.26 
feet South and 2438.51 feet East and thence run- 
ning by azimuths measured clockwise from True 
South: 

1. 113^ 01—141.14 feet; 

2. 112"^ 00'— 322.00 feet parallel to and twenty- 
two (22) feet Southwest of the proposed ceriter 
line of Second St. Extension; 



Honolulu Plantation Co. 187 

3. 112'' 00'— 845.24 feet parallel to and twenty- 
two (22) feet Southwest of the proposed center 
line of Second St. Extension; 

4. ll^"* 00'— r>19.94 feet parallel to and twenty- 
two (22) feet Southwest of the proposed center 
line of Second St. Extension; [359] 

5. 179° 28'— 494.69 feet; 

6. 113° 08'-41.46 feet to the West boundary of 
the U. S. Navy Acquisition and the East bank 
of Waiawa Stream, said point beine^ 1066.83 
feet North and 701.55 feet East of Govern- 
ment Survey Triangulation Station "Ewa 
Church". 

Part 2 

Beginning at the end of Course 1 of Part 1 above 
described and running therefrom: 
1. 273' 55'— 146.48 feet to the East boundary of 
the U. S. Navy Acquisition and the Westerly 
end of Second St. 

Part 3 

Beginning at the end of Course 2 of Part 1 above 
described and running therefrom: 
1. 187^ 02'— 65.00 feet. 

Part 4 

Begiiming at the end of Course 3 of Part 1 above 

described and running therefrom: 

1. 48° 13'— 217.09 feet to the South boundary of 

the U. S. Navy Acquisition and the North bank 

of Waiawa Stream, said point being 216.54 feet 



188 United States of Aw rica vs. 

North and 1064.48 feet East of Government 
Survey Triangulation Station ''Ewa Chnrch'^ 

Together with an additional easement for guy 
purposes on three areas, circular in shape, one 
circle each centering on the end of Courses 1, 4 and 
5 of l*art 1 above described and having a radius 
of fifteen (15) feet, thirty (30) feet and forty (40) 
feet, respectively; save and except any portions of 
said circular areas which conflict with the proposed 
extension of Second St. of which do not lie within 
the U. S. Navy Acquisition, and as delineated on 
the 14th Naval District Drawing No. OA-Nl-939. 



[Title of District Court and Cause No. 529.] 

ORDER AMENDING PETITION 
IN CONDEMNATION 

Now this 17th day of September, 1945, upon mo- 
tion by the Petitioner, United States of America, 
by its Attorney, Charles F. Rathbun, Special As- 
sistant to the Attorney General, it appearing that 
it is necessary to more accurately define the estate 
being taken in the land described herein. 

It Is Ordered: 

That the Petition in Condemnation be amended 
by striking Exhibits "A" and "B" attached to said 
Petition and substituting therefore Exhibits '*C'* 
and ''D'' attached to the Motion this day filed 
herein, asking for an Order Amending the Petition 
herein, and by striking from said Petition in the 



Honolulu Plantation Go. 189 

1st, 2nf1, 3rd, and 4th lines from the bottom oT page 
1 the Col lowing words: 

"more particularly described in Exhibit "A" 
her*3to annexed and made a part hereof as 
though set forth at length and shown upon the 
map marked Exhibit ''B", also attached here- 
to." r3^>2] 

and substituting for said words after the words 
"certain land" in the 4th line from the bottom 
thereof, 

"more particularly described in Exhibit "C" 
heieto annexed and made a part hereof as 
though set forth at length and shown upon the 
map marked Exhibit "D", also attached here- 
to." 

and by striking all of Paragraph III of said Peti- 
tion in Condemnation and substituting therefore a 
new^ Paragraph III as set forth in the said motion 
this day tiled herein asking for an Order Am<^nd- 
ing Pt^tition in Condemnation herein. 

Dated Honolulu, T. H., this 17th day of Septem- 
ber, 1915. 

(Seal) /s/ D. E. METZGER, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Sept. 17, 1945. [363] 



190 United States of Ar.vt^rica vs. 

In the District Court of the United States 
for the District of Hawaii 

April Term 1945 

Civil No. 529 

UNITED STATES OF AMERICA, 

Petitioner, 
vs. 

344.893 Acres of land, more or less, at Manana and 
Waiawa, Ewa, Oahu, T. H. ; Oahu Railway and 
Land Company, an Hawaiian corporation ; et al. ; 

Defendants. 

ORDER AND JUDGMENT ON DECLARATION 
OF TAKING 

It appearing that on the 7th day of September, 
1944, the United States of America filed a Petition 
for Condemnation of certain lands described and 
shown in said Petition; and 

It further appearing that the said Petition for 
Condenmation has been amended pursuant to an 
Order of the Court this day entered herein; and 

It further appearing that there was filed herein 
on the 17th day of September, 1945, in the above 
cause, a Declaration of Taking signed by James 
Forrestai, Secretary of the Navy, under and pur- 
suant to the provisions of the Act of Congress 
approved February 26, 1931 (46 Stat. 1421) and 
luider the further authority of the Act of Congress 



Honolulu Plantation Co. 191 

approved March 27, 1942 (Public Law 507, 77th 
Congress), the Act of Congress approved April 
28, 1942 (Public Law 528, 77th Congress) ar)d the 
Act ot' Congress approved June 26, 1943 (Public 
Law 92, 78th Congress) declaring taken the estates 
and interests as set forth in said Declaration of 
taking and as shown on Exhibits "A" and *'B" 
attached to said Declaration of Taking: tliat the 
uses of said lands are those described in the said 
Declaration of Taking and in the petition tiled 
herein as amended; and that the said Declaration 
of Talang sets forth the estimate of just compensa- 
tion made pursuant to law and that contempor- 
aneously with the filing of said Declaration of Tak- 
ing there was deposited [364] in the res:istry of 
this Court, for the use and benefit of the persons 
entitled thereto the sum of One Hundred Forty- 
three Thousand Two Hundred Four Dollars and 
Fifteen Cents ($143,204.15). 

It Is Ordered, Adjudged and Decreed that by 
virtue of the filing of said Declaration of Taking 
and the deposit of said money, title to the estates 
and interests in said lands thus shown on Schedules 
"A'" and ''B" attached to said Declaration of 
Taking be and the same is hereby indefeasibly 
vested in the United States of America to the fol- 
lowing extent and with the following reservations: 

1. As to Parcels A-2, A-3, A-5, A-6, A-7, A-8, 
A-9, A-10, B-1, B-2, B-3, B-5, B-6, C-1, C-2, E-1, 
E-2, F-1 and F-2, including all improvements there- 
on and appurtenances thereunto belonging, full fee 
simple title: 



192 United States of A"^. erica vs. ) 

2. As to Parcels A-1, A-4, B-4, B-7, B-8, B-9, i 

E-3, E-4, E-5, and T-1, including all improvements \ 

thereon and appurtenances tliereunto belonging, fee ■ 

simple title, subject, however, to the following: \ 

1 

1 

Parcels A-1 and A-4 ; 

(a) Perpetual access easement (to and from Ex- ! 
elusion 1 as delineated on Exhibit ''B") of the | 
City and Coimty of Honolulu acquired by deed i 
dated July 25, 1932, recorded in Liber 1174, page \ 
82 of the Bureau of Conveyances of the Territory ; 
of Hawaii; said access easement being by way of ; 
Parcel A-4 and along the right of way described ] 
in Exhibit ''A" and delineated on Exhibit *'B" : 
both attached hereto, as Easement No. 1, and re- 
serving to the said City and Countv of Honolulu I 
the right to permit the operation, maintenance and \ 
repair of public utility facilities over, under and ; 
along said access easement, said access easement to 

be used in common with the Government and its \ 

permittees. [365] 1 

i 

Parcel A-1 \ 

(b) Perpetual easement of the City and County i 
of Honolulu, acquired by deed dated July 25, 1932, 1 
recorded in Liber 1174, page 82 of the Bureau of I 
Conveyances of the Territory of Hawaii, for the ] 
operation, maintenance, and repair of a pipe line, 
together with the right of ingress and egress for 
such purposes, the centerline of which is described 
in Exhibit "A" and delineated on Exhibit *'B" 
attached hereto, as Easement 2. 



Honolulu Plantation Co. 193 

Parcels 13-4, Ii-8 and Ji-9 

(c) The existing right of the Hawaiian Electric 
Company, Limited, its successors and assigns, to 
operate, maintain, and repair electric power trans- 
mission poles and wire lines, together with the 
right of ingress and egress tor such purposes, over 
the rights of way, the centerlines of which are de- 
scribed m Exhibit ''A" and ielineated on Exhibit 
*'B" attached hereto, as Easements 3- A, 3-B and 
3-F; said right having been acquired by the said 
Hawaiian Electric Company, Limited, from the 
Trustees mider the Will and of the Estate of Ber- 
nice P. Bishop, Deceased, by instrument dated July 
31, 1944, and recorded in Liber 1852, pages 19 and 
29, in the Bureau of Conveyances of the Teri'itory 
of Hawaii. 

(d) The right hereby reserved unto, 

(1) ^leorge Miles Collins, .Tohn Kirkw'ood Clarke, 
Frank Elbert Midkiff, Edwin Pauhaulani Murray 
and Joseph Boyd Poindexter, as Trustees under the 
Will and of the Estate of Bernice P. Bishop, De- 
ceased, and to their successors in trust and assigns, 
as to Parcel B-9 ; and [366] 

(2) A. Lester Marks, Elizabeth Loy Marks, and 
Elizabeth Janet Cartwright McCandless, as 
Trustees under the Will and of the Estate of L. L 
McCandless, Deceased, and to their successors in 
trust and assigns, as to Parcels E-3, E-4 and E-5: 
and to 

(3) The City and County of Honolulu, a muni- 
cipal corporation of the Territory of Hawaii, and 



194 United States of America vs. ' 

its assigns, as to Parcel T-1, to operate, mairxtain \ 

and repair, electric power transmission poles and j 

wire lines, together with the rights of way, the i 
centerlines of which are described in Exhibit '*A*' 

and delineated on Exhibit ' ' B ", attached hereto, as ; 

Easeme]it 3-C, for so long only as the said rights \ 

of way over which said facilities pass are used for i 

such purposes. \ 

(d) The right hereby reserved to the present fer i 

owners, their successors, assigns, and permittees, to • 

use Parcel B-7 as a roadway in common, however, j 
with tJie United States of America and its per- 
mittees." 

It Is Further Ordered that a copy of this Order ■ 

be promptly served by the United States Marshal I 

upon each of the defendants in this cause having , 

an interest in this proceeding, and the Marshal is ;' 

further ordered to post a copy hereof in a con- 1 

spicuoufe place on the premises and to forthwith ; 

make due return of his said service to this Court. 1 

\ 

Bated Honolulu, T. H., this 17th day of Scptem- j 
ber, 1945. ! 

5 

(Seal) /s/ D. E. METZGER, ] 

Judge of the United States District Court for the I 

District of Hawaii. ' [367] ; 



Honolulu Plantation Co. 195 

In the District Court of the United States 
For the District of Hawaii 

April Term 1944 

Civil No. 532 

UNITED STATES OF AMERICA, 

Petitioner, 

vs. 

8.279 ACRES OF LAND, more or less, at Halawa. 
Oahu, Territory of Hawaii; Charles M. Hite, 
Trustee under the Will and of the Estate of 
Emma Kaleleonalani, Honolulu Plantation Com- 
pany, an Hawaiian corporation, et al., 

Defendants. 

PETITION FOR CONDEMNATION 

To the Honorable, the Presiding Judees of the 
United States District Court for the District of 
Hawaii: 

Nov* comes the United States of America, by 
Robert S. Tarnay, Special Assistant to the Attor- 
ney General, acting under the instructions of the 
Attorney General of the United States and at the 
request of the Secretary of Navy and respectfully 
representp to the Court: 

I. 
That thi<=' proceeding is instituted under the auth- 
ority of divers and sundry acts of Congress among 
them the following: 

The Act of Congress approved March 27. 
1942 (Public Law 507— 77th Congress) 



196 United States of America vs. 

The Act of Congress approved June 26, 1943 
(Pubiic Law 92— 78th Congress) 

and thai the Secretary of Navy, acting under auth- 
ority vested in him by law has determined that it is 
necessary that the United States of Ainerir-a ac- 
quire by condemnation by judicial process certain 
land, more particularly described in Exhibit * A" 
hereto annexed and made a part hereof as though 
set f ortli at length and shown upon the map marked 
Exhibit "B", also attached hereto. [369] 

II. 

That the lands sought to be condemned are lo- 
cated adjoining Aliamanu Crater, Halawa, Oihu 
Territory of Hawaii, and lie wholly within the jur- 
isdiction of this Court. 

III. 

That the interest sought to be condemned in this 
action is the fee simple title, and all improvements 
thereon and appurtenances thereunto belonging, 
subject to existing public utility, pipeline, and irri- 
gation and drainage easements, if any, and said 
]and is for use in connection with the erection of 
tanks for expansion of water storage facilities for 
the Navy Yard and the entire military area ad- 
jacent to Pearl Harbor. 

IV. 

That Charles M. Hite, Trustee under the Will 
and of the Estate of Emma Kaleleonalani ; Hono- 
lulu Plantation Company, an Hawaiian corpora- 
tion; City and County of Honolulu; Territorj^ of 
Hawaii and all other persons, companies or cor- 
porations, either known or unknown, who claim to 



Honolulu Plantation Co. 197 

]iave or own any right, title or interc^st of any cliar- 
acter ^vhatevcr in said land are nnade defondants 
herein. 

V. 

That the Secretary of Navy of the United States 
has determined that the utmost haste in expediting 
this project is vital to the AVar purposes of the 
United States and that he has, therefore, deter- 
mined tnat possession of said lands and all. im- 
l)rove7iients thereon and appurtenances thereunto 
bclonp;iug, to the extent or interest to be acquired 
therein, is necessary by the United States and that 
certain and adequate provisions have been maae for 
the pavment of just compensation v/hich may be 
adjudged due for the condemnation of the land 
described and shown on Exhibits ''A'^ and '*IV'. 

That the Petitioner has been in possession of 
said Itnids from and since May 15, 1944. 

Wherefore, your Petitioner prays this Honor- 
able Court to take jui'isdiction of this cause and 
enter all orders, judgments and decrees necessary 
to determine title of said real estate condemned, or 
any part [370] thereof, and to fix and determine 
that the continued possession of the lands identified 
in Paragraph V is necessary for +he Wai- and 
Naval purposes of the United States; that upon 
payment into the registry of this Court for the use 
of the persons entitled thereunto of the sum ad- 
judged to be full compensation for the condemna- 
tion of said land, that title to said land be vested 
in the United States of America, in fee simple, 
subject to the exceptions set forth in Paragraph 



198 United States of America vs. 

Ill, and that the Court make distribution ol the 
final awards among the persons entitled thereto as 
expeditiously as may be and for such other and 
further relief as to the Court may seem just and 
proper in the premises. 

UNITED STATES 
OF AMERICA, 

By CHARLES F. RATHBUN, 

Special Asst to the Atty Gen. 

By /s/ ROBERT S. TARNAY, 

Special Asst to the Atty Gen. 

(Duly Verified.) [371] 

EXHIBIT A 

PARCEL 1 

Being a portion of Lot 1-A of Land Court Ap- 
plication 966 Situated about 5,000 feet Easterly 
from Kamehameha Highway and about 4,000 feet 
Southerly from Moanalua Road at Halawa, Ewa, 
Oahu, T\ H. 

Begiiming at a U.S.M.R. Monument at the South 
corner of this piece of land and on the Northwest- 
erly bcimdary of Exclusion 7 of Land Court Ap- 
plication 966, the coordinates of said point of be- 
ginning referred to Government Survey Triangula- 
tion Station "Salt Lake" being 1,170.23 feet South 
and 4,865.35 feet West, and running by true azi- 
muths measured clockwise from South: 
1. 132° 46'— 464.30 feet to a pipe: 



Honohdu Plantation Co. 199 

2. 221" 20' — 172.50 feet to a pipe; 

3. 193° 32^— 316.65 feet to a pipe; 

4. 297° 37' 30"— 489.55 feet to a pipe; 

5. 2° 20'— 50.75 feet; 

6. 28° 25'— 98.26 feet along Exclusion 7 of I^nd 
Court Application 966; 

7. 40° 36'— 305.55 feet along Exclusion 7 of Land 
Court Application 966; 

8. 31° 13' — 446.45 feet along Exclusion 7 of i^and 
Court Application 966 to the point of begin- 
ning; 

Containing an area of 8.279 acres. 

/s/ JAMES B. MANN, 

Resristcred Professional Surveyor Certificate Num- 
ber 75. 

Honolulu, Hawaii. July 26, 1944. 

[Endorsed] : Filed Sept. 16, 1944. [372] 



200 United States of America vs. 

In the District Court of the United States 
For the District of Hawaii 

April Term 1944 

Civil No. 533 

UNITED STATES OF AMERICA, 

Petitioner, 

vs. 

218.349 ACRES OF LAND, more or less, at VVai- 
SLWci Gulch, Waiawa, Oahu, Territory of Ha- 
waii ; George Miles Collins, John Kirkwood 
Clarke, Frank Elbert Midkiff, Edwin Pauhaul- 
ani Murray and Joseph Boyd Poindexter 
Trustees under the Will and of the Estate of 
Be] nice P. Bishop, et al.. 

Defendants. 

PETITION FOR CONDEMNATION 

To thc; Honorable, the Presiding' Judges of the 
United States District Court for the District of 
Hawaii : 

Now comes the United States of America, by 
Robert S. Tarnay, Special Assistant to the Attor- 
ney General, acting under the instructions of the 
Attorney General of the United States and at thc; 
I'equest of the Secretary of Navy and respectfully 
represents to the Court: 

I. 

That this proceeding is instituted under the autli- 
ority of divers and sundry Acts of Congress, among 
them the following: 



Honolulu Plantation Co. 201 

riio Act of Congress approved March 27. 
1942 (Public Law 507— 77th Concrrcss) 

The Act of Congress a]>proved August (>, 
1942 (Public Law 700— 77th Conirress) 

and that the Secretary of Navy, acting under auth- 
ority vested in him by law has determined that it is 
necessary that the United States of America ac- 
quire by condemnation by judicial process certain 
lands, more particularly described in Exhibit '*A" 
hereto annexed and made a part hereof as though 
set forth at length and shown upon the map marked 
Exhibit "B", also attached hereto. 

IT. 

That the lands sought to be condemned are lo- 
cated at Waiawa Gulch, AVaiawa, Oahu, Territory 
of Hawaii, and lie wholly within the jurisdiction 
of this Court. [375] 

III. 

That the interest sought to be condemned in this 
section is the full fee simple title, including all 
improvements thereon and appurtenances thereun- 
to belonging, to Parcels one and two and a per- 
petual easement for a 100' roadway, described and 
shown on Exhibits **A" and ''B", said land to be 
used for aviation storage facilities in connection 
with the Aviation Supply Depot. 

IV. 

That George Miles Collins, John Kirk wood 
Clarko, Frank Elbert MidkifP, Edwin Pauhaulani 
Murray and Joseph Boyd Poindexter, Trustees un- 
der the Will and of the Estate of Bernice P 



202 United States of America vs. 

Bishox); Libby, McNeill & Libby, a Maine corpora- 
tion; Oahii Sugar Company, an Hawaiian corpora- 
tion; Honolulu Plantation Company, a California 
corporation; Oahu Railway & Land Company, an 
Hawaiian corporation ; Hawaiian Electric Company, 
an Hawaiian corporation; City and County of 
Honolulu; Territory of Hawaii and all other pei- 
sons, companies or corporations, either kno\ni or 
unknown, who claim to have or own any right, 
title or interest of any character whatever ir^ said 
land are made defendants herein. 

V. 

That tho Secretary of Navy of the United States 
has determined that the utmost haste in expedit- 
ing this project is vital to the War purposes of the 
United States and that he has, therefore, deter> 
mined that possession of said lands and all im- 
provements thereon and appurtenances theieunto 
belonging, to the extent or interest to be acquired 
therein, is necessary by the United States and that 
certain and adequaate provisions have been made 
for the payment of just compensation which may 
be adjudged due for the condemnation of the land 
described and shown on Exhibits ^^A" and "B". 

That the Petitioner has been in possession of 
said lands from and since January 11, 1943, pur- 
suant to right of entry. 

Wherefore, your Petitioner prays this Honor- 
able Court to take jurisdiction of this caupe and 
enter all orders, judgments and decrees necessary 
to determine title of said real estate condemned, 
or any part thereof, and to fix and determine that 



Honolulu Plantation Co. 203 

the continued possession of the lands identified in 
Paragraph V is necessary for the War and Naval 
purposes of the United States; that upon payment 
into the registry of this Court for the use [376] 
of the persons entitled thereunto of the sum ad- 
judged to be full compensation for the condemna- 
tion of said land, that title to Parcels one and two 
be vested in the United States of America, iji fee 
simple, and that said Petitioner have a perpetual 
easemcTit for the 100' roadway described and shown 
on Exhibits ''A" and ^'B". 

UNITED STATES 
OF AMERICA, 
By CHARLES F. RATHBUN, 

Special Asst. to the Atty. Clen. 

By /s/ ROBERT S. TARNAY, 

Special Asst. to the Atty. Gen. 

(Duly Verifiied.) [377] 

EXHIBIT ^'A" 
PARCEL 1 

Being a portion of R. P. 4475, L. C. Aw. 7713, 
Apana 46 to V. Kamamalu Situated at Waiawa. 
Ewa, Oahu, T. H. 

Begiiming at an iron pin on the Northerly boun- 
dary of this piece of land, the true azimuth and 
distance from a 1%" pipe called ''Flag" being 24"^ 
58' 157.70 feet, the coordinates of said 1'%." pipe 
referred to Government Survey Triangulation Sta- 
tion "Ewa Church" being 7,176.56 feet North and 



204 United States of America vs. 

802.93 feet East, and running by true azimuths 
measured clockwise from South: 

1. 229'' 40'— 309.80 feet to an iron pin; 

2. 242° 54—190.90 feet to an iron pin; 

3. 247° flT— 207.40 feet to an iron pin; 

4. 249° 59'— 264.30 feet to an iron pin; 

5. 265' 16'— 148.80 feet to an iron pin; 

6. 249^ 54'— 255.80 feet to an iron pin; 

7. 246° 39'— 183.00 feet to an iron pin; 

8. 238' 37'— 217.80 feet to an iron pin; 

9. 238° 20'— 395.80 feet to an iron pin, the azi- 
muth and distance from a 1^4" pipe called 
*'Bed" being 321° 41' 59.70 feet; 

10. 221° 17'— 563.20 feet to an iron pin; 

11. 239° 44'— 198.20 feet to an iron pin; 

12. 214° 04'— 371.30 feet to an iron pin; 

13. 195° 52'— 105.50 feet to an iron pin; 

14. 197° 06'— 114.00 feet to an iron pin; 

15. 184° 15'— 839.30 feet to an iron pin; 

16. 237" 45'— 771.00 feet to an iron pin; 

17. 269° 51'— 321.10 feet to an iron pin; 

18. 312° 34'— 298.20 feet to an iron pin; 

19. 320° 04'— 527.50 feet to an iron pin: 

20. 3° 18'— 269.50 feet to an iron pin; [378] 

21. 9° i7'~394.10 feet to an iron pm; 

22. 4° 16'— 1381.60 feet to an iron pin; 

23. 60° 18'— 115.00 feet to an iron pin; 

24. 105° 06'— 138.70 feet to an iron pin, the azi- 
muth and distance from a IV2" pip^ called 
"Cane 2" being 100° 32' 79.65 feet; 

25. 100° 49'— 517.90 feet to an iron pin; 

26. 86° 04'— 298.80 feet to an iron pin; 



Honohilu Plantation Co. 205 

27. 61' 30'— 163.40 feet to an iron pin; 

28. f>^'' 51'— 250.30 feet to an iron pin, the azimuth 
and distance from a II/2" pipt- called ''Slope*' 
being 30° 00' 98.60 feet; 

29. 43° 53'— 471.10 feet to an iron pin; 

30. 37° 08'— 330.60 feet to an iron pin; 

31. 56° 59'— 612.10 feet to an iron pin; 

32. 72° 30'— 234.80 feet to an iron pin; 

33. 61" 48'— 289.50 feet to an iron pin; 

34. 43" 52'— 95.90 feet to an Iron pin; 

35. 29" 27'— 79.00 feet to an iron pin, the azimuth 
and distance from a 1%" pipe called "Bluff" 
being 23° 55' 180.00 feet; 

36. 18'" 58'— 216.40 feet to an iron pin; 

37. 41° 45'— 168.90 feet to an iron pin; 

38. 43° 42'— 162.10 feet to an iron pin; 

39. 25° 03'— 202.70 feet to an iron pin; 

40. 11° 58'— 171.80 feet to an iron pin; 

41. 6° 23'~499.90 feet to an iron pin; 

42. 19° 18'— 200.80 feet to an iron pm; 

43. 30' 49—136.60 feet to an iron pin; 

44. 46° 52'— 116.30 feet to an iron pin; 

45. 57° 18'— 292.70 feet to an iron pin; 

46. 65° 46'— 150.80 feet to an iron pin; 

47. 80° 44'— 98.50 feet to an iron pin; [379] 

48. 172° 00'— 230.00 feet to an iron pin; 

49. 120° 00'— 200.00 feet to an iron pin; 

50. 171° 00'— 55.10 feet to a "t" cut on rock; 

51. 64° 31'— 78.70 feet to an iron pin; 

52. 154° 31'— 100.00 feet along the end of a 10(J- 
foot roadway to an iron pin; 

53. 244° 31'— 190.00 feet to an iron pin; 



206 United States of America vs. 

54. 17(^'' 34'— 784.10 feet along Parcel 2 to an iron 
pin; 

55. 124° 17'— 260.30 feet to an iron pin; 

56. 192° 19'— 211.20 feet to an iron pin; 

57. 175° 38'— 163.00 feet to an iron pin; 

58. 209° 44'— 379.90 feet to an iron pin; 

59. 194° 10'— 307.30 feet to an iron pin; 

60. 207° 50'— 350.50 feet to the point of beginning: 
Containing an area of 210.098 acres, and as 
delineated on 14th Naval District Drawing No. 
OA-Nl-649. 

/s/ JAMES B. MANN, 
Registered Professional Surveyor Certificate Num- 
ber 75. 

Honolulu, Hawaii. May 13, 1943. [380] 

PARCEL 2 

Being a portion of R. P. 4475, L. C. Aw. 7713, 
Apana 46 to V. Kamamalu Situated on the South- 
westerly side of Parcel 1 at Waiawa, Ewa, Oahu. 
T. H. 

Beginning at an iron pin at the Southeast corner 
of this piece of land and on the Southwesterly 
boundary of Parcel 1, the coordinates of said point 
of beginning referred to Government Survey Tri- 
angulation Station "Ewa Church" being 4,797.63 
feet North and 538.50 feet East, and running by 
true azimuths measured clockwise from South: 

1. 64° 31'— 59.85 feet along Parcel 1 to an iron 
pin; 



Honolulu Plantation Co. 207 

2. 177° 36'— 253.70 feet to an iron pin; 

3. 138° 13'— 141.40 feet to an iron pin; 

4. 143° 26'— 23.65 feet to an iron pin; 

5. 228° 14'— 193.20 feet to an iron pin ; 

6. 356° 34'— 481.70 feet along Parcel 1 to the 
point of beginning; 

Containing an area of 0.811 acre, and as de- 
lineated on 14th Naval District Drawing No. 
OA-Nl-649. 

/s/ JAMES B. MANN, 
Registered Professional Surveyor Certificate Num- 
ber 75. 

Honolulu, Hawaii, June 25, 1943. [381] 

100-FOOT ROADWAY 

Being a portion of R. P. 4475, L. C. Aw. 7713. 
Apana 46 to V. Kamamalu Situated on the North- 
easterly side of the Waiawa Cut-off Road at Wai- 
awa, Ewa, Oahu, T. H. 

Beginning at the Southwest corner of this piece 
of land and on the Northeasterly side of the Wai- 
awa Cut-off Road, the coordinates of said point 
of beginning referred to Government Survey 'Pri- 
angulation Station "Ewa Church" being 2,274.69 
feet North and 1,153.29 feet West, and rimning by 
true azimuths measured clockwise from South: 

Along the Northeasterly side of the Waiawa 
Cut-off Road on a curve to the left with a 
radius of 1,472.40 feet, the azimuth and dist- 
ance of the chord being: 



208 United States of America vs. 

1. 101° 05'— 324.85 feet; 

Thence on a curve to the left with a radius of 
50.00 feet, the azimuth and distance of the 
chord being: 

2. 2 J 4° 52' 30"— 86.49 feet; 

3. 155° 00—39.00 feet; 

Thence on a curve to the right with a radius 
of 550.00 feet, the azimuth and distance of the 
chord being: 

4. 183° 50'— 530.49 feet; 

5. 212° 40'— 1244.38 feet; 

I'hence on a curve to the right with a radius 
of 1,030.00 feet, the azimuth and distance of 
the chord being: 

6. 228° 35' 30"— 565.22 feet; 

7. 2:M° 31'— 747.80 feet to an iron pin; 

8. 334° 31'— 100.00 feet along Parcel 2 to ai: iron 
])in ; 

9. 64° 31'— 747.80 feet; 

Thence on a curve to the left with a radius of 
930.00 feet, the azimuth and distance of the 
chord being: [382] 

10. 48' 35' 30"— 510.34 feet; 

11. 32° 40'— 1244.38 feet; 

Thence on a curve to the left with a radius of 
450.00 feet, the azimuth and distance of the 
chord being; 

12. 3° 50'— 434.04 feet; 

13. 335° 00'— 74.75 feet; 

Thence on a curve to the left with a radius of 
269.52 feet, the azimuth and distance of the 
chord being; 



Honolulu Plantation Co. 209 

14. 3ir 12' 30"— 217.46 feet to the point of be- 
ginning ; 

Containing an area of 7.440 acres, and as de- 
lineated on 14tli Naval District Drawing No. 
OA-Nl-649. 

Subject to Pole-Line Easement, hereinafter de- 
scribed, said easement being delineated on the 
aforesaid drawing. 

/s/ JAMES B. MANN, 
Registered Professional Surveyor Certificate Num- 
ber 75. 

Honolulu, Hawaii, May 13, 1943. [383] 

POLE LINE EASEMENT 

Over and Across a 100-foot Roadway 

Being a portion of R. P. 4475, L. C. Aw. 7713, 
Aj)ana 46 to V. Kamamalu Situated at Waiawa, 
Ewa. Oahu, T. H. 

Bf ing a strip of land, 50.00 feet wide, extending 
25.00 feet on each side of the following described 
center line: 

Beginning at the Southeasterly end nP the center 
line of this easement and on the Easterly side of 
the 100-foot roadw^ay, the coordinates of said point 
of begmni ng referred to Government Survey Trj- 
angulation Station "Ewa Church" being 2,474.43 
feet North and 1,343.22 feet West, and rimning b}' 
true azimuth measured clockwise from South: 



210 United States of America vs, 

1. 127° 00—173.83 feet to the Westerly side of a 
100-foot roadway. 

/s/ JAMES B. MANN, 
Registpred Professional Surveyor Certificate Num* 
ber 75. 

Honolulu, Hawaii, June 8, 1943. 

[Endorsed] : Filed Sept. 21, 1944, [384] 



[Title of District Court and Cause No. 533.] 
DECLARATION OF TAKING 

Whereas, pursuant to the authority of the Acts 
of Congress approved March 27, 1942 (Public Law 
507, 77th Congress), and August 6, 1942 (Public 
Law 700, 77th Congress) the above styled condem- 
nation proceeding has been instituted. 

Now, Therefore, pursuant to the provisions of 
the Act of Congress approved February 26, 1931 
(46 Stat. 1421), I, Secretary of the Navy, do here- 
by make and cause to be filed this declaration of 
taking, and by virtue of authority thereof do here- 
by state that the lands selected for acquisition ag- 
gregate 218.349 acres, more or less, at Waiawa 
Gulch, Waiawa, Oahu, Territory of Hawaii, more 
particularly described in Exhibit "A" attached 
hereto and made a part hereof, and delineated on 
a map entitled "Aviation Supply Depot — Boun- 
dary Survey", designated as 14th N. D. Dwg. No. 
OA-Nl-649, dated 6 May 1943, revised 13 May 1943, 
attached hereto as Exhibit '*B'' and made a part 
hereof. [386] 



Honolulu Plantation Co. 211 

Arid I do declare said lands to be laken under 
the authority of the aforesaid acts of Congress; 
that the use to which said lands are to be put is for 
aviation storage facilities in connection with the 
Aviation Supply Depot, and for other Naval pur- 
poses, as authorized by said acts. 

And 1 do further declare that the estate to bo 
condemned in this action is as follows- 

1. As to Parcels 1 and 2, including all improve- 
ments thereon and appurtenances thereunto belong- 
ing, full fee simple title; 

2. As to Parcel 3, including all improvements 
thereon and appurtenances thereunto belonging, fee 
simple title, subject, however, to the following: 

(a) The existing rights of the Hawaiian Electric 
Company, Limited, its successors and assigns, to 
operate, maintain, and repair, electric power trans- 
mission poles and wire lines, over and across said 
parcel; said rights having been acquired by the 
said Hawaiian Electric Company, Limited, from 
the Trustees under the Will and of the Estate of 
Bernice P. Bishop, Deceased, by instruments dated 
September 23, 1943 and July 31, 1944, recorded in 
the Bureau of Conveyances of the Territorry of 
Hawaii in Liber 1846, at pages 244-251, and in 
Liber 1852, at pages 10-20. 

(b) The right hereby reserved to ilv present fe(- 
owners, their successors, assigns, and permittees, 
to use said Parcel 3 as a roadway in common, how- 
ever, with the United States of America, and its 
permittees. 

And I, Secretary of the Navy, do hereby state 



212 United States of America vs. 

that the sum of money estimated by me to be jiisi; 
compensation for said lands and all improvements 
thereon and appurtenances thereunto belonging, is 
Eighteen Thousand Seven Hundred Seventy-Nine 
Dollars ($38,779.00), which sum is hereby deposited 
into the registry of the court for the use and bene- 
fit of the persons entitled thereto. [387] 

The ostensible owner of the property is the Ber- 
nice P. Bishop Estate. 

I am of the opinion that the ultimate award for 
the taking of said lands will be within the limits 
prescribed by Congress. 

In Witness Whereof, the petitioner, by and 
through the Secretary of the Navy, has caused this 
declaration of taking to be signed in the City of 
Washington, District of Columbia, this 24th day 
of July, 1945. 

UNITED STATES 
OF AMERICA, 

By /s/ JAMES FORRESTaL. [388] 

EXHIBIT "A" 

PARCEL 1 

Bemg a portion of R. P. 4475, L. C. Aw. ^^713 
Apana 46 to V. Kamamalu Situated at Waiawa. 
Ewa, Oahu, T. H. 

Beginning at an iron pin on the Northerly boun- 
dary of this piece of land, the true azimuth and 
distance from a 11/4'' pipe called "Flag" being 24° 
58' 157.70 feet, the coordinates of said II4" pipe 



Honolulu Plantation Co. 213 

referred to Government Survey Trian^^nlation Sta- 
tion '*Ewa Church" being 7,176.56 feet North and 
802.93 feet East, and running by true azimuths 
measured clockwise from South: 

1. 229° 40'— 309.80 feet to an iron pin; 

2. 242° 54'— 190.90 feet to an iron pin; 

3. 247° 57'— 207.40 feet to an iron pin; 

4. 249° 59'— 264.30 feet to an iron pin; 

5. 265° 16'— 148.80 feet to an iron pin; 

6. 249° 54'— 255.80 feet to an iron pin; 

7. 246° 39'— 183.00 feet to an iron pin; 

8. 238° 37'— 217.80 feet to an iron pin; 

9. 238° 20'— 395.80 feet to an iron pin, the azi- 
muth and distance from a li/^" pipe called 
''Red" being 321° 41' 59.70 feet; 

10. 221° 17'— 563.20 feet to an iron pin; 

11. 239° 44'— 198.20 feet to an iron pin; 

12. 214° 04'— 371.30 feet to an iron pm; 

13. 195° 52'— 105.50 feet to an iron pin; 

14. 197° 06"— 114.00 feet to an iron pin: 

15. 184° 15—839.30 feet to an iron pin; 

16. 237° 45'— 771.00 feet to an iron pin; 

17. 269° 51'— 321.10 feet to an iron pin: 

18. 312° 34'— 298.20 feet to an iron pin; 

19. 320° 04'— 527.50 feet to an iron pin; 

20. 3° 18'— 269.50 feet to an iron pin; [389] 

21. 9'' 17'— 394.10 feet to an iron pin : 

22. 4^ 16'— 1381.60 feet to an iron pin : 

23. 6(^.° 18'— 115.00 feet to an iron pin; 

24. 105° 06'— 138.70 feet to an iron pin, the azi- 
muth and distance from a W/' pip^ called 
''Oane 2" being 100° 32' 79.65 feet; 



214 United States of America vs. 

25. 100° 49'— 517.90 feet to an iron pin; 

26. 86° 04'— 298.80 feet to an iron pin; 

27. 61° 30'— 163.40 feet to an iron pin; 

28. 56° 51'— 250.30 feet to an iron pin, the azi- 
muth and distance from a V/o" pipe called 
^^Slope" being 30° 00' 98.60 feet; 

29. 43° 53'— 471.10 feet to an iron pm; 

30. 37° 08'— 330.60 feet to an iron pin; 

31. 56° 59'— 612.10 feet to an iron pin; 

32. 72° 30'— 234.80 feet to an iron pin; 

33. 61° 48'— 289.50 feet to an iron pin; 

34. 43° 52'— 95.90 feet to an iron pin: 

35. 29° 27'— 79.00 feet to an iron pin, the azimuth 
and distance from a 1%" pipe called "Bluff" 
bemg 23° 55' 180.00 feet; 

36. 18° 58'— 216.40 feet to an iron pin; 

37. 41° 45'— 168.90 feet to an iron pin; 

38. 43" 42'— 162.10 feet to an iron pin; 

39. 25° 03'— 202.70 feet to an iron pin; 

40. 11° 58'— 171.80 feet to an iron pin; 

41. 6° 23'— 499.90 feet to an iron pin; 

42. 19° 18'— 200.80 feet to an iron pin; 

43. 30" 49'— 136.60 feet to an iron pin; 

44. 46° 52'— 116.30 feet to an iron pin: 

45. 57° 18'— 292.70 feet to an iron pin; 

46. 65° 46'— 150.80 feet to an iron p'n; 

47. 83° 44'— 98.50 feet to an iron pin: [390] 

48. 172° 00'— 230.00 feet to an iron pin; 

49. 120° 00'— 200.00 feet to an iron pin; 

50. 171° 00'— 55.10 feet to a ''t" cut on rock; 

51. 64° 31'— 78.70 feet to an iron pin: 

52. 154° 31'— 100.00 feet along the end of a 100- 
foot roadway to an iron pin; 



Honolulu Plantation Co. 215 

53. 244° 31'— 190.00 feet to an iron pin; 

54. 176° 34'— 784.10 feet along Parcel 2 to an iron, 
pin; 

55. 124° 17'— 260.30 feet to an iron pin; 

56. 192° 19'— 211.20 feet to an iron pin; 

57. 175° 38'— 163.00 feet to an iron pin; 

58. 209° 44'— 379.90 feet to an iron pin; 

59. 194° 10'— 307.30 feet to an iron pin; 

60. 207° 50'— 350.50 feet to the point of beginning ; 
Containing an area of 210.098 acres, and as 
delineated on 14th Naval District Drawing Ncj. 
0-4-N1-649. 

/s/ JAMES B. MANN, 
Registered Professional Surveyor Certificate Num- 
ber 75. 

Honolulu, Hawaii, May 13, 1943. [391] 

PARCEL 2 

Being a portion cf R. P. 4475, L. C. Aw. 7713. 
Apana 46 to V. Kamamalu Situated ^n the South- 
westerly side of Parcel 1 at Waiawa. Ewa, Oahu 
T. H. 

Beginning at an iron pin at the Southeast comer 
of this piece of land and on the Southwesterly 
boundary of Parcel 1, the coordinates of said point 
of beginning referred to Government Survev Tri- 
angulation Station "Ewa Church" being 4,797.63 
feet North and 538.50 feet East, and rimning by 
true azimuths measured clockwise from South : 
1. 64'' 31' — 59.85 feet along Parcel 1 to an iron 
pin; 



216 United States of America vs. 

2. 177° 36—253.70 feet to an iron pin; 

3. 138° 13—141.40 feet to an iron pin; 

4. 143° 26—23.65 feet to an iron pin; 

5. 228° 14—193.20 feet to an iron pin; 

6. 356° 34—481.70 feet along Parcel 1 to the 
point of beginning; 

Containing an area of 0.811 acre, and as de- 
lineated on 14th Naval District Drawing No. 
OA-Nl-649. 

/s/ JAMES B. MANN, 
Registered Professional Surveyor Certificate Num- 
ber 75. 

Honolulu, Hawaii, June 25, 1943. [392] 

PARCEL 3 

Being a portion of R. P. 4475, L. C. Aw. 7713, 

Apana 46 to V. Kamamalu, situated on the Nortli- 
easterly side of the Waiawa Cut-oif Road at Wai- 
awa, Ewa, Oahu, T. H. 

Beginning at the Southwest corner of this piece 
of land and on the Northeasterly side of the Wai- 
awa Cut-off Road, the coordinates of said point of 
beginning referred to Government Survey Tri angu- 
lation Station ^'Ewa Church" being 2,274.69 feet 
North and 1,153.29 feet West, and running by true 
azimuths measured clockwise from South: 

Along the Northeasterly side of the Waiawa 
Cut-off Road on a curve to the left with a 
radius of 1,472.40 feet, the azimuth and dis- 
tance of the chord being: 



Honolulu Plantation Co. 217 

1. 101° 05—324.85 f'(3et; 

Thence on a curve to the left with a radius of 
50.00 feet, tlie azimuth and distance of the 
chord being: 

2. 214° 52' 30"— 86.49 feet; 

3. 155° 00'— 39.00 feet; 

Thence on a curve to the left with a radius of 
of 550.00 feet, the azimuth and distance of the 
chord being: 

4. 183° 50'— 530.49 feet; 

5. 212° 40'— 1244.38 feet; 

Thence on a curve to the right with a radius 
of 1,030.00 feet, th( azimuth and distance of 
the chord being: 

6. 228° 35 30"— 565.22 feet; 

7. 244° 31'— 747.80 feet to an iron pin; 

8. 334° 31'— 100.00 feet along Parcel 2 to an iron 
pin; 

9. 64° 31—747.80 feet; 

Thence on a curve to the left with a radius of 
930 feet, the azimuth and distance of the chord 
being: [393] 

10. 48° 35' 30"— 510.34 feet; 

11. 32° 40'— 1244.38 feet; 

Thence on a curve to the left with a radius of 
450.00 feet, the azimuth and distance of the 
chord being: 

12. 3° 50'— 434.04 feet; 

13. 335° 00'— 74.75 feet; 

Thence on a curve to the left with a radius of 
269.52 feet the azimuth and distance of the 
chord beins:: 



218 United States of America vs. 

14. 311° 12' 30"— 217.46 feet to the point of be- 
ginning ; Containing an area of 7.440 acres, and 
as delineated on 14th Naval District Drawing 
No. OA-Nl-649. 

/s/ JAMES B. MANN, 
Registered Professional Surveyor, Certificate Num- 
ber 75. 

Honolulu, Hawaii, May 13, 1943. 

[Endorsed] : Filed Aug. 13, 1945. [394] 



[Title of District Court and Cause No. 533.] 

MOTION FOR ORDER AMENDING 
PETITION 

Now comes the Petitioner, United States of 
America, by its attorney, Charles F. Rathbun, Spe- 
cial Assistant to the Attorney General, and moves 
that this Court enter an order amending the Petition- 
in Condemnation heretofore filed in this cause by 
striking all of Paragraph III of said Petition in 
Condemnation and substituting therefore a new 
Paragraph III as follows : 

*'That the estate sought to be condemned in 
this action is as follows: 

1. As to Parcels 1 and 2, including all improve- 
ments thereon and appurtenances thereunto belong- 
ing, full fee simple title; 

2. As to Parcel 3, the said Parcel 3 being the 100' 
loadway described and shown on Exhibits "A" 
and "B" attached to the Petition in Condemnation 



EonoUdii Plantation Co. 219 

luTcin, includin.s: all improvements thereon anrl 
appui-tenances thereunto belongring, fee simple title, 
subject, however, to the following: [396] 

(a) The existinc: risrhts of the Hawaiian Elec- 
tric Company, Limited, its successors and assijnis, 
to operate, maintain, and repair, electric power 
transmission poles and wire lines, over and across 
said parcel : said ridits bavins: been acquired by 
Ibe said Hawaiian Electric Company, Limited, 
from the Trustees under the Will and of the Estate 
of Bemice P. Bishop, Deceased, by instruments 
dated September 23. 1943 and July 31, 1944, re- 
corded in the Bureau of Conveyances of the Terri- 
tory of Hawaii in Liber 1846, at pages 244-251, and 
in Liber 1852, at pages 10-20. 

(b) The right hereby reserved to the present 
fee owners, their successors, assigns, and permit- 
tees, to use vsaid Parcel 3 as a roadway in common, 
however, with the United States of America, and 
its permittees." 

Petitioner states that it is necessary that the 
petition herein be amended to more accurately de- 
fine the estate being taken. 

Dated Honolulu, T. H., this 13th day of August, 
1945. 

UNITED STATES OF 
AMERICA, 

By /s/ CHARLES F. RATHBUN, 

Special Assistant to the 
Attorney General. 

[Endorsed] : Filed Aug. 13, 1945. [397] 



220 United States of America vs. 

[Title of District Court and Cause No. 533.] 

ORDER AMENDING PETITION 

Now this 13th day of August, 1945, upon motion 
by the Petitioner, United States of America, by 
its attorney, Charles F. Rathbun, Special Assistant 
to the Attorney General, it appearing that it is 
necessary to more accurately define the estate being 
taken in the land described and shown on Exhibits 
"A" and "B" attached to the Petition in Con- 
demnation filed herein, 

It is ordered: 

That the Petition in Condemnation be amended 
by striking all of Paragraph III of said Petition 
in Condemnation and substituting therefore a new 
Paragraph III as follows: 

'^That the estate sought to be condemned in 
this action is as follows: 

1. As to Parcels 1 and 2, including all improve- 
ments thereon and appurtenance thereunto belong- 
ing, full fee simple title. 

2. As to Parcel 3, the said Parcel 3 being the 100' 
roadway described and shown on Exhibits ''A'' and 
''B" attached to the Petition in Condemnation here- 
in, including all improvements thereon and appur 
ienances thereunto belonging, fee simple title, sub- 
ject, however, to the following: [398] 

(a) The existing rights of the Hawaiian Elec- 
ti-ic Company, Limited, its successors and assigns, 
to operate, maintain, and repair, electric power 
liansmission poles and wire lines, over and across 



Honolulu Plantation Co. 221 

sai<I j)<VT(U'l; said ri.jj^lits liaving- been acfiuircd by 
the said Hawaiian Electric Company, fiimited, fioui 
the Trustees under the Will and of the Estate of 
Bernice P. Bishop, deceased, by instruments dated 
Septemlier 23, 1943 and July 31, 1944, recorded in 
the Bureau of Conveyances of the Territory of 
Hawaii in Liber 1846, at pages 244-251, and in 
Tiber 1852, at pages 10-20. 

(b) The right hereby reserved to the jjresent 
fee owners, their successors, assigns, and permit- 
tees, to use said Parcel 3 as a roadway in common, 
however, with the United States of America, and 
its permittees." 

Dated: Honolulu, T. H., this 13th day of August, 
1945. 

/s/ J. FRANK McLaughlin, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed]: Filed Aug. U. 1945. [399] 



222 United States of America vs. 

In the District Court of the United States 
for the District of Hawaii 

April Term 1945 

Civil No. 533 

UNITED STATES OF AMERICA, 

Petitioner, 

V. 

218.349 ACRES OF LAND, more or less, at Wai- 
awa Gulch, Waiawa, Oahu, Territory of Hawaii ; 
George Miles Collins, John Kirkwood Clarke, 
Frank Elbert Midkiff, Edwin Pauhaulani Mur- 
ray and Joseph Boyd Poindexter, Trustees 
under the Will and of the Estate of Bernice 
P. Bishop, et al.. 

Defendants. 

ORDER AND JUDGMENT ON DECLARATION 
OF TAKING 

It appearing- that on September 21, 1944, the 
United States of America, filed a Petition for con- 
demnation of certain land described and shown on 
Exhibits ''A" and ''B" attached to the Declara- 
tion of Taking filed herein; and 

It further appearing that said Declaration of 
Taking was filed in the above cause on the 13th day 
of August, 1945, said Declaration of Taking being 
signed by James Forrestal, Secretary of the Navy, 
Tmder and pursuant to provisions of the Act of 
Congress approved February 26, 1931 (46 Stat. 
1421), declaring taken the full fee simple title to 
Parcels 1 and 2, including all improvements thei'eon 



Honolulu Plantation Co. 223 

and appurtenances thereunto belonginj^, and declar- 
ing taken the full fee simple title as to Parcel :j, 
which said Parcel 3 is the 100' roadway described 
and shown on Exhibits ''A" and ''B" attached to 
the Petition in Condemnation herein, including all 
improvements thereon and appurtenances there- 
imto belonging, subject, however, to certain rights 
more fully set forth in said Declaration of Taking; 
that the uses of said land are those described in 
the Declaration of Taking and in the Petition filed 
[400] herein; and that the said Declaration of Tak- 
ing sets forth the estimate of just compensation 
made pursuant to law and that contemporareously 
with the filing of said Declaration of Taking, there 
was deposited in the Registry of this Court for the 
use and benefit of the persons entitled thereto the 
sum of Eighteen Thousand Seven Hundred Sev- 
enty-Mne Dollars ($18,779.00), 

It is ordered, adjudged and decreed that by vir- 
tue of the filing of said Declaration of Taking and 
the deposit of said money, full fee simple title to 
the land described and shown on Exhibits '*A" and 
"B", attached to the said Declaration of Taking, 
together with all improvements thereon and appur- 
tenances thereunto belonging, be and it is hereby 
indefeasi])ly vested in the United States of Amer- 
ica, subject to the rights recited in said Declaration 
of Taking in favor of Hawaiian Electric Company, 
Limited and to the present fee owners, their suc- 
cessors, assigns and permittees as to Parcel 3. 

It is further ordered that a copy of this Order 
be promptly served by the United States Marshal 



224 United States of America vs. 

upon each of the defendants in this cause. The- 
Maishal is further ordered to post a copy hereof 
in a conspicuous place on the premises and to forth- 
^vith make due return of his said service to this 
Court. 

Dated: Honolulu, T. H., this 13th day of August, 
1945. 

J. FRANK Mclaughlin, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Aug. 13, 1945. [401] 



Honolulu Plantation Co. 225 

In the District Court of the United States for the 
District of Hawaii 

October Term 1944 

Civil No. 535 

UNITED STATES OF AMERICA, 



Petitioner, 



vs. 



145,848 acres of land, more or less situate at Ilalawa and Aiea, 
Ewa. Island of Oahu. Territory of Hawaii; GEORGE 
MILES COLLINS, JOHN KIRKWOOD CLARKE, 
FRANK ELBERT MIDKIFF, EDWIN PAUHAULANI 
MT'RRAY and JOSEPH BOYD POIXDEXTER. Trustees 
under the Will and of the Estate of BERXICE P. BISHOP: 
HONOLULU PLANTATION COMPANY, a California 
corporation: HAWAIIAN ELECTRIC COMPANY, LTD., 
an Hawaiian corporation: A. LESTER MARKS, Executor 
of the Estate of L. L. McCandless; BISHOP TRUST CO:\I- 
PANY, LTD., Administrator with the Will Annexed of the 
Estate of L. L. .McCandless: A. LESTER MARKS, ELIZA 
BETH LOY :\rARKS, and ELIZABETH JANET CART- 
WRIGHT McCANDLESS. Trustees under the Will and of 
the Estate of L. L. McCandless; HAWAIIAN TRUST COM- 
PANY, an Hawaiian corporation: MANUEL COSTA, JR.: 
CITY AND COUNTY OF HONOLULU : TERRITORY OF 
HAWAII: and all other persons, companies or corporations, 
either known or unknown, who claim to have or own any 
right, title or interest of any character whatever in said land ; 

Defendants. 

PETITION FOR CONDEMNATION 

To the Honorable, the Presiding Judges of the 
United States District Court for the District of 
Hawaii : 

Now comes the United States of America, by 
Robert S. Tarnay, Special Assistant to the Attor- 



226 United States of America vs, 

ney General, acting under the instructions of the 
Attorney General of the United States and at the 
request of the Secretary of Navy and respectfully 
represents to the Court: [402] 

I. 

That this proceeding is instituted under the au- 
thority of divers and Sundry Acts of Congress, 
among them the following: 

The Act of Congress approved March 27, 
1942 (Public Law 507— 77th Congress) 

The Act of Congress approved August 6, 
1942 (Public Law 700— 77th Congress) 

The Act of Congress approved June 26, 1943 
(Public Law 92— 78th Congress) 

The Act of Congress approved January 28, 
1944 (Public Law 22^^78th Congress) 

and that the Secretary of Navy, acting under au- 
thority vested in him by law has determined that it 
is necessary that the United States of America 
acquire by condemnation, by judicial process, cer- 
tain lands, more particularly described in Exhibits 
^*A1", ''A2" and '*A3", hereto annexed and made 
parts hereof as though set forth at length and 
shown upon maps marked Exhibits ^'Bl", **B2" 
and "B3", also attached hereto. 

11. 
That the lands sought to be condemned are lo- 
cated at Halawa and Aiea, Island of Oahu, Terri- 
tory of Hawaii, and lie wholly within the jurisdic- 
tion of this Court. 



Honolulu Plantation Co. 227 

III. 

That tho estate to be condemned in this action is 
the fee simple title, subject to all existing public 
utility, ])ipe line, irrigation, drainage and railroad 
easements, and subject to the right of the public 
to use the boundary roads of the area, if any, said 
land to be used in connection with the Aiea Naval 
Barracks. 

IV. 

That George Miles Collins, John Kirkwood 
Clarke, Frank Elbert Midkiff, Edwin Pauhaulani 
Murray and Joseph Boyd Poindexter, Trustes un- 
der the Will and of the Estate of Bernice P. 
Bishop; Honolulu Plantation Company, a Califor- 
nia corporation; Hawaiian Electric Company, Ltd., 
an Hawaiian corporation ; A. Lester Marks, Ex- 
ecutor of the Estate of L. L. McCandless; Bishojj 
Trust Company, Ltd., Administrator [403] with the 
Will Annexed of the Estate of L. L. McCandless: 
A. Lester Marks, Elizabeth Loy Marks, and Eliza- 
beth Janet Cartwright McCandless, Trustees under 
the Will and Estate of L. L. McCandless ; Hawaiian 
Trust Company, an Hawaiian corporation; Manuel 
Costa, Jr.; City and County of Honolulu; Terri- 
tory of Hawaii and all other persons, companies or 
corporations, either known or unknown, who claim 
to have or own any right, title or interest of any 
character whatever in said lands are made defend- 
ants herein. 

V. 

That the Secretary of Navy of the United States 
has determined that the utmost haste in expediting 



228 United States of America vs. 

this project is vital to the War purjjoses of the 
United States and that he has, therefore, determined 
that possession of said lands, to the extent of the 
interest to be acquired therein, is necessary by the 
United States and that certain and adequate pro- 
visions have been made for the payment of just 
compensation which may be adjudged due for the 
(condemnation of the land described and shown on 
Exhibits '^A.1", '^A2" and "A3" and "Bl", ''B2" 
and ''B3". 

That the land described and shown on Exhibits 
"Al" and "Bl" is presently under lease to the 
petitioner, covering approximately 100 acres. 

That the petitioner has been in possession of 
26.195 acres, described and shown on Exhibits "A3" 
and "B3" as "Second Additional Area", from and 
since January 5, 1944 pursuant to right of entry. 

That the petitioner has been in possession of 
15.076 acres, described and shown on Exhibits "A2" 
and "B2", from and since March 1, 1944. 

That the petitioner has been in possession of 
1.716 acres, described and shown on Exhibits "A3" 
and "B3" as a portion of "Third Additional 
Ai'ea", from and since August 21, 1944. 

That the petitioner has been in possession of 
2.732 acres, described and shown on Exhibits "A3" 
and "B3" as a portion of [404] "Third Additional 
Area", from and since August 29, 1944. 

Wherefore, your Petitioner prays this Honor- 
able Court to take jurisdiction of this cause and 
enter all orders, judgments and decrees necessary 
to determine title of said real estate condemned, 



Honolidu Plantation Co. 229 

<)]' Miiy part thereof, and to fix and determine tliat 
the continued x^ossession of the lands identified in 
Paragrapli V is necessary for the War and Naval 
])urposes of the United States; that upon pay- 
ment into the registry of this Court for the use 
of the persons entitled thereunto of the sum ad- 
judged to be full compensation for the condemna- 
tion of said land, tliat title to said land be vested 
in the United States of America, in fee simple, 
subject to the exceptions set forth in Paragraph 
III, and that the Court make distribution of the 
final awards among the persons entitled thereto as 
expeditiously as may be and for such other and 
further relief as to the Court may seem just and 
])i-oper in the premises. 

UNITED STATES OF 
AMERICA, 

By /s/ CHARLES F. RATHBUN, 
Special Assistant to the 
Attorney General, 

By /s/ ROBERT S. TARNAY, 

Special Assistant to the 
Attorney General. 

(Duly Verified.) [405] 



230 United States of America vs. \ 

EXHIBIT A-1 ; 

DESCRIPTIONS OF PORTIONS A, B, AND C, ^ 

LAND SITUATED AT HALAWA, \ 

EWA, OAHU, T. H. j 

Revised October 11, 1943 i 
To Conform to the Widening of Kamehameha 
Highway 

PORTION A : 

Estate of L. L. McCandless — Owner ! 

Land situated near the Southeast side of Kame- 
hameha Highway approximately 300 feet East of , 
Halawa Bridge at Halawa, Ewa, Oahu, T. H. j 

Being the Whole of Royal Patent 457, Land | 

Commission Award 2131, Apana 1 to Kanihoalii | 

for Kaukiwaa. ; 

Beginning at the Southwest corner of this parcel i 

of land, the coordinates of which referred to Gov- i 

ernment Survey Triangulation Station ''Salt Lake" ] 

being 763.60 feet North and 9583.20 feet West, and \ 
running by azimuths measured clockwise from true 
South : 

1. 164° 00—124.00 feet along L. C. Aw. 7712 and J 
8516-B to M. Kekuanaoa and Kamaikui; 

2. 155° 00—186.00 feet along L. C. Aw. 7712 and | 
8516-B to M. Kekuanaoa and Kamaikui; ] 

3. 234° 00—83.00 feet along L. C. Aw. 7712 and i 
8516-B to M. Kekuanaoa and Kamaikui; i 

4. 338° 15—319.00 feet along L. C. Aw. 7712 and ] 
8516-B to M. Kekuanaoa and Kamaikui; ! 



Honolidu Plantation Co. 231 

Exhibit A-1 — (Continued) 

5. 61° 00—83.00 feet along L. C. Aw. 7712 and 
8r)16-B to M. Kekuanaoa and Kamaikui to the 
point of beginning and containing an area of 
0.545 acres, and as delineated on 14th Naval 
District Drawing No. OA-Nl-490. [407] 

PORTION B 

Trustees of B. P. Bishop Estate — Owners 

Land situated on the Southeast side of Kame- 
hameha Highway and on the southerly side of new 
highway to Aiea Naval Hospital and on the South- 
west side of Moanalua Road at Halawa, Ewa, 
Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 at 8516-B to M. Kekuan- 
aoa and Kamaikui. 

Beginning at a pipe at the North corner of this 
parcel of land, at the South corner of the new 
highway to Aiea Naval Hospital and Moanalua 
Road, the coordinates of which referred to Govern- 
ment Survey Triangulation Station "Salt Lake" 
being 3780.28 feet North and 6221.95 feet West, 
and running by azimuths measured clockwise from 
true South: 

1. 305° 27—53.56 feet along the Southwest side 
of Moanalua Road to a pipe. Thence along the 
Southwest side of Moanalua Road, on a curve 
to the left, with a radius of 1007.00 feet, the 
direct azimuth and distance being: 



232 United States of America vs. 

Exhibit A-1 — (Continued) 

2. 294° 03' 09"— 398.00 feet to a pipe; 

3. 25° 53' — 151.85 feet along the remainder of 
L. C. Aw. 7712 and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

4. 59° 25'— 54.00 feet along remainder of L. C. 
Aw. 7712 [408] and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

5. 63° 59'— 244.60 feet along remainder of h. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

6. 69° 59'— 169.60 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

7. 86° 26' 30"— 188.50 feet along remainder of 
L. C. Aw. 7712 and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

8. 97° 48'— 112.80 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

9. 78° 52'— 197.40 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

10. 79° 49'— 188.00 feet along remainder of I.. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

11. 66° 23'— 99.50 feet along remainder of I.. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

12. 82° 43'— 115.80 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 



Honolulti Plantation Co. 233 

Exhibit A-1— (Continued) 

13. 75° 40'— 201.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

14. ()2° 17'— 186.20 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe: 

15. 76° 08'— 117.50 feet along remainder of T.. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

16. 79° 06' 30"— 110.90 feet along remainder of 
L. C. Aw. 7712 and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

17. 69° 09'— 77.50 feet along remainder of 1.. C. 
Aw. 7712 [409] and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

18. 39° 42'— 98.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

19. 5° 03' 30"— 176.20 feet along remainder of 
].. C. xVw. 7712 and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe ; 

20. 13° 31'— 174.60 feet along remainder of I.. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

21. 58° 35'— 27.50 feet along remainder of T.. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

22. 94° 12'— 243.30 feet along remainder of I.. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

23. 55° 19'— 189.90 feet along remainder of L. C. 



234 United States of America vs. 

Exhibit A-1 — (Continued) 

Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

24. 45° 00'— 167.10 feet along remainder of L, C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

25. 19° 47'— 122.55 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

26. 3° 16' 30"— 54.65 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

27. 325° 54'— 116.65 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

28. 298° 50'— 149.50 feet along remainder of L. €. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

29. 299° 31'— 166.55 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

30. 351° 36'— 71.95 feet along remainder of L, C. 
Aw. 7712 [410] and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

31. 14° 29'— 77.40 feet along remainder of L. C. 
Aw. 7712 and 8516-B to a pipe ; 

32. 28° 13'— 90.85 feet along remainder of T.. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe ; 

33. 48° 35'^288.20 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 



Honolulu Plantation Co. 235 

Exhil)it A-1 — (Continued) 

34. 53° 06'— 131.25 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

35. 39° 11'— 90.05 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

36. 59° 42'— 36.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

37. 89° 41'— 160.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

38. 32° 32'— 139.60 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

39. 46° 50' 30"— 188.70 feet along remainder of 
L. C. Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

40. 34° 14' 30"— 72.35 feet along remainder of 
L. C. Aw. 7712 and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

41. 12° 13'— 248.80 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

42. 18° 31'— 43.05 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

43. 62° 42' 30"— 53.50 feet along remainder of 
L. C. Aw. 7712 [4111 and 8516-B to M. Kek- 
uanaoa and Kamaikui to a pipe; 



236 United States of America vs. 

Exhibit A-1 — (Continued) 

44. 114° 00'— 65.15 feet along L. C. Aw. 1988 to 
Hapule to a pipe; 

45. 355° 00'— 41.70 feet along L. C. Aw. 1983 to 
Hapule to a pipe ; 

46. 84° 43'— 51.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

47. 101° 16'— 110.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

48. 96° 05'— 124.70 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

49. 81° 30'— 80.00 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

50. 350° 30'— 197.25 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

51. 66° 55'— 54.53 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to the middle of Halawa Stream. 
Thence following down along Halawa Stream 
along Parcel 4-C of the Makalapa Lands for 
the next two (2) courses, the direct azimuths 
and distances between points in middle of said 
stream being: 

52. 153° 26'— 25.00 feet; 

53. 123° 50'— 325.29 feet to the Southeast side of 
Kamehameha Highway; 



Honolulu Plantation Co. 237 

Exliil)it A-1— (Continued) 

54. 20;]° ;^2'— 116.70 feet alori^^ the Southeast side 
of Kamehameha Highway; 

f);-). 293° 32'— 15.00 feet along the Southeast side 
of Kamehameha Highway; [412] 

:>(). 203° 32'— 710.19 feet along the Southeast side 
of Kamehameha Highway. Thence along the 
Southeast side of Kamehameha Highway, on a 
curve to the right, with a radius of 5679.65 
feet, the direct azinmth and distance being: 

57. 204° 25' 57"— 178.26 feet; 

58. 115° 19' 54"— 15.00 feet along the Southeast 
side of Kamehameha Highway. Thence along 
the Southeast side of Kamehameha Highway 
on a curve to the right, with a radius of 5694.65 
feet, the direct azimuth and distance being: 

59. 207° 13' 42"— 376.95 feet; 

60. 209° 07' 30"— 1204.14 feet along the Southeast 
side of Kamehameha Highway. Thence along 
the Southeast side of the new highway to Aiea 
Naval Hospital, on a curve to the right, with 
a radius of 400.00 feet, the direct azimuth and 
distance being: 

61. 225° 41' 45"~228.16 feet; 

62. 242° 16'— 392.61 feet along the Southeast side 
of the new highway to Aiea Naval Hospital. 
Thence along the Southeast side of the new 
highway to Aiea Naval Hospital, on a curve 
to the right, with a radius of 2834.79 feet, the 
direct azimuth and distance being: 

63. 249° 06' 55"— 676.08 feet; 

64. 345° 57' 50"— 5.00 feet along the Southerh- 



238 United States of America vs. 

Exhibit A-1 — ( Continued) 

side of til new highway to Aiea Naval Hospital. 
Thence along the Southerly side of the new 
highway to Aiea Naval [413] Hospital, on a 
curve to the right, with a radius of 2829.79 
feet, the direct azimuth and distance being: 

65. 258° 22' 10'— 237.55 feet; 

66. 260° 46' 30"— 121.50 feet along the Southerly 
side of the new highway to Aiea Naval Hospital ; 

67. 170° 46' 30"— 5.00 feet along the Southerly side 
of the new highway to Aiea Naval Hospital ; 

68. 260° 46' 30"— 1050.32 feet along the Southerly 
side of new highway to Aiea Naval Hospital 
to the point of beginning and containing a 
gross area of 75.091 acres and a net area of 
74.546 acres, after excluding and deducting 
Portion A described as follows: (and as des- 
ignated on 14th Naval District Drawing No. 
OA-Nl-490). 

PORTION A 
Estate of L. L. McCandless — Owner 

Land situated near the Southeast side of Kame- 
hameha Highway approximately 300 feet East of 
Halawa Bridge at Halawa, Ewa, Oahu, T. H. 

Being the Whole of Royal Patent 457, I^and 
Commission AAvard 2131, Apana 1 to Kanihoalii 
for Kaukiwaa. 

Beginning at the Southwest corner of this par- 
cel of land, the coordinates of which referred fo 
Government Survey Triangulation Station ''Salt 
Lake" being 763.60 feet North and 9583.20 feet 



Honolulu Plantation Co. 239 

Exhibit A-1 — (Continued) 

West, and running by azimuths measured clockwise 
from true South: 

1. 164° 00'— 124.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui; [414] 

2. 155° 00'— 186.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui ; 

3. 234° 00'— 83.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui; 

4. 338° 15'— 319.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui; 

5. 61° 00'— 83.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui to the 
point of beginning and containing an area of 
0.545 acre, and as delineated on 14th Naval 
District Drawing No. OA-Nl-490. 

Portion B is subject to the following easements, 
said easements being delineated on aforesaid draw- 
ing. 

EASEMENTS 1-A and 1-B 

The Hawaiian Electric Co., Ltd.'s Easement for 
Transmission Line Fifty (50) Feet Wide 

Land situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description of Easement 1-A. 

Beginning on the Southeasterly boundary of Por- 
tion B, and on the centerline of the Hawaiian Elec- 
tric Co., Ltd.'s easement, the coordinates of which 



240 United States of America vs. 

Exhibit A-1 — ( Continued ) 

referred to Government Survey Triangulation Sta- 
tion ''Salt Lake" being 1731.59 feet North and 
8216.66 feet West, and running by azimuth measured 
clockwise from true South: 
1. 173° 52' 30"— 142.96 feet. [415] 

Centerline Description of Easement 1-B. 

Beginning on the Southeasterly boundary of Por- 
tion B, and on the centerline of the Hawaiian Elec- 
tric Co., Ltd.'s easement, the coordinates of which 
3'eferred to Goverimient Survey Triangulation Sta- 
tion ''Salt Lake" being 2461.06 feet North and 
8294.92 feet West, and running by azimuth meas- 
ured clockwise from true South: 

1. 173° 52' 30' —776.24 feet to the Southeasterly 
side of the new highway to Aiea Naval Hospital. 

EASEMENT 3-B 

Honolulu Plantation Co.'s Easement for Railroad 
Sixteen (16) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning on the Northerly boundary of Portion 
B, and on the Southerly side of the new highway 
to Aiea Naval Hospital, the coordinates of which 
referred to Government Survey Triangulation Sta- 



Honolulu Planiation Co. 241 

PLxhibit A-1— (Continued) 

tion ''Salt Lake" being 8543.45 feet Noi-tJi and 
7594.97 feet West, and running by azimuths meas- 
ured clockwise from true South: 

On a curve to the right, with a [416] radius 
of 520.10 feet, tJie direct azimuth and distance 
being : 

1. 289° 31' 02"— 108.42 feet; 

2. 295° 30—232.11 feet. 

Thence on a curve to the right, with a radius 
of 1302.50 feet, the direct azimuth and distance 
being : 

3. 303° 57' 16"— 383.00 feet to the Southerly 
boundary of Portion B. 

EASEMENT 4-B 

The United States of America Perpetual Easement 
Five (5) Feet Wide Dated May 28, 1940, Re- 
corded in Liber 1581, Page 385, in the Bureau 
of Conveyances at Honolulu. 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning on the Northerly boundary of Portion 
B, and on the Southerly boimdary of the new high- 
way to Aiea Naval Hospital, the coordinates of 
which referred to Govermnent Survey Triangula- 
tion Station "Salt Lake^' being 3542.14 feet North 



242; United States of America vs. 

Exhibit A-1 — (Continued) 

and 7600.39 feet West, and running by azimuths 
measured clockwise from true South: 

1. 281° 16—30.32 feet; 

2. 291° 21—99.37 feet; [417] 

3. 296° 02—247.82 feet; 

4. 301° 27—154.82 feet; 

5. 396° 27—133.94 feet; 

6. 313° 34—56.76 feet to the Southerly boundary 
of Portion B. 

EASEMENT 5-B 

Honohilu Plantation Co.'s Easement for Ditch 
Six (6) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning on the Southerly boundary of Portion 
B, and on the centerline of the Honolulu Planta- 
tion Co.'s easement for ditch six (6) feet wide, the 
coordinates of which referred to Government Sur- 
vey Triangulation Station '^Salt I^ake" being 
3045.51 feet North and 7462.46 feet West, and run- 
ning by azimuths clockwise from true South: 

1. 200° 20'— 42.25 feet; 

2. 187° 22—11.85 feet; 

3. 183° 31—363.90 feet; 

4. 225° 54'— 207.00 feet to the Southerly side of 
the new highway to Aiea Naval Hospital. [418] 



Honolulu Plantation Co. 243 

Exhibit A-1 — (Continued) 

EASEMENT 6 

Honolulu Plantation Co.'s Easement for Ditch 
Six (6) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning- on the Southerly boundary of Portion 
B, and on the centerline of the Honolulu Planta- 
tion Co.'s easement for ditch six (6) feet wide, the 
coordinates of which referred to Government Sur- 
vey Triangulation Station *'Salt Lake" being 
3248.77 feet North and 6448.58 feet West, and i-un- 
ning by azimuths measured clockwise from true 
South : 

1. 246° 23—16.95 feet; 

2. 255° 31—38.45 feet; 

3. 175° 10'— 479.00 feet; 

4. 260° 46' 30'— 214.30 feet; 

5. 305° 27'— 55.27 feet; 

6. 302° 30'— 140.00 feet; 

7. 298° 00'— 105.00 feet; 

8. 290° 26' 30"— 110.30 feet; 

9. 263° 00'— 10.00 feet; 

10. 208° 30'— 14.00 feet to the Southerly side of 
Moanahia Road. [419] 



244 United States of America vs. 

Exhibit A-1— (Continued) 

EASEMENT 7-B 

Mutual Telephone Co.'s Easement for Telephone 
Line Ten (10) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning on the Southerly boundary of Portion 
B, and on the centerline of the Mutual Telephone 
Co.'s easement for telephone line ten (10) feet 
wide, the coordinates of which referred to Govern- 
ment Survey Triangulation Station '^Salt Lake" 
being 3251.74 feet North and 6400.77 feet West, 
and running by azimuth measured clockwise from 
true South: 

L 177° 07'— 496.08 feet to the Southerly side of 
the new highway to Aiea Naval Hospital. 

EASEMENT 8-A 

Hawaiian Electric Co., Ltd.'s Easement for Trans- 
mission Line Ten (10) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. [420] 

Centerline Description. 

Beginning on the Northeasterly boundary of Por- 



Honolulu Plantation Co. 245 

Exhibit A-1 — (Continued) 

turn l>, and on tlio Southwest side of Moanahui 
Road, on the center] ine of the Hawaiian Electric 
Co., Ltd.'s easement for transmission line ten ^10) 
feet wide, the coordinates of which referred to 
Government Survey Triangulation Station ''Salt 
Lake" bein.i? 3723.31 feet North and 6140.09 feet 
West, and running by azimuths measured clockwise 
from true South: 

1. 304° 25' 30"— 352.94 feet; 

2. 320° 31'— 3.36 feet to the Southerly boundary 
of Portion B. 

EASEMENT 8-B 

Hawaiian Electric Co., Ltd.'s Easement for Trans- 
mission Line Ten (10) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. [421] 

Centerline Description. 

Beginning on the centerline of Easement S-A. 
above described, and on the centerline of the Ha- 
waiian Electric Co., Ltd.'s easement for transmis- 
sion line ten (10) feet wide, the coordinates of 
which referred to Government Survey Tri angula- 
tion Station "Salt Lake" being 3634.25 feet North 
and 6010.14 feet West, and running by azimuth 
measured clockwise from true South: 

1. 323° 39' 15"— 221.83 feet to the Southerly 
boimdary of Portion B. 



246 United States of America vs. 

Exhibit A-1 — (Continued) 

EASEMENT 9-B 

Honolulu Plantation Co.'s Easement for Electric 
Transmission Line Ten (10) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning on the Southerly boundary of Portion 
B, and on the centerline of the Honolulu Planta- 
tion Co.'s easement for electric transmission line 
ten (10) feet wide, the coordinates of which re- 
ferred to Government Survey Triangulation Sta- 
tion ''Salt Lake" being 3234.67 feet North and 
6741.45 feet West, and running by azimuth meas- 
ured clockwise from true South: 

1. 137° 55'— 541.99 feet to the Southerly side of 
the new highway to Aiea Naval Hospital. [422] 

PORTION C 

Trustees of B. P. Bishop Estate — Owners 

Land Situated on the Northerly side of new high- 
way to Aiea Naval Hospital between Kamehameha 
Highway and Moanalua Road at Halawa, Ewa, 
Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
iianaoa and Kamaikui. 



Honolulu Plantation Co. 247 

Exhibit A-1— (Continued) 

Beginning at U.S.M.R. Monnment No. 14 at tJie 
North corner of this parcel of land, on the bound- 
ary of the lands of Aiea and Halawa, and on the 
Southwest side of Moanalua Road, the coordinates 
of which referred to Government Survey Triangu 
lation Station "Salt Lake" being 4485.44 feet North 
and 7212.38 feet West, and running by azimuths 
measured clockwise from true South: 

1. 305° 27—1130.47 feet to a pipe; 

2. 80° 46' 30"— 989.64 feet along the Northwest 
side of the new highway to Aiea Naval Hos- 
pital ; 

3. 170° 46' 30"— 5.00 feet along the Northwest 
side of the new highway to Aiea Naval Hos- 
pital ; 

4. 80° 46' 30"— 121.70 feet along the Northwest 
side of the new highway to Aiea Naval Hos- 
pital. Thence along the Northwest side of the 
new highway to Aiea Naval Hospital, on a 
curve to the left, with a radius of 2899.79 feet, 
the direct azimuth and distance being: 

5. 78° 22' 10"— 243.42 feet; [423] 

6. 345° 57' 50"— 5.00 feet along the Northerly 
side of the new highway to Aiea Naval Hos- 
pital. Thence along the Northwest side of the 
new highway to Aiea Naval Hospital, on a 
curve to the left, with a radius of 2894.79 feet, 
the direct azimuth and distance being: 

7. 74° 00' 15"— 197.99 feet. Thence along the 
Northwest side of the new highway to Aiea 
Naval Hospital, on a curve to the left, with a 



248 United States of America vs. 

Exhibit A-1 — (Continued) 

radius of 2894.79 feet, the direct azimuth and 
distance being: 

8. 67° 09' 20"— 493.41 feet; 

9. 62° 16'— 318.93 feet along the Northwest side 
of the new highway to Aiea Naval Hospital. 
Thence along the Northeasterly corner of 
Kamehameha Highway and the new highway 
to Aiea Naval Hospital, on a curve to the 
right, with a radius of 30.00 feet, the direct 
azimuth and distance being: 

10. 118° 55'— 50.12 feet; 

11. 209° 07' 30"— 279.96 feet along the Southeast 
side of Kamehameha Highway. Thence along 
the Southeast side of Kamehameha Highway, 
on a curve to the left, w4th a radius of 1120.48 
feet, the direct azimuth and distance being: 

12. 203° 11' 54"— 231.39 feet; 

13. 287° 16' 18"— 15.00 feet along the Southeast- 
erly side of Kamehameha Highway. Thence 
along the Southeast side of Kamehameha High- 
way, on a curve to the left, with a radius of 
1135.48 feet, the direct azimuth and distance 
being: [424] 

14. 194° 45' 27"— 99.62 feet; 

15. 237° 48' 20"— 1321.31 feet along the land of 
Aiea to the point of beginning and containing 
an area of 25.038 acres, and as delienated on 
the 14th Naval District Drawing No. OA-Nl- 
490. 

Subject to the following easements, said ease- 
ments being delineated on aforesaid drawing. 



Honoluln Plantation Co. 249 

Exhibit A-1 — (Continued) 

EASEMENT 1-C 

The Hawaiian Electric Co.. Ltd.'s Easement for 
Transmission Line Fifty (50) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning on the Southerly boundary of Portion 
C, and on the Northerly side of the new highway 
to Aiea Naval Hospital, and on the centerline of 
the Hawaiian Electric Co., Ltd.'s easement for 
transmission line fifty (50) feet wide, the coordi- 
nates of which referred to Government Survey 
Triangulation Station ''Salt Lake" being 3297.04 
feet North and 8384.62 feet West, and running by 
azimuth measured clockwise from true South: 
1. 173° 52' 30"— 276.63 feet to the Easterly side 
of Kamehameha Highway. [425] 

EASEMENT 2 

Oahu Railway and Land Co.'s and Honolulu Plan- 
tation Co.'s Easement for Railroad Sixteen 
(16) Feet Wide 

T^and Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 



250 United States of America vs. 

Exhibit A-1 — (Continued) 

Centerline Descriptions. 

Beginning on the Westerly boundary of Portion 
C, and at the Easterly corner of the new highway 
to Aiea Naval Hospital and Kamehameha High- 
way, and on the centerline of the Oahu Railway 
and Land Co.'s and Honolulu Plantation Co.'s ease- 
ment for railroad sixteen (16) feet wide, the coor- 
dinates of which referred to Government Survey 
Triangulation Station ''Salt Lake" being 3206.39 
feet North and 8577.60 feet West, and running by 
azimuths measured clockwise from true South: 

1. 242° 20'— 452.63 feet. Thence on a curve to 
the left, with a radius of 722.79 feet, the direct 
azimuth and distance being: 

2. 218° 18' 30"— 588.55 feet; 

3. 194° 17'— 282.18 feet to the Halawa- Aiea bound- 

ary, being also the Northwest boundary of 
Portion C. [426] 

Centerline Description of Siding. 

Beginning on the centerline of the above de- 
sjcribed easement, the coordinates of which referred 
to Government Survey Tringulation Station "Salt 
Lake" being 3778.39 feet North and 7845.28 feet 
West, and running by azimuths measured clockwise 
from true South: 

On a curve to the left, with a radius of 161.40 
feet, the direct azimuth and distance being: 

1. 209° 04' 50"— 64.29 feet. 

Thence on a curve to the left, with a radius 



Honolulu Plantation Co. 251 

Exhibit A-1 — (Continued) 

of 733.56 feet, the direct azimuth and distance) 
being: 

2. 195° 57' 46"— 43.00 feet; 

3. 194° 17—292.71 feet to the Halawa-Aiea 
boundary, being also the Northwest boundary 
of Portion C. 

EASEMENT 3-A 

Honolulu Plantation Co.'s Easement for Railroad 
Sixteen (16) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning at the Westerly end of this easement, 
and on the centerline of the Oahu Railway and 
Land Co.'s and Honolulu Plantation [427] Co.'s 
easement for railroad sixteen (16) feet wide, the 
coordinates of which referred to Government Sur- 
vey Triangulation Station ^'Salt Lake" being 
3433.01 feet North and 8147.06 feet West, and run- 
ning by azimuths measured clockwise from true 
South: 

On a curve to the right, with a radius of 
1055.44 feet, the direct azimuth and distance 
being : 

1. 250° 17' 52"— 331.51 feet; 



252 United States of America vs. 

Exhibit A-1 — (Continued) 

2. 259° 20—19.36 feet to the Northerly side of 
the new highway to Aiea Naval Hospital. 

EASEMENT 4-A 

The United States of America Perpetual Easement 
Five (5) Feet Wide Dated May 28, 1940, Re- 
corded in Liber 1581, Page 395, in the Bureau 
of Conveyances at Honolulu. 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning on the Halawa- Aiea boundary, on the 
Northwest boundary of Portion C, the coordinates 
of which referred to Government Survey Triangu- 
lation Station ''Salt Lake" being 3870 feet North 
and 8188.87 feet West, and rimning by azimuths 
measured clockwise from true South: 

1. 339° 42—102.13 feet; [428] 

2. 338° 32—182.96 feet; 

3. 337° 23—126.71 feet; 

4. 250° 51—77.55 feet; 

5. 254° 44—115.67 feet; 

6. 262° 50'— 36.41 feet to the Northerly side of 
the new highway to Aiea Naval Hospital. 



Honohilu Plantation Co. 253 

Exhibit A-1 — (Continued) 

EASEMENT 5-A 

Honolulu Plantation Co.'s Easement for Ditch Six 
(6) Feet Wide 

T^and Situated at Halawa, Ewa, Oahu, T. H. 

Beiuji- a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uahaoa and Kamaikui. 

Centerline Description. 

Beoinning on the Southerly boundary of Pot-- 
tiori C, and on the Northerly side of the new hio^h- 
way to Aiea Naval Hospital, and on the centerline 
of t1ie Honolulu Plantation Co.'s easement for 
ditcli six (6) feet wide, the coordinates of which 
referred to Government Surve}^ Triangulation Sta- 
tion "Salt Lake" being 3683.26 feet North and 
7193.66 feet West, and running" by azimuths meas- 
ured clockwise from true South: 

1. 225° 54'— 579.52 feet; 

2. 805° 01—134.00 feet; 

3. 268° 30—7.00 feet; 

4. 228° 44'— 66.25 feet; [429] 

5. 30^° 27'— 356.40 feet; 

6. 336° 32'— 22.18 feet to the Northerly side of 
the new highway to Aiea Naval Hospital, be- 
ing also the Southern boundary of Portion C 



254 United States of America vs. 

Exhibit A-1 — ( Continued) 

EASEMENT 7-A 

Mutual Telephone Co. 's Easement for Telephone 
Line Ten (10) Feet wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Ke- 
kuanaoa and Kamaikui. 

Centerline description : 

Begmning on the Southerly boundary of Portion 
C, on the Northerly side of the new highway to 
Aiea Naval Hospital, and on the centerline of the 
Mutual Telephone Co.'s easement for telephone line 
ten (10) feet wide, the coordinates of which re- 
ferred to Government Survey Triangulation Sta- 
tion ^'Salt Lake" being 3807.48 feet North and 
6428.7b feet West, and running by azimuths mea- 
sured clockwise from true South : 

1. 177° 07'— 48.32 feet; 

2. 203° 51'— 61.14 feet to the Southwest side of 
Moanalua Road. [430] 

EASEMENT 9-A 

Honolulu Plantation Co.'s Easement for Electric 
Transmission Line Ten (10) Feet Widt 

Land Situated at Halawa, Ewa, Oahu, T. H. 
Being a Portion of Royal Patent 6717, Land Cora- 
mission Award 7712 and 8516-B to M. Kekuanaoa 
and Kamaikui. 



Honolulu Plantation Co. 255 

Exhibit A-1 — (Continued) 
Centerline Description: 

Beginning on the Southerly boundary of Portion 

B, on the Northerly side of the new highway to 
Aiea Naval Hospital, and on the centerline of the 
Honolulu Plantation Co.'s easement for electric 
transmission line ten (10) feet wide, the coordmates 
of which referred to Government Survey Triangu- 
lation Station ''Salt Lake" being 3689.93 feet 
North and 7152.58 feet West, and running by azi- 
muths measured clockwise from true South : 

1. 137° 55—298.25 feet; 

2. 120° 52'— 461.30 feet to the Halawa-Aiea boun- 
dary, being also the Northwest boundary of Portion 

C. [4311 

EXHIBIT "A-2" 

Description of 15.076 Acres of Land. Situated at 
the North Corner of Moanalua Road and .'\iea 
Naval Hospital Road at Halawa, Ewa, Oahu 
T. H. [433] 

B. P. Bishop Estate — Owner 

I^and Situated at the North Corner of Moanalua 
Road and Aiea Naval Hospital Road at Halawa. 
Ewa, Oahu, T. H. 

Beiniv a Portion of the Ahupuaa of Halawa and 
Being a Portion of Royal Patent 6717. Land Com- 
mission Award 7712 and 8516-B to M. Kekuanaoa 
and Krimaikui. 

Bei;Lnning at a "t" on concrete at the West cor- 



256 United States of America vs. 

ner of this parcel of land, being also the South 
corner of the Aiea School Lot, and on the ISorth- 
east side of Moanalua Road, the cojrdinates of 
which referred to Government Survej^ Triangula- 
tion Station "Salt Lake" being 4166.08 feet North 
and 6677.62 feet West, and running by azimuths 
measui'^d clockwise from true South: 

1. 2ir° 27'— 626.34 feet along remainder of the 
land of Halawa along Aiea School Lot to a 
pipe; 

2. 125° 27'— 342.65 feet along remainder of the 
land of Halawa along Aiea School Lot to a 
pipe; 

3. 237° 47' 30"— 253.00 feet along TJ. S. Naval 
Reservation 30-foot right-of-way along tht- 
Aica-Halawa boundary to a pipe: 

4. 306° 33'— 204.40 feet along remainder of the 
land of Halawa to a pipe; 

5. 311° 30' 30"— 213.00 feet along remainder of 
the land of Halawa to a pipe; 

6. 311° 50' — 84.65 feet along remainder of the 
larid of Halawa to a pipe: 

7. 321° 55'— 598.40 feet along remainder of the 
land of Halawa to a pipe; 

8. 42^ 27' — 443.40 feet along remainder of the 
land of Halawa to the North side of the Aiea 
Naval Hospital Road to a pipe; 

9. 8!)° 46' 30"— 299.30 feet along the North side 
of the Aiea Naval Hospital Road to a pipe: 

10. 125° 27'— 560.19 feet along the Northeast side 
of Moanalua Road to the point cf beginning 



Honolulu Plantation Co. 257 

and containing an area of 15.076 acres, and as 
delineated on 14th Naval District Drawing No. 
OA-Nl-626. 

Subject to the following easements, said ease- 
ments lieing delineated on the aforesaid drawing: 

EASEMENT TEN (10) FEET WIDE FOR 
UNDERGROUND PIPELINE 

Being a Strip of Land Ten (10) Feet Wide Ex- 
tending Five (5) Feet on Each Side of the Follow- 
ing Described Centerline: 

Beginning; at the Southwest end of this ease- 
ment, and on the Northeast side of Moanalua Road 
the coordinates of which referred to Government 
Survey Triangulation Station ''Salt Lake" being 
4075.()0 feet North and 6550.54 feet W. st, and run- 
ning by azimuths measured clockwise from true 
South : 

1. 213° 53' 30"— 179.08 feet; 

2. 215^ 27—656.90 feet. 
Area — 8,360 square feet. 

EASEMENT TEN (10) FEET WIDE FOR 
DITCH PURPOSES 

Boing a Strip of Land Ten (10) Feet Wide Ex- 
tending Five (5) Feet on Each Side of the Follow- 
ing Described Centerline: 

Beginning at the West end of this easement, and 
on the Northeast side of Moanalua Road, the co- 
ordinates of which referred to Government Survey 
Triangulation Station ''Salt Lake" l>eing 3845.30 



258 United States of America vs. 

feet North and 6227.07 feet West, and running by 
an azimuth measured clockwise from true South: 

1. 2(>o' 46' 30"— 310.68 feet. 
Area — 3,107 square feet. 

/s/ R. M. TOWILL, 
Registered Professional Surveyor Certificate Num- 
ber 151. 

Honolulu, T. H., April 19, 1943. [435] 

EXHIBIT A-3 

AIEA BARRACKS 

2ND ADDITIONAL AND 3RD ADDITIONAL 

Land Situated at Halawa and Aiea, Ewa, 
Oahu, T. H. 

Descriptions of: 

Aiea Barracks 2nd Additional. Apparent owner: 
B. P. Bishop Estate; area, 26.195 acres. 

Aiea Barracks 3rd Additional (Honolulu Planta- 
tion Co. Land). Apparent owner: Honolulu Plan- 
tation Co.; area, 2.732 acres. 

Aiea Barracks 3rd Additional (B. P. Bishop 
Estate Land). Apparent owner: B. P. Bishop Es- 
tate; area, 1.716 acres. 

Parcel T-1. Apparent owner: Territory of Ha- 
waii; area 0.676 acre. 

Parcel U-1. Apparent owner: United States of 
America; area 0.670 acre. [437] 



Honohdu Plantation Co. 259 

Exhibit A-3 — (Continued) 

AI£A BARRACKS 2ND ADDTTIONAl. 

Land Situated on the North Side of Aiea Naval 
Hospital Road and East of Aiea Barracks Ist 
Additional at Halawa, Ewa, Oahu, T. H. 

Being a Portion of the Ahupuaa of Halawa and 
Being Also a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kcku- 
anaoa and Kamaikui. 

Begi'ining at a pipe at the Southwest comer 
of this parcel of land, on the North side of Aiea 
Naval Hospital Road, and being also the Southeast 
corner of* Aiea Barracks 1st Additional, the co- 
ordinates of which referred to Government Survey 
Triangulation Station ''Salt Lake" being 3,889.15 
feet North and 5,925.85 feet West, and runnin>]: by 
azimuths measured clockwise from true South: 

1. 222' 27'-443.40 feet along Aiea Barracks 1st 
Additional, being also along a remainder of the 
land of Halawa, to a pipe; 

2. 141'' 55—598.40 feet along Aiea Barracks 1st 
Additional, being also along a remamder of the 
land of Halawa, to a pipe; 

3. 134^ 50'— 84.65 feet along Aiea Barrack? 1st 
Additional, being also along a remainder of the 
land of Halawa, to a pipe; 

4. 131° 30' 30"— 213.00 feet along Aiea Barracks 
1st Additional, being also along a remainder 
of the land of Halawa, to a pipe; 

5. 126° 33'— 204.40 feet alone: Aiea Barracks 1st 



260 United States of America vs. 

Exhibit A-3 — (Continued) 

Additional, being also along a [43^] remainder 
of the land of Halawa, to a pipe; 

6. 237" 47' 30"— 318.67 feet along U. S. Naval 
Reservation to a pipe ; 

7. 2f^r>"' J 2'— 118.10 feet along a remainder of the 
land of Halawa to a pipe; 

8. 285'' 14' — 96.50 feet along a remainder of the 
land of Halawa to a pipe ; 

9. 279" 02'— 110.20 feet along a remainder of the 
land of Halawa to a pipe; 

10. 300" 22'— 167.40 feet along a remainder of the 
land of Halawa to a pipe; 

11. 236' 42' — 71.10 feet along a remainder of the 
land of Halawa to a pipe; 

12. 302" 06'— 78.30 feet along a remainder of the 
land of Halawa to a pipe; 

13. 294^^ 24'— 46.40 feet along a remainder of the 
land of Halawa to a pipe: 

14. 2S0'' 48'- — 69.50 feet along a remainder of the 
land of Halawa to a pipe ; 

15. 2(i8'' 39' 30"— 191.23 feet along a remainder of 
the land of Halawa to a pipe; 

16. 289° 57' 30"— 193.83 feet along a remainder of 
the land of Halawa to a pipe; thence along a 
remainder of the land of Halawa, on a curve 
to the right, with a radius of 460.00 feet, the 
chord azimuth and distance being, 

17. 314^ 05' 45"— 376.21 feet; 

18. 338 ' 14'— 529.30 feet along a remainder of the 
land of Halawa to the Northerly side of Aiea 
Naval Hospital Road; thence along the North- 



Honolulu Plantation Co. 261 

Exhibit A-3— (Continued) 

erly side of Aiea Naval Hospital Road, on a 
curve to the left, witli a radius of ^>759.58 feet, 
the chord azimuth and distance being, 

19. 8:^' 24' 18"— 328.35 feet to a pipe; [439] 

20. 171° 46' 18"— 15.00 feet along the East side of 
Aifa Naval Hospital Road to a pipe; thence 
along the North sid(^ of Aiea Naval Hospital 
Road, on a curve to the left, with a radius of 
5774.58 feet, the chord azimuth and distance 
being, 

21. 81' 16' 24"— 100.45 feet to a pipe; 

22. 8P.° 46' 30"— 700.31 feet along the North side 
of Aiea Naval Hospital Road to a pipe; 

23. 350^ 46' 30"— 15.00 feet along the West side 
of Aiea Naval Hospital Road to a pipe; 

24. 80" 46' 30"— 240.73 feet along the North side 
of Aiea Naval Hospital Road to the point of 
beginning and containing an area of 26.195 
acres, and as delineated on the 14th Naval Dis- 
trict Drawing No. OA-NM076. 

Subject to Easements A-4, A-5 and B herein- 
after described, said easements being delineated on 
the aforesaid drawing. [440] 

AIEA BARRACKS 3RD ADDITIONAL 

(Honolulu Plantation Co. Land) 

Land Situated at Aiea, Ewa, Oahu, T. H. 

Being Land Quitclaimed by the United States 
of America to Waialua Agricultural Co., Ltd., by 
Deed Dated January 26, 1929 and Re'.'orded in the 



262 United States of America vs. 

Exhibit A-3— (Continued) 

Bureau of Conveyances at Honolulu in Liber 1000, 
Page 14, and Being Also the Land (Conveyed by 
Waialua Agricultural Co., Ltd., to Honolulu Plan- 
tation Co. by Deed Dated January 29, 1929 and 
Recorded in the Bureau of Conveyances at Hono- 
juIu in liiber 1002, Page 91. 

Beginning at a pipe at the South corner of this 
parcel of land, on the Northeast side of Moanalua 
Road, being also the West corner of Parcel T-1 
(government road 30 feet wide), the coordinates of 
which referred to Government Survey Triangula- 
tion Station *'Salt Lake" being 4,551.82 feet North 
and 7-219.78 feet West, and running by azimuths 
measured clockwise from true South: 

1. 125° 15' 10"— 238.28 feet along the Northeast 
side of Moanalua Road to the Southerly side 
of Oahu Railway and Land Company's rail- 
road right-of-way; thence along the Southerly 
side of Oahu Railway and Land Company's 
railroad right-of-way, on a curve to the rijjht, 
with a radius of 935.40 feet, the chord azimuth 
and distance being, 

2. 241° 21' 50"— 397.03 feet; 

3. 253'^ 37—203.85 feet along the Southerly side 
of Oahu Railway and Land Company's rail- 
road right-of-way; [4411 thenc«^ along the 
Southerly side of Oahu Railway and Land 
Company's railroad right-of-way, on a curve 
to the left, with a radius of 657.30 feet, the 
chord azimuth and distance being. 



Honolulu Plantation Co. 263 

Exhibit A-3— (Continued) 

4. 2ff0° 44' 47"— 65.83 feet; 

i). 330" 24' — 125.45 feet along Aiea Barracks Srd 
Additional (B. P. Bishop Estate Land), be- 
ing also along Grant 10197 to B. P. Bishop Es- 
state ; 

6. 57'' 49' 30"— 559.49 feet along Parcel T-1 Cgov- 
ernment road 30 feet wide) to the point of be- 
ginning and containing an area of 2.732 acres, 
and as delineated on 14th Naval District Draw- 
ir.o No. OA-Nl-1076. 

Subject to Easements C-1 and D-1 hereinafter 
described, said easements being delineated on the 
aforesaid drawing. [442] 

AIEA BARRACKS 3RD ADDPJ TONAL 
(B. P. Bishop Estate Land) 

Land Situated at Aiea, Ewa, Oahu, T. H. 

Being a Portion of Grant 10197 to B. P. Bishop 
Estate. 

Beginning at the South corner of this parcel of 
land, on the Northwest boundary of Parcel T-1 
(government road 30 feet wide), being also the 
East corner of Aiea Barracks 3rd Additional (Hon- 
olulu Plantation Company Land), the coordinates 
of which referred to Government Survey Tri angu- 
lation Station "Salt Lake" being 4,849.76 feet 
Nortli and 6,746.21 feet West, and running by azi- 
muths measured clockwise from true South: 

1. 150'' 24'— 125.45 feet along Aiea Barracks 3rd 



264 United States of America vs. 

Exhibit A-3— (Continued) 

Additional (Honolulu Plantation Company 
Land) to the Southerly side of Oahu Railway 
and Land Company's railroad ii<?ht-of-way ; 
thence along the Southerly side of Oahu Hail- 
way and Land Company's railroad right-of- 
way, on a curve to the left, with a radius of 
657.30 feet, the chord azimuth and distance 
being, 

2. 239^^ 56' 17"— 181.54 feet; 

3. 232° 00—174.15 feet along a remainder of 
Grant 10197 to B. P. Bishop Estate; thence 
along a remainder of Grant 10197 to B. P. 
Bishop Estate, on a curve to the right, with 
a radius of 343.17 feet, the chord azimuth and 
distance being, 

4. 257° 57'— 300.33 feet; [443] thence along a re- 
mainder of Grant 10197 to B. P. Bishop Es- 
tate, on a curve to the left, with a radius of 
613.14 feet, the chord azimuth and distance 
being, 

5. 306" 31' 06"— 34.99 feet to the Northwest side 

of government road 30 feet wide: 
6. 57° 47' 30"— 655.00 feet along government road 
30 feet wide and along Parcel T-1 to the point 
of beginning and containing an area of 1.716 
acres, and as delineated on 14th Naval District 
Drawing No. OA-Nl-1076. 

Subject to Easement A-1 hereinafter described, 
said easement being delineated on the aforesaid 
drawing. [444] 



Honolulu Plantation Co. 2G5 

Exhibit A-3 — (Continued) 
PARCEL T-1 

Land Situated on the Northeast Side of Moan- 
ahia Road at Aiea, Ewa, Oahu, T. H. 

Beinq a Portion of Government Road Thirty 
(30) Feet Wide. 

Be,!f;inning at a pipe at the West corner of this 
pa7'cel of land, on the North side of Moanalua 
Ivoad, beins: also the South corner of Aiea Barracks 
8i^d Additional (Honolulu Plantation Company 
Tiand\ the coordinates of which referred to Gov- 
ernment Survey Triangulation Station "Salt Lake*' 
bpino: 4,551.82 feet North and 7,219.78 feet West, 
and running- by azimuths measured clockwise from 
true South: 

1. 2ri7° 49' :30"— 559.49 feet along Aiea Barracks 
3rd Additional (Honolulu Plantation Company 
Tiand) ; 

2. 237° 47' 30"— 480.27 feet nlong Aiea Barracks 
3rd Additional (B. P. Bishop Estate Land) ; 

3. 41° 45' — 108.56 feet crossing government road 
30 feet wide; 

I. 57' 47' 30"— 377.30 feet along Parcel TT-L U. 
S. Naval Reservation; 

5. 57° 49' 30"— 545.67 feet along Parcel U-l, U. 
S. Naval Reservation, to the Northeast side 
of Moanalua Road; 

6. 125° 15' 10"— 32.49 feet nlong the Northeast 
side of Moanalua Road to the point of begin- 
nina," and containina: an area of 0.676 acre, and 



266 United States of America vs. 

Exhibit A-3 — (Continued) 

as delineated on 14th Naval District Drawing 
No. OA-Nl-1076. 

Subject to Easements A-2, C-2 and D-2 h<»rein- 
after described, said easements being delineated on 
the aPoi'esaid drawing. [445] 

PARCEL U-1 

Land Situated on the Northeast Side of Moan- 
ahia Road at Aiea, Ewa, Oahu, T. H. 

Being" a Portion of U. S. Naval Reservation 
Thirty (30) Feet Wide. 

Beginning at the South corner of this parcel of 
land, on the Northeast side of Moanahia Road, be- 
ing also the West corner of Aiea School Lo^, the 
coordinates of which referred to Government 
Survey Triangulation Station ''Salt Lake" being 
4,514.31 feet North and 7,166.72 feet West, and run- 
ning by azimuths measured clockwise from true 
South : 

1. 125° 27'— 0.53 foot along the Northeast side of 
Moanalua Road; 

2. 125^ 15' 10"— 31.96 feet along the Northeast 
side of Moanalua Road; 

3. 237^ 49' 30"— 545.67 feet along Parcel T-1 
(government road 30 feet wide) ; 

4. 237° 47' 30"— 485.92 feet partly along Parcel T-1 
and along government road 30 feet wide; 

5. 41" 45'— 108.56 feet crossing U. S. Naval Res- 
ervation 30 feet wide; 



Honolulu Plantation Co. 267 

Exhibit A-3— (Continued) 

G. 57° 47' 30"— 381.90 feet partly iilonii; Aiea 
Barracks 1st Additional and along Aiea School 
Lot to a concrete monument; 

7. 57'^' 49' 30"— 532.90 feet along Aiea School Lot 
to the point of beginning and containing an 
acre of 0.670 acre, and as delineated on 14th 
Naval District Drawing No. OA-Nl-1076. [446] 

Subject to Easements A-3 and C-3 hereinafter 
described, said easements being delineated on the 
aforesaid drawing. [447] 

EASEMENT A-1 

Description of Center! ine of Irrigation Pipeline 
Right-of-Way for Honolulu Plantation Co. 

Beginning at the Northwest end of this ease- 
ment, on the Northwesterly boundary of Aiea Bar- 
racks 3rd Additional (B. P. Bishop Estate Laud), 
the coordinates of which referred to Government 
Survey Triangulation Station ''Salt Lake*' being 
5,177.52 feet North and 6,484.50 feet West, and 
running by azimuths measured clockwise from true 
South : 

1. 320° 53'— 69.87 feet; 

2. 324° 40' 30"— 68.59 feet to the Southeast boun- 
dary of Aiea Barracks 3rd Additional (B. P. 
Bishop Estate Land), the true azimuth and 
distance to the initial point of Aiea Barracks 
3rd Additional (B. P. Bishop Estate Land), 
being 57° 47' 30" 408.27 feet, and as delineated 



268 United States of America vs. 

Exhibit A-3— (Continued) 

on I4th Naval District Drawing No. OA-Nl- 
1076. 

EASEMENT A-2 

Description of Centerline of Irrigation Pipeiine 
Right-of-Way for Honolulu Plantation Co. 

Beginning at the Northwest end of this ease- 
iiipnt, on the Northwest boundary of Parcel T-1 
and the Southeast boundary of Aiea Barracks 3rd 
xVdditional (B. P. Bishop Estate Land), the co- 
ordinates of which referred to Government Survey 
Triangulation Station ''Salt [448] Lake" being 
5,067.35 feet North and 6,400.76 feet West, and run- 
:png by azimuth measured clockwise from true 
South : 

L 324" 40' 30"— 20.41 feet to the Southeast boun- 
daiy of Parcel T-1, the true azimuth and dist- 
ance to the end of the 3rd course of Parcel 
T-1 being 41° 45' 34.80 feet, and as delineated 
on 14th Naval District Drawing No. OA-Nl- 
1076. 

EASEMENT A-3 

Description of Centerline of Irrigation Pipeline 
High t-of -Way for Honolulu Plantation Co. 

Begmning at the Northwest end of this ease- 
ment, on the Northwest boundary of Parcel lJ-1, 
the coordinates of which referred to Government 
Survey Triangulation Station ''Salt J^ake" being 
r>,042.84 feet North and 6,383.39 feet West, and rim- 



Honolulu Plantation Co. 2G9 

Exhibit A-3— (Continued) 

ning by an azimuth measured clockwise from true 
South: 

1. 324° 40' 30"— 21.15 feet to the Southeast boun- 
dary of Parcel U-1, the true ^.zimuth and 
distance to the end of the 5th course of Parcel 
U-1 being 41° 45' 32.10 feet, and as delineated 
on 14th Naval District Drawing No. OA-Nl- 
1076. [449] 

EASEMENT A-4 

Description of Centerline of Irrigation Pipeline 
Right of -Way for Honolulu Plantation Co. 

Beginning at the West end of this easement, on 
the Northwest boundary of Aiea Barracks 2nd 
Additional, and on the Southeast side of IT. S. 
Naval Reservation 30 feet wide, the coordinates 
of which referred to Government Survey Triangu- 
lation Station "Salt Lake" being 5,018.33 feet 
North and 6,366.02 feet West, and runiiing by azi- 
muths measured clockwise from true South: 

1. 279' 32'— 136.29 feet; 

2. 305' 29'— 685.71 feet; 

3. 299° 41' 30"— 455.79 feet; 

4. 313° 19'— 257.21 feet; 

5. 342° 34'— 61.31 feet; 

6. 291° 18' 30"— 184.28 feet to the end of the 
20th course of Aiea Barracks 2nd Additional 
and as delineated on 14th Naval District Draw- 
ing No. OA-Nl-1076. 



270 United States of America vs. 

Exhibit A-3 — (Continued) 

EASEMENT A-5 

Description of Centerline of Irrigation Ditch 
Risrht-of-Way for Honolulu Plantation Co. 

Begmning at the North end of this easement, on 
the Northerly bomidary of Aiea Barracks 2nd Ad- 
ditional, the coordinates of which referred to Gov- 
ernment Survey Triangulation Station *^Salt Lake" 
[450] being 5,097.84 feet North and 5,870.32 feet 
West, and running by azmiuths measured clock- 
wise from true South: 

1. 17^ 17'— 42.41 feet; 

2. 34° 54'— 200.00 feet: 

3. 8'' 29'— 59.00 feet to the centerline of Ease- 
ment A-4, the true azimuth and distance to the 
end of the 1st course of Easement A-4 hiding 
125° 29' 277.00 feet, and as delineated on 14th 
Nava] District Drawing No. OA-Nl-1076. 

EASEMENT B 

Description of Centerline of Irrigation Ditch for 
Honolulu Plantation Co. 

Bef^mning at the North end of this easement, on 
the Easterly boundary of Aiea Barracks 2nd Ad- 
ditional, the coordinates of which referred to Gov- 
f'Tumcnt Survey Triangulation Station ^*Salt Lake'^ 
beino- 4,615.57 feet North and 4,781.82 feet West, 
and running by azimuths measured clockmse from 
true South: 
1. 12° 31' 30"— 71.99 feet: 



Honolidu Plantation Co. 271 

Exhibit A-3 — (Continued) 

2. 360" 00'— 70.00 feet; 

3. 336° 30—60.00 feet; 

4. 345'' 00—160.00 feet; 

5. 319° 00'— 45.00 feet; 

6. ?ST 00—50.00 feet; 

7. 18° 00—60.00 feet; 

8. 338° 30'— 50.00 feet to the Southerly boundary 
of [451] Aiea Barracks 2nd Additional, the 
true azimuth and distance to the end of the 
181h course of Aiea Barracks 2nd Additional 
being 264° 28' 53" 112.00 feet, and as delineated 
on 14th Naval District Drawini? No. OA-Nl- 
1076. 

EASEMENT C-1 

Description of Centerline of Electric Transmis- 
sion Lme for Hawaiian Electric Co., Ltd. 

Bes^inning at the Northwest end of this easement, 
on the Northwest boundary of Aiea Barracks 3rd 
Additional (Honolulu Plantation Co. Land), the 
coordinates of which referred to Government 
Survey Triangulation Station ''Salt Lake" being* 
4,905.05 feet North and 6,979.45 feet West, and run- 
ning by an azimuth measured clockwise from true 
South: 

1. 332° 21'— 171.54 feet to the Southeast boun- 
dary of Aiea Barracks 3rd Additional THono- 
luhi Plantation Co. Land), the true azimuth 
and distance to the end of the 6th course of 
Aiea Barracks 3rd Additional (Honolulu 



272 United States of America vs. 

Exhibit A-3— (Continued) 

Plantation Co. Land) being 237° 49' 30" 181.51 
feet, and as delineated on 14th Naval District 
Drawing No. OA-Nl-1076. 

EASEMENT C-2 

Description of Centerline of Electric Transmis- 
sion Line for Hawaiian Electric Co., Ltd. 

Beginniag at the Northwest end (^f this ease- 
ment, on the Northwest boundary of Parcel T-1 
and the Southeast boundary of Aiea [452] Bar- 
racks 3rd Additional (Honolulu Plf>ntation Co. 
Land), the coordinates of which referred to Gov- 
ernment Survey Triangulation Station ^'Salt Lake'* 
being 4,753.10 feet North and 6,899.84 feet West, 
and running by an azimuth measured clo(ikwise 
from true South: 

1. 332" 21—30.09 feet to the Southeast boundary 
of Parcel T-1, the true azimuth and distance 
to the end of the 5th course of Parcel T-1 be- 
ing 57° 49' 30" 363.13 feet, and as delineated 
on 14th Naval District Drawing No. OA-Nl- 
1076. 

EASEMENT C-3 

Description of Centerline of Electric Transmis- 
sion Line for Hawaiian Electric Co., Ltd. 

Beginning at the Northwest end of this ease- 
ment, on the Northwest boundary of Parcel U-1 
and the Southeast boundary of Parcel T-1, the co- 



Honolulu Plantation Co. 273 

Exhibit A-3 — (Continued) 

ordinates of which referred to Grovernment Survey 
Triangulation Station ''Salt Lake" })eing 4,726.45 
feet North and 6,885.88 feet West, and running by 
an azimuth measured clockwise from true South: 

1. 332° 21'— 30.09 feet to the Southeast boundary 
of Parcel U-1, the true azimuth and distance 
to the initial point of Parcel U-1 being 57° 
49' 30" 348.29 feet, and as delineated on 14th 
Naval District Drawing No. OA-Nl-1076. 

EASEMENT D-1 

Description of Centerline of Telephone liinc for 
Mutual Telephone Co. 

Beginning at the Northwest end of this easement, 
on the Northwest boundary of Aiea Barracks 3rd 
Additional (Honolulu Plantation Co. Land), the 
coordinates of which referred to Government 
Survey Triangulation Station "Salt Lake" being 
4,777.04 feet North and 7,295.28 feet West, and run- 
ning by an azimuth measured clockwiso from true 
South : 

1. 322° 17'— 231.92 feet to the Southeast boun- 
dary of Aiea Barracks 3rd Additional (Hono- 
lulu Plantation Co. Land), the true azimuth 
and distance to the initial point of Aiea Bar- 
racks 3rd Additional (Honolulu Plantation Co. 
Land) being 57° 49' 30" 78.41 feet, and as 
delineated on 14th Naval District Drawing No. 
OANl-1076. 



274 United States of America vs. 

Exhibit A-3 — (Continued) 

EASEMENT D-2 

Descrijjtion of Centerline of Telephone Line for 
Mutual Telephone Co. 

Beginning at the East end of this easement, on 
the Northwest boundary of Parcel T-1 and the 
Soutlieast boundary of Aiea Barrack^^ 3rd Addi- 
tional (Honolulu Plantation Co. Land), the co- 
ordinates of which referred to Government Survey 
Triangulation Station ''Salt Lake" being 4,593.57 
feet North and 7,153.41 feet West, and running 
[454"| bv an azimuth measured clockwise from true 
South : 

1. 55^ 04' 30"— 76.96 feet to the Northeast side 
of Moanalua Road, the true azimuth and dist- 
ance to the initial point of Parcel T-1 being 
125° 15' 10" 4.00 feet, and as delineated on 
l4th Naval District Drawing No. OA-Nl-1076. 

/s/ R. M. TOWILL, 
Registered Professional Surveyor Certificate Num- 
ber 151. 

Honolulu, T. H., September 21, 1944. 

[Endorsed] : Filed Oct. 11, 1944. [455] 



Honolulu Plantation Co. 275 

[Title of District Court and Cause No. 535.] 
DECLARATION OF TAKING 

Wliereas, pursuant to the Acts of Congress ap- 
proved March 27, 1942 (Public Law 507, 77th Con- 
gress\ June 26, 1943 (Public Law 92, 78th Con- 
gress), and January 28, 1944 (Public Law 224, 78th 
Congress), the above styled condemnation proceed- 
ing has been instituted. 

Now, Therefore, pursuant to the provisions of 
the Act of Congress approved February 26, 1931 
(46 Stat. 1421), I, Secretary of the Navy, do here- 
by make and cause to be filed this declaration of 
taking, and by virtue of authority thereof do here- 
by state that the lands selected for acquisition ag- 
gregate 145.225 acres, more or less, at Halawa and 
Aiea, Ewa, Territory of Hawaii, more particularly 
described in Exhibit **A" attached hereto and made 
a part hereof. The lands are delineated on maps 
entitled '*Aiea Barracks Boundary Survey," 14th 
Naval District Drawing OA-Nl-490, "Aiea Bar- 
racks First Additional," 14th Naval District Draw- 
ina: No. OA-Nl-626, and ''Aiea Barracks 2nd Ad- 
ditional and 3rd Additional," 14th Naval District 
Drawing [457] No. OA-Nl-1076, attached hereto 
n^ Exhibits ''B-1", ''B-2", and ''B-3", respectively, 
rnd made a part hereof. 

And I do declare said lands to be taken under 
the authority of the aforesaid Acts of Congress: 
that the use to which said lands are to be put 's in 
connection with the Aiea Naval Barracks ar. auth- 



276 United States of America vs. 

orized by said acts; and that the estate hereby 
taken in said lands for the public use aforesaid is 
title in fee simple, subject, however, to the follow- 
ing rights and reservations: 

1. As to Portion B of the lands described in 
Exhibit "A", and delineated on Exhibit "B-l" 
subject to: 

A. The existing right of the Hawaiian Electric 
Company, Limited, its successors and assigns, to 
operate, maintain, and repair, electric power trans- 
mission poles and wire lines, together wil:h the 
right of ingress and egress for such purposes, over 
the rights of way, the centerlines of which are de- 
scribed in Exhibit "A" and delineated on Exhibit 
^'B-l", attached hereto, as Easements 1-A, 1-B, 
and 8- A; said right having been acquired by said 
Hawaiian Electric Company, Limited, from the 
Trustf'es under the Will and of the Estate of Ber- 
nice P. Bishop, Deceased, by (1) unrecorded lease 
No. 5877, dated December 1, 1937, expiring January 
1, 1966, and (2) by that certain lease agreement No. 
7117, from the Trustees under the Will and of the 
Estate of Bernice P. Bishop, Deceased, dated July 
1, 1943, expiring December 31, 1965, and recorded 
in the Bureau of Conveyances of the Territory of 
Hawaii in Liber 1787, at page 259. 

B. The right hereby reserved unto George Miles 
Collins, John Kirkwood Clarke, Frank Elbert Mid- 
kiff, Edwin Pauhaulani Murray and Joseph Boyd 
Poindexter, as Trustees under the Will and of the 
Estate of Bernice P. Bishop, Deceased, and to their 
successors in trust, assigns and lessees, to operate, 



Honolulu Plantation Co. 277 

maintain, and repair [458] the following facilities 
/for plantation purposes, together with the right 
of ingress and egress for such purpc^es, fc>r so 
loTig only as the rights of way over which said 
fMcilities pass are used for such purposes: 

(a) Electric power transmission poles and wire 
lines over the right of way, the centerl'ue of which 
is described in and delineated on Exhibits **A" and' 
"B-1", attached hereto as Easement 9-B; 

(b) Irrigation ditches over and along the rights 
cl' way, the centerlines of which are described in, 
?nci delineated on Exhibits ''A" and ''B-1," at- 
tached hereto as Easements 5-B and 6- A: 

(c) A pipeline under and along the right of way, 
the centerline of which is described in, and deline- 
ated on Exhibits ''A" and ''B-1", attached hereto 
as Easement 6; 

2. As to Portion C of the lands described in 
Exhibit ''A" and delineated on Exhibit *'B-1", sub- 
ject to ; 

A. The existing right of the Hawaiian Electric 
Company, Limited, its successors and assign:-, to 
oi)erate, maintain, and repair, electric power trans- 
jnission ])oles and wire lines, together with the 
right of ingress and egress for such purposes, over 
the the right of way, the centei^line of which is de- 
rr'ribed in Exhibit ^'A" and delineated on Exhibit 
•'B-1", attached hereto as Easement 1-C- said right 
having been acquired by the vsaid Hawaiian Electric 
Company, Limited, from the Trustees under the 



278 United States of America vs. 

Will and of the Estate of Bei-nice P. Bishop, De- 
ceased, by unrecorded lease No. 5877, dated De- 
cember 1, 1937, expiring January 1, 1956. 

B. The right hereby reserved unto T-leorge Miles 
Collins, John Kirkwood Clarke, Frank Elbert Mid- 
k?ff, Edwdn Pauhaulani Murray, and Joseph Boyd 
Poindexter, as Trustees under the [459] Will and 
of the Estate of Bernice P. Bishop, Deceased, and 
to their successors iii trust, assigns and lessees, to 
operate; maintain, and repair the following facil- 
ities for plantation purposes, together with the 
right of ingress and egress for such purposes, for 
so long only as the rights of way over which said 
facilities pass are used for such purposes : 

(a) Electric power transmission poles and wire 
lines over the right of way, the centerline of which 
is described in and delineated on Exhibits ''A" and 
'^B-l'\ attached hereto as Easement 9- A; 

(b) Railway tracks and facilities, including the 
operation of locomotives and cars over the same 
over the centerline described in and delineated on 
Exhibits "A" and "B-1", attached hereto as Ease- 
ment 2; 

(c) A pipeline under and along the centerline 
of the right of way described in and delineated on 
Exhibits ''A" and ''B-1", attached hereto as Ease- 
ment ;'-A; 

3. As to the lands described in Exhibit ''A'' and 
delineated on Exhibit ''B-2" as '*Aiea Barracks 
1st Additional," subject to: 

A. The right hereby reserved unto (reorge Miles 
Collins. John Kirkwood Clarke, Frank Elbert Mid- 



Honolulu Plantation Co. 279 

kifP, pjdwin Pauhaulani Murray and Joseph Boyd 
Poin dexter, as Trustees under the Will and of the 
Estate of Bernice P. Bishop, Deceased, and to 
their successors in trust, assigns and lessees, to 
operate, maintain, and repair the following facil- 
ities for plantation purposes, together with the 
right of ingress and egress for such purposes for 
bO long only as the rights of way over which said 
facilities pass are used for such purpose: [460 j 

(a) Pipelines under and along the centerlines of 
the rights of way described in and designated on 
Exhibits "A" and '*B-2", attached hereto as Ease- 
nients A-6 and A-7. 

4. As to the lands described in Exhibit *A" 
and delineated on Exhibit ''B-3" as ''Aiea Bar- 
racks 2nd and 3rd Additional" subject to: 

A The right hereby reserved unto Oeorge Miles, 
Collins, John Kirkwood Clarke, Frank Elbert Mid- 
kiff, Edwin Pauhaulani Murray and -Joseph Boyd 
Poindexter, as Trustees under the Will and of the 
Estate of Bernice P. Bishop, Deceased, and to their 
{Successors in trust, assigns and lessees, to operate, 
maintain, and repair the following facilities for 
plantation purposes, together with the right of 
ingress and egress for such purposes, for so long 
only .as the rights of way over which said facilities 
pass are used for such purposes: 

(a) Irrigation ditches over and along the center- 
lines of the rights of way described in and deline- 
ated on Exhibits ''A" and "B-3" attached hereto 
as Easements B and A-5; 

(b) Pipelines imder and along the centerline of 



280 United States of America vs. 

ihe right of way described in and designated on 
Exhibits ''A" and ''B-3" attached hereto as Ease- 
ments A-1 and A-4. 

And I do hereby state that the sum of money 
estimated by me to be just compensation for a i of 
(said lands, improvements thereon, and appurten- 
ances iheremito belonging is Seventy One Thou- 
sand Four Hundred Fifty Eight Dollars ($71,- 
'r^S.OO), Avhich said smn is hereby deposited into 
the registry of the court for the use and benefit of 
the persons entitled thereto, and the amounts of 
just compensation for said lands [461] and im- 
provements thereon, which are hereby taken are 
shown on Schedule ''A" which is attached hereto 
and made a part of this declaration of taking. 

I am of the opinion that the ultimate award for 
the taking of said lands will be within the limits 
jjrescribed by Congress. 

In AYitness Whereof, the petitioner, by and 
through the Secretary of the Navy, has caused this 
declaration of taking to be signed on the 4th day 
of August, 1945, in the City of Washington, Dis- 
trict of Columbia. 

UNITED STATES 
OF AMERICA, 

By /s/ JOHN L. SULLIVAN, 

Acting. [462] 



TTonolulu Plantation Co. 



281 



SCHEDULE ^^A" 

'I'lic names of the persons having title to or other 
interest in the lands described in the within declar- 
ation of taking and the amounts estimated to be 
fair competition for each respective o^vnership, in- 
eluding all unprovements thereon are as follows; 



i*areel 
Portion A assJiown 
on 14tliNDDwg. No. 
OA-N 1-490 (Ex. Bl) 
Portion \^ as shown 
on 14th ND Dvvg. No. 
OA-Nl-490 (Ex. B-1) 
Portion C as shown 
on 14th ND Dwg. xXo. 
()A-Nl-4nO (Ex. B-1) 
1st Additional Area 
iis showMi on 14th ND 
Dwg. No. ()A-Nl-(i2() 
( Ex. B-2 ) 

2nd Additional Area 
as shown on 14th ND 
Dwg. No. OA-Nl 107»i 
;Ex. B-3) 

3rd Additional Area 
as shown on 14tli ND 
Dwg. No. OA-NM07(3 
I Kx. B-3) 

3rd Additional Area 
as sho^^^l on 14th ND 
Dwg. No. OA-Nl-IOTB 
(Ex. B-3) 



Estimated Just 
Name of Owner Acres Compensation 
I.. L. McCandless 0.545 $ 281.00 
Estate 

B. P. Bishop Est. 73.923 36,242.50 



B. 1'. liishop Est. 25.038 12,125.00 



ii. 1\ Bishop Est. 15.07(5 7,538.00 



B. P. Bishop P:st. 26.195 13,097.50 



ITonolnIn Planta- 
tion Company 



2.732 



B. P. Bisliop Est. 1.716 



1,366.00 



858.00 



Total 145.225 $ 71,458.00 



281-la United States of America vs. 

EXHIBIT A 

DESCRIPTIONS OF PORTIONS A, B, AND C, 

LAND SITUATED AT HALAWA, 

EWA, OAHU, T. H. 

Revised October 11, 1943 

To Conform to the Widening of Kamehameha 

Highway 

PORTION A 

Estate of L. L. McCandless — Owner 

Land situated near the Southeast side of Kame- 
hameha Highway approximately 300 feet East of 
Halawa Bridge at Halawa, Ewa, Oahu, T. H. 

Being the Whole of Royal Patent 457, Land 
Commission Award 2131, Apana 1 to Kanihoalii 
for Kaukiwaa. 

Beginning at the Southwest corner of this parcel 
of land, the coordinates of which referred to Grov- 
^rnment Survey Triangulation Station ^'Salt Lake" 
being 763.60 feet North and 9583.20 feet West, and 
running by azimuths measured clockwise from true 
South: 

1. 164° 00'— 124.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui; 

2. 155° 00—186.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui; 

3. 234° 00—83.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui; 

4. 338° 15'— 319.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui: 



Honolulu Plantation Company 281-2a 
Exhibit A — (Continued) 

5. (51° 00'— 83.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui to the 
point of beginning and containing an area of 
0.545 acres, and as delineated on 14th Naval 
District Drawing No. OA-Nl-490. [465] 

PORTION B 

Trustees of B. P. Bishop Estate — Owners 

Land situated on the Southeast side of Kanio- 
hamoha Highway and on the southerly side of new 
liighway to Aiea Naval Hospital and on the South- 
west side of Moanalua Road at Halawa, Ewa, 
Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 at 8516-B to M. Kekuan- 
aoa and Kamaikui. 

Beginning at a pipe at the North corner of this 
})arcel of land, at the South corner of the new 
liighway to Aiea Naval Hospital and Moanalua 
Road, the coordinates of which referred to Govern- 
ment Survey Triangulation Station '*Salt Lake'- 
being 3780.28 feet North and 6221.95 feet West, 
and running by azimuths measured clockwise from 
true South: 

1. 305° 27—53.56 feet along the Southwest side 
of Moanalua Road to a pipe. Thence along the 
Southwest side of Moanalua Road, on a curve 
to the left, with a radius of 1007.00 feet, the 
direct azimuth and distance being: 



281-3a United States of America vs. 

Exhibit A — (Continued) 

2. 294° 03' 09"— 398.00 feet to a pipe; 

3. 25° 53' — 151.85 feet along the remainder of 
L. C. Aw. 7712 and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

4. 59° 25' — 54.00 feet along remainder of L. C. 
Aw. 7712 [466] and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

5. 63° 59' — 244.60 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

6. 69° 59' — 169.60 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

7. 86° 26' 30"— 188.50 feet along remainder of 
L. C. Aw. 7712 and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

8. 97° 48'— 112.80 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

9. 78° 52'— 197.40 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

10. 79° 49'— 188.00 feet along remainder of I.. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

11. 66° 23'— 99.50 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

12. 82° 43'— 115.80 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 



Honolulu Plantation Company 281 -4a 
Exhibit A — (Continued) 

13. 75° 40'— 201.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

14. f)2° 17'— 186.20 feet along remainder of [.. C. 
Aw. 7712 and 8e'316-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

15. 76° 08'— 117.50 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

16. 79° 06' 30"— 110.90 feet along remainder of 
L. C. Aw. 7712 and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

17. 69° 09'— 77.50 feet along remainder of L. C. 
Aw. 7712 [467] and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

18. 39° 42'— 98.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

19. 5° 03' 30"— 176.20 feet along remainder of 
L. C. Aw. 7712 and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe ; 

20. 13° 31'— 174.60 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

21. 58° 35'— 27.50 feet along remainder of I.. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

22. 94° 12'— 243.30 feet along remainder of I.. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

23. 55° 19'— 189.90 feet along remainder of I.. C. 



281-5a United States of America vs. 

Exhibit A — (Continued) 

Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

24. 45° 00'— 167.10 feet along remainder of L, C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

25. 19° 47'— 122.55 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

26. 3° 16' 30"— 54.65 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

27. 325° 54'— 111.65 feet along remainder of L C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

28. 298° 50'— 149.50 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

29. 299° 31'— 166.55 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

30. 351° 36'— 71.95 feet along remainder of L, C. 
Aw. 7712 [468] and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

31. 14° 29'— 77.40 feet along remainder of L. C. 
Aw. 7712 and 8516-B to a pipe ; 

32. 28° 13'— 90.85 feet along remainder of T.. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe ; 

33. 48° 35'— 288.20 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 



Honolulu Plantation Company 281-6a 
Exliibit A — (Continued) 

34. 53° 06'— 131.25 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe ; 

35. 39° 11—90.05 feet alon^- remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

36. 59° 42—36.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

37. 89° 41—160.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

38. 32° 32—139.60 feet along remainder of T.. 0. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

39. 46° 50' 30"— 188.70 feet along remainder of 
L. C. Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

40. 34° 14' 30"— 72.35 feet along remainder of 
L. C. Aw. 7712 and 8516-B to M. Kekuanaoa 
and Kamaikui to a pipe; 

41. 36° 25'— 223.26 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui ; 

42. 53° 00'— 130.00 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui ; 

43. 347° 24'— 72.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Keloianaoa and 
Kamikui to a pipe; [469] 



281-7a United States of America vs. 

Exhibit A — (Continued) 

44. 101° 16'— 110.10 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

45. 96° 05'— 124.70 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

46. 81° 30'— 80.00 along remainder of L. C. Aw. 
7712 and 8516-B to M. Kekuanaoa and Kam- 
aikui to a pipe; 

47. 350° 30'— 197.25 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to a pipe; 

48. 66° 55'— 54.53 feet along remainder of L. C. 
Aw. 7712 and 8516-B to M. Kekuanaoa and 
Kamaikui to the middle of Halawa Stream. 
Thence following down along Halawa Stream 
along Parcel 4-C of the Makalapa Lands for 
the next two (2) courses, the direct azimuths 
and distances between points in middle of said 
stream being: 

49. 153° 26'— 25.00 feet; 

50. 123° 50'— 325.29 feet to the Southeast side of 
Kamehameha Highway; 

51. 203° 32'— 116.70 feet along the Southeast side 
of Kamehameha Highway; 

52. 293° 32'— 15.00 feet along the Southeast side 
of Kamehameha Highway: [470] 

53. 203° 32—710.19 feet along the Southeast side 
of Kamehameha Highway. Thence along the 
Southeast side of Kamehameha Highway, on 



Honolulu Plantation Company 281-8a 
Exliibit A — (Continuod) 

a curve to the right, with a radius of 5679.65 
feet, the direct azimuth and distance being: 

54. 204^ 25' 57"— 178.26 feet; 

55. 115° 19' 54"— 15.00 i^eet along the Southeast 
side of Kamehameha Highway. Thence along 
the Southeast side of Kamehameha Highway, 
on a curve to the right, with a radius of 
5694.65 feet, the direct azimuth and distance 
being : 

m. 207° 13' 42"— 376.95 feet; 

57. 209° 07' 30"— 1204.14 feet along the Southeast 
side of Kamehameha Highway. Thence along 
the Southeast side of the new highway to Aiea 
Naval Hospital, on a curve to the right, with 
a radius of 400.00 feet, the direct azimuth and 
distance being: 

58. 225° 41' 45"— 228.16 feet; 

59. 242° 16'— 392.61 feet along the Southeast side 
of the new highway to Aiea Naval Hospital. 
Thence along the Southeast side of the new- 
highway to Aiea Naval Hospital, on a curve 
to the right, with a radius of 2834.79 feet, the 
direct azimuth and distance being: 

60. 249° 06' 55"— 676.08 feet; 

61. 345° 57' 50"— 5.00 feet along the Southerly 
side of the new- highway to Aiea Naval Hospi- 
tal. Thence along the Southerly side of the 
new highway to Aiea Naval [471] Hospital, 
on a curve to the right, with a radius of 
2829.79 feet, the direct azimuth and distance 
being : 



281-9ia: United States of America vs. 

Exhibit A — (Continued) 

62. 258° 22' 10"— 237.55 feet; 

63. 260° 46' 30"— 121.70 feet along the Southerly 
side of the new highway to Aiea Naval Hos- 
pital ; 

64. 170° 46' 30"— 5.00 feet along the Southerly 
side of the new highway to Aiea Naval Hos- 
pital ; 

65. 260° 46' 30"— 1050.32 feet along the Southerly 
side of the new highway to Aiea Naval Hos- 
pital to the point of beginning and containing 
a gross area of 74.468 acres and a net area of 
73.923 acres, after excluding and deducting 
Portion A described as follows: (and as de- 
lineated on 14th Naval District Drawing No. 

^U' OA-Nl-490) 



Honolulu Pla/ntation Company 281-lOa 
Exhibit A — (Continued) 
PORTION A 
Estate of L. L. McCandless — Owner 

Land situated near the Southeast side of Kame- 
Iiameha Highway approximately 300 feet East ot* 
Halawa Bridge at Halawa, Ewa, Oahu, T. H. 

Being the Whole of Royal Patent 457, T-and 
Commission Aw^ard 2131, Apana 1 to Kanihoalii 
for Kaukiwaa. 

Beginning at the Southwest comer of this pai'- 
eel of land, the coordinates of which referred fo 
Government Survey Triangulation Station ''Salt 
Lake" being 763.60 feet North and 9583.20 feet 
West, and running by azimuths measured clockwise 
from true South: 

1. 164° 00—124.00 feet along L. C- Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui ; [472] 

2. 155° 00—186.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui; 

3. 234° 00—83.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui; 

4. 338° 15—319.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui; 

5. 61° 00—83.00 feet along L. C. Aw. 7712 and 
8516-B to M. Kekuanaoa and Kamaikui to the 
point of beginning and containing an area of 
0.545 acre, and as delineated on 14th Naval 
District Drawing No. OA-Nl-490. 

Portion B is subject to the following easements, 
said easements being delineated on aforesaid draw- 
ing. 



281-lla United States of America vs. 

Exhibit A — (Continued) 

EASEMENTS 1-A and 1-B 

The Hawaiian Electric Co.. Ltd.'s Easement for 
Transmission Line Fifty (50) Feet Wide 

Land situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description of Easement 1-A. 

Beginning on the Southeasterly boundary of Por- 
tion B, and on the centerline of the Hawaiian Elec- 
tric Co., Ltd.'s easement, the coordinates of whicli 
referred to Govermnent Survey Triangulation Sta- 
tion "Salt Lake" being 1731.59 feet North and 
8216.66 feet West, and runnmg by azimuth measured 
clockwise from true South: 

1. 173° 52' 30"— 142.96 feet. [473] 

Centerline Description of Easement 1-B. 

Beginning on the Southeasterly boundary of Por- 
tion B, and on the centerline of the Hawaiian Elec- 
tric Co., Ltd.'s easement, the coordinates of which 
]'ef erred to Government Survey Triangulation Sta- 
tion "Salt Lake" being 2461.06 feet North and 
8294.92 feet West, and running by azimuth meas- 
ured clockwise from true South: 

1. 173° 52' 30"— 776.24 feet to the Southeasterly 
f^ido of iho new highway to Aiea Naval Hospital. 



Honolulu Plantation Company 281-12a 

Exhibit A— (Continued) 

EASEMENT 4-B 

Tho [Tnitod States of America Perpetual Eas(»inent 
Five (5) Feet Wide Dated May 28, 1940, Re- 
corded in Liber 1581, Page 385, in the Bureau 
of Conveyances at Honolulu. 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning on the Northerly boundary of Portion 
B, and on the Southerly boundary of the new high- 
Avay to Aiea Naval Hospital, the coordinates of 
which referred to Govermnent Survey Triangula- 
tion Station "Salt Lake" being 3542.14 feet North 
and 7600.39 feet West, and rimning by azinuiths 
measured clockwise from true South: 

1. 281° 16—30.32 feet; 

2. 291° 21—99.37 feet; [475] 

3. 296° 02—247.82 feet; 

4. 301° 27'— 154.82 feet; 

5. 306° 27'— 133.94 feet; 

6. 313° 34'— 56.76 feet to the Southerly boundary 
of Portion B. 



281-13a United States of America vs. 

Exhibit A — (Continued) 

EASEMENT 5-B 

Honolulu Plantation Co/s Easement for Ditch 
Six (6) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning on the Southerly boundary of Portion 
B, and on the centerline of the Honolulu Planta- 
tion Co.'s easement for ditch six (6) feet wide, the 
coordinates of which referred to Government Sur- 
vey Triangulation Station ''Salt Lake" being 3045.51 
feet North and 7462.46 feet West, and running by 
azimuths measured clockwise from true South : 

1. 200° 20'— 42.25 feet; 

2. 187° 22—11.85 feet; 

3. 183° 31—363.90 feet; 

4. 225° 54'— 207.00 feet to the Southerly side of 
the new highway to Aiea Naval Hospital. [476] 



Honolulu Plantation Company 281-14a 

Exhibit "A"— (Continued) 

EASEMENT 6 

Honolulu Plantation Co.'s Easement Six (6) Feet 
Wide for UndergTound Pipeline 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Jieing a Portion of Royal Patent 6717, Land 
Commission Award 7712 and S516-B to M. Keku- 
anaoa and Kamaikui. 

Centerline Description. 

Beginning at the Southerly end of this ease- 
ment and on the Southerly boundary of Portion 
B, the coordinates of which referred to Grovem- 
ment Survey Triangulation Station "Salt Lake" 
being 3249.52 feet North and 6436.60 feet West, 
and running by azimuths measured clockwise from 
true South: 

1. 176° 06—15.00 feet; 

2. 212° 20—232.53 feet. Thence on a curve to the 
left, with a radius of 230.00 feet, the chord 
azimuth and distance being: 

3. 192° 40—154.81 feet; 

4. 173° 00—157.03 feet to the Southerly side of 
the Aiea Naval Hospital Access Road, the true 
azimuth and distance to the end of the 68th 
course of Portion B, Aiea Barracks, being 
260° 46' 30" 77.41 feet, and as delineated on 

'■l 14th Naval District Drawing No. OA-Nl-490. 



281-15a United States of America vs. 

Exhibit A — (Continued) 

EASEMENT 6-A 

Honolulu Plantation Co.'s Easement Six (6) Feet 
Wide for Irrigation Ditch Right-of-Way. 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Keku- 
anaoa and Kamaikui. 

Centerline Description. 

Beginning at the Northwesterly end of this ease- 
ment and on the centerline of Easement 6, the 
true azimuth and distance from the end of Ease- 
ment 6 being 353° 00' 2.97 feet, and running by 
azimuths measured clockwise from true South: 

1. 260° 46' 30"— 65.00 feet; 

2. 305° 27'— 55.27 feet; 

3. 302° 30'— 140.00 feet; 

4. 298° 00'— 105.00 feet; 

5. 290° 26' 30"— 110.30 feet; 

6. 263° 00'— 10.00 feet; 

7. 208° 30'— 14.00 feet to the Southerly side of 
Moanalua Road, and as delineated on 14th 
Naval District Drawing No. OA-Nl-490. [478] 

EASEMENT 8-A 

Hawaiian Electric Co., Ltd.'s Easement for Trans- 
mission Line Ten (10) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. [479] 



Honolulu Plantation Company 281-16a 

Exhibit A — (Continued) 

Center! ine Description. 

Beginning on the Northeasterly boundary of Por- 
tion B, and on the Southwest side of Moanahm 
Koad, on the centerline of the Hawaiian Electrie 
Co., Ltd.'s easement for transmission line ten (10) 
feet wide, the coordinates of which referred to 
Government Survey Triangulation Station ''Salt 
Lake" being 3723.31 feet North and 6140.09 feet 
West, and running by azimuths measured clockwise 
from true South: 

1. 304° 25' 30"— 352.94 feet; 

2. 320° 31'— 3.36 feet to the Southerly boundary 
of Portion B. 

EASEMENT 9-B 

Honolulu Plantation Co.'s Easement for Electric 
Transmission Line Ten (10) Feet Wide 

Land Situated at Halawa, Ewa, Oahu. T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning on the Southerly boimdary of Portion 
B, and on the centerline of the Honolulu Planta- 
tion Co.'s easement for electric transmission line 
ten (10) feet wide, the coordinates of which re- 
ferred to Govermnent Survey Triangulation Sta- 
tion "Salt Lake^' being 3234.67 feet North and 
6741.45 feet West, and running by azimuth meas- 
ured clockwise from true South: 



281-17a United States of America vs. 
Exhibit A— (Continued) 

1. 137° 55—541.99 feet to the Southerly side of 
the new highway to Aiea Naval Hospital. [481] 

PORTION C 

Trustees of B. P. Bishop Estate — Owners 

Land Situated on the Northerly side of new high- 
way to Aiea Naval Hospital between Kamehameha 
Highway and Moanalua Road at Halawa, Ewa, 
Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Beginning at U.S.M.R. Monument No. 14 at the 
North corner of this parcel of land, on the bound- 
ary of the lands of Aiea and Halawa, and on the 
Southwest side of Moanalua Road, the coordinates 
of which referred to Government Survey Triangu- 
lation Station ''Salt Lake" being 4485.44 feet North 
and 7212.38 feet West, and running by azimuths 
measured clockwise from true South: 

1. 305° 27'— 1130.47 feet to a pipe; 

2. 80° 46' 30''— 989.64 feet along the Northwest 
side of the new highway to Aiea Naval Hos- 
pital ; 

3. 170° 46' 30"— 5.00 feet along the Northwest 
side of the new highway to Aiea Naval Hos- 
pital ; 

4. 80° 46' 30"— 121.70 feet along \hQ Northwest 
side of the new highway to Aiea Naval Hos- 
pital. Thence along the Northwest side of the 



Honolulu Plantation Company 281-18a 
Exhibit A — (Continued) 

n(;w liip^liway to Aiea Naval Hospital, on a 
ciirvo to the left, with a radius of 2899.79 feet, 
the direct azimuth and distance being: 
r>. 78° 22' 10"— 243.42 feet; [482] 

6. 345° 57' 50"— 5.00 feet along the Northerly 
side of the new highway to Aiea Naval Hos- 
pital. Thence along the Northwest side of the 
new highway to Aiea Naval Hospital, on a 
curve to the left, with a radius of 2894.79 feet, 
the direct azimuth and distance being: 

7. 74° 00' 15"— 197.99 feet. Thence along the 
Northwest side of the new highway to Aiea 
Naval Hospital, on a curve to the left, with a 
radius of 2894.79 feet, the direct aziiiuith and 
distance being: 

8. 67° 09' 20"— 493.41 feet; 

9. 62° 16'— 318.93 feet along the Northwest side 
of the new highway to Aiea Naval Hospital. 
Thence along the Northeasterly corner of 
Kamehameha Highw^ay and the new highwa}' 
to Aiea Naval Hospital, on a curve to the 
right, with a radius of 30.00 feet, the direct 
azimuth and distance being: 

10. 118° 55'— 50.12 feet; 

11. 209° 07' 30"— 279.96 feet along the Southeast 
side of Kamehameha Highway. Thence along 
the Southeast side of Kamehameha Higlnv.iy, 
on a curve to the left, with a radius of 1120.48 
feet, the direct azimuth and distance being: 

12. 203° 11' 54"— 231.39 feet; 

1.3. 287° 16' 18"— 15.00 feet along the Southeast- 



281-19a United States of America vs. 
Exhibit A — (Continued) 

erly side of Kamehameha Highway. Thence 
along the Southeast side of Kamehameha High- 
way, on a curve to the left, with a radius of 
1135.48 feet, the direct azimuth and distance 
being: [483] 

14. 194° 45' 27"— 99.62 feet; 

15. 237° 48' 20"— 1321.31 feet along the land of 
Aiea to the point of beginning and containing 
an area of 25.038 acres, and as delienated on 
the 14th Naval District Drawing No. OA-Nl- 
490. 

Subject to the following easements, said ease- 
ments being delineated on aforesaid drawing. 

EASEMENT 1-C 

The Hawaiian Electric Co., Ltd.'s Easement for 
Transmission Line Fifty (50) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Description. 

Beginning on the Southerly boundary of Portion 
C, and on the Northerly side of the new highway 
to Aiea Naval Hospital, and on the centerline of 
the Hawaiian Electric Co., Ltd.'s easement for 
transmission line fifty (50) feet wide, the coordi- 
nates of which referred to Government Survey 
Triangulation Station ''Salt Lake" being 3297.04 



Honolulu Plantation Company 281-20a 
Exhibit A — (Continued) 

feet North and 8)>84i)2 f(;et West, and runninp: by 
aziinutli measured clockwise from true South: 
1. 173° 52' 30"— 276.63 feet to the Easterly side 
of Kamehanieha Highway. [484] 

EASEMENT 2 

Oalui Railway and Land Co.'s and Honohilu Plan- 
tation Co.'s Easement for Railroad Sixteen 
(16) Feet Wide 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Conmiission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 

Centerline Descriptions. 

I^eginning on the Westerly bomidary of Portion 
C, and at the Easterly corner of the new highway 
to Aiea Naval Hospital and Kamehameha High- 
way, and on the centerline of the Oahu Railway 
and Land Co.'s and Honolulu Plantation Co.'s ease- 
ment for railroad sixteen (16) feet wide, the coor- 
dinates of which referred to Government Survey 
Triangulation Station "Salt Lake" being 3206.39 
feet North and 8577.60 feet West, and running by 
azimuths measured clockmse from true South: 

1. 242° 20'— 452.63 feet. Thence on a curve to 
the left, with a radius of 722.79 feet, the direct 
azimuth and distance being: 

2. 218° 18' 30"— 588.55 feet; 

3. 194° 17'— 282.18 feet to the Halawa- Aiea bound- 



281-21a United States of America vs. 
Exhibit A — (Continued) 

ary, being also the Northwest boundary of 
Portion C. [485] 

Centerline Description of Siding. 

Beginning on the centerline of the above de- 
scribed easement, the coordinates of which referred 
to Government Survey Tringulation Station "Salt 
Lake" being 3778.39 feet North and 7845.28 feet 
West, and running by azimuths measured clockwise 
from true South: 

On a curve to the left, with a radius of 161.40 
feet, the direct azimuth and distance being: 

1. 209° 04' 50"— 64.29 feet. 

Thence on a curve to the left, with a radius 
of 733.56 feet, the direct azimuth and distance 
being : 

2. 195° 57' 46"— 43.00 feet; 

3. 194° 17'— 292.71 feet to the Halawa-Aiea 
boundary, being also the Northwest boundary 
of Portion C. 

EASEMENT 4-A 

The United States of America Perpetual Easement' 
Five (5) Feet Wide Dated May 28, 1940, Re- 
corded in Liber 1581, Page 395, in the Bureau 
of Conveyances at Honolulu. 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Kek- 
uanaoa and Kamaikui. 



Honolulu Plantation Company 281-22a 

Exhibit A — (Continued) 

Centerline Description. 

J^eginning on the Halawa-Aiea boundary, on the 
Northwest boundary of Portion C, the coordinates 
of which referred to Government Survey Trian,gu- 
lation Station ''Salt Lake" being 3870.67 feet North 
and 8188.87 feet West, and running by azimuths 
measured clockwise from true South: 

1. 339° 42—102.13 feet; [487] 

2. 338° 32—182.96 feet; 

3. 337° 23—126.71 feet; 

4. 250° 51—77.55 feet; 

5. 254° 44—115.67 feet; 

(). 262° 50'— 36.41 feet to the Northerly side of 
the new highway to Aiea Naval Hospital. 

EASEMENT 5-A 

Honolulu Plantation Co.'s Easement for Ditch Six 
(6) Feet Wide 

J^and Situated at Halawa, Ewa, Oahu, T. H. 

B(4ng a Portion of Royal Patent 6717, Land 
Oonimission Award 7712 and 8516-B to M. Kek- 
uahaoa and Kamaikui. 

Centerline Description. 

Jk\ginning on the Southerly boundary of Por- 
tion C, and on the Northerly side of the new higli- 
Avay to Aiea Naval Hospital, and on the centerline 
of the Honolulu Plantation Co.'s easement for 
ditcli six (6) feet wide, the coordinates of which 
3efeiTed to Government Survey Triangulation Sta- 



2Sl-23a United States of America vs. 
Exhibit A — (Continued) 

tion ^'Salt Lake" being 3683.26 feet North and 
7193.66 feet West, and running by azunuths meas- 
ured clockwise from true South: 

1. 225° 54—579.52 feet; 

2. 305° 01—134.00 feet; 

3. 268° 30—7.00 feet; 

4. 228° 44'— 66.25 feet; [488] 

5. 305° 27'— 346.40 feet; 

6. 336° 32—22.18 feet to the Northerly side of 
the new highway to Aiea Naval Hospital, be- 
ing also the Soiitiicni hnundary ot l^oi-fiou 0. 

EASEMENT 9-A 

Honolulu Plantation Co.'s Easement for Electric 
Transmission Line Ten (10) Feet Widt 

Land Situated at Halawa, Ewa, Oahu, T. H. 
Being a Portion of Royal Patent 6717, Land Com- 
mission Award 7712 and 8516-T> to M. Kekuanaoa 
and Kamaikui. 

Centerline Description : 

Beginning on the Southerly bomidary of Portion 
B, on the Northerly side of the new high^^ay to 
zViea Naval Hospital, and on the centerline of the 
Honolulu Plantation Co.'s easement for electric 
transmission line ten (10) feet wide, the coordmates 
*>f which referred to Cxovernment Survey Triangu- 
lation Station "Salt Lake" bein,^ 3689.93 feet 
North and 7152.58 feet West, and running by azi- 
muths measured clockwise from true South: 



Honolulu Plantation Company 281-24a 
Exhibit A — (Continued) 

1. 137° 55—298.25 feet; 

2. 120° 52'— 461.30 feet to the Halawa-Aiea boun- 
dary, being also the Northwest boundary of Portion 
C. [490] 

AIEA BARRACKS 

2ND ADDITIONAL AND 3RD ADDITIONAL 

Land Situated at Halawa and Aiea, Ewa^ 
Oahu, T. H. 

Descriptions of: 

Aiea Barracks 2nd Additional. Apparent o^vner: 
B. P. Bishop Estate; area, 26.195 acres. 

Aiea Barracks 3rd Additional (Honolulu Planta- 
tion C). Land). Apparent owner: Honolulu Plan- 
tation Co.: area, 2.732 acres. 

Aiea Barracks 3rd Additional (B. P. Bishop 
Estate Land). Apparent owner: B. P. Bishop Es- 
tate; area, 1.716 acres. [491] 

AIEA BARRACKS 2ND ADDITIONAL 

Land JSituated on the North Side of Aiea Naval 
Hospital Road and East of Aiea Barracks 1st 
Additional at Halawa, Ewa, Oahu, T. H. 

Being a Portion of the Ahupuaa of Halav^;a and 
Bemg Also a Portion of Royal Patent 6717, Land 
Commission Award 7712 and 8516-B to M. Koku- 
anaoa and Kamaikui. 

Beginning at a pipe at the Southwest corner 
of this parcel of land, on the North side of Aiea 



281-25a United States of America vs, | 

Exhibit A— (Continued) * 

^aval Hospital Road, and being also the Southeast ! 

comer oi' Aiea Barracks 1st Additional, the co- : 

ordinates of which referred to Grovernrnent Survey j 

Triarigulation Station ''Salt Lake'' being 3,8^9.15 \ 

feet North and 5,925.85 feet West, and rurmin,^ by . 

azimuths measured clockwise from true South: ' 

1. 222' 27'— 443.40 feet along Aiea Barracks 1st I 
Additional, being also along a remainder of the i 
land of Halawa, to a pipe; ' 

2. 141'' 55'— 598.40 feet along Aiea Barracks 1st ! 
Additional, being also along a remainder of the j 
land of Halawa, to a pipe; 

3. 134" 50'— 84.65 feet along Aiea Barracks 1st ] 
Additional, being also along a remainder of the 
land of Halawa, to a pipe; 

4. 131° 30' 30"— 213.00 feet along Aiea Barracks I 
1st Additional, being also along a remainder i 
of the land of Halawa, to a pipe; i 

5. IVvG" 33'— 204.40 feet along Aiea Barracks 1st \ 
Additional, being also along a [492] remainder ; 
of the land of Halawa, to a pipe; 

6. 237^ 47' 30"— 318.67 feet along F. S. Naval : 
Reservation to a pipe ; ! 

7. 295' 12'- 118.10 feet along a remainder of the 

i 

land of Halawa to a pipe; j 

8. 285' 14'— 96.50 feet along a remainder of the | 
land of Halawa to a pipe ; 

9. 279" 02'— 110.20 feet along a remainder of the 
land of Halawa to a pipe; 

10. 300" 22'— 167.40 feet along a remainder of the 
laud of Halawa to a pipe; 



Honolulu Plantation Company 281-20a 
Exhibit A — (Continued) 

il. 286' 42' — 71.10 feet along a remainder of the 
land of Halawa to a pipe; 

12. 302'' 06'— 78.30 feet alons^ a remainder of the 
land of Halawa to a pipe; 

13. 294^ 24' — 46.40 feet along a remainder of the 
land of Halawa to a pipe; 

14. 2S0^ 48'— 69.50 feet along a remainder of the 
land of Halawa to a pipe; 

15. 268'' 39' 30"— 191.23 feet along a remainder of 
the land of Halawa to a pipe; 

16. 289° 57' 30"— 193.83 feet along a remainder of 
the land of Halawa to a pipe; thence along a 
remainder of the land of Halawa, on a curve 
to the right, with a radius of 460.00 feet, the 
chord azimuth and distance being, 

17. 314" 05' 45"— 376.21 feet; 

18. 338 ' 14'— 529.30 feet along a remainder of the 
land of Halawa to the Northerly side of Aiea 
Naval Hospital Road; thence along the North- 
erly side of Aiea Naval Hospital Road, on a 
curve to the left, with a radius of 5759.58 feet, 
the chord azimuth and distance being, 

19. 83° 24' 18"— 328.35 feet to a pipe ; [493] 

20. 171° 46' 18"— 15.00 feet along the East side of 
Ajfa Naval Hospital Road to a pipe; thence 
along the North side of Aiea Naval Hospital 
Road, on a curve to the left, with a radius of 
5774.58 feet, the chord azimuth and distance 
being. 

21. 81' 16' 24"— 100.45 feet to a pipe; 



281-27a United States of America vs. 
Exhibit A — (Continued) 

22. 80° 46' 30"— 700.31 feet along the North side 
01 Aiea Naval Hospital Road to a pipe; 

23. 350^ 46' 30"— 15.00 feet along the West side 
of Aiea Naval Hospital Road to a pipe; 

24. Sif 46' 30"— 240.73 feet along the North side 
of Aiea Naval Hospital Road to the point of 
beginning and containing an area of 26.195 
acres., and as delineated on the 14th Naval Dis- 
trict Drawing No. OA-Nl-1076. 

Subject to Easements A-4, A-5 and B herein- 
after described, said easements being delineated on 
the aforesaid drawing. [494] 

AIEA BARRACKS 3RD ADDITIONAL 

(Honolulu Plantation Co. Land) 

Land Situated at Aiea, Ewa, Oahu, T. H. 

Being Land Quitclaimed by the Ignited States 
of Amei'ica to Waialua Agricultural (Jo., litd., by 
Deed Dated January 26, 1929 and Re^'orded in the 
Bureau of Conveyances at Honolulu in Liber 1000^ 
Page 1.4, and Being Also the Land (Conveyed by 
AVaialua Agricultural Co., Ltd., to Honolulu Plan- 
tation Co. by Deed Dated January 29, 1929 and 
Recorded in the Bureau of Conveyances at Hono- 
lulu in Liber 1002, Page 91. 

Beginning at a pipe at the South corner of this 
parcel of land, on the Northeast side of Moanalua 
Road, being also the West corner of Parcel T-1 
(govBTJiment road 30 feet wide), the coordinat^^s of 



I 



Honolulu Plantation Company 281-28a 
Exhibit A — (Continued) 

which referred to Government Survey Triaiigula- 
tion Station ''Salt Lake" being 4,551.82 feet North 
and 7-219.78 feet West, and running by azimutlis 
measured clockwise from true South: 

1. 125° 15' 10''— 238.28 feet along tho Northeast 
side of Moanalua Road to the Southerly side 
of Oahu Railway and Land Company's rail- 
road right-of-way; thence along the Southerly 
side of Oahu Railway and Land Company's 
railroad right-of-way, on a curve to the ritrht, 
with a radius of 935.40 feet, the cliord azimuth 
and distance being, 

2. 241^^ 21' 50"— 397.03 feet; 

3. 253'' 37'— 203.85 feet along the Southerly side 
of Oahu Railway and Land Concpany's rail- 
road right-of-way; [495] thence along the 
Southerly side of Oahu Railway and Land 
Company's railroad right-of-way, on a curve 
to the left, with a radius of 657.30 feet, the 
chord azimuth and distance being, 

4. 2f.0° 44' 47"— 65.83 feet; 

5. 330° 24'— 125.45 feet along Aiea Barracks 3rd 
Additional (B. P. Bishop Estate Land), be- 
ing also along Grant 10197 to B. P. Bishop Es- 
state ; 

6. 57° 49' 30"— 559.49 feet along Parcel T-1 Cgov- 
ernment road 30 feet ^^dde) to the point of be- 
ginning and containing an area of 2.732 acres, 
and as delineated on 14th Naval "Di^^trict Draw- 
ing No. OA-Nl-107.6. [496] 



281-29a United States of America vs. I 

Exhibit A — (Continued) 1 

AiEA BARRACKS 3RD ADDI^J TONAL | 

(B. P. Bishop Estate Land) ; 

Land Situated at Aiea, Ewa, Oahu, T. H. j 

Beuig a Portion of Grant 10197 to B. P. Bishop | 

Estate. j 

Beginning at the South corner of this parcel of ' 

land, on the Northwest boundary of Parcel T-1 i 

(government road 30 feet wide), being also the j 

East corner of Aiea Barracks 3rd Additional (Hon- \ 

ohilu Plantation Company Land), the coordinates \ 

of which referred to Government Survey Triangu- I 

lation Station ''Salt Lake" being 4,849.76 feet : 

North and 6,746.21 feet West, and running by azi- ; 

muths measured clockwise from true South: j 

3. 150'' 24'— 125.45 feet along Aiea Barracks 3rd ; 

Additional (Honolulu Plantation Company i 
Land) to the Southerly side of Oahu Railway 

and Land Company's railroad light-of-way; ; 

thence along the Southerly side of Oahu Rail- i 

way and Land Company's railroad right-of- ' 

way, on a curve to the left, with a radius of I 

657.30 feet, the chord azimuth and distance i 

being, i 

2. 239^ 56' 17"— 181.54 feet; ] 

3. 232° 00'— 174.15 feet along a remainder of j 
Grant 10197 to B. P. Bishop Estate; thence \ 

\, along a remainder of Grant 10197 to B. P. 
Bishop Estate, on a curve to the right, with 



T'l 



Honolulu Plantation Company 281-:>()a 
Exhibit A— (Continued) 

a ladius of 343.17 feet, the chord azimuth and 
distance being, 

4. 257° 57—300.33 feet; [4971 thence alon- ;, re- 
mainder of Grant 10197 to B. P. Bishop Es- 
tate, on a curve to the left, with a radius of 
613.14 feet, the chord azimuth and distance 
being, 

5. 306° 31' 06'— 34.99 feet to the Northwest side 
of government road 30 feet wide; 

6. 57° 47' 30"— 655.00 feet along government road 
30 feet wide and along Parcel T-1 to the point 
of beginning and containing an area of 1.716 
acres, and as delineated on 14th Naval District 
Drawing No. OA-Nl-1076. 

Subject to Easement A-1 hereinafter described, 
said easement being delineated on the aforesaid 
drawing. [498] 

EASEMENT A-1 

Description of Centerline of Irrigation Pipeline 
Right- of -Way for Honolulu Plantation Co. 

Beginning at the Northwest end of this ease- 
ment, on the Northwesterly boundary o^ Aiea Bar- 
racks 3rd Additional (B. P. Bishop Estate Land), 
the coordinates of which referred to Government 
Survey Triangulation Station **Salt Lake" being- 
5,177.52 feet North and 6,484.50 feet Wes+, and 
running by azimuths measured clockwise from true 
South: 



281-31a United States of America vs. 

Exhibit A — (Continued) ! 

1. 320° 53—69.87 feet; \ 

2. 324° 40' 30"— 68.59 feet to the Southeast boun- , 
dary of Aiea Barracks 3rd Additional (B. P. 
Bishop Estate Land), the true azimuth and : 
distance to the initial point of Aiea Barracks ' 
3rd Additional (B. P. Bishop Estate Land), ' 
being 57° 47' 30" 408.27 feet, and as delineated 
on 14th Naval District Drawing No. OA-Nl- \ 
1076. [499] 

EASEMENT A-4 

Description of Centerline of Irrigation Pipeline i 
Right of -Way for Honolulu Plantation Co. i 

Beginning at the West end of this easement, on i 
the Northwest boundary of Aiea Barracks 2nd : 
Additional, and on the Southeast side of IT. S. i 
Naval Reservation 30 feet wide, the coordinates 
of which referred to Grovermnent Survey Triangu- : 
lolion Station ''Salt Lake" being 5,018.33 feet ; 
North and 6,366.02 feet West, and running by azi- | 
rnuths measured clockwise from true South: 

1. 279^ 32'— 136.29 feet; \ 

2. 305^ 29'— 685.71 feet; j 

3. 299° 41' 30"— 455.79 feet; \ 

4. 313° 19'— 257.21 feet; J 

5. 342° 34'— 61.31 feet; 

6. 291° 18' 30"— 184.28 feet to the end of the 
20th course of Aiea Barracks 2nd Additional 
and as delineated on 14th Naval District Draw- 
ing No. OA-Nl-1076. 



V- 

J 



Honohilu Plantation Company 281-n2a 
Exhibit A — (Continued) 

EASEMENT A-5 

Description of Centerline of Irrigation Ditch 
Right-of-Way for Honolulu Plantation Co. 

Beginning at the North end of this easement, on 
the Northerly boundary of Aiea Barracks 2nd Ad- 
ditional, the coordinates of which referred to Gov- 
ernment Survey Triangulation Station *SSalt Lake'^ 
being 5,097.84 feet North and 5,870.32 feet West, 
and running by azimuths measured clockwise from 
true South: 

J. 17^ 17'— 42.41 feet; 

2. 34° 54—200.00 feet; 

3. 8'' 29—59.00 feet to the centerline of Ease- 
ment A-4. 

4. 40° 06—98.81 feet to the Westerly boundary 
of Aiea Barracks 2nd Additional, the true azi- 
muth and distance to the end of the 4th course 
of Aiea Barracks 2nd Additional being 131° 
30' 30" 194.33 feet, and as delineated on the 
14th Naval District Drawing No. OA-Nl-1076. 

EASEMENT B 

Description of Centerline of Irrigation Ditch for 
Honolulu Plantation Co. 

Begiiming at the North end of this easement, on 
the Easterly boundary of Aiea Barracks 2nd Ad- 



281-33a United States of America vs, j 

Exhibit A — (Continued) ; 

ditionaJ, the coordinates of which referred to Gov- ' 
einment Survey Triangulation Station ''Salt Lake" ; 
bein^- 4,615.57 feet North and 4,781.82 feet West, I 
and running by azimuths measured clockwise from j 
true South: \ 

1. 12^ 31' 30"— 71.99 feet; \ 

2. 360" 00'— 70.00 feet; j 

3. 336° 30'— 60.00 feet; \ 

4. 345"^ 00'— 160.00 feet; ] 

5. 319° 00'— 45.00 feet; 

6. 337" 00'— 50.00 feet; ! 

7. 18° 00'— 60.00 feet; ' 

8. 338° 30'— 50.00 feet to the Southerly boundary | 
of [502] Aiea Barracks 2nd Additional, the i 
true azimuth and distance to the end of the ' 
18ih course of Aiea Barracks 2nd Additional j 
being 264° 28' 53" 112.00 feet, and as delineated j 
on 14th Naval District Drawing No. OA-Nl- | 
1076. I 

DESCRIPTION OF 15,076 ACRES OF LAND ; 

I 

Situated at the North Corner of Moanalua Road ] 
and Aiea Naval Hospital Road at Halawa, Ewa, ! 
Oahu, T. H. [504] 

B. P. BISHOP ESTATE, OWNER ; 

Land Situated at the North Corner of Moanalua ; 
Road and Aiea Naval Hospital Road at Halawa, i 
Ewa, Oahu, T. H. I 

Being a Portion of the Ahupuaa of Halawa 
and Being a Portion of Royal Patent 6717, Land 



Honolulu Plantation Company 281-34a 
Exhibit A~(Continue(l) 

Commission Award 7712 and 851()-1:J to M. Keku- 
anaoa and Kaniaikui. 

Jieginning- at a "t" on concrete at the West 
corner of tliis parcel of land, beint? also the South 
corner of the Aiea School Lot, and on the North- 
east side of Moanahia Road, the coordinates of 
which referred to Government Survey Trianc^ila- 
tion Station "Salt Lake" being 4166.08 feet North 
and 6677.62 feet West, and running by azimuths 
measured clockwise from true vSouth : 

1. 215° 27'— 626.34 feet along remainder of the 
land of Halawa along Aiea School Lot to a 
pipe; 

2. 125° 27'— 342.65 feet along remainder of the 
land of Halawa along Aiea School Lot to a 
pipe; 

3. . 237° 47' 30"— 253.00 feet along U. S. Naval 
Reservation 30- foot right-of-way along the 
Aiea-Halawa boundary to a pipe; 

4. 306° 33'— 204.40 feet alona remainder of the 
land of Halawa to a pipe ; 

5. 311° 30' 30"— 213.00 feet along; remainder of 
the land of Halaw^a to a pipe; 

6. 314° 50'— 84.65 feet along remainder of the 
land of Halawa to a pipe; [505] 

7. 321° 55'— 598.40 feet along remainder of the 
land of Halawa to a pipe; 

8. 42° 2r-443.40 feet along remainder of the 
land of Halawa to the North side of the Aiea 
Naval Hospital Road to a pipe: 

9. 80° 46' 30"— 299.30 feet along the North side 



281-35a United States of America vs. 
Exhibit A — (Continued) 

of the Aiea Naval Hospital Road to a pipe; 
10. 125° 27'— 560.19 feet along the Northeast side 
of Moanalua Road to the point of beginning 
and containing an area of 15.076 acres, and as 
delineated on the 14th Naval District Drawing 
No. OA-Nl-626. 
Subject to the Following Easements, said ease- 
ments being delineated on the aforesaid drawing. 

EASEMENT A-6 

Easement Ten (10) Feet Wide for 
Underground Pipeline. 

Being a Strip of Land Ten (10) Feet Wide Ex- 
tending Five (5) Feet on Each Side of the Follow- 
ing Described Centerline: 

Beginning at the Southwest end of this easement 
and on the Northeast side of Moanalua Road, the 
coordinates of which referred to Government Sur- 
vey Triangulation Station ''Salt Lake" being 
4075.60 feet North and 6550.54 feet West, and 
running by azimuths measured clockwise from true 
South : 

1. 213° 53' 30'— 179.08 feet; 

2. 215° 27'— 656.90 feet to the Northeasterly 
boundary of Aiea Barracks 1st Additional, the 
true azimuth and distance to the end of the 
5th course being 311° 30' 30" 18.67 feet, and 
as delineated on 14th Naval District Drawing 
No. OA-Nl-626. [506] 



Honolulu Plantation Company 281-36a 
Exhibit A — (Continued) 
EASEMENT A-7 

Easement Ten (10) Feet Wide for 
Underground Pipeline. 

Being a Portion of Land Ten (10) Feet Wide 
Extending Five (5) Feet on Each Side of the 
Following Described Centerline: 

Beginning at the Westerly end of thie ease- 
ment and on the centerline of Easement A-6, the 
true azimuth and distance from the initial point 
of Easement A-6 being 213° 53' 30" 10.00 f^et, 
and running by an azimuth measured clockwise 
from true South: 

1. 305° 27'^14.58 feet to the Southerly boun- 
dary of Aiea Barracks 1st Additional, the 
true azimuth and distance to the end of the 
9th course of Aiea Barracks 1st Additional 
being 80° 46' 30" 14.23 feet, and as delineated 
on 14th Naval District Drawling No. OA-Nl- 
626. 



Registered Professional Surveyor, Certificate No. 
151. 

Honolulu, T. H., April 9, 1945. [507] 
. [Endorsed] : Filed Aug. 27, 1945. [463] 



282 United States of America vs. 

[Title of District Court and Cause No. 535.] 

MOTION FOR ORDER AMENDING 
PETITION IN CONDEMNATION 

Now comes the Petitioner, United States of 
America, by its Attorney, Charles F. Rathbun, Spe- 
cial Assistant to the Attorney General, and moves 
that an order be entered amending the Petition in 
Condemnation herein by striking from Paragraph I 
in said Petition in the 14th, 15th, 16+h and 17th 
lines of said Paragraph the words and figures; 

u ^Al", ''A2" and "A3", hereto annexed 
and made parts hereof as though set forth at 
length and shown upon maps marked Exhibits 
"B-1", "B-2" and ''B-3", also attached here- 
to." 

and substituting therefor after the word ''Exhib- 
its" in the 14th line of said paragraph: [510) 

a <4^?) hereto attached and made a part here- 
of as though set forth at length and shown 
upon maps marked Exhibits ''B-1", "B-2" and 
"B-3" also attached hereto"; 
Also by striking from said petition Exhibits "A- 
1", ''A-2" and "A-3" as attached thereto and Ex- 
liibits 'B-l", ''B-2" and ''B-3" as attached there- 
to and substituting for said exhibits thus stricken 
Exhibits ''A" and Exhibits ''B-1", "B-2" and 
''B-3" as attached to this motion and making said 
Exhibits ''A", ''B-1", ''B-2" and ''B-3" a part 
of said Petition as though set forth at length there- 
in; 



Honolulu Plantation Company 283 

And also by striking from said Petition the whole 
of Paragrafjh III therein and substituting for said 
Paragraph III a new Paragraph III as follows: 

"That the estate sought to be condermed in this 
a(*lion is in fee simple subject, however, to the fol- 
lowing rights and reservations: 

1. As to Portion B of the lands described in 
Exhibit ''A", and delineated on Exhibit ''B-1" 
subject to: 

A. The existing right of the Hawaiian Electric 
Company, Limited, its successors and assigns, to 
operate, maintain, and repair, electric DOwer trans- 
mission poles and wire lines, together with the 
3'ight of ingress and egress for such purpose^^, over 
the rights of vvay, the centerlines of which are 
delineated on Exliibit ''B-1", attached hereto, as 
Easements 1-A, 1-B, and 8-A; said right having 
be<'n acquired by the said Hawaiian Electric Com- 
j)any, l^imited, from the Trustees under the Will 
and of the Estate of Bernice P. Bishop, Deceased, 
by (1) unrecorded lease No. 5877, dated December 
1, 1937, [511] expiring January 1, 1966, and (2) 
by that certain lease agreement No. 7117, from the 
^Prustees under the Will and of the Estate of Ber- 
nice P. Bishop, Deceased, dated July 1, 1943, ex- 
piring December 31, 1965, and recorded in the Bu- 
reau of Conveyances of the Territory of Hawaii 
in Liber 1787, at Page 259. 

B. The right hereby reserved imto (reorge Miles 
Collins, John Kirkwood Clarke, Frank Elbert Mid- 
Iviff, Edwin Paulhaulani Murray and Joseph Boyd 
Poindexter, as Trustees under the Will and of the 



284 United States of America vs. 

Estate of Bernice P. Bishop, Deceased, and to their 
successors in trust, assigns and lessees, to oi;erate, 
maintain, and repair the following facilities for 
plantation purposes, together with the right of in- 
gress and egress for such purposes, for so long only 
as the rights of way over which said facilities pass 
are used for such purposes: 

(a) Electric power transmission poles and wire 
lines over the right of way, the centerline of which 
is described in and delineated on Exhibits ''A" and 
"B-1", attached hereto as Easement 9-B; 

(b) Irrigation ditches over and along the rights 
of way the centerlines of which are c* escribed in, 
and delineated on Exhibits '*A" and "B-1", at- 
tached hereto as Easements 5-B and 6-A; 

(c) A pipeline under and along the right of way, 
the centerline of which is described in, and deline- 
ated on Exhibits ''A" and ''B-1", attached hereto 
as Easement 6; 

2. As to Portion C of the lands described in 
Exhibit ''A", and delineated on Exliibit ''B-1" 
subject to; 

A. The existing right of the Hawaiian Electric 
Company, Limited, its successors anrl assigns, to 
operate, maintain, and repair, electric power trans- 
jnission poles and wire lines, together [512] with 
the right of ingress and egress for such purposes^ 
over the right of w^ay, the centerline of which is 
described in Exhibit ''A" and delineated on Ex- 
hibit ''B-1", attached hereto as Easement 1-C; 
said riglit having been acquired by the said Ha- 
waiian Electric Company, Limited, from the 



Honolulu Plantation Company 285 

Trustees under the Will and of the Estate of 
Bernice P. Bishop, Deceased, by unrecorded lease 
No. 5877. dated December 1, 1937, expirinc: Janu- 
ary 1, 1966. 

B. Tlie right hereby reserved unto Cleorgo Miles 
Collins, John Kirkwood Clarke, Frank Elbert Mid- 
kift', Edwin Pauhaulani Murray and Joseph Boyd 
Poindexter, as Trustees under the Will and of the 
Estate of Bernice P. Bishop, Deceased, and to their 
successors in trust, assigns and lessees, to operate, 
maintain, and repair the following facilitiec for 
l>lantation purposes, together with the right of in- 
i^ress and egress for such purposes, for so long 
only as the rights of way over which said facilities 
jiass are used for such purposes: 

(a) Electric power transmission polc« and wire 
Jines over the right of way, the centerline of which 
is described in and delineated on Exhibits ''A" and 
•<B-1", attached hereto as Easement 9- A : 

(b) Kail way tracks and facilities, including the 
opei'ation of locomotives and cars over the same 
over the centerline described in and delineated on 
Exhibits ''A" and ''B-1", attached hereto as Ease- 
ment 2; 

(c) A pipeline under and along the centerline 
of the I'ight of way described in and delineated on 
Exhibits "A" and ^'B-l", attached hereto as Ease- 
ment o-A; 

3. As to the lands described in Exhibit ^'A' and 
delineated on Exhibit **B-2" as ^'Aiea Barracks 
1st Additional," subject to: [513] 

A. The right hereby reserved unto George Miles 



286 United States of America vs. 

Collins, John Kirkwood Clarke, Frank Elbert Mid- 
kiff, Edwin Pauhaulani Murray and Joseph Boyd 
Poindexter, as Trustees under the Will and of the 
Estate of Bernice P. Bishop, Deceased, and to their 
successors in trust, assigns and lessees, to operate, 
niaintaiji, and repair the following facilities for 
plantation purposes, together wdth the right of in- 
gress and egress for such purposes, for so long 
only as the rights of way over which said facilities 
pass are used for such purposes: 

(a) Pipelines under and along the centerlines of 
the rights of way described in and designated on 
Exhibits ''A'' and ''B-2", attached hereto as Ease- 
ments A-6 and A-7. 

4. As to the lands described in Exhibit **A'^ and 
delineated on Exhibit "B-3" as ''Aiea Barracks 
2nd and 3rd Additional" subject to: 

A. The right hereby reserved unto George Miles 
Collins, John Kirkwood Clarke, Frank Elbert Mid- 
kiff, Edwin Pauhaulani Murray and Joseph Boyd 
Poindexter, as Trustees imder the Will and of the 
Estate of Bernice P. Bishop, Deceased, and to their 
successors in trust, assigns and lessees, to operate, 
maintain and repair the following facilities for 
plantation purposes, together with the right of in- 
gress and egress for such purposes, for so long as 
the rights of way over which said facilities pass are 
used for such purposes: 

(a) Irrigation ditches over and along the center- 
line of the rights of way described in and deline- 
ated on Exhibits ''A" and '*B-3" attached hereto 
as Easements B and A-5; 



Honolulu Plantation Company 287 

(b) Pii)elines under and along the centerlire of 
the right of way described in and designated on 
Exhibits ''A" and ''B-3" attached hereto as Ease- 
ments A-1 and A-4." [514] 

J^etitioner states that it is necessary that the peti- 
tion herein be amended to more accurately define 
tlie estate being taken. 

Dated Honolulu, T. H., this 27th day of August, 
3945. 

UNITED STATES 
OF AMERICA, 

By /s/ CHARLES F. RATIIBUN, 

Special Asst. to the Atty. Gen. 

[Printer's Note]: Exhibit *'A" is the same 
as Exhibit '^A" set out at pages 281-la - 281 -36a. 

' [Endoised] : Filed Aug. 27, 1945. [515] 



288 United States of America vs. 

['J"'itle 01 District Court and Cause No. 535.] 

ORDER AMENDING PETITION 
IN CONDEMNATION 

Now this 27th day of August, 1945, upon motion 
by the Petitioner, United States of America, by its 
Attorney, Charles F. Rathbun, Special Assistant to 
the Attorney General, it appearing that it is neces- 
sary to more accurately define the estate being 
taken herein by amending the Petition in the above 
cause, 

It Is Ordered: 

That the Petition in Condemnation herein be 
amended by striking from Paragrapl^ I in said 
Petition in the 14th, 15th, 16th and 17th linos of 
said Paragraph the words and figures • 

^' ''A-1", ''A-2" and ''A-3", hereto annexed 
and made parts hereof as though set forth at 
length and shown upon maps marked Exhibits 
*'B-1", "B-2" and ''B-3". also attached here- 
to." 

and substituting therefore after the word ''Exhib- 
its" in the 14th line of said paragraph- [563] 

a u^n hereto attached and made a part here- 
of as though set forth at length and shown 
upon maps marked Exhibits ''B-l ", ''B-2" and 
''B-3" also attached hereto": 

Also by striking from said petition Exhibits 
''A-1", ''A-2" and ''A-3" as attached thereto and 
Exhibits ''B-1", "B-2" and '*B-3" as attached 
thereto and substituting for said exhibit*? thus 



Honolulu Plantation Go. 289 

stricken Exliibits ''A" and Exhi])i1s ^'TM", '^P,-2" 
and ''B-3'^ as attached to the Motion for an Order 
amending Petition and making said Exhibits "A", 
^^B-1", ''B-2" and "B-3" a part of said Petition 
as though set forth at length therein ; 

Also by striking from said Petition tlie whole of 
Paragraph III therein and substituting for said 
Paragraph III a new Paragraph III is follows: 

''That the estate sought to be condeir^ned in this 
action is in fee simple subject, however, to tie fol- 
lo\ving rights and reservations: 

1. As to Portion B of the lands described in 
Exhibit ''A", and delineated on Exhibit 'vB-1" 
subject to: 

A. The existing right of the Hawaiian Electric 
Company, Limited, its successors and assigns, to 
oj^erate, maintain, and repair, electric power irans- 
Jtjission poles and wire lines, together with the right 
of ingress and egress for such purposes, ovei* the 
rip;hts of w^ay, the center lines of which are de- 
scribed in Exhibit ''A" and delineated on Exhibit 
''B-1", attached hereto, as Easements 1-A, 1-B and 
8-A; said right having been acquired by the said 
Hawaiian Electric Company, Limited, from the 
Trustees under the Will and of the Estate o"^* Ber- 
nice P. Bishop, Deceased, by (1) unrecorded I'^ase 
No. 5877, dated December 1, 1937, [564] expiring 
January 1, 1966, and (2) by that certain lease 
agreement No. 7117, from the Trustees mider the 
Will and of the Estate of Bernice P. Bishop, de- 
ceased, dated July 1, 1943, expiring December 31, 
1965, and recorded in the Bureau of Conveyances 



290 United States of America vs. \ 

of the Territory of Hawaii in Liber 1787, at Page ; 
259. ] 

B. The Right hereby reserved unto ^reorge Miles ' 
Collins. John Kirkwood Clarke, Frank Elbert Mid- ■ 
kiff, Edwin Pauhaulani Murray and Joseph Boyd i 
Poindexler, as Trustees under the Will and oi* the : 
Estate of Bernice P. Bishop, Deceased, and to their i 
i-u.ccesso3's in trust, assigns and lessees, to operate, : 
maintain, and repair the following facilities for < 
plantation purposes, together with the right of in- \ 
gress and egress for such purposes, for so long j 
only as the rights of way over which said facilities ! 
pass are used for such purposes; ; 

(a) Electric power transmission poles and wire ; 
lines over the right of way, the centerline of which | 
is described in and delineated on Exhibits **A'* ; 
and ^^B-l", attached hereto as Easement 9-B; I 

(b) Iirigation ditches over and along the rights i 
of way, the centerlines of which are described in, ^ 
and delineated on Exhibits ''A" and ''B-V\ at- ] 
tached hereto as Easements 5-B and 6 A; \ 

(c) A pipeline under and along the right of way, | 
the centerline of which is described in, and deline- 
ated on Exhibits ''A" and ''B-1", attached hereto ; 
as Easement 6; ' 

2. As to Portion C of the lands described in I 
Exhibit ''A", and delineated on Exhibits ''B-V[ \ 
subject to; 

A. The existing right of the Hawaiian Electric ) 
Company. Limited, its successors and assigns, to 
operate, maintain, and repair, electric power trans- 
mission poles and wire lines, together [565] with 



Honolulu Planlatloii Co, 291 

the i-it^lit of ingress and eigress foi* such |)ur]joses, 
over the right of way, the centerline of whicli is 
described in Exhibit *'A" and delineated on Ex- 
hibit '^B-1", attached hereto as Easement 1-C; said 
right having been acquired by the said Hawaiian 
Electric Company, Limited, from the Trustf^es un- 
der the Will and of the Estate of Bernice P. 
Bishop, Deceased, by unrecorded Lease No. 5877, 
dated December 1, 1937, expiring January 1, 1966. 

B. The right hereby reserved unto George Miles 
T'ollins, John Kirkwood Clarke, Frank Elbert Mid- 
kiff, Edwin Pauhaulani Murray and Joseph Boyd 
Poindexter, as Trustees under the Will and of the 
Estate of Bernice P. Bishop, Deceased, and to their 
successors in trust, assigns and lessees, to operate, 
maintain, and repair the following facilities for 
plantation purposes, together with the right of in- 
gress aT\d egress for such purposes, for so long 
only as the rights of way over which said facilities 
pass are used for such purposes: 

(a) Electric power transmission poles and wire 
lines over the right of way, the centerline of which 
is described in and delineated on Exhibits **A" 
and ''B-1", attached hereto as Easement 9-A : 

(b) Railway tracks and facilities, including the 
operation of locomotives and cars o^'er the same 
over the centerline described in and delineated on 
Exhibits "A" and ''B-l'\ attached hereto as Ease- 
ment 2; 

(c) A pipeline under and along the centerline 
of the right of way described in and delineated 



292 United States of America vs. ji 

■1 

on Exhibits ''A" and ''B-1", attached hereto as | 

i 
Easement 5-A; "s 

3. As to the lands described in Exhibit "A" I 
and delineated on Exhibit ''B-2" as ''Aiea Bar- i 
lacks 1st Additional," subject to: [566] « 

A. The right hereby reserved unto George Miles | 
Collins, John Kirkwood Clarke, Frank Elbert Mid- I 
kiff, Ed^vin Pauhaulani Murrav and Joseph Boyd ^ 

Poindexter, as Trustees under the Will and of i 

■ f. 

the Estate of Bernice P. Bishop, deceased, and to j 
t]:>eir successors in trust, assigns and lessees, to ; 
operate, maintain, and repair the following facil- ^ 
ities for plantation purjjoses, together with the ; 
ri^'ht of ingress and egress for such purposes, for | 
so long only as the rights of way over which ?aid i 
facilities pass are used for such purposes: ] 

(a) Pipelines under and along the centerlines \ 
of the I'ights of way described in and designated ! 
on Exhibits ^'A" and ''B-2". attached hereto as ] 
Easem(»nts A-6 and A-7. \ 

4. As to the lands described in Exhibit ''A" and I 
d<^lineaied on Exhibit ''B-3" as 'VAion Bai racks 
2iu] and 3rd Additional" subject to: 

A. The right hereby reserved unto George Miles 
Collins, John Kirkwood Clarke, Frank Elbert Mid- 
kiff, Edwin Pauhaulani Murray and Joseph "Boyd 
Poindexter, as Trustees under the Will and of the 
Estate of Bernice P. Bishop, deceased, and to their 
successors in trust, assigns and lessees, to operate, 
maintain, and repair the following facilities for 
plantation purposes, together with the right of in- 
gross and egress for such purposes, for so long only 



Honolulu Plantation Go. 293 

as the rights of* way over which said facilities pass 
are used for such purposes; 

(a) Irrigation ditches over and along the center- 
lines 01 the rights of way described in 'ind deline- 
ated on Exhibits ''A" and "B-3" attached hereto 
as Easements B and A-5; 

(b) Pipelines under and along the centerline of 
the right of way described in and dcjigna+ed on 
Exhibits ''A" and ''B-3" attached hereto as Ease- 
ments A-1 and A-4/' 

Dated Honolulu, T. H., this 27th day of August, 
1945. 

/s/ D. E. METZGER, 
Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Aug. 27, 1945. f 567] 



294 United States of America vs. jj 

In the District Court of the United States ! 

For the District of Ha wan ] 

April Term 1945 ,| 

Civil No. 535 i 

TTNITED STATES OF AMERICA, 1 



Petitioner, 

vs. 



145.225 ACRES OF LAND, more or less, situate : 
at Ilalawa and Aiea, Ewa, Island of Oahu, ! 
Territory of Hawaii ; George Miles Collins, John I 
Kirkwood Clarke, Frank Elbert Midkiff, Ed- | 
win Pauhaulani Murray and Joseph Boyd Point- ] 
dextei'; Trustees under the Will and of the ; 
Estate of Bernice P. Bishop, et a I., ',, 

Defendants. 

ORDER AND JUDGMENT ON DECLARATION i 
OF TAKING : 

It appearing that on October 11, 1944, the United ^ 
States of America filed a Petition in Condemnation 
of certain land described and shown on the exhibits ! 
attached to said petition and now attached to the 
petition herein as amended; and, 

It further appearing that a Declaration of Tak- 
mrc was this day filed herein, being signed by John 
L. Sullivan, Acting Secretary of the Navy, and 
that said Declaration of Taking was filed under 
and pursuant to provisions of the Act of Congress 
approved March 27, 1942 (Public Law 507 — T7th 
Congress), the Act of Congress approved June 28, 



I 



Honolulu Plantation Co. 295 

.1946 (Public Law 92— 78th Congress), the Aft of 
Congress approved January 28, 1944 (Public Law 
224 — 78th Congress), and the Act of Congress of 
February 26, 1931 (46 Stat. 1421), declaring laken 
the lands described in said Declaration of Taking 
to the extent shown in said Declaration of Taking 
and in the exhibits attached thereto. That the uses 
of said lands are [568] those described in the Dec- 
laration of Taking and in the Petition tiled herein 
as amended; and that the said Declaration of Tak- 
ing sets forth the estimate of just compensation 
]nade pursuant to law and that contemporaneously 
with the filing of said Declaration of Taking, there 
was deposited in the Registry of this Court for the 
use and benefit of the persons entitled thereto the 
the sum of Seventy One Thousand, Four Hundred 
Fifty Flight Dollars, ($71,458.00). 

It Is Therefore Ordered, Adjudged and De(»reed 
that by virtue of the filing of said Declaration of 
Taking and the deposit of said money, full fee 
simple title to the lands described nnd shown on 
Exhibits ''A", ''B-l'V'B-2'' and '^B-3" attached 
to the said Declaration of Taking herein, be and 
it is hereby indefeasibly vested in the United States 
of America, subject to the reservations set forth 
in said Declaration of Taking and exhibits attached 
thereto. 

It Is Further Ordered that a copy of this Order 
be promptly served by the United States Mar?hal 
upon each of the defendants in this cause. The 
Marshal is further ordered to post a copy hereof 



296 United States of America vs. ^ 

in a conspicuous place on the premises and to forth- ] 
with make due return of his said serrdce to this , 

Court. ^ 

't 

Bated Honolulu, T. H., this 27th day of August, \ 
1945. I 

/s/ D. E. METZGER, ] 

Judge of the United States District Court for the i 

District of Hawaii. j 

[Endorsed] : Filed Aug. 27, 1945. [569] | 



Honolulu Plantation Co. 297 

In the District Court of the United States 
for the District of Hawaii 

October Term 1944 

Civil No. 536 

UNITED STATES OF AMP]RICA, 

Petitioner, 
vs. 

26.922 acres of land, more or less, situate at Waiawa, Waimalu, 
Ewa, Island of Oahu, Territory of Hawaii ; FRANCIS H. I. 
BROWN ; EDITH AUSTIN ; MABEL FRAZAR AUSTIN, 
LINDSLEY AUSTIN and BOSTON SAFE DEPOSIT 
AND TRUST COMPANY, a corporation, Trustees under 
the Will and of the Estate of Walter Austin, deceased; 
HONOLULU PLANTATION COMPANY, a California cor- 
poration ; HAWAIIAN TRUST COMPANY, LIMITED, an 
Hawaiian corporation; OAHU RAILWAY AND LAND 
COMPANY, a corporation; CITY AND COUNTY OF 
HONOLULU ; TERRITORY OF HAWAII ; and all other 
persons, companies or corporations, either known or un- 
kno\\'Ti, who claim to have or own any right, title or interest 
of any character whatever in said land. 

Defendants. 

PETITION FOR CONDEMNATION 

To the Honorable, the Presiding Jiidsres of the 
United States District Court for the District of 
Hawaii : 

Now comes the United States of America, by 
Robert S. Tarnay, Special Assistant to the Attor- 
ney General, acting imder the instructions of the 
Attorney General of the United States and at the 
request of the Secretary of Navy and respectfully 
represents to the Court: [570] 



298 United States of America vs. j 

I- ] 

That this proceeding is instituted under the auth- , 

ority of divers and sundry Acts of Congress, among 

them the following: j 

1 
The Act of Congress approved March 27, • 

1942 (Public Law 507— 77th Congress) | 

The Act of Congress approved April 28, J 
1942 (Public Law 528— 77th Congress) | 

and that the Secretary of Navy, acting under auth- '] 

ority vested in him by law has determined that it is ■ 

necessary that the United States of America ac- \ 
quire by condemnation, by judicial process, certain 

lands, more particularly described and shown on '> 

Exhibits '*A" and "B", hereto annexed and made \ 

parts heieof. j^ 

11. I 

That the lands sought to be condemned arr lo- 1 

cated at Waiawa, Waimalu, Ewa, Island of Oahu, • 

Territo3y of Hawaii, and lie wholly within the ]ur- i 

isdictiovi of this Court, J 

HI. I 

That the estate sought to be condemned in this : 
;:ction is the fee simple title, together with all im- ^ 
provements thereon and appui'tenances theieunto ' 
belonging, subject to existing public utility, pipe I 
line, irrigation and drainage easements, if any j 
there be, to Parcels 1-A, 1-B, 2-A, 2-B and 3-A; 
and the fee simple title subject to an easement in 
Parcel 3-B in favor of the Oahu Railway and Land 
Company for railroad purposes only for so long as 
it is used for such purpose; said lands are for use 



Honolulu Plantation Co. 299 

as empty drum storage area in connection with the 
Naval Supply Depot, Pearl Harbor. 

IV. 

That Francis H. 1. Brown; Edith Austin; Mabel 
Frazar Austin, J^indsley Austin and Boston Safe 
Deposit and Trust Company, a corporation, 
Trustees under the Will and of the Estate of Wal- 
ter Austin, deceased; Honolulu Plantation Com- 
|)any, a California corporation; Hawaiian Trust 
CompaTiy, Limited, an Hawaiian corporation; Oahu 
Railway and Land Company, a corporation; City 
and County of Honolulu; Territory of Hawaii and 
all other persons, companies or corporations, either 
i<nown or unknown, who claim to h?ve or [571] 
own any right, title or interest of any character 
whatever in said land, are made defendants herein. 

V. 

That the Secretary of Navy of the ir^^ited States 
lias detf-rmined that the utmost haste in expeditins: 
this pi'oject is vital to the War purposes of the 
United States and that he has, therefore, deter- 
mined that immediate possession of Parcels 2-B 
and 3- A and all improvements thereon and apT>ur- 
tenances thereunto belonging, to the extent of the 
interest to be acquired therein, is necessary by the 
Pnited States and that certain and adequate ]")ro- 
visions have been made for the payment of just 
coiupensation which may be adjudged due for the 
condemnation of the lands described and shovTi oa 
Exhibits '^A" and *'B". 

That the petitioner has been in possession of 
Parcels 1-A and 1-B from and since November 13, 
1943, pursuant to right of entry. 



300 United States of America vs. 

That the petitioner has been in possession of 
Parcel 2-A from and since November 12, 1943. 

Wherefore, your Petitioner prays this Honorable 
Court to take jurisdiction of this cause and enter 
al] orders, judgments and decrees necessary to de- 
termine title of said real estate condenmed, or any 
part thereof, and to fix and determine that the 
continued possession of the lands identified in para- 
graph V is necessary for the War and Naval pur- 
poses of the United States and that the immediate 
possession of the lands also identified in paragraph 
V is likewise necessary for the Wp^r and Naval 
purposes of the United States; that upon payment 
into the registry of this Court for the use of the 
persons entitled thereunto of the smn adjudged to 
be full compensation for the condemnation of said 
lands, that title to said lands be vf'sted in the 
United States of America in fee simple, subject 
to the exceptions set forth in paragraph III: and 
th?»t the Court make distribution of the final awards 
among the persons entitled thereto as expeditiously 
as may be and for such other and further relief as 
to the Court may seem just and proper [572] in 
the premises. 

UNITED STATES 
OF AMERICA, 

By CHARLES F. RATHBUN, 

Special Asst. to the Atty (ren. 

By /s/ ROBERT S. TARNAY, 

Special Asst. to the Atty Gen. 

rDuly Verified.) [573] 



Honohdu Plantation Co. 301 

EXHIBIT ''A" 

Descriptions of Lands Situated at Waimalu, 
Ewa, Oahu, T. H. 

J^arcel Area (Acres) Owner 

Francis II. I. I^rown 



1-A 


0.734 


1-B 


0.110 


2-A 


20.510 



Francis H. I. Brown 

Edith Austin, 2/3 interest 

Walter Austin Trust Estate, 1/3 int. 

Honolulu Plantation Co., Lessee 

2-B 2.155 Edith Austin, 2/3 interest 

Walter Austin Trust Estate, 1/3 int. 
Honolulu Plantation Co., Lessee 

3-A 2.333 Oahu Railway and Land Co. 

3-B 1.080 Oahu Railway and Land Co. (Railroad 

right-of-way ) • 

Total 26.922 

Note: Parcel 3-B is subject to an easement for 
right of passage twenty (20) feet wide in favor of 
Parcel 2-B. [574] 

PARCEL 1-A 

Francis H. I. Brown — Owner 

Land Situated at Waimalu, Ewa, Oahu, T H. 

Being a Portion of R. P. 327, L. C. Aw. 5586 to 
Kahiki. Being Also a Portion of Exclusion 4 of 
Land Court Application 950. 

Beginning at the East corner of this parcel of 
land, on the Southw^est side of Kamehameha High- 
way, the coordinates of which referred to Oovern- 
ment Survey Triangulation Station "Ewa Church" 



302 United States of America vs. 

being 1694.89 feet South and 8583.46 feet East, and 
running by azimuths measured clockwise from true 
South : 

1. 23° 30'— 444.93 feet along Lot 4-B-4 of Land 
Court Application 950 (Parcel 2-A) ; 

2. 122° 00—75.20 feet along Lot 4-B-4 of Land 
Court Application 950 (Parcel 2-A) ; 

3. 204° 00'— 431.86 feet along Lot 4-B-4 of Land 
Court Application 950 (Parcel 2-A) to a pipe; 

4. 204° 00'— 5.00 feet along the Southerly side of 
Kamehameha Highway to a pipe; 

5. 295° 57' 30"— 70.64 feet along the Southwest 
side of Kamehameha Highway to the point of 
beginning and containing an area of 31,965 
square feet, or 0.734 acre, and as delineate! on 
14th Naval District Drawing No. OA-Nl-808. 

PARCEL 1-B 

Francis H. I. Brown — Owner 

Land Situated at Waimalu, Ewa, Oahu, T. H. 
Being a Portion of R. P. 329, L. C. Aw. 9407, 
Apana 2 to Kuaalu. 

Beginning at the North corner of this parcel of 
land, on the Southw^est side of Kamehameha High- 
way, the coordinates of which referred to Grovern- 
ment Survey Triangulation Station ''Ewa Church '' 
being 2058.41 feet South and 9330.17 feet East, and 
running by azimuths measured clockwise from true 
South: i 



Honolulu Plantation Go. 303 

1. 295° 57' 30"— 42.73 feet along tlie Southwest 
side of Kamehameha Highway; 

2. 40° 30'— 118.81 feet along Lot 4-B-4 of Land 
Court Application 950 (Parcel 2- A) ; 

3. 159° 00'— 62.00 feet along Lot 4-B-4 of Land 
Court Application 950 (Parcel 2-A) ; 

4. 230° 00'— 79.59 feet along Lot 4-B-4 of Land 
Court Application 950 (Parcel 2-A) to the 
point of beginning and containing an area of 
4,790 square feet, or 0.11 acre, and as deline- 
ated on 14th Naval District Drawing No. OA- 
Nl-808. [576] 

PARCEL 2-A 

Owners : Edith Austin, 2/3 interest ; Walter Aus- 
tin Trust Estate, 1/3 interest. 

Honolulu Plantation Co. — Lessee 

Land Situated at Waimalu, Ewa, Oahu, T. H. 

Being Lot 4-B-4 of I^and Court Application 950. 

Beginning at a pipe at the West corner of this 
])arcel of land, on the Northeast side of Oahu Rail- 
way and Land Company's 40-foot right-of-w\ay the 
coordinates of which referred to Government Sur- 
vey Triangulation Station **Ewa Church" being 
2418.30 feet South and 8005.80 feet East, and run- 
ning by azimuths measured clockwise from true 
South: 

L 210° 25'— 235.30 feet along R. P. 7268, L. C. 
Aw. 3834 and 7244, Part 1 to Puhi and Grant 
130 to S. P. Hanchett to a pipe; 



304 United States of America vs. 

2. 198° 16—650.30 feet along Lot 4-C-2 of Land 
Court Application 950 to a pipe ; 

3. 263° 10—35.54 feet along Grant 130 to S. P. 
Hanchett to a pipe; 

4. 295° 57' 30"— 171.13 feet along the Southwest 
side of Kamehameha Highway to a pipe; 

5. 24° 00'— 431.86 feet along R. P. 327, L. C. Aw. 
5586 to Kahiki (Parcel 1-A) ; 

6. 302° 00—75.20 feet along R. P. 327, L. C. Aw. 
5586 to Kahiki (Parcel 1-A) ; [577] 

7. 203° 30'— 444.93 feet along R. P. 327, L. C. Aw. 
5586 to Kahiki (Parcel 1-A) ; 

8. 295° 57' 30"— 830.50 feet along the Southwest 
side of Kamehameha Highway; 

9. 50° 00'— 79.59 feet along R. P. 329, L. C. Aw. 
9407, Apana 2 to Kuaalu (Parcel 1-B) ; 

10. 339° 00'— 62.00 feet along R. P. 329, L. G. Aw. 
9407, Apana 2 to Kuaalu (Parcel 1-B) ; 

11. 220° 30'— 118.81 feet along R. P. 329, L. C. Aw. 
9407, Apana 2 to Kuaalu (Parcel 1-B) ; 

12. 295° 57' 30"— 18.51 feet along the Southwest 
side of Kamehameha Highway; 

13. 25° 57' 30"— 10.00 feet along the Southwest 
side of Kamehameha Highway to a pipe; 

14. 295° 57' 30"— 69.15 feet along the Southwest 
side of Kamehameha Highway to the Westerly 
bank of the Waimalu Stream passing over a 
pipe at 67.15 feet. 

Thence following down along the Westerly 
bank of the Waimalu Stream for the next two 
(2) courses, the direct azimuths and distances 



Honolulu Plantation Co. 305 

between jjoints on the bank of said stream be- 
ing: 

15. 37° 40'— 516.63 feet; 

16. 5° 00'— 101.10 feet; thence 

17. 86° 09'— 224.55 feet along the Noi-th side of 
Oahu Railway and Land Company's 40-foot 
right-of-way. 

Thence along the Northeast side of Oahu Rail- 
way and Land Company's 40-foot right-of-way, 
on a curve to the right, with a radius of ^ 453.48 
feet, the chord azimuth and distance being: 

18. 104° 33' 50"— 918.25 feet to the point of be- 
ginning and containing an area of 20.510 acres, 
and as delineated on 14th Naval District Draw- 
ing No. OA-Nl-808. [578] 

PARCEL 2-B 

Owners: Edith Austin, 2/3 interest; Walter Aus- 
tin Trust Estate, 1/3 interest. 

Honolulu Plantation Co., Lessee. 

Ijand Situated at Waimalu, Ewa, Oahu, T. H. 

Being Lot 5 of Land Court Application 950. 

Beginning at the Northwest corner of this parcel 
of land, on the South side of Oahu Railway and 
Ijand Company's 40-foot right-of-way, the coord- 
inates of which referred to Government Survey 
Triangulation Station "Ewa Church" being 2684.32 
feet South and 8968.39 feet East, and running by 
azimuths measured clockwise from true South: 

1. 266° 09'— 155.00 feet along the South side of 



306 United States of America vs. 

Oahu Railway and Land Company's 40-foot 
right-of-way to the Westerly bank of the Wai- 
malu Stream. 

Thence following down along the Westerly 
bank of the Waimalu Stream for the next two 
(2) courses, the direct azimuths and distances 
between points on bank of said stream being: 

2. 351° 20—210.00 feet; 

3. 336° 25—546.00 feet. 

Thence following along highwater mark of 
Pearl Harbor for the next two (2) courses, the 
direct azimuths and distances between points 
at said highwater mark being: 

4. 134° 50—447.00 feet; [579] 

5. 119° 04' 30'— 74.05 feet; thence 

6. 176° 12'— 347.20 feet along a portion of L. C. 
Aw. 11216, Apana 9 to M. Kekauonohi (Parcel 
3-A) to the point of beginning and containing 
and area of 2.155 acres, and as delineated on 
14th Naval District Drawing No. OA-Nl-808. 

Together with a full, free and perpetual easement 
or right of passage way, either on foot or with 
horses, cattle, carts, wagons and other vehicles how- 
ever propelled, over the following described piece 
of land, said easement being delineated on the 
aforesaid drawing: 

Beginning at the Southwest corner of this parcel 
of land, being also the initial point of Lot 5 of 
Land Court Application 950 (Parcel 2-B), as above 
described, and running by true azimuths : 

1. 176° 09'-^0.00 feet; 

2. 266° 09'— 20.00 feet; 



Honolulu Plantation Co. 307 

3 356° 09'— 40.00 feet; 

4. 86° 09'— 20.00 feet to the point of beginning 
and containing an area of 800 square feet. 

PARCEL 3-A 

Oahii Railway and Land Co., Owner. 

Land Situated at Waimalu, Ewa, Oahu, T. H. 

Being a Portion of L. C. Aw. 11216, Apana 9 to 
M. Kekauonohi. 

Beginning at the Northwest corner of this parcel 
of land, on the South side of Oahu Railway and 
Land Company's 40-foot right-of-way, [580] the 
coordinates of which referred to Government Sur- 
vey Triangulation Station ''Ewa Church" being 
2684.32 feet South and 8968.39 feet East, and run- 
ning by azimuths measured clockwise from true 
South : 

L 356° 12'— 347.20 feet along Lot 5 of Land 
Court Application 950 (Parcel 2-B) to high- 
water mark of Pearl Harbor. 

Thence following along highwater mark of 
Pearl Harbor for the next three (3) courses, 
the direct azimuths and distances between 
points at said highwater mark being: 

2. 123° 23'— 496.16 feet; 

3. 114° 00'— 463.00 feet; 

4. 150° 30'— 35.00 feet. 

' Thence along the South side of Oahu Railway 
and Land Company's 40-foot riffht-of-wav, on 



308 United States of America vs. 

a curve to the left, with a radius of 1493.48 
feet, the chord azimuth and distance being: 

5. 281° ir 17"— 775.00 feet; 

6. 266° 09'— 71.32 feet along the South side of 
Oahu Railway and Land Company's 40-foot 
right-of-way to the point of beginning and con- 
taining an area of 2.333 acres, and as deline- 
ated on 14th Naval District Drawing No. OA- 
Nl-808. 

PARCEL 3-B 

Oahu Railway and Land Co.^ Owner. 

Land Situated at Waimalu, Ewa, Oahu, T. H. 

Being a Portion of L. C. Aw. 11216, Apana 9 to 
M. Kekauonohi. [581] 

Beginning at a pipe at the Northwest corner 
of this parcel of land, being also the West corner 
of Lot 4-B-4 of Land Court Application 950, the 
coordinates of which referred to Grovernment Sur- 
vey Triangulation Station *'Ewa Church'' being 
2418.30 feet South and 8005.80 feet East, and run- 
ning by azimuths measured clockwise from true 
South : 

Along Lot 4-B-4 of Land Court Application 
950 (Parcel 2-A), on a curve to the left, with 
a radius of 1453.48 feet, the chord azimuth and 
distance being: 

1. 284° 33' 50"— 918.25 feet; 

2. 266° 09'— 224.55 feet along Lot 4-B-4 of Land 
Court Application 950 (Parcel 2-A) ; 



Honolulu Plantation Co. 309 

3. 353° 37'— 40.04 feet across Oahu Railway and 
Land Company's 40- foot right-of-way; 

4. 86° 09'— 226.32 feet along Lot 5 of Land Court 
Application 950 (Parcel 2-B) and remainder of 
L. C. Aw. 11216, Apana 9 to M. Kekauonohi 
(Parcel 3- A). 

Thence along remainder of L. C. Aw. 11216, 
Apana 9 to M. Kekauonohi (Parcel 3- A) and 
highwatei' mark of Pearl Harbor, on a curve 
to the right, with a radius of 1493.48 feet, the 
chord azimuth and distance being: 

T). 104° 31' 46"— 941.81 feet; 

6. 210° 25'-40.04 feet across Oahu Railway and 
Land Company's 40-foot right-of-way to the 
point of beginning and containing an area of 
1.080 acres, and as delineated on 14th Naval 
District Drawing No. OA-Nl-808. 

Su])ject to an easement with a full, free and per- 
petual [582] easement or right of passage way, 
either on foot or with horses, cattle, carts, wagons 
and other vehicles however proi^elled, over the fol- 
lowing described piece of land, said easement being 
dehneated on aforesaid drawing: 

J^eginning at the Southwest corner of this piece 
of land, being also the initial point of Lot 5 of 
Land Court Application 950 (Parcel 2-B), as abov(> 
described, and running b.y true azimuths : 

1. 176° 09'— 40.00 feet; 

2. 266° 09'— 20.00 feet: 



310 United States of America vs, | 

3. 356° 09'— 40.00 feet; | 

4. 86° 09'— 20.00 feet to the point of beginning j 
and containing an area of 800 square feet. ? 

Honolulu, T. H., December 31, 1943. j 

/s/ R. M. TOWILL, j 

Registered Professional Surveyor Certificate Num- \ 

ber 151. ' 

[Endorsed] : Filed Oct. 20, 1944. [583] < 



[Title of District Court and Cause No. 536.] 

MOTION FOR ORDER AMENDING 
PETITION IN CONDEMNATION 

Now comes the Petitioner, United States of 
America, by its attorneys, Charles F. Rathbun and 
Robert S. Tarnay, Special Assistants to the At- 
torney General, and moves that an order be entered 
amending the Petition in Condemnation by strikins: 
from Paragraph III the following language : 

''. . . fee simple title to Parcel 3-B, reserving, 
however, to the Oahu Railway and Land Com- 
pany an easement for railroad purposes for so 
long as such use is continued. ..." 

and inserting in lieu thereof the following: 

*'. . . fee simple title, subject to an easement 
in Parcel 3-B in favor of the Oahu Railway 
and Land Company for railroad purposes, only 
for so long as it is used for such purposes." 

Petitioner states that it is necessary to amend 



Honolulu Plantatioyi Co. 311 

its Petition in Condemnation in ord(^r to describe 
the estate taken in conformity with the language 
contained in the letter of the Secretary of the 
Navy, on file in this cause. 

Dated: Honolulu, T. H., this 27th day of Febru- 
ary, 1945. 

UNITED STATES OF 
AMERICA, 

By /s/ CHARLES F. RATHBUN, 
Special Assistant to the 
Attorney General, 

By /s/ ROBERT S. TARNAY, 
Special Assistant to the 
Attorney General. 

[Endorsed] : Filed Feb. 27, 1945. [585] 



[Title of District Court and Cause No. 536.] 

ORDER AMENDING PETITION IN 
CONDEMNATION 

Now this 28th day of February, 1945, upon mo- 
tion by the petitioner. United States of America, 
by its attorneys, Charles F. Rathbun and Robert 
S. Tarnay, and the defendant, Oahu Railway and 
Land Company, appearing by its counsel, Ander- 
son, Wrenn & Jenks, and it further appearing that 
it is necessary to conform the description of the 
(estate being taken in this matter to the description 
of said estate contained in the letter of the Secre- 
tary of the Navy on file in this cause, 



312 United States of America vs. \ 

It is ordered that the petition be amended by 

.striking from Paragraph III thereof the following : ' 

"... fee simple title to Parcel 3-B, reserving, , 

however, to the Oahu Railway and Land Com- ) 

pany an easement for railroad purposes for so -. 

long as such use is continued. ..." ; 

and inserting in lieu thereof the following Ian- ^ 

giiage : I 

"... fee sunple title, subject to an easement 

in Parcel 3-B in favor of the Oahu Railway \ 

and Land Company for railroad purposes, only j 

for so long as it is used for such purpose. ..." | 

Dated: Honolulu, T. H., this 28th day of Febru- ] 

ary, 1945. | 

/s/ J. FRANK McLAUaHLIN, \ 

eludge of the United States District Court for the ; 

District of Hawaii. \ 

[Endorsed] : Filed Feb. 28, 1945. [586] \ 



Honolulu Plantation Co. 313 

[Title of District Court and Cause No. 5:56.] 
DECLARATION OP TAKING 

Whereas, pursuant to the Acts of Congress ap- 
proved March 27, 1942 (Public Law 507, 77th Con- 
gress), and April 28, 1942 (Public Law 528, 77th 
Congress), the above styled condemnation proceed- 
ing has been instituted. 

Now, therefore, pursuant to the provisions of the 
Act of Congress approved February 26, 1931 (46 
Stat. 1421), I, Secretary of the Navy, do hereby 
make and cause to be filed this declaration of tak- 
ing, and by virtue of authority thereof do hereby 
state that the lands selected for acquisition aggre- 
gate 26.922 acres, more or less, situate at Waiawa, 
Waimalu, Ewa, Oahu, Territory of Hawaii, moi-e 
particularly described in Exhibit **A" attached 
hereto and made a part hereof. The lands [587] 
are delineated on a map entitled "Boundary Map, 
Waiau Drum Storage, Waimalu, Ewa, Oahu. 
T. H., designated as 14th N. D. Dwg. OA-Nl-808, 
attached hereto as Exhibit ''B" and made a part 
hereof. 

And I do declare said lands to be taken under 
the authority of the aforesaid Acts of Congress; 
that the use to which said lands are to be put is foi* 
an empty drum storage area in connection with 
the Naval Supply Depot, Pearl Harbor, and other 
Naval purposes, as authorized by said Acts; and 
that the estate hereby taken in said lands for the 
public use aforesaid is fee simple, subject to an 
easement in Parcel 3-B in favor of the Oahu Rail- 



314 United States of America vs. 

way and Land Company for railroad purposes, : 
only for so long as it is used for such purpose. | 

And I, Secretary of the Navy, do hereby state i 
that the sum of money estimated by me to be just i 
compensation for said lands and all improvements ; 
thereon and appurtenances thereunto belonging, is : 
Five Thousand Three Hundred and Ninety-one \ 
Dollars ($5,391.00), which smn is hereby deposited 
into the registry of the court for the use and bene- 
fit of the persons entitled thereto, and that the 
names of the owners of said property and improve- 
ments thereon which are hereby taken are shown 
«>n Schedule '^A" which is attached hereto and 
made a part of this declaration of taking. 

I am of the opinion that the ultimate award foi' 
the taking of said lands will be within the limits .] 
prescribed bj^ Congress. ! 

In witness whereof, the petitioner, by and j 
through the [588] Secretary of the Navy, has 
caused this declaration of taking to be signed in i 
the City of Washington, District of Columbia, this i 
26th day of July, 1945. ! 

UNITED STATES OF 
: AMERICA, 

^ By /s/ A. L. GATES, 

• Acting. [589] 

SCHEDULE ''A" 

The names of the persons having title to or other 
interest in the lands described in the within dec- 
laration of taking, and the amounts estimated to J; 






Honolulu Plantation Co. 315 

be fair conipc^nsation for each resi)ective ownership, 
inchidiiii^ all imx)rovemeTits thereon, are as follows: 

Parcel Name of Owner 

1-A Francis II. I. Brown 

1-B Francis II. I. lirown 

2- A Edith Austin & W. Austin Est. 

2-B Edith Austin & W. Austin Est. 

3-A Oahu Railway & Land Co. 

3-B Oahu Railway & Land Co. 

Totals 26.922 $5,391.00 

[Printer's Note: Exhibit "A" is the same as 
Exhibit ''A" set out at pages 301-310 of this 
printed Record. 

[Endorsed] : Filed Aug. 20, 1945. [590] 





PJstimated Just 


Acres 


Compensation 


0.734) 


$ 250.00 


0.110) 




20.510 


5,130.00 


2.155 


5.00 


2.333 


5.00 


1.080 


1.00 



[Title of District Court and Cause No. 536.] 

MOTION FOR ORDER AMENDING 
PETITION IN CONDEMNATION 

Now comes the Petitioner, United States of 
America, by its Attorney, Charles F. Rathbun, 
Special Assistant to the Attorney General, and 
moves that an order be entered amending the Peti- 
tion in Condemnation by striking Paragraph III 
of said Petition in its entirety and substituting 
therefore a new Paragraph III as follows: 

''That the estate sought to be condemned in 
said lands in this action is in fee simple, sub- 
ject to an easement in Parcel 3-B in favor of 



516 United States of America vs. 

the Oahu Railway and Land Company for \ 
railroad purposes, only for so long as it is used \ 
for such purposes." \ 

Petitioner states that it is necessary that the ; 
j)etition herein be amended to more accurately de- ; 
fine the estate being taken. ' 

Dated: Honolulu, T. H. this 20th day of August, ; 
1945. \ 

UNITED STATES OF ; 

AMERICA, '\ 

By /s/ CHARLES F. RATHBUN, ; 

Special Assistant to the j 

Attorney General. j 

[Endorsed] : Filed Aug. 20, 1945. [602] \ 



[Title of District Court and Cause No. 536] 

ORDER AMENDING PETITION IN \ 

CONDEMNATION \ 

Now this 20th day of August, 1945, upon motion i 
by the Petitioner, United States of America, by ] 
its attorney, Charles F. Rathbun, Special Assistant ; 
to the Attorney General, it appearing that it is ; 
necessary to more accurately define the estate being 
taken herein by amending the Petition in the above 
cause. 

It is ordered: 

That the Petition in Condemnation herein be 
amended by striking therefrom Paragraph III in 
its entirety and substituting therefore a new Para- 
graph III as follows: 



i 






HonoUtlii Plantation Go. 211 

'^That the estate sought to be condemned in 
said lands in this action is in fee simple, sub- 
ject to an easement in Parcel 3-B in favor* of 
the Oahu Railway and Land Company for 
railroad purposes, only for so long as it is used 
for such purpose." 

Dated : Honolulu, T. H., this 20th day of August, 
1945. 

/s/ D. E. METZGER, 
Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Aug. 20, 1945. [603] 



In the District Court of the United States 
for the District of Hawaii 

April Term 1945 

Civil No. 536 

UNITED STATES OF AMERICA, 

Petitioner, 

vs. 

26.922 ACRES OF LAND, more or less, situate at 
Waiwa, Waimalu, Ewa, Island of Oahu, Terri- 
tory of Hawaii ; Francis H. I. Brown, et al.. 

Defendants. 

ORDER AND JUDGMENT ON DECLARATION 
OF TAKING 

It appearing that on October 20, 1944, the United 
States of America, filed a Petition in Condemna- 
tion of certain land described and shown on Ex- 



318 United States of America vs. 

hibits ''A" and ''B" attached to the Petition in 
Condemnation herein and on Exhibits "A" and 
''B" attached to the Declaration of Taking this 
day filed herein; and, 

It further appearing that said Declaration of 
Taking having been filed on this 20th day of Au- 
2:ust, 1945, and being signed by A. L. Gates, Act- 
ing Secretary of the Naw, and said Declaration of 
Taking was filed under and pursuant to provisions 
of the Act of Congress approved February 26, 1931 
(46 Stat. 1421), and declaring taken the full fee 
simple title to the lands described and shown on 
Exhibits '^A" and ''B" attached to the Petition 
in Condemnation herein, and upon Exhibits ''A" 
and *'B" attached to the Declaration of Taking 
herein to the extent shown in said Declaration of 
Taking; that the uses of said lands are [604] those 
described in the Declaration of Taking and in the 
Petition fiJed herein; and that the said Declaration 
of Taking sets forth the estimate of just compen- 
fiation made pursuant to law and that contempo- 
raneously with the filing of said Declaration of 
Taking, there was deposited in the Registry of this 
Court for the use and benefit of the persons entitled 
thereto the smn of Five Thousand Three Hundred 
;md Ninety-one Dollars ($5,391.00), 

It is ordered, adjudged and decreed that by vir- 
tue of the filing of said Declaration of Taking and 
The deposit of said money, full fee simple title to 
the land described and shown on Exhibits ''A" and 
*'B'' attached to the Petition herein and Exhibits 
*'A" and "B" attached to the Declaration of Tak- 



i 



Honohilu Plantation Co. 319 

iiig heroin, ])(• and it is hereby indefeasibly vested 
in the United States of America, subject to th(^ 
rights recited in said Declaration of Taking in 
favor of the Oahu Railway and Land Company, 
an Hawaiian Corporation. 

It is further ordered that a copy of this Order 
1)0 promptly served by the United States Marshal 
upon each of the defendants in this cause. The 
Marshal is further ordered to post a copy hereof 
in a conspicuous place on the premises and to 
forthwith make due return of his said service to 
this Court. 

Dated: Honolulu, T. H., this 20th day of August, 
1945. 

(Seal) /s/ D. E. METZGER, 

Judge of the United States District Court for th(* 
District of Hawaii. 

[Endorsed] : Filed Aug. 20, 1945. [605] 



[Title of District Court and Cause No. 536.] 

ANSWER OF HONOLULU PLANTATION 
COMPANY 

One of the Defendants Above Named 

Comes now Honolulu Plantation Company, a cor- 
poration, organized under the laws of the State of 
California, and doing business in the Territory of 
Haw^aii, one of the defendants in the above entitled 
cause, and for answer to the petition filed herein 
says: 



320 United States of America vs, j 

I. I 

That is has neither knowledge or information 1 
sufficient to form a belief as to the allegations set i 
forth and contained in Paragraphs I, III, IV, V, VI j 
and VII of said petition, and therefore it neither \ 
admits nor denies the same but leaves the petitioner I 
to its proof thereof. ; 

II. ' 

That it admits the allegations contained in Para- i 
graph II of said petition. j 

III. ' 

That with respect to the allegations of said peti- | 
tion that it claims an interest in the property de- j 
scribed in said petition [607] this defendant admits j 
the same and alleges that at the time of the filing ■ 
of said petition and until judgment or order was « 
entered on declaration of taking filed in said causes I 
it was the owner of an interest in the lands and in \ 
some of the improvements thereon and also admits 
that its lessor has an interest in the lands described 
in said petition which are under lease to this de- 
fendant; that the lease creating such interest and 
estate will be submitted to the Court on the trial 
of said causes. 

And this defendant further alleges as follows: 

That for and during a period of over forty years 
this defendant has been continuously operating 
and conducting and is now operating and conduct- 
ing a sugar mill and plantation at Aiea in the Dis- 
trict of Ewa, Island of Oahu, T. H., and has been 
at all times during said period and now is engaged 
in the business of growing sugar cane and manufac- 
turing sugar therefrom; 



Honolulu Plantatio)i Co. 321 

That most of thi' acreage of land taken, ])y reason 
! of tJie fei'tility of the soil thereon, their low eleva- 
tion, and the eomi)aratively small expense with 
which the}' can be irrigated, is peculiarly ada]:)ted 
to the cultivation and growth of sugar cane, and 
that this defendant was at the time of the filing of 
the petition in this cause and until the date fixed 
for the surrendering of possession by the .judgment 
or order on the Declaration of Taking entered in 
this cause and for many years prior thereto had 
been profitably using said lands for the cultivation 
and growth of sugar cane; 

That the lands included within the area sought 
to be condemned which are held by this defendant 
under lease as aforesaid have a special and en- 
Iianced value by reason of the establishment by this 
defendant of a sugar mill and works, in close prox- 
imity to said lands, for the manufacture of sugar 
from cane grown and cultivated thereon and on 
other lands owned and/or leased by this defendant 
and [608] by reason of the development by this 
defendant of a water supply for the irrigation of 
said lands, and other lands as aforesaid by means 
of artesian wells, pumping machinery and other- 
wise; 

That for the purpose of cultivating the sand 
lands, this defendant has constructed improvements 
thereon ; 

That the parcel of land sought to be condemned 
by said petition in which this defendant has lease- 
liold interest was at the time of the filing of the 
said petition in this cause and until judgment or 



322 United States of America vs, \ 

\ 

order was entered on Declaration of taking filed in i 
this cause, and for many years prior thereto ha^ i 
been, occupied and cultivated by this defendant as | 
integral parts of the sugar plantation operated • 
and conducted by it at Aiea aforesaid and in con- i 
nection with other large and contiguous tracts situ- : 
ated outside of the lands described in said petition ! 
but comprised within the said plantation and | 
demised to this defendant by a niunber of leases j 
and that by the taking of said lands described in i 
the said petitions the integrity of said sugar plantii- : 
tion will be destroyed and the unitary value of the ; 
leasehold interests and estates of this defendant in | 
such other and contiguous tracts of land will be : 
greatly impaired and diminished. \ 

Wherefore this defendant prays (1) that the • 
damages suffered by this defendant by reason of ^ 
the taking of the lands and properties described in \ 
said petitions may be determined and the amount : 
thereof be awarded to and paid to this defendant, i 
and (2) for such other and general relief as may j 
be meet and proper in the premises. \ 

Bated: Honolulu, T. H., June 18, 1946. \ 

\ HONOLULU PLANTATION ; 

; COMPANY, \ 

-" By VITOUSEK, PRATT & WINN, ; 

Its Attorneys, * 

Defendant above named. 

i 

\ [Endorsed]: Filed June 18, 1946. [609] 



Honolulu Plantation Go. 

In the District Court of the United States 
for the District of Hawaii 

October Term 1944 

Civil No. 540 

UNITED STATES OF AMERICA. 



Petitioner, 



vs. 



124.914 acres of land, more or less, situate at Haiku Valley, 
Heeia, Koolaupoko, Oaliu, Territory of Hawaii, HAROLD 
K. L. CASTLE, GEORGE M. COLLINS, JOHN K. 
CLARKE, FRANK E. MIDKIFF, EDWIN P. MURRAY 
and JOSEPH H. POINDEXTER. Trustees under the Will 
and of the Estate of Berniee P. Bishop: MARY WONG 
YUEN CHONG; JOHN WATERHOUSE, ERNEST HAY 
WODEHOUSE, WALTER F. FREAR and JOHN E. 
RUSSELL, Trustees under the Will and of the Estate of 
Samuel M. Damon -ALICE H. COOKE ; HELEN S. DAVIS, 
ALAN S. DAVIS. GEORGE G. FULLER, WILHEL- 
MTNA TENNEY; HYGIENICS DAIRY, LTD., a corpora- 
tion, NILS P. LARSEN; BISHOP TRUST COMPANY, 
LTD., an Hawaiian corporation, HAWAIIAN ELECTRIC 
COMPANY, LTD., an Hawaiian corporation; MUTUAL 
TELEPHONE COMPANY, LTD., an Hawaiian corpora- 
tion; J. PLATT COOK; THE ROMAN CATHOLIC 
CHURCH in the Territory of Hawaii, an Hawaiian cor- 
poration ; HONOLULU PLANTATION COMPANY, a cor- 
poration; KELEKIA R. KAAE; W. T. LEE KWAI; MRS. 
POLLY K. HENRY ; MRS. J. K. JONES ; HEE KWONG ; 
AU SIU HIN; JOHN PUNUA; CHANG WONG; 
THERESA R. KAAE; ROSE WONG ESTATE; CATH- 
ERINE E. STEWARD; MRS. KAMEHAIKU LONO; 
MARY K. McCABE ; S. SCOTT ; MRS. JUSTINA JOHN- 
STON; MARY S. MAII; ELSIE LA:\r AYAU: KIKIA 
AHUNA; HAWAIIAN SAVINGS AND LOAN ASSO- 
CIATION; LOUISE K. JONES; EVELYN L. GOUVEIA; 
SAMUEL LONO; I\IALIA McCABE; LEONARD KEA; 
MRS. ELIZABETH SILVA; CHRISTOPHER STEW- 
ARD ; DAVID STEWARD ; JAMES P. STEWARD ; AN- 



324 United States of America vs. 

GELINA A. PAHIA; WILLIAM SYLVA and WIFE: 
MAEHA ANTONE; WALTER R. COOMBS; FRANCIS 
LEW; CHARLES B. DWIGHT; HEEIA COMPANY, 
LTD., a corporation; CITY AND COUNTY OF HONO- 
LULU, TERRITORY OF HAWAII, and all other persons, 
companies or corporations, either known or unknown, who 
claim to have or own any right, title or interest of any 
character in aaid land, 

Defendants. 

PETITION FOR CONDEMNATION 

To the Honorable, the Presiding Judges of the 
United States District Court for the District 
of Hawaii: 

Now comes the United States of America, by 
Robert S. Tarnay, Special Assistant to the Attor- 
ney General, acting under the instructions of the 
Attorney General of the United States and at the 
request of the Secretary of Navy and respectfully; 
rei>resents to the Court. 

I. 

That this proceeding is instituted under the auth- 
ority of divers and sundry Acts of Congress, among 
them the following: 

The Act of Congress approved March 27, 
1942 (Public Law 507— 77th Congress) 

The Act of Congress approved April 28, 
1942 (Public Law 528— 77th Congress) 

and that the Secretary of Navy, acting under auth- 
ority vested in him by law has determined that it 
is necessary that the United States of America ac- 
quire by condemnation, by judicial process, certain 
lands more particularly described on Exhibit ''A" 
hereto annexed and made a part hereof as though 



Honolulu Plantation Co. 325 

set forth at lengtli and shown upon a maj) marked 
Exhibit '^B", also attached hereto. 

II. 

That the lands sought to be condemned are lo- 
cated at Haiku Valley, Heeia, Keelaupeke, Oahu, 
Territory of Hawaii, and lie w^holly within the jur- 
isdiction of this Court. 

III. 

That the estate sought to be condemned in this 
a(;tion is the fee simple title, together with all im- 
provements thereon and appurtenances thereunto 
belonging, subject to the following easements and 
rights : 

(a) An easement over Parcel 6 and Parcel 7 
in favor of the City and County of Honolulu for 
water pipe lines, together wdth the right of ingress 
and egress thereto, for the purpose of maintaining, 
operating and repairing said water lines. [^11] 

(b) The right of ingress and egress to the City 
and County of Honolulu over and across Parcel 6 
and Parcel 7, giving access to Parcel 1-F for the 
purpose of maintaining, operating and repaii'ing 
the w-ater pipe lines and reading the meter located 
on said Parcel 1-F. 

(c) The right of ingress and egress to the City 
and County of Honolulu over and across Parcel 
i) and Parcel 7, giving access to Parcel 1-B for 
thp ])ur]iose of repairing, maintaining, operating 
and inspecting the w^ater tmmel located on said 
Parcel 1-B; 

said easements and rights to be subject to such 
reasonable rules and regulations as the United 



326 United States of America vs. 

States of America shall promulgate through its 
duly authorized representatives for the security of 
the Naval Reservation for which the land involved 
in this action is being taken; said lands are to be 
used for a radio station. 

IV. 
That Harold K. L. Castle; George M. Collins, 
John K. Clarke, Frank E. Midkife, Edwin P. Mur- 
ray and Joseph B. Poindexter, Trustees under the 
"Will and of the Estate of Bernice P. Bishop ; Mary 
Wong Yuen Cheng, John Waterhouse, Ernest Hay 
Wodehouse, Walter F. Frear and John E. Russell, 
Trustees under the Will and of the Estate of Sam- 
uel M. Damon; Alice H. Cooke, Helen S. Davis; 
Alan S. Davis, George G. Fuller; Wilhelmina Ten- 
ney. Hygienic Dairy, Ltd., a corporation; Nils P. 
Larsen; Bishop Trust Company. Ltd., an Ha- 
waiian corporation; Hawaiian Electric Company, 
Ltd., an Hawaiian corporation; Mutual Telephone 
Company, Ltd., an Hawaiian corporation; J. Piatt 
Cook ; The Roman Catholic Church in the Territory 
of Hawaii, an Hawaiian corporation; Honolulu 
Plantation Company, a corporation; Kelekia R. 
Kaae ; W. T. Lee Kwai ; Mrs. Polly K. Henry ; Mrs. J. 
K. Jones; Hee Kwong; Au Siu Hin; John Punua; 
Chang Wong ; Theresa R. Kaae ; Rose Wong Estate ; 
Catherine E. Steward ; Mrs. Kamehaiku Lono ; Mary 
K. McCabe ; S. Scott ; Mrs. Justina Johnston ; Mary 
S. Mail ; Elsie Lam Ayau ; Kikia Ahuna ; Hawaiian 
Savings and [612] Loan Association; Louise K. 
Jones; Evelyn L. Gouveia; Samuel Lono; Malia 



Honolulu Plantation Co. 327 

McCabe; Leonard Kea; Mrs. Elizabeth Silva, 
Christopher Steward; David Steward; James P. 
Steward, Angelina A. Pahia; William Sylva and 
wife; Maeha Antone; Walter R. Coombs; Francis 
T^ew; Charles B. Dwight; Heeia Company, T.td., a 
corporation; City and County of Honolulu; Terri- 
tory of Hawaii ; and all other persons, companies 
or corporations, either known or unknown, ivho 
claim to have or own any right, title or interest 
of any character whatever in said land, are made 
dc^fendants herein. 

V. 

That the Secretary of Navy of the United States 
has determined that the utmost haste in expediting 
tliis project is vital to the War purposes of the 
United States and that he has^ therefore, deter- 
mined that possession of said lands, to the extent 
of the interest to be acquired therein, is necessary 
by the United States and that certain and adequate 
provisions have been made for the payment of iust 
compensation which may be adjudged due for the 
condemnation of the lands described and shown on 
Exhibits *'A" and ''B'\ 

That the petitioner was in possession of Parcel 
(S from and since July 1, 1942 under lease, exten- 
sions of which expired June 30, 1944 and petitioner 
has remained in possession of said parcel from said 
latter date. 

That the petitioner was in possession of Parcels 
7, 8 and 9 from and since April 1, 1943 under 
lease, extensions of which expired June 30, 1944 



328 United States of America vs. 

and petitioner has remained in possession of said 
parcels from said latter date. 

That the petitioner was in possession of Parcels 
10, 13 and 14 from and since July 1, 1942, pursuant 
to right of right of entry. 

Wherefore, your Petitioner prays this Honorable 
Court to take jurisdiction of this cause and enter 
all orders, judgments [613] and decrees necessary 
to determine title of said real estate condemned, 
or any part thereof, and to fix and determine that 
the continued possession of the lands identified in 
Paragraph V is necessary for the War and Naval 
purposes of the United States; that upon payment 
mto the registry of this Court for the use of the 
persons entitled thereunto of the sum adjudged to 
be full compensation for the condemnation of said 
land, that title to said land be vested in the United 
States of America, in fee simple, subject to the 
exceptions set forth in Paragraph III, and that 
the Court, make distribution of the final awards 
among the persons entiled thereto as expeditiously 
as may be and for such other and further relief as 
to the Court may seem just and proper in the 
premises. 

UNITED STATES 
OF AMERICA, 

By CHARLES F. RATHBUN, 

Special Asst. to the Atty. Gen. 

By /s/ ROBERT S. TARNAY, 

Special Asst. to the Atty. Gen. 

(Duly Verified.) [614] 



Honolulu Plantation Co. 329 

EXHIBIT A 

(Haiku Radio Station) 

Land Situated in the Districts of Koolaupoko. Ewa, 

and Honolulu, Oahu, T. H. 

Descriptions of 



^arc 


:el Owner 


Situated at A 


rea, Acs. 


6 


Harold K. L. Castle 


Haiku Valley, Heeia 


3.352 


7 


Trustees of B. P. Bishop 








Estate 


Haiku Valley, Heeia 


110.112 


8 


Harold K. L. Castle 


Haiku Valley, Heeia 


1.950 


9 


Mary Wong Yuen Chong 


Haiku Valley, Heeia 


1.800 


10 


Trustees of B. P. Bishop 








Estate 


Halavva, Ewa 


1.400 


18 


Harold K. L. Castle 


Luluku, Kaneohe 


5.300 


14 


Trustees of Samuel M. 








Damon Estate 


Moanalua, Honolulu 


1.000 




PARCEL 6 





Land Situated on the South Side of Haiku 
Stream About 10,000 Feet in a Southwesterly Di- 
rection From the Junction of Kamehameha High- 
way and Haiku Road. 

Being the Whole of Lot E of Land Court Ap- 
plication 1342. 

Beginning at an I14 ii^ch pipe in a concrete mon- 
ument at the Southeast corner of this parcel of 
land, the true azimuth and distance to an 1 inch 
pipe in concrete marked *'c" being 279° 00' 50.00 
feet, and the coordinates of said point of beginning 
referred to Government Survey Triangulation Sta- 
tion ''Heeia" being 13,968.09 feet South and 
1872.45 feet West, and thence running by azimuths 
measured clockwise from true South: 



330 United States of America vs. 

1. 86° 30—270.60 feet along Lots Q-2 and Q-3 of 
Land Court Application 1100 to an II4 inch 
pipe in concrete monument and from the end 
of said course, the true azimuth and distance 
to an 114 inch pipe in concrete marked "F.R.'^ 
marking the Forest Reserve Line being 300'^ 
25' 28.77 feet; 

2. 130° 30—233.70 feet along Lot Q-3 of Land 
Court Application 1100 to an 1^ inch pipe; 

3. 167° 30—132.99 feet along L. C. Aw. 5969, 
Apana 2 to Moalea to South edge of Haiku 
Stream and passing over an 1^4 inch pipe at 
107.39 feet. Thence along South edge of Haiku 
Stream along Lots Q-3 [616] and Q-2 of I^and 
Court Application 1100 for the next two (2) 
courses, the direct azimuths and distances be- 
tween points on edge of said stream being ; 

4. 250° 00— 200.00 feet; 

5. 290° 57' 30"— 446.75 feet to an 1 inch pipe; 

6. 36° 30—216.10 feet along Lot Q-2 of Land 
Court Application 1100 to the point of begin- 
ning and passing over an 1 inch pipe at 25.40 
feet, and containing an area of 3.352 acres, and 
as delineated on 14th Naval District Drawing 
No. OA-Nl-773. 

Together with rights-of-way to and from Haiku 
Road leading out to Kamehameha Highway over 
Easements 21 and 16 as shown and designated on 
maps accompanying Land Court Application 1100. 

Subject to an easement for pipeline and road in 
favor of the Suburban Water System of the City 
and County of Honolulu. [617] 



Honolulu Plantation Co. 331 

PARCEL 7 

Land Situated in Haiku Valley, Heeia, Koolau- 
poko, Oahu, T. H. 

Being a Portion of Lot Q-2 of Land Court Ap- 
jilication 1100. 

Beginning at the South corner of this parcel of 
land, being also the South corner of Lot Q-2 and 
on the boundary of Lot Q-3 of Land Court Appli- 
cation 1100, the coordinates of which referred to 
Government Survey Triangulation Station ''Heeia" 
being 15,468.96 feet South and 1,260.00 feet West, 
and running by azimuths measured clockwise from 
true South: 

1. 149° 44'— 1701.76 feet along Lot Q-3 of Land 
Court Application 1100 ; 

2. 179° 52—16.08 feet along Lot Q-3 of Land 
Court Application 1100; 

3. 266° 30—245.78 feet along Lot E of Land 
Court Application 1342; 

4. 216° 30'— 216.10 feet along Lot E of Land 
Court Application 1342. Thence along the 
South edge of Haiku Stream along Lot E of 
Land Court Application 1342, the direct azi- 
muth and distance between points on edge of 
said stream being; 

5. 112° 13' 30"— 404.73 feet; [618] 

6. 179° 52'— 937.00 feet along Lot Q-3 of Land 
Court Application 1100; 

■ 7. 279° 25'-^86.00 feet along Lot Q-3 of Land 
Court Application 1100; 



332 United States of America vs. 

8. 248° 42'— 391.10 feet along Lot Q-3 of Land 
Court Application 1100; 

9. 239° 30—157.00 feet along Lot Q-3 of Land 
Court Application 1100; 

10. 173° 26—114.00 feet along Lot Q-3 of Land 
Court Application 1100; 

11. 288° 29—772.00 feet along remainder of Lot 
Q-2 of Land Court Application 1100 ; 

12. 323° 02' 45"— 1765.62 feet along remainder of 
Lot Q-2 of Land Court Application 1100; 

13. 56° 03'— 66.50 feet along Lot Q-3 of Land Court 
Application 1100; 

14. 54° 15'— 2271.86 feet along Lot Q-3 of Land 
Court Application 1100 to the point of begin- 
ning and containing a gross area of 113.862 
acres and a net area of 110.112 acres, after de- 
ducting therefrom Parcels 8 and 9 hereinafter 
described, and as delineated on 14th Naval Dis- 
trict Drawing No. OA-Nl-773. 

Subject to rights-of-way over easements as shown 
and designated on maps of Land Court Applica- 
tion 1100. [619] 

PARCEL 8 

Land Situated on the North Side of Haiku 
Stream About 8500 Feet in a Southwesterly Di- 
rection From the Junction of Kamehameha High- 
way and Haiku Road in Haiku Valley, Heeia, Loo- 
laupoko, Oahu, T. H. 

Being Lot D of Land Court Application 1342. 

Beginning at a pipe at the East corner of this 



Ilonolulu Plantation Co. 333 

parcel of land and on the Northerly side of Haiku 
Stream, the true azimuth and distance to a pipe 
marking the initial point of Exclusion 49 in Land 
Court Application 1100 being 311° 01' 240.00 feet, 
and the coordinates of said point of beginning re- 
ferred to Government Survey Triangulation Sta- 
tion ^'Heeia" being 13,161.10 feet Soutli and 441.48 
feet West, and thence running by azimuths meas- 
ured clockwise from true South : 

Along the Northerly Side of Haiku Stream 
along Lot Q-2 of Land Court Application 1100 
for the first two (2) courses, the direct azi- 
muths and distances between points on the 
Northerly side of said stream being: 

1. 44° 58—473.70 feet; 

2. 107° 30—230.00 feet to a pipe; 

3. 231° 33' 30"— 436.80 feet along Lot Q-2 of Land 
Court Application 1100 to a pipe; 

4. 271° 30'— 212.10 feet along same to the point 
of beginning and containing an area of 1.950 
acres, and as delineated on 14th Naval District 
Drawing No. OA-Nl-773. 

Together with rights-of-way to and from Haiku 
Road leading out to Kamehameha Highway over 
Easements 20 and 16, as shown and designated on 
maps accompanying Land Court Application 1100. 



334 United States of America vs. 

PARCEL 9 

Land Situated in Haiku Valley, Heeia, Koolau- 
poko, Oahu, T. H. 

Being Royal Patent 1003, Land Commission 
Award 3393, Apana 1 to Puueokahi. 

(This parcel of land is designated as Exclusion 
49 within Lot Q in Land Court Application 1100, 
shown on Panel 50.) 

Beginning at a pipe on the Southerly boundary 
of this parcel of land, the true azimuth and distance 
to a pipe in concrete on the North edge of Haiku 
Road being 338° 30' 100.00 feet, the coordinates of 
said point of beginning referred to Government 
Survey Triangulation Station "Heeia" being 13,- 
318.61 feet South and 260.40 feet West, and thence 
running by azimuths measured clockwise from true 
South : 

1. 65° 35'— 444.10 feet along Lot Q-2 of Land 
Court Application 1100 to a pipe and passing 
over a pipe at 190.50 feet; 

2. 81° 35'— 69.30 feet along Lot Q-2 of Land 
Court Application 1100 to a pipe on the South- 
erly edge of Haiku Stream. Thence along the 
Southerly edge of Haiku Stream along Lot Q-2 
of Land Court Application 1100 to a pipe, the 
direct azimuth and distance being: 

3. 228° 01'— 700.55 feet; 

4. 319° 30'— 59.20 feet along Lot Q-2 of Land 
Court Application 1100 to a pipe ; [621] 

5. 20° 35'— 245.50 feet along Lot Q-2 of Land 



Honolulu Plantation Co. 335 

Court Apj)lication 1100 to the point of !)egin- 
ning and passing over a pipe at 121.60 feet and 
containing an area of 1.800 acres, and as de- 
lineated on 14th Naval District Drawing No. 
OA-Nl-773. 

Together with rights-of-way to and from Haiku 
Road leading out to Kamehameha Highway over 
Easements 19 and 16, as shown and designated on 
maps accompanying Land Court Application 1100. 

PARCEL 10 

Land Situated at Halawa, Ewa, Oahu, T. H. 

Being a Portion of the Land of North Halawa, 
Royal Patent 6717, Land Commission Award 7712 
and 8516-B to M. Kekuanaoa and Kamaikui. 

Beginning at the Southeast corner of this parcel 
of land, on the boundary of Lot Q-3 of Land Court 
Application 1100, and on the boundary of the gov- 
ernment land of lolekaa, the coordinates of which 
referred to Government Survey Triangulation Sta- 
tion "Heeia" being 11,818.39 feet South and 4,683.55 
feet West, and running by azimuths measured clock- 
wise from true South: 

Following up along the middle of Koolau 
Range along the land of Heeia, Lot Q-3 of 
Land Court Application 1100, the direct azi- 
muth and distance between points on middle 
of said Koolau Range being: 

1. 55° 00—696.00 feet; 

2. 145° 00'— 84.22 feet along remainder of the 
land of Halawa; 



336 United States of America vs. 

3. 235° 00—750.00 feet along remainder of the 
land of Halawa. Thence following along the 
middle of Koolau Range along the government 
land of lolekaa, the direct azimuth and dis- 
tance between points on middle of said Koolau 
Range being: 

4. 357° 40'— 100.05 feet to the point of beginning 
and containing an area of 1.4 acres, and as 
delineated on 14th Naval District Drawing No. 
OA-Nl-773. [623] 

PARCEL 13 

Land Situated at Luluku, Kaneohe, Koolaupoko, 
Oahu, T. H. 

Being a Portion of the Land of Luluku, Royal 
Patent 7984, Land Commission Award 4452, Apana 
13 to H. Kalama. 

Beginning at the Northwest corner of this parcel 
of land, on the boundary between the lands of Lu- 
luku, Moanalua and Heeia, the coordinates of which 
referred to Government Survey Triangulation Sta- 
tion "Heeia" being 17,898.75 feet South and 504.03 
feet West, and running by azimuths measured 
clockwise from true South: 

Following down along the middle of ridge be- 
tween the lands of Luluku and Heeia, the di- 
rect azimuth and distance between points on 
middle of said ridge being: 

1. 228° 08' 30"— 957.20 feet. Thence following 
down along the middle of ridge between the 



Honolulu Plantation Co. oDT 

lands of Luluku and Keaahala, tho divect azi- 
muth and distance between points on middle 
of said ridge being: 

2. 258° 00— 300.00 feet; 

3. 47° 28—1330.30 feet along remainder of tlie 
land of Luluku to the middle of ridge between 
the lands of Luluku and Moanalua. Thence 
following down along the middle of ridge be- 
tween the lands of Luluku and Moanalua, the 
direct azimuth and distance between points on 
middle of said ridge being: 

4. 172° 30'— 199.93 feet to the point of beginning 
and containing an area of 5.3 acres, and as 
delineated on 14th Naval District Drawing No. 
OA-Nl-773. [624] 

PARCEL 14 

Land Situated at Moanalua, Honolulu, Oahu, 
T. H. 

Being a Portion of Lot R of Land Court Appli- 
cation 1074. 

Beginning at the Northeast corner of this parcel 
of land, on the boundary between the lands of 
Moanalua, Heeia and Luluku, being also the North- 
east corner of Lot R of Land Court Application 
1074, and at the Southeast Corner of Lot Q-3 of 
Land Court Application 1100, the coordinates of 
which referred to Government Survey Triangula- 
tion Station ''Heeia" being 17,898.75 feet South 
and 504.03 feet West, and running by azimuths 
measured clockwise from true South: 



338 United States of America vs. 

Following up along the middle of ridge be- 
tween the lands of Luluku and Moanalua, the 
direct azimuth and distance between points, 
on middle of said ridge being : 

1. 352° 30'— 199.93 feet; 

2. 127° 35'— 515.84 feet along remainder of Lot R 
of Land Court Application 1074 to the middle 
of ridge between the lands of Moanalua and 
Heeia. Thence following along the middle of 
ridge between the lands of Moanalua and 
Heeia, the direct azimuth and distance between 
points on middle of said ridge being : 

3. 286° 55'— 400.00 feet to the point of beginnmg 
and containing an area of 1.0 acre, and as de- 
lineated on 14th Naval District Drawing No. 
OA-Nl-773. 

/s/ R. M. TOWILL, 

Registered Professional Surveyor Certificate Num- 
ber 151. 

Honolulu, T. H., October 22, 1943. 

[Endorsed] : Filed Oct. 30, 1944. [625] 



[Title of District Court and Cause No. 540.] 

DECLARATION OF TAKING 

Whereas, pursuant to the Acts of Congress ap- 
proved March 27, 1942 (Public Law 507, 77th Con- 
gress), and April 28, 1942 (Public Law 528, 77th 
Congress), the above styled condemnation proceed- 
ing has been instituted. 



i 



Honolulu Plantattoii Co. ."339 

Now, Therefore, pursuant to the provi.sious ol: 
the Act of Congress apijrovecl F'ebruaiy 26, 1931 
(46 Stat. 1421), I, Secretary of the Navy, do hereby 
make and cause to be filed this declaration of tak- 
ing, and by virtue of authority thereof do hei'eby 
state that the lands selected for acquisition agj^re- 
gate 124.914 acres, more or less, in Haiku Valley, 
Heeia, [627] Koolaupoko, Oahu, Territory of Ha- 
waii, more particularly described in Exhibit "A" 
attached hereto and made a part hereof, and de- 
lineated as Parcels 6, 7, 8, 9, 10, 13 and 14 on a 
map entitled ''Boundary Survey of Haiku Radio 
Station," designated as 14th N.I). Dwg. No. OA- 
Nl-773, revised May 2, 1945, attached hereto as Ex- 
hibit ''B" and made a i)art hereof. 

And I do declare said lands to be taken under the 
authority of the aforesaid Acts of Congress; that 
the use to which said lands are to be put is for a 
radio station, and for other Naval purposes, as 
authorized by said Acts. 

And I do further declare that the estate hereby 
taken in said lands for the public use aforesaid is 
title in fee simple, subject to all existing rights of 
the City and County of Honolulu in and to the 
rights of way described in Exhibit ''A" and de- 
lineated on Exhibit ''B" at Easements ''A," ''B," 
and ''C" for the purpose of a road, and for the 
purpose of constructing, operating, maintaining, in- 
specting, repairing and removing water pipe lines 
under and across the same. 

And I, Secretary of the Navy, do hereby state 
that the sum of money estimated by me to be just 



340 United States of America vs. 

compensation for said lands and all improvements 
thereon and appurtenances theremito belonging, is 
ten thousand two hundred fifty-three dollars ($10,- 
253.00), which sum is hereby deposited into the 
registry of the court for the use and benefit of the 
persons entitled thereto, and that the amoimts of 
just compensation for said lands and improvements 
thereon, which are hereby taken, are shown on 
Schedule ''A'' attached hereto and made a part 
hereof. 

I am of the opinion that the ultimate award for 
the taking of said lands will be within the limits 
prescribed by [628] Congress. 

In Witness Whereof, the petitioner, by and 
through the Secretary of the Navy, has caused this 
declaration of taking to be signed on the 6th day 
of September, 1945, in the City of Washington. 
District of Columbia. 

UNITED STATES OF 
AMERICA, 

5 By /s/ JAMES FORRESTAL. 







E.stimated Juist 


'areel 


Acres 


Compensation 


H 


3.352 


.$ 


150.00 


7 


110.112 




9,500.00 


8 


1.950 




100.00 


9 


1.800 




500.00 


10 


1.400 




1.00 


13 


5.300 




1.00 


14 


1.000 




1.00 



Honolulu Plantation Co. 341 

SCHEDULE ''A" 

The names of the persons having title to or other 
interest in the lands described in the within derv 
laration of taking, and the amounts estimated to be 
fair compensation for each respective owners! lip, 
including all improvements thereon, are as follows: 

Name of Owner 
Harold K. L. Castle 
Trustees of B. P. Bishop P^st. 
Harold K. L. Castle 
Mary Wong Yuen Chong 
Trustees of B. P. Bishop P:st. 
Harold K. L. Castle 
Trustees of Samuel .M. 

Damon P^state 

Total 124.914 $10,253 00 

[Printer's Note] : Exhibit "A" is the same as Ex- 
hibit ''A" set out on pages 329-338 with exception of 
last paragraph of Parcel 7 which reads as follows: 
''Subject to rights-of-way over easements as shown 
and designated on maps of Land Court Application 
1100 and also subject to Easements B and C as de- 
lineated on 14th Naval Dist. Drawing OA-N 1-773.'^ 

EASEMENT ''A" 

Description of Easement for Main Water Sup- 
ply Line and Roadway Land Situated in Haiku 
Valley, Heeia, Koolaupoko, Oahu, T. H. 

Being a Portion of Lot E of Land Court Appli- 
cation 1342. 

Beginning at the Southwest corner of this ease- 
ment, being also the Southwest corner of Lot E 
of Land Court Application 1342, the coordinates 
of which referred to Government Survey Triangu- 



342 United States of America vs. 

lation Station ''Heeia" being 13,984.61 feet South 
and 2,142.54 feet West, and running by azimuths 
measured clockwise from true South: 

1. 130° 30—27.93 feet along the boundary of Lot 
Q-3 of Land Court Application 1100; 

2. 267° 59'— 23.04 feet along a remainder of Lot 
E of Land Court Application 1342 ; 

3. 268° 55' — 113.76 feet along a remainder of Lot 
E of Land Court Application 1342 ; 

4. 257° 02'— 105.52 feet along a remainder of Lot 
E of Land Court Application 1342; 

5. 278° 02'— 58.29 feet along a remainder of Lot 
E of Land Court Application 1342 ; 

6. 278° 07'— 8.11 feet along a remainder of Lot E 
of Land Court Application 1342 to the Easter- 
ly bomidary of Lot E of Land Court Applica- 
tion 1342; 

7. 36° 30'— 22.75 feet along the Easterly boundary 
of Lot E of Land Court Application 1342 ; 

8. 98° 02'— 51.87 feet along a remainder of Lot E 
of Land Court Application 1342; 

9. 77° 02' — 66.92 feet along a remainder of Lot E 
of Land Court Application 1342 ; 

10. 86° 30'— 154.30 feet along the Southerly boun- 
dary of Lot E of Land Court Application 1342 
to the point of beginning and containing an 
area of 5,281 square feet. [641] 

EASEMENT ''B'' 

Description of Easement Twenty (20) Feet Wide 
Situated in Haiku Valley, Heeia, Koolaupoko, 
for Main Water Supply Line and Roadway Land 
Oahu, T. H. 



Honolulu Plantation Go. 



•MO 



Being a Portion of I.ot Q-2 of Land Court Ap- 
2)li cation 1100. 

Description of Base Line of Main Water Supply 
Line and Roadway Which is on an offset of Five 
(5) Feet North from the Southerly Boundary of 
this Easement and on an Offset of Fifteen (15) 
Feet South From the Northerly Boundary of 1'his 
Fasement. 

Beginning at the Westerly end of this easement, 
on the Easterly boundary of Lot E of Land Court 
Application 1342, the coordinates of which referred 
to Govermnent Survey Triangulation Station 
^'Heeia" being 13,962.84 feet South and 1,868.57 
feet West, and running by azimuths measured 
clockwise from true South: 

1. 278° 07 — 40.80 feet 

2. 268° 32—284.40 feet 

3. 295° 38—177.40 feet 

4. 273° 54—116.70 feet 

5. 266° 17'— 72.00 feet 

6. 267° 01—137.10 feet 

7. 248° 00'— 210.20 feet 

8. 200° 31'— 146.50 feet 

9. 251° 58'— 201.90 feet 

10. 227° 16'— 82.30 feet 

11. 228° 42'— 294.35 feet 

12. 232° 36'— 120.00 feet 

13. 233° 43'— 216.80 feet 

14. 266° 53'— 101.90 feet 



Area — 1.008 Acres. 



[642] 



344 United States of America vs. 

EASEMENT ''C" 

Description of Easement for Main Water Sup- 
ply Line and Roadway Land Situated in Haiku 
Valley, Heeia, Koolaupoko, Oahu, T. H. 

Being a Portion of Lot Q-2 of Land Court Ap- 
plication 1100. 

Beginning at the Southwest corner of this ease- 
ment, on the bomidary of Lot Q-3 of Land Court 
Application 1100, the coordinates of which referred 
to Government Survey Triangulation Station 
^ ' Heeia '^ being 13,985.25 feet South and 2,117.76 
feet West, and running by azimuths measured 
clockwise from true South: 

1. 179° 52'— 2.16 feet along the Easterly boun- 
dary of Lot Q-3 of Land Court Application 
1100; 

2. 266° 30—129.48 feet along the Southerly boun- 
dary of Lot E of Land Court Application 1342 ; 

3. 77° 02'— 36.97 feet along a remainder of Lot 
Q-2 of Land Court Application 1100 ; 

4. 88° 55' — 93.22 feet along a remainder of Lot 
Q-2 of Land Court Application 1100 to the 
point of beginning and containing an area of 
494 square feet. 

[Endorsed] : Filed Oct. 5, 1945. [643] 



Honolulu Plantation Co. 345 

[Title of District Court and Cause No. 540.] 

MOTION FOR ORDER AMP^NDINO 
PETITION IN CONDEMNATION 

Now comes the Petitioner, United States <)i 
America, by its attorney, Charles P. Rathbun, Spe- 
cial Assistant to the Attorney General, and moves 
that this Court enter an order amending the Peti- 
tion in Condemnation herein by striking Exhibits 
"A" and ''B" attached to said Petition and sub- 
stituting therefor Exhibits "C" and "D", hereto 
attached as a part of said Petition, and by striking 
from said Petition all references to Exhibits "A'' 
and "B" and substituting wherever said Exhibits 
**A" and "B" are mentioned in said Petition the 
designation Exhibits "C" and ''D", and by strik- 
ing from said Petition all of Paragraph III and 
substituting therefore a new Paragraph III as 
follows : 

"That the estate sought to be taken in said 
lands for the public use aforesaid is title in 
fee simple, subject to all existing rights of the 
City & County of Honolulu in and to the rights 
of way described in Exhibit "C" and delineat- 
ed on Exhibit "D" as easements ''A", "B" 
and "C" for the purpose of a road, and for 
the purpose of constructing, operating, main- 
taining, inspecting, repairing, and removing 
water pipelines under and across the same." 

Petitioner states that it is necessary that the 



346 United States of America vs. 

Petition herein be amended to more accurately de- 
fine the estate being taken. 

Dated: Honolulu, T. H., this 5th day of October, 
1945. 

UNITED STATES OF 
AMERICA, 

By /s/ CHARLES F. RATHBUN, 
Special Assistant to the 
Attorney General. 

[Printer's Note] : Exhibit '' C " is the same as 
Exhibit ''A" set out at pages 329-338. 

[Endorsed] : Filed Oct. 15, 1945. [646] 



[Title of District Court and Cause No. 540.] 

ORDER AMENDING PETITION IN 
CONDEMNATION 

This matter coming on to be heard, upon the 
Motion of the Petitioner herein to amend Petition 
in Condenmation in the above cause, and it appear- 
ing that it is necessary to more accurately define 
the estate being taken in the land described in said 
Petition, 

It Is Ordered: 

That the Petition in Condemnation be amended 
by striking therefrom Exhibits ''A" and 'VB", at- 
tached thereto, and substituting therefore as a part 
of said Petition Exhibits ''C" and ''D" attached 
to the Motion this day filed herein, asking for an 



Honolulu Plantation Go. 347 

Order Amending the Petition, and by striking from 
said Petition all references to Exhibits ''A" and 
'^B" and substituting wherever said Exhibits **A" 
and ''B" are mentioned in said Petition the desig- 
nation Exhibits ''C and ''D" and by striking all 
of Paragraph III of said Petition, substituting 
therefore a new Paragraph III as set forth in the 
said Motion this day filed herein, asking for au 
Order Amending the Petition in Condemnation 
herein. 

Dated: Honolulu, T. H., this 5th day of October, 
1945. 

/s/ J. FRANK McLaughlin, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Oct. 5, 1945. [659] 



348 United States of America vs. 

In the District Court of the United States 
jj for the District of Hawaii 

October Term 1945 

Civil No. 540 

UNITED STATES OF AMERICA, 

Petitioner, 
vs. 

124.914 acres of land, more or less, situate in Haiku % 
Valley, Heeia, Koolaupoko, Oahu, Territory of 
Hawaii ; Harold K. L. Castle, et al.. 

Defendants. 

ORDER AND JUDGMENT ON DECLARATION 
OF TAKING 

It appearing that on October 30, 1944, the United 
States of America filed a Petition for Condemna- 
tion of certain lands described and shown in said 
Petition herein ; and 

It further appearing that the said Petition for 
Condemnation has been amended pursuant to an 
Order of the Court this day entered herein; and 

It further appearing that there was filed herein 
on the 5th day of October, 1945, in the above cause, 
a Declaration of Taking signed by James Forrestal, 
Secretary of Navy, under and pursuant to the pro- 
visions of the Act of Congress approved March 27, 
1942 (Public Law 507, 77th Congress), the Act of 
Congress approved April 28, 1942 (Public Law 528, 
77th Congress), and the Act of Congress approved 



Honolidti Plantation Co. 34fi 

February 26, 1931 (46 Stat. 1421) declaring taken 
the estates and interests as set forth in said Decla- 
aration of Taking and as shown on Exhibits '*A" 
and ''B" attached to the said Declaration of Taking 
and on Exhibits "C" and "D" attached to the Pe- 
tition herein as amended; that the jjublic uses of 
said lands are those described in the said Declara- 
tion of Taking; and that the said Declaration of 
Taking sets forth the estimate of just compensa- 
tion made i^ursuant to law and that [660] con- 
temporaneously with the fiUng of said Declaration 
of Taking there was deposited in the registry of 
this Court for the use and benej&t of the persons 
entitled thereto the sum of ten thousand two hun- 
dred fifty-three and no/100 dollars ($10,253.00). 

It Is Ordered, Adjudged and Decreed that by vir- 
tue of the filing of said Declaration of Taking and 
the deposit of said money, title to the estates and 
interests in said lands thus shown on Exliibits "A" 
and ''B" attached to the said Declaration of Taking 
be and the same is hereby indefeasibly vested in the 
United States of America, subject to the conditions 
and reservations set forth in said Declaration of 
Taking and described and delineated on Exhibits 
''A" and ''B" attached to said Declaration of 
Taking. 

It Is Further Ordered that a copy of this Order 
be promptly served by the United States Marshal 
upon each of the defendants in this cause having 
an interest in this proceeding. The Marshal is fur- 
ther ordered to post a copy hereof in a conspicuous 



350 United States of America vs, 

place on the premises and to forthwith make due 
return of his said service to this Court. 

Dated: Honoluki, T. H., this 5th day of October, 
1945. 

(Seal) /s/ J. FRANK McLAUGHLIN, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Oct. 5, 1945. [661] 



[Title of District Court and Cause No. 540.] 

ANSWER OF HONOLULU PLANTATION 
COMPANY 

One of the Defendants Above Named 
Comes now Honolulu Plantation Company, a cor- 
poration, organized under the laws of the State of 
California, and doing business in the Territory of 
Hawaii, one of the defendants in the above entitled 
cause, and for answer to the petition filed herein 
says: 

I. 
That it has neither knowledge or information suf- 
ficient to form a belief as to the allegations set 
forth and contained in Paragraphs I, III, IV, V, 
VI and VII of said petition, and therefore it nei- 
ther admits nor denies the same but leaves the 
petitioner to its proof thereof. 

II. 
That it admits the allegations contained in Para- 
graph II of said petition. 



Honoluhi Plantation Co. 351 

III. 

That with respect to the allegations of said peti- 
tion that it claims an interest in the property de- 
scribed in said petition this defendant admits the 
same and alleges that at the time of the filing of 
said petition and until judgment or order was en- 
tered on [663] declaration of taking filed in said 
causes it was the owner of an interest in the lands 
and in some of the improvements thereon and also 
admits that its lessor has an interest in the lands 
described in said petition which are under lease 
to this defendant; that the lease creating such in- 
terest and estate will be submitted to the Court on 
the trial of said causes. 

Aiid this defendant further alleges as follows: 

That for and during a period of over forty years 
this defendant has been continuously ojjerating and 
conducting and is now operating and conducting a 
sugar mill and plantation at Aiea in the District 
of Ewa, Island of Oahu, T. H., and has been at all 
times during said period and now is engaged in the 
business of growing sugar cane and manufacturing 
sugar therefrom; 

That most of the acreage of land taken, by rea- 
son of the fertility of the soil thereon, their low- 
elevation, and the comparatively small expense with 
which they can be irrigated, is peculiarly adapted 
to the cultivation and growth of sugar cane, and 
that this defendant was at the time of the filing 
of the petition in this cause and mitil the date fixed 
for the surrendering of possession by the judg- 
ment or order on the Declaration of Taking entered 



352 United States of America vs. 

in this cause aiid for many years prior thereto had 
been profitably using said lands for the cultivation 
and growth of sugar cane; 

That the lands included within the area sought 
to be condemned which are held by this defendant 
under lease as aforesaid have a special and en- 
hanced value by reason of the establishment by 
this defendant of a sugar mill and works, in close 
proximity to said lands, for the manufacture of 
sugar from cane grown and cultivated thereon and 
on other lands owned and/or leased by this defend- 
ant and by reason of the development l^y this de- 
fendant of a water supply for the irrigation of said 
lands, and other lands as aforesaid by means of 
artesian wells, pumping machinery and otherwise; 

That for the purpose of cultivating the sand 
lands, this defendant has constructed improvements 
thereon ; 

That the parcel of land sought to be condemned 
by said petition in which this defendant has lease- 
hold interest was at the time of the filing of the 
said petition in this cause and until judgment or 
order was entered on Declaration of Taking filed 
in this cause, and for many years prior thereto had 
been, occupied and cultivated by this defendant as 
integral parts of the sugar plantation operated and 
conducted by it at Aiea aforesaid and in connec- 
tion with other large and contiguous tracts situated 
outside of the lands described in said petition but 
comprised within the said plantation and demised 
to this defendant by a number of leases and that 
by the taking of said lands described in the said 



Honolulu Plantation Co. 35)j 

petitions the integrity of said sugar X)lantatioij will 
be destroyed and the unitary value of the leasehold 
interests and estates of this defendant in such otlier 
and contiguous tracts of land will be greatly im- 
paired and diminished. 

Wherefore this defendant prays (1) that the 
damages suffered by this defendant by reason of 
the taking of the lands and properties described 
in said petitions may be determined and the amount 
thereof be awarded to and paid to this defendant, 
and (2) for such other and general relief as may 
be meet and proper in the premises. 

Dated: Honolulu, T. H., June 18, 1946. 

HONOLULU PLANTATION 
COMPANY, 

By VITOUSEK, PRATT & WINN, 
Its Attorneys, 
Defendant above named. 

[Endorsed] : Filed June 18, 1946. [665] 



354 United States of America vs. 

In the United States District Court for the 
District of Hawaii 

October Term 1944 

Civil No. 544 

UNITED STATES OF AMERICA, 

Petitiouer, 
vs. 

317.705 acres of land, more or less, situate at Moanalua, Hono- 
lulu, Oahu, Territoiy of Hawaii; JOHN WATERHOUSE, 
ERNEST HAY WODEHOUSE, WALTER FRANCIS 
FREAR and JOHN EDWARD RUSSELL, Trustees under 
the Will and of the Estate of Samuel M. Damon; HONO- 
LULU PLANTATION COISIPANY, an Hawaiian corpora- 
tion: CITY AND COUNTY OF HONOLULU; TERRI- 
TORY OF HAWAII : and all other persons, companies or 
corporations, either known or iinknown, who claim to have 
or own any right, title or interest of any character whatever 
in said land, 

Defendants. 

PETITION FOR CONDEMNATION 

To the Honorable, the Presiding Judges of the 
United States District Court for the District 
of Hawaii: 

Now comes the United States of America, by 
Robert S. Tarnay, Special Assistant to the Attor- 
ney General, acting under the instructions of the 
Attorney General of the United States and at the 
request of the Secretary of Navy and respectfully 
represents to the Court: 

I. 

That this proceeding is instituted under the au- 
thority of divers and Sundry Acts of Congress, 
among them the following: 



Honolulu Plantation Co. 355 

The Act of Congress approved February 7, 
1942 (Public Law 441 - 77th Congress) 

The Act of Congress approved March 27, 
1942 (Public Law 507 - 77th Congress) [666] 

and that the Secretary of Navy, acting under au- 
thority vested in him by law has determined that it 
is necessary that the United States of America ac- 
quire by condemnation, by judicial process, certain 
lands more particularly described on Exhibits ''A" 
and "A-l"', hereto annexed and made parts hereof 
as though set forth at length and shown upon a 
map marked Exhibit "B", also attached hereto. 

11. 

That the lands sought to be condenmed are lo- 
cated at Moanalua, Honolulu, Oahu, Territory of 
Hawaii, and lie wholly within the jurisdiction of 
this Court. 

III. 

That the estate sought to be condemned in this 
action is the fee simple title, together with all im- 
provements thereon and appurtnaneces thereunto 
belonging, subject to existing public utility ease- 
ments and power transmission lines, together with 
the right of ingress and egress for the purposes 
of inspecting, maintaining and repairing said power 
lines for so long as the easement is used for such 
purposes and subject to such rules and regulations 
as are promulgated by the United States for the 
security of the Naval reservation; reserving all 
existing fresh water mains and appurtenances 
thereunto belonging in their j)resent location, to- 



356 United States of America vs, 

gether with right of ingress and egress for the pur- 
pose of inspecting said water mains for so long 
as said mains are used for such purposes and sub- 
ject to such rules and regulations as are promul- 
gated for the security of the Naval reservation ; said 
lands to be used for a Naval Hospital and a Marine 
Transient Center and Storage Area and other mil- 
itary and Naval purposes. 

IV. 

That John Waterhouse, Ernest Hay Wodehouse, 
Walter Francis Frear and John Edward Russell, 
Trustees under the Will and of the Estate of Sam- 
uel M. Damon; Honolulu Plantation Company, an 
Hawaiian corporation; City and County of Hono- 
lulu; Territory of Hawaii, and [667] all other per- 
sons, companies or corporations, either known or 
unknown, who claim to have or own any right, title 
or interest of any character whatever in said land, 
are made defendants herein. 

V. 

That the Secretary of Navy of the United States 
has determined that the utmost haste in expediting 
this project is vital to the War purposes of the 
United States and that he has, therefore, deter- 
mined that possession of said lands, to the extent 
of the interest to be acquired therein, is necessary 
by the United States and that certain and adequate 
provisions have been made for the payment of just 
compensation which may be adjudged due for the 
condemnation of the lands described and shown on 
Exhibits ''A", '*A-1" and "B". 

That the petitioner has been in possession of 



Honolulu Plantation Co. 357 

Parcels D-2 and D-3 from and since September 11, 
1943, and September 27, 1943, resjjectively, pur- 
suant to rights of entry. 

Wherefore, your jjetitioner prays this Honorable 
Court to take jurisdiction of this cause and enter 
all orders, judgments and decrees necessary to de- 
termine title of said real estate condemned, or any 
part thereof, and to fix and determine that the con- 
tinued possession of the lands identified in Para- 
graph V is necessary for the War and Naval pur- 
poses of the United States ; that upon payment into 
the registry of this Court for the use of the per- 
sons entitled thereunto of the sum adjudged to be 
full compensation for the condemnation of said 
land, that title to said land be vested in the United 
States of America, in fee simple, subject to the ex- 
ceptions set forth in Paragraph III, and that the 
Court make distribution of the final awards among 
the persons entitled thereto as expeditiously as may 
be and for such other further relief as to the Court 
may seem just and proper in the premises. [668] 

UNITED STATES OF 
AMERICA, 

By /s/ CHARLES F. RATHBUN, 

Special Assistant to the 
Attorney General. 

By /s/ ROBERT S. TARNAY, 
Special Assistant to the 
Attorney General. 

(Duly Verified.) [669] ^ 



358 United States of America vs, 

EXHIBIT *'A'' 
PARCEL D-2 ri 

Being a portion of Lot E of Land Court Appli- 
cation 1074 at Moanalua, Honolulu, Oahu, T. H., 
also covered under Certificate of Title No. 20.266. 

Begiiming at the West corner of this parcel of 
land, on the boundary between the lands of Moana- 
lua (Land Court Application 1074) and Halawa 
(Land Court Application 966), and on the North- 
east side of Kamehameha Highway, the coordinates 
of said point of beginntug referred to Government 
Survey Triangulation Station "Salt Lake" beiug 
5205.00 feet South and 8992.65 feet West and thence 
ruiming by azimuths measured clockwise from True 
South: 

1. 226° 59—1327.46 feet along Lot 1-A of Land 
Court Application 966, along Parcel E-2; 

2. 359° 01' 30"— 166.20 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-1; 

3. 313° 35'— 378.66 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-1; 

4. 342° 51' 30"— 299.22 feet along the remainder 
of Lot E of Land Court Application 1074, 
along Parcel D-1; 

5. 353° 39' 30"— 173.96 feet along the remainder 
of Lot E of Land Court Application 1074, 
along Parcel D-1; 

6. 339° 20' 30" — 440.75 feet along the remainder 



Honolulu Plantation Co. 359 

of Lot E of Land Court Ajix^licatioii 1074, 
along Parcel D-1; 

7. 320° 04' 30"— 385.00 feet along the remainder 
of Lot E of Land Court Api^lication 1074, 
along Parcel D-1; 

8. 336° 40—238.42 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-1; 

9. 348° 21' 30"— 102.09 feet along the remainder 
of Lot E of Land Court Application 1074, 
along Parcel D-1; 

10. 327° 54'— 304.63 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-1; 

11. 288° 14' 30"— 226.57 feet along the remainder 
of Lot E of Land Court Application 1074, 
along Parcel D-1; 

12. 303° 13' 30"— 248.58 feet along the remainder 
of Lot E of Land Court Application 1074, 
along Parcel D-1; 

13. 25° 49'— 1766.94 feet along the remainder of 
Lot E of Land [670] Court Application 1074, 
along Parcel D-3; 

14. 124° 30'— 1011.56 feet along the new mauka 
line of Kamehameha Highway, said line estab- 
lished by Territory of Hawaii Condemnation 
Law No. 17049; 

15. Thence along the new mauka line of Kame- 
hameha Highway, said line established by Ter- 
ritory of Hawaii Condemnation Law No. 17049 
on a curve to the right with a radius of 1205.86 



360 United States of America vs. 

feet, the direct azimuth and distance being 
146° 27' 30" 901.82 feet; 
16. 168° 25—1774.38 feet along the new mauka 
line of Kamehameha Highway, said line estab- 
lished by Territory of Hawaii Condemnation 
Law No. 17049 to the point of beginning and 
containing an area of 117.135 acres. [671] 

PARCEL D-3 
Being portions of Lots E, Gr, H, J and W of Land 
Court Application 1074, at Moanalua, Honolulu, 
Oahu, T. H. (also covered under Certificate of Title 

No. 20,266). 

Beginning at a point on the North boundary of 
this parcel of land, being also the most Westerly 
corner of Parcel D-6, the coordinates of said point 
of beginning referred to Government Survey Tri- 
angulation Station ''Salt Lake" being 8298.51 feet 
South and 1945.23 feet West and thence running by 
azimuths measured clockwise from True South: 

1. 276° 20' 40"— 44.90 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6; 

2. 9° 04'— 802.03 feet along the remainders of Lots 
H and G of Land Court Application 1074, 
along Parcel D-4; 

3. 12° 29'— 288.52 feet along the remainder of Lot 
G of Land Court Application 1074, along Par- 
cel D-4; 

4. Thence on a curve to the right with a radius 
of 50.00 feet, along the remainder of Lot G 



Honolulu Plantation Co. oGi 

of Land Court Applicatiou 1074, along Parcel 
l)-4, the direct azimuth and distance being 55^^ 
46' 10" 68.56 feet; 

5. 99" 03' 20"— 4531.04 feet along the new mauka 
line of Ivainehameha Highway, said line estab- 
lished by Territory of Hawaii Condenniation 
Law No. 17049; 

6. Thence still along the new niauka line of Kaine- 
hameha Highway, said line established by Ter- 
ritory of Hawaii Condemnation Law No. 17049 
on a curve to the right with a radius of 2262.15 
feet, the direct azimuth and distance being 
111° 46' 40" 996.36 feet; 

7. 124° 30' — 191.62 feet along the new mauka line 
of Kamehameha Highway, said line established 
by Territory of Hawaii Condemnation Law 
No. 17049; 

8. 205° 49'— 1766.94 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-2; [672] 

9. 289° 38' 30"— 380.00 feet along the remainder 
of Lot E of Land Coui't Application 1074, along 
Parcel D-1; 

10. 269° 04'— 153.58 feet along the remainder of 
Lot E of Land Court Apijlication 1074; along 
Parcel D-1; 

11. 296° 09'— 274.03 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-1; 

12. 267° 21' 30"— 252.62 feet along the remainder 
of Lot E of Land Court Application 1074, along 
Parcel D-1: 



362 United States of America vs. 

13. SIS'" 50'— 198.56 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-1; 

14. 244° 19' 30"— 162.60 feet along the remainder 
of Lot E of Land Court Application 1074, along 
Parcel D-1; 

15. 232° 01' 30"— 238.58 feet along the remainder 
of Lot E of Land Court Application 1074, along 
Parcel B-1; 

16. 339° 07'— 143.45 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-1; 

17. 280° 33'— 73.67 feet along the remainder of Lot 
E of Land Court Application 1074, along Par- 
cel D-1; 

18. 212° 32' 30"— 156.57 feet along the remainder 
of Lot E of Land Court Application 1074, along 
Parcel D-1; 

19. 293° 29'— 143.57 feet along the remainder of Lot 
E of Land Court Application 1074, along Parcel 
U-l; 

20. 2° 36' — 81.96 feet along the remainder of Lot 
E of Land Court Application 1074, along Par- 
cel D-1; 

21. 346° 12'— 241.81 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-1; 

22. 277° 57'— 196.66 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-1; 

23. 229° 20' 30"— 281.42 feet along the remainder 
of Lot E of Land Court Application 1074, 
along Parcel D-1; 



Honolulu Plantation Co. 363 

24. 321° 19—184.71 feet along the remainder of 
Lot E of Land Court Apxjlication 1074, along 
Parcel D-1; 

25. 1^ 39' 30"— 183.00 ieet along the remainder of 
Lot E of Land Court Ajiplication 1074, along 
Parcel D-1; 

26. 295° 38'— 140.00 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-lj 

27. 237° 25' 30"— 432.28 feet along the remainder 
of Lot E of Land Court Apj)lication 1074, 
along Parcel D-1; 

28. 341° 45'— 147.18 feet along the remainder of 
Lot E of Land Court Application 1074, along 
Parcel D-1; [673] 

29. 4° 37'— 129.47 feet along the remainder of Lot 
E of Land Court Apxjlication 1074, along Par- 
cel D-1; 

30. 326° 26' 30"— 496.50 feet along the remainders 
of Lots E and W of Land Court Application 
1074, along Parcel D-1 ; 

31. 313° 15' — 435.82 feet along the remainders of 
Lots W and G of Land Court A^jplication 1074, 
along Parcel D-1; 

32. 260° 55' 30"— 325.02 feet along the remainders 
of Lots G and J of Land Court Application 
1074, along Parcel D-1; 

33. 318° 23'— 54.00 feet along the remainder of 
Lot J of Land Court Application 1074; 

34. 303° 55'— 89.95 feet along the remainder of Lot 
J of Land Court Application 1074; 

35. 283° 56'— 130.80 feet along the remainder of 
Lot J of Land Court Application 1074 ; 



364 United States of America vs. 

36. 272° 50' 50"— 516.21 feet along the remainders 
of Lots J and H of Land Court Application 
1074 to the point of beginning and containing 
an area of 200.57 acres. 

[Endorsed] : Filed Nov. 28, 1944. [674] 



[Title of District Court and Cause No. 544.] 
DECLARATION OF TAKING 

Whereas, pursuant to the Acts of Congress ap- 
proved March 27, 1942 (Public Law 507, 77th Con- 
gress), and February 7, 1942 (Public Law 441, 77th 
Congress), the above styled condemnation proceed- 
ing has been instituted. 

Now, Therefore, pursuant to the provisions of 
the Act of Congress approved February 26, 1931 
(46 Stat. 1421), I, Secretary of the Navy, do hereby 
make and cause to be filed this declaration of tak- 
ing, and by virtue of authority thereof do hereby 
state that the lands selected for acquisition aggre- 
gate 317.705 acres, more or less, at Moanalua, Oahu, 
Territory of Hawaii, which said lands are shown 
on a whiteprint entitled "Composite Boundary 
Map, Portions of the Lands of the Estate of Emma 
Kaleleonalani, deceased, at Halawa, Ewa, Oahu, T. 
H. [676] and the Estate of S. M. Damon, deceased, 
at Moanalua, Honolulu, Oahu, T. H." attached hereto 
as Exhibit "B" and made a part hereof. The lands 
are more particularly described in Exhibit "A" at- 
tached hereto and made a part hereof. 

And I do declare the lands to be taken under 



nn-z 



Honolulu Plantation Co. oCy, 

authority of the aforesaid acts of Congress; ^hat 
the use to which the lands are to be put is for the 
establishment of a Naval Hosijital, Marine Tran- 
sient Center and Storage Area as authorized by 
said acts; and that the estate hereby taken in said 
lands for the public use aforesaid is in fee simple, 
subject to existing public utility easements for pow- 
er transmission lines in favor of the Hawaiian Elec- 
tric Company, Limited, together with the right of 
ingress and egress for the purposes of inspecting, 
maintaining and repairing said power lines for so 
long as the easements are used for such purposes 
and subject to such rules and regulations as are 
promulgated by the United States for the security 
of the Naval reservation; reserving, however, unto 
John Waterhouse, Ernest Hay Wodehouse, Walter 
Francis Frear and John Edward Russell as Ti'us- 
tees under the Will and of the Estate of Samuel 
M. Damon, Deceased, all existing fresh water mains 
and appurtenances theremito belonging in their 
present location, together with the right of ingress 
and egress for the purposes of inspecting, main- 
taining and repairing said water mains and ap- 
purtenances thereunto belonging for so long as said 
mains are used for such purposes and subject to 
such rules and regulations as are promulgated by 
the United States for the security of the Naval 
reservation. 

And I do hereby state that the sum of money 
estimated by me to be just compensation for all of 
said lands, improvements thereon, and appurte- 
nances thereunto belonging is two hundred thirty- 



366 United States of America vs. 

three thousand four hundred three dollars and nine- 
ty-four cents ($233,403.94), and is hereby deposited 
into the registry of the court for the use and bene- 
fit of the persons entitled thereto, and the amount 
of just compensation for said lands and improve- 
ments thereon, which are hereby taken are shown 
on [677] Schedule '^A" which is attached hereto 
and made a part of this declaration of taking. 

I am of the opinion that the ultimate award for 
the taking of said lands will be within the limits 
prescribed by Congress. 

In Witness Whereof, the petitioner, by and 
through the Secretary of the Navy, has caused this 
declaration of taking to be signed and the seal of 
the Department of the Navy to be affixed hereto 
on the 8th day of January, 1945, in the City of 
Washington, District of Columbia. 

UNITED STATES OF 
AMERICA, 

(Seal) By /s/ JAMES FORRESTAL. [678] 



Honolulu Plantation Co. 367 

SCHEDULE "A" 

The names of the persons having title to or other 
interests in the lands described in the within decla- 
ration of taking, and the amounts estimated to be 
fair compensation for each respective ownership 
including all improvements thereon, are as follows: 

Estimated Just 
Name of Owner Parcel Acres Compensation 

Samuel M. Damon Est. D-2 117.185 .$63,253.00 

Honolulu Plantation , 24,937.69 

Company, Lessee 

Samuel ^I. Damo 
Honolulu Plantal 
Company, Lessee 



Samuel U. Damon Est. D-3 200.570 104,111.00 

Honolulu Plantation 41,102.25 



Total 317.705 $233,403.94 

[Printer's Note] : Exhibit "A" is the same as 
Exhibit ''A" set out at pages 358-364 of this 
printed Record. 

[Endorsed] : Filed Jan. 29, 1945. [679] 



368 United States of America vs. 

In the United States District Court for the 
I District of Hawaii 

October Term 1944 

Civil No. 544 

UNITED STATES OF AMERICA, 



Petitioner, 



vs. 



317.705 Acres of land, more or less, situate at 
Moanalua, Honolulu, Oahu, Territory of Ha- 
waii; John Waterhouse, Ernest Hay Wode- 
house, Walter Francis Frear and John Edward 
Russell, Trustees under the Will and of the 
Estate of Samuel M. Damon, et al.. 

Defendants. 

ORDER AND JUDGMENT ON DECLARATION 
OF TAKING 

It appearing that on November 28, 1944, the United 
States of America filed a petition for condemna- 
tion of certain lands described and shown on Ex- 
hibits ''A" and '^B", attached to the Declaration 
of Taking; and 

It further appearing that there was filed on the 
29th day of January, 1945, a Declaration of Taking 
signed by James Forrestal, Secretary of the Navy, 
imder and pursuant to provisions of the Act of 
Congress approved February 26, 1931 (46 Stat. 
1421), declaring taken the full fee simple title, 



Honolulu Plantation Co. 3G5> 

together with all iinju'uvernents thereon Miid ap- 
purtenances thereunto belonging, as limited iii the 
Declaration of Taking; that the uses oi' said land 
and improvements thereon and apxjurtenances 
thereunto belonging are those described in the said 
Declaration oi' Taking and in the Petition; and 
that the said Declaration of Taking sets forth the 
estimate of just compensation made pursuant to 
law and that contemporaneously with the tiling of 
said Declaration of Taking, there was dejjosited in 
the registry of this Court for the use of the per- 
sons entitled thereunto the sum of two hundred 
thirty-three thousand, four hundred three dollars 
and ninety-four cents ($233,403.94), 

It Is Ordered, Adjudged and Decreed that by 
virtue of the filing of said Declaration of Taking 
and the deposit of said money, fee simple title [686] 
to the lands described and shown on Exhibits "A'' 
and "B", attached to the said Declaration of Tak- 
ing, including all improvements and appurtenances 
upon said lands, as limited by the said Declaration 
of Takmg, is indefeasibly vested in the United 
States of America ; and 

It Is Further Ordered that a copy of this Order 
be promptly served by the United States Marshal 
upon each of the defendants named and upon each 
and every person, company or corporation in pos- 
session of said land at the time possession was sur- 
rendered to the petitioner. The Marshal is further 
ordered to post a copy hereof in a conspicuous place 



370 United States of America vs. 

on the premises and to forthwith make due return 
of his said services to this Court. 

Dated: Honolulu, T. H., this 29th day of Jan- 
uary, 1945. 

(Seal) /s/ J. FRANK McLAUGHLIN, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Jan. 29, 1945. [687] 



Honolulu Plantation Co. 371 

In the United States District Ooui't for the 

District of Hawaii • 

October Term 1944 

Civil No. 548 

1 UNITED STATES OF AMERICA, 

l*etitioner, 
vs. 

^3.725 acres ol' laud, moi-e or less, situate at Moaualiia, Hono- 
lulu, Oahu, Territor}- of Hawaii; .JOHN WATERHOUSE, 
ERx\EST ITAY WODE HOUSE, WALTER FRANCIS 
FREAR and JOHN EDWARD RUSSELL, Trustees under 
the Will and of the Estate of Samuel M. Damon; HONO- 
LULU PLANTATION COMPANY, an Hawaiian (•ori)ora- 
tion; CITY AND COUNTY OF HONOLULU; TERRI- 
TORY OF HAWAII; and all other persons, companies or 
corporations, either known or unknown, who claim to have 
or own any right, title or interest of any character whatever 
in said land, 

Defendants. 

PETITION FOR CONDEMNATION 

To the Honorable, the Presiding Judges of the 
United States District Court for the District 
of Hawaii: 

Now comes the United States of America, by 
Charles F. Rathbim and Robert S. Tamay, Special 
Assistants to the Attorney General, acting under 
the instructions of the Attorney General of the 
United States and at the request of the Secretary 
of Navy and respectfully represents to the Court: 

I. 

That this proceeding is instituted under the au- 
thority of divers and Sundry Acts of Congress, 
among them the following: 



372 United States of America vs. 

The Act of Congress approved March 27, 
1942 (Public Law 507 - 77th Congress) 

The Act of Congress approved June 26, 1943 
(Public Law 92 - 78th Congress) 

The Act of Congress approved June 22, 1944 
(Public Law 347 - 78th Congress) 

and that the Secretary of Navy, acting under au- 
thority vested in him by law has determined that 
it is necessary that the United States of America 
acquire by condemnation, by judicial process, cer- 
tain lands more particularly described [688] on Ex- 
hibits "A" and "A-1", hereto annexed and made 
parts hereof as though set forth at length and 
shown upon a map marked Exhibit ''B", also at- 
tached hereto. 

II. 

That the lands sought to be condemned are lo- 
cated at Moanalua, Honolulu, Oahu, Territory of 
Hawaii, and lie wholly within the jurisdiction of 
this Court. 

III. 

That the estate sought to be condemned in this 
action is the fee simple title, subject to the fol- 
lowing: 

(a) Existing public utility easements for power 
transmission lines in favor of the Hawaiian Elec- 
tric Company, Ltd., together with the right of in- 
gress and egress for the purposes of inspecting, 
maintaining and repairing said power lines for so 
long as the easements are used for such purposes 
and subject to such rules and regulations as are 



HonolaUi Plantation Co. 37o 

promulgated by the United States for the security 
of the Naval Reservation ; and 

(b) Reserving, however, unto John Waterhouse, 
Ernest Hay Wodehouse, Walter Francis Frear and 
John Edward Russell as Trustees under the Will 
and of the Estate of Samuel M. Damon, deceased, 
all existing fresh water mains and appurtenances 
thereunto belonging in their present location, to- 
gether with the right of ingress and egress for the 
purposes of inspecting, maintaining and repairing 
said water mains and appurtenances thereunto be- 
longing for so long as said mains and appurte- 
nances are used for such purposes and subject to 
such rules and regulations as are promulgated by 
the United States for the security of the Naval 
Reservation. 

Said lands are to be used for a security strip for 
the protection of Pearl Harbor and the Naval Res- 
ervation and for other Naval and military purposes. 

IV. 

That John Waterhouse, Ernest Hay Wodehouse, 
Walter Francis Frear and John Edward Russell, 
Trustees under the Will and of the Estate of Sam- 
uel M. Damon; Honolulu Plantation Company, an 
Hawaiian corporation; City and County of Hono- 
lulu; Territory of Hawaii, and all other persons, 
companies or corporations, either known or un- 
known, who claim to have or own any right, title 
or interest of any character whatever in said land, 
are made defendants herein. [689] 



374 United States of America vs. 

V. 

That the Secretary of Navy of the United States 
had determined that the utmost haste in expediting 
this project is vital to the War purposes of the 
United States and that he has, therefore, deter- 
mined that possession of said lands, to the extent 
of the interest to be acquired therein, is necessary 
by the United States and that certain and adequate 
provisions have been made for the payment of just 
compensation which may be adjudged due for the 
condemnation of the lands described and shown on 
Exhibits "A", ''A-1" and "B". 

That the petitioner has been in possession of 
Parcel D-13 from and since August 8, 1944. 

Wherefore, your petitioner prays this Honorable 
Court to take jurisdiction of this cause and enter 
all orders, judgments and decrees necessary to de- 
termine title of said real estate condemned, or any 
part thereof, and to fix and determine that the con- 
tinued possession of Parcel D-13 is necessary for 
the War and Naval purposes of the United States; 
that upon payment into the registry of this Court 
for the use of the persons entitled thereunto of the 
sum adjudged to be full compensation for the con- 
denmation of said land, that title to said land be 
vested in the United States of America in fee sim- 
ple, subject to the exceptions and reservations set 
forth in Paragraph III, and that the Court make 
distribution of the final awards among the persons 
entitled thereto as expeditiously as may be and for 



Honolulu Plantation Co. 375 

such other further relief as to the Court may seem 
just and i)roper in the premises. 

UNITED STATES OF 
AMERICA, 

By /s/ CHARLES F. RATHBUN, 
Special Assistant to the 
Attorney General. 

By /s/ ROBERT S: TARNAY, 
Special Assistant to the 
Attorney General. 

(Duly Veriiaed.) [690] 

EXHIBIT ''A" 

PARCEL D-13 

Being portions of Lots H and J of Land Court 
Application 1074, at Moanalua, Honolulu, Oahu, 
T. H. (also covered under Certificate of Title No. 
20,266). 

Beginning at the most Southerly corner of this 
parcel of land, being also the most Westerly cor- 
ner of Parcel D-6, the coordinates of said point of 
beginning referred to Govermnent Survey Trian- 
gulation Station ''Salt Lake" being 8298.51 feet 
South and 1945.23 feet West and thence running 
by azunuths measured clockwise from True South: 

1. 92° 50' 50"— 516.21 feet along the remainders 
of Lots H and J of Land Court Application 
1074, along Parcel D-3 ; 



376 United States of America vs. 

2. 103° 56—130.80 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-3; 

3. 123° 55' — 89.95 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-3; 

4. 138° 23—54.00 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-3; 

5. 153° 32' — 111.35 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-1; 

6. 176° 44'— 98.27 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-1; 

7. 194° 20'— 104.92 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-1; 

8. 211° 41'— 99.20 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-1; 

9. 191° 22'— 113.72 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-1; 

10. 161° 59'— 87.63 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-1; 

11. 172° 31'— 229.25 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-1; 

12. 191° 46'— 207.86 feet along the remainder of 



Honolulu Plantation Co. 377 

Lot J of Land Court A^jplication 1074, along 
Parcel D-1; 

13. 213° 00'— 170.45 feet along the remainder of 
Lot J of Land Court Apjjlication 1074, along 
Parcel D-1; 

14. 228° 56'— 75.00 feet along the remainder of 
Lot J of Land Court Apx^lication 1074, along 
Parcel D-1; 

15. 298° 06' 50"— 286.32 feet along the remainder 
of Lot J of Land Court Application 1074, along 
the Southwest side of Alternate Highway from 
Honolulu to Schofield (100 feet wide) ; 

16. Thence along the remainder of Lot J of Land 
Court Application 1074, along the Southwest 
side of Alternate Highway from Honolulu to 
Schofield (100 feet wide) on a curve to the left 
with a radius of 1958.89 feet, the direct azi- 
muth and distance being 283° 23' 20" 996.34 
feet; 

17. 21° 10'— 398.79 feet along Lot H of Land Court 
Application 1074, along Parcel D-6; 

18. 42° 51'— 283.80 feet along Lot H of Land Court 
Application 1074, along Parcel D-6 ; 

19. 41° 03'— 321.00 feet along Lot H of Land Court 
Application 1074, along Parcel D-6; 

20. 31° 59' 30"— 190.64 feet along the remainder 
of Lot H of Land Court Application 1074, 
along Parcel D-6 to the point of begimiing and 
containing an area of 29.165 acres. [693] 



378 United Stages of America vs. 

PARCEL D-14 

Being portions of Lots H and J of Land Court 
Application 1074, Situated at Moanalua, Honolulu, 
Oahu, T. H. (also covered under Certificate of Title 
No. 20,266). 

Beginning at the South corner of this parcel of 
land, being also the most Southeasterly corner of 
Lot G of Land Court Application 1074 and on the 
West side of Puuloa Road, the true azimuth tra- 
verse to a City and County Survey Street Monu- 
ment set at the intersection of Kamehameha High- 
way and Puuloa Road being as follows: 

(a) 61° 24' 01"— 336.82 feet; 

(b) 64° 09'— 190.74 feet and the co-ordinates 
of said City and County Survey Street Monu- 
ment referred to Government Survey Trian- 
gulation Station "Salt Lake" being 10,085.47 
feet South and 1487.34 feet East and thence 
rumiing by azimuths measured clockwise from 
True South from the above described initial 
point : 

1. 147° 00'— 485.39 feet along Lot G of Land 
Court Application 1074, along Parcel D-4; 

2. 95° 28'— 97.96 feet along Lot G of Land Court 
Application 1074, along Parcel D-4; 

3. 71° 39'— 171.50 feet along Lot G of Land Court 
Application 1074, along Parcel D-4; 

4. 93° 14'— 74.80 feet along Lot G of Land Court 
Application 1074, along Parcel D-4; 

5. 168° 26'— 337.76 feet along Lot G of Land 
Court Application 1074, along Parcel D-4; 



Honolulu Plantation Co. 379 

6. 189° 04'— 484.09 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-4; 

7. 276° 20' 40"— 88.06 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6; 

8. 200° 38' 30"— 385.00 feet along the remainder 
of Lot H of Land Court Application 1074, 
along Parcel D-6 to a spike; [694] 

9. 296° 48'— 136.72 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6 to a pipe; 

10. 325° 24' 30"— 125.58 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6 to a pipe; 

11. 357° 13'— 92.00 feet along the remai^ider of 
Lot H of Land Court Application 1074, along 
Parcel D-6 to a pipe ; 

12. 262° 01'— 110.23 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6 to a pipe; 

13. 315° 48' 30"— 216.24 feet along the remainder 
of Lot H of Land Court Application 1074, 
along Parcel D-6 to a pipe ; 

14. 30° 40' 30"— 87.71 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6 to a pipe; 

15. 10° 28'— 340.98 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6 to a pipe ; 

16. 279° 25' 30"— 149.31 feet along the remainder 



380 United States of America vs. 

of Lot H of Land Court Application 1074, 
along Parcel D-6 to a pipe; 
17. 251° 43' 30"— 180.37 feet along the remainder 
of Lot H of Land Court Application 1074, 
along Parcel D-6 to a pipe; 

18. 177° 25—231.17 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6 to a pipe; 

19. 165° 06' 30"— 137.92 feet along the remainder 
of Lot H of Land Court Application 1074, 
along Parcel D-6 to a pipe; 

20. 168° 28'— 213.58 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6 to a pipe; 

21. 173° 16' 30"— 85.08 feet along the remainder 
of Lot H of Land Court Application 1074, 
along Parcel D-6 to a pipe ; 

22. 91°06'— 87.69 feet along the remainder of Lot 
H of Land Court Application 1074, along Par- 
cel D-6 to a pipe; 

23. 73° 02' 30"— 117.89 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6 to a pipe; [695] 

24. 127° 00' 30"— 123.55 feet along the remainder 
of Lot H of Land Court Application 1074, 
along Parcel D-6 to a pipe; 

25. 146° 04'— 69.39 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6 to a pipe; 

26. 201° 06'— 163.70 feet along the remainder of 
Lot H of Land Court Application 1074, along 
Parcel D-6 to a pipe; 



Honolulu Plantation Co. 381 

27. 157° 22'— 230.59 feet along the remainder of 
Lot H of Land Court Ax)plication 1074, along 
Parcel D-6 to a pipe; 

28. 246° 25' 30"— 209.34 feet along the remainder 
of Lot H of Land Court Application 1074, 
along Parcel D-6 to a pipe; 

29. 313° 40' 30"— 222.30 feet along the remainder 
of Lot H of Land Court Application 1074, 
along Parcel D-6 to a pipe; 

30. 198° 46'— 290.80 feet along the remainders of 
Lots H and J of I^and Court Application 1074, 
along Parcel D-6 to a pipe; 

31. 164° IT— 97.50 feet along the remainder of 
l^ot J of Land Court Application 1074, along 
Parcel D-6 to a pipe; 

32. 195° 31' 30"— 55.92 feet along the rem.ainder 
of Lot J of Land Court Application 1074, along 
Parcel D-6 to a pipe; 

33. 255° 08' 30"— 57.98 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-6 to a pipe ; 

34. 282° 20'— 67.80 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-6 to a pipe ; 

35. 190° 49'— 257.90 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-6 to a pipe; 

36. 216° 56'— 142.30 feet alons^ the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-6 to a pipe; 

37. 226° 04' 30"— 153.24 feet aloncr the remainder 



382 United States of America vs. 

of Lot J of Land Court Application 1074, along 
Parcel D-6 to a pipe ; 

38. 115° 25'— 238.48 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-6 to a pipe; [696] 

39. 153° 34'— 223.39 feet along the remainder of 
Lot J of Land Court Application 1074, along 
Parcel D-6 to a nail driven in roek; 

40. 173° 50'— 21.62 feet along the remainder of Lot 
J of Land Court Application 1074, along Par- 
cel D-6; 

41. 259° 19'— 800.87 feet along the remainder of 
Lot J of Land Court Application 1074; 

42. 312° 21' 30"— 97.59 feet along the remainder 
of Lot J of Land Court Application 1074; 

43. 42° 21' 30"— 354.96 feet along the West side 
of Puuloa Road; 

44. Thence along the West side of Puuloa Road, 
on a curve to the left with a radius of 911.92 
feet, the direct azimuth and distance being 35° 
39' 25" 212.81 feet; 

45. 28° 57' 20"— 802.54 feet along the West side 
of Puuloa Road; 

46. Thence along the West side of Puuloa Road, on 
a curve to the left with a radius of 795.25 feet; 
the direct azimuth and distance being 14° 38' 
55" 394.04 feet; 

47. 00° 20' 30"— 864.65 feet along the West side 
of Puuloa Road; 

48. Thence along the West side of Puuloa Road, 
on a curve to the right with a radius of 1896.80 



Honolulu Plantation Co. 383 

feet, the direct azimuth and distance bcin^' 1'' 
39' 20" 86.98 feet; 
49. Still along the West side of Puuloa Road, on 
a curve to the right with a radius of 855.36 feet, 
the direct azimuth and distance being 26"^ 42' 
08" 712.68 feet to the point of beginning and 
containing an area of 34.560 Acres. 

[Endorsed] : Filed Jan. 18, 1945. [697] 



[Title of District Court and Cause No. 548.] 

DECLARATION OF TAKING 

Whereas, pursuant to the Acts of Congress ap- 
proved March 27, 1942 (Public Law 507, 77th Con- 
gress), June 26, 1943 (Public Law 92, 78th Con- 
gress), and June 22, 1944 (Public Law 347, 78th 
Congress), the above styled condemnation proceed- 
ing has been instituted. 

Now, Therefore, pursuant to the provisions of the 
Act of Congress apj^roved February 26, 1931 (46 
Stat. 1421), I, Secretary of the Navy, do hereby 
make and cause to be filed this declaration of tak- 
ing, and by virtue of authority thereof do hereby 
state that the lands selected for acquisition aggre- 
gate 63.725 acres, more or less. [699] at Moanalua, 
Honolulu, Oahu, Territory of Hawaii, more par- 
ticularly described in Exhibit "A" attached hereto 
and made a part hereof, and delineated as Parcels 
D-13 and D-14 on a map entitled, ''Composite 



384 United States of America vs. 

Boundary Map", designated as 14tli N. D. Owg. 
No. OA-Nl-942, attached hereto as Exhibit "B" 
and made a part hereof. 

And I do declare said lands to be taken under 
the authority of the aforesaid Acts of Congress; 
that the use to which said lands are to be put is 
for a security strip for the protection of Pearl 
Harbor and the Naval Reservation and for other 
Naval and military purposes, as authorized by said 
Acts. 

I do further declare that the estate hereby t iken 
in said lands, together with all improvements and 
appurtenances thereto belonging, for the public use 
aforesaid, is title in fee simple, subject to the fol- 
lowing : 

(a) Existing public utility easements for power 
transmission lines in favor of the Hawaiian Elec- 
tric Company, Ltd., together with the right of in- 
gress and egress for the purposes of inspection, 
maintaining and repairing said power lines for so 
long as the easements are used for such purp^>ses; 
and 

(b) The reservation unto John Waterhouse, 
Ernest Hay Wodehouse, Walter Francis Frear and 
John Edward Russell as Trustees under the Will 
and of the Estate of Samuel M. Damon, deceased, 
of all existing fresh water mains and apinirten- 
ances thereunto belonging in their present location, 
together with the rights of ingress and egress for 
the purposes of inspecting, maintaining and repair- 



Honolulu Plantation Co. 385 

ing said water mains and apijurtenances tbejreunto 
belonging for so long as said mains and aijpurten- 
ances are needed and used; and [700] 

(c) An easement hereby reserved unto the fee 
owners, John Waterhouse, Ernest Hav Wodehouse, 
Walter Francis Frear and John Edward Russell, 
as IVustees under the Will and of the Estate of 
Samuel M. J)amon, deceased, their successors iu 
trust, assigns, and permittees, for the erection, 
maintenance and operation of spheroidal gas stor- 
age tanks, over and upon that certain area of Par- 
cel D-14, comprising 1.245 acres, described in Ex- 
hibit '"A" and delineated upon Exhibit ''B'' as 
Easement No. 1, all for so long only as said area 
is used for such purposes, together with the right 
of ingress and egress thereto for the purpose of 
said easement, at such place and at such times as 
the Secretary of the Navy, or his duly authorized 
representative, shall specify. Said reservation is 
hereby made subject, however, to the restriction 
that no structure erected on said site shall exceed 
the height of 75 feet above the ground level. 

And I, Secretary of the Navy, do hereby state 
that the smn of money estimated by me to be just 
compensation for said lands and all improvements 
thereon and appurtenances thereunto belonging, is 
Twenty Thousand Two Hmidred and Thirty Dol- 
lars ($20,230.00), which sum is hereby deposited 
into the registry of the court for the use and bene- 
fit of the persons entitled thereto. 

The ostensible owaiers of the property are John 
Waterhouse, Ernest Hay Wodehouse, Walter Fran- 



386 United States of America vs. 

cis Frear and John Edward Russell, Trustees un- 
der the Will and of the Estate of Samuel M. 
Damon, deceased. [701] 

I am of the opinion that the ultimate award for 
the taking of said lands will be within the limits 
prescribed by Congress. 

In Witness Whereof, the petitioner, by and 
through the Secretary of the Navy, has caused this 
declaration of taking to be signed this 25th day 
of September, 1945, in the City of Washington, 
District of Columbia. 

UNITED STATES 
OF AMERICA, 

By /s/ JAMES FORRESTAL. [702] 

[Printer's Note] : Exhibit "A" is the same as 
Exhibit ''A" set out at pages 375-383 except 
second line of paragraph 49, page 383, reads: 

^ '^a curve to the right with a radius of 885.36 

' feet." 

EASEMENT 1 

Beginning at the South corner of this parcel of 
land, being also the South corner of Lot J and the 
East corner of Lot H, on the Northwesterly side of 
Puuloa Road of Land Court Application 1074 and 
thence running by azimuths measured clockwise 
from True South: 

1. 115° 30'— 174.23 feet along Lot H; 

2. 198° 46'— 36.63 feet along the remainder of 
Lot J; 

3. 164° 17'— 97.50 feet along the remainder of Lot 

J; 



Honolulu Plantation Co. 387 

4. 195° 31' 30"— 55.92 f'cot alon- flic remainder 
of Lot J; 

5. 255° 08' 30"— 57.98 feet along the remainde?' (jf 
Lot J; 

6. 282° 20'— ()7.80 feet alon- the rernaindei- ut: 
Lot J; 

7. 190° 49'— 43.34 feet along the remainder of Lot 
J; 

8. 298° 57' 20"— 168.63 feet along the remainder 
of Lot J; 

9. 28° 57' 20"— 250.00 feet along Puuloa Road to 
the point of beginning and containing an area 
of 1.245 Acres. 

[Endorsed] : Filed Nov. 1, 1945. [709] 



[Title of District Court and Cause No. 548.] 

MOTION OF ORDER AMENDING PETITION 
IN CONDEMNATION 

Now comes the Petitioner, United States of 
America, by its attorney, Charles F. Rathbun, Spe- 
cial Assistant to the Attorney General, and moves 
that this Court enter an Order Amending the Peti- 
tion in Condemnation herein by adding to Exhibits 
"A" and ''A-1", attached to the Petition m Con- 
demnation herein, the following. 

''EASEMENT 1 

Beginning at the South corner of this parcel of 
land, being also the South corner of Lot J and the 
East corner of Lot H, on the Northwesterly side 



388 United States of America vs. ■ 

i 
of Puiiloa Road of Land Court Application 1074 

and thence running by azimuths measured clock- j 

wise from True South: ; 

1. 115° 30—174.23 feet along Lot H; j 

2. 198° 46'— 36.63 feet along the remainder of Lot i 

J; I 

3. 164° 17'— 97.50 feet along the remainder of Lot j 

J; \ 

4. 195° 31' 30"— 55.92 feet along the remainder of : 
Lot J; [711] ■ 

5. 255° 08' 30"— 57.98 feet along the remainder of i 
Lot J; ! 

6. 282° 20'— 67.80 feet along the remainder of Lot j 

J; i 

7. 190° 49'— 43.34 feet along the remainder of Lot j 

J; ■ I 

8. 298° 57' 20"— 168.63 feet along the remai.^ider ' 
of Lot J; i 

9. 28° 57' 20"— 250.00 feet along Puuloa Road I 
to the point of beginning and containing an ' 
area of 1.245 Acres." 1 

and by striking from said Petition Exhibit "B" i 

attached to said Petition, and substituting there- j 

fore and making a part of said Petition Exhibit \ 

''C'-, hereto attached and made a part of this \ 

Motion, and by striking from said Petition iv. Con- i 

demnation all of Paragraph Til and substituting j 

therefore a new Paragraph III as a part of said i 

Petition as follows: j 

*^That the estate sought to be condemned in said i 
lands, together with all improvements and gppur- '■ 



Honolulu Plantatioii, Co. 389 

tenances thereto belonging-, is title in fee f«iini)le, 
snbject to the following: 

(a) Existing public utility easements for j)o\ver 
transmission lines in favor of the Hawaiian p]lec- 
tric Company, Ltd., together with the right of in- 
gress and egress for the purposes of inspection, 
maintaining and repairing said power lines for so 
iong as the easements are used for such jjurposes; 
and 

(b) The reservation unto John Waterhoust, Er- 
nest Hay Wodehouse, Walter Francis Fre?j' and 
John Edward Russell as Trustees under the Will 
and of the Estate of Samuel M. Damon, deceased, 
of all existing fresh water mains and appurten- 
ances thereunto belonging in their present location, 
together with the right of ingress and egress for 
the purposes of inspecting, maintaining and repair- 
ing said water mains and appurtenances thereunto 
belonging for so long as said mains and appurten- 
ances are needed and used; and [712] 

(c) An easement hereby reserved unto the fee 
owners, John Waterhouse, Ernest Hay Wodehouse, 
Walter Francis Frear and John Edward Russell, 
as Trustees under the Will and of the Estate of 
Samuel M. Damon, deceased, their successors in 
trust, assigns, and permittees, for the erection, 
maintenance and operation of spheroidal gas stor- 
age tanks, over and upon that certain area of Par- 
cel D-14, comprising 1.245 acres, described in Ex- 
hibit ''i\.'' and delineated upon Exhibit "B'' as 
Easement No. 1, all for so long only as said area 
is used for such purposes, together with the right 



390 United States of America vs. 

of ingress and egress thereto for the purpose of 
said easement, at such place and at such times as 
the Secretary of the Xavy, or his duly authorized 
representative, shall specify. Said I'eservation is 
Lereby made subject, however, to the restriction 
':hat no structure erected on said site shall exceed 
the height of 75 feet above the ground level." 

Petitioner states that it is necessary that the 
J^etition herein be amended to more accurately de- 
fine the estate being taken. 

Dated Honolulu, T. H., this 1st day of Novem- 
ber. 1945. 

UNITED STATES 
OF AMERICA, 

(Seal) By /s/ CHxiRLES F. RATHBTJN, 

Special Asst to the Atty (ien. 

[Endorsed] : Filed Nov. 1, 1945. [713] 



[Title of District Court and Cause No. 548.1 

ORDER AMENDING PETITION 
IN CONDEMNATION 

This matter coming on to be heard on the Mo- 
i";on of the Petitioner herein to amend the Petition 
in Condemnation in the above cause, and it appear- 
'niz' that it is necessary to more accurately define 
ihe estate being taken in the land described in said 
Petition, 

It Is Ordered: 

That the Petition in Condemnation be amended 
by adding to Exhibits ^'A" and "A-1", attached 



Honolulu Plantation Go. 391 

to the retition in Coiideinnation herein, the follow- 
ing: 

'^ EASEMENT 1 

Beginning- at the South corner of this parcel of 
land, being also the South corner of Lot J and the 
East corner of Lot H, on the Northwesterly side 
of Puuloa Road of Land Court Application 1074 
and thence running by azimuths measured clock- 
wise from True South: 

1. 115^ 30—174.23 feet along Lot H; 

2. 198^ 46' — 36.63 feet along the remainder of Lot 

J; 

3. 164" 17—97.50 feet along the remainder of Lot 

J; 

4. 195^ 31' 30"— 55.92 feet along the remainder of 
Lot J; 

5. 255° 08' 30"— 57.98 feet along the remainder of 
Lot J; [715] 

6. 282° 20'— 67.80 feet along the remainder of Lot 

J; 

7. 190^' 49'— 43.34 feet along the remainder of Lot 

8. 298" 57' 20"— 168.63 feet along the remainder 
of Lot J; 

9. 28° 57' 20"— 250.00 feet along Puuloa Road to 
the point of beginning and containing an area 
of 1.245 Acres.'' 

and by striking from said Petition Exhibit "B" 
attached to said Petition, and substituting there- 
fore and making a part of said Petition Exhibit 



392 United States of America vs. '\ 

*'0'', attached to the Motion this day filed herein, | 

.-isking for an Order Amending Petition in Con- | 

denmation, and by striking from said Petition in ] 

Condemnation all of Paragraph III and substitut- ] 

jng therefore a new ParagTaph III as a part of j 

said Petition as follows: ! 

•'That the estate sought to be condemned in said j 

] finds, together mth all improvements and appur- , 

lenances thereto belonging, is title in fee smiple, | 

fmbject to the following: j 

(a) Existing public utility easements for power \ 
transmission lines in favor of the Hawaiian Elec- ; 
t'ic Co., Ltd., together with the right of ingress ! 
and egress for the purposes of inspection, main- i 
taining and repairing said power lines for s( long \ 
as the easements are used for such purposes; and i 

(b) The reservation unto John Waterhouse, Er- j 
n<='st Hay Wodehouse, Walter Francis Frear and j 
John Edward Russell as Trustees under the Will ■ 
and of the Estate of Samuel M. Damon, deceased, i 
uf all existing fresh water mains and appurten- I 
t iices thereunto belonging in their present location, i 
together with the right of ingress and egress for i 
the purposes of inspecting, maintaining and lepair- | 
ii:"' said water mains and appurtenances thereimto ] 
belonging for so long as said mains and appurten- : 

aiices are needed and used; and [716] i 

i 

(c) ^n easement hereby reserved unto the fee ! 
owners, John Waterhouse, Ernest Hav WodeJmuse, , 
Walter Francis Frear and John Edward Ru^^sell, ' 
as Trustees under the Will and of the Estate of ; 
Samuel M. Damon, deceased, their successors in ; 



Honolulu Plantation Co. 3f)3 

^Tust, assigns, and permittees, for the ereetion. 
maintenance and operation of spheroidal s^as stor- 
age tanks, over and upon that certain area of Par- 
cel I)- 14, comprising 1.245 acres, described in Ex- 
hibit '"A" and delineated upon Exhibit *'B ' as 
Easement No. 1, all for so long only as said area 
IS used for such purposes, together with the right 
of ingress and egress thereto for the purpr^^e of 
said easement, at such place aud at such times as 
the Secretary of the Navy, or his duly authorized 
Tepresentativo, shall specify. Said reservati(»n is 
hereby made subject, however, to the restriction 
tliat no structure erected on said site shall exceed 
the hei2:ht of 75 feet above the ground level." 

Dated Honolulu, T. H., this 1 st day of November, 
1945. 

(Seal) /s/ D. E. METZGER, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Nov. 1, 1945. [7171 



394 United States of America vs. 

In the District Court of the United States 
For the District of Hawaii 

October Term, 1945 

Civil No. 548 

UNITED STATES OF AMERICA, 

Petitioner, 

vs. 

63.725 ACRES OF LAND, more or less, situate at 
Moanalua, Honolulu, Oahu, Territory of Ha- 
waii; John Waterhouse, Ernest Hay Wode- 
house, Walter Francis Frear and John Edward 
Russell, Trustees under the Will and of the 
Estate of Samuel M. Damon; et al.. 

Defendants. 

ORDER AND JUDGMENT ON 
DECLARATION OF TAKING 

It appearing that on January 18, 1945, the 
United States of America filed a Petition for Con- 
den mation of certain lands described and shown in 
said Petition herein as amended; and 

It further appearing that there was filed herein, 
on the 1st day of November, 1945, a Declaration of 
Taking signed by James Forrestal, Secretarv of 
th<- Navy, imder and pursuant to the proAdsinris of 
the Act of Congress approved March 27, 1942 (Pub- 
lic- Law 507, 77th Congress), the Act of Congress 
ap]»rovvd June 26, 394.3 (Public Law 92, 78th Con- 
gress), the Act of Congress approved June 22, 1944 
(Public Law 347, 78th Congress) and the Aft of 



Honolulu Plantation Co. 395 

Oongrobs appioNed Februaiy 26, 1931 (4H Stat. 
1421), declaring taken tlie estates and interests a.s 
set forth in said Declaration of '^Faking and as 
shown on Exhibits ''A" and "B" attached to «aid 
Declaration of Taking; that the public uses for 
said lands are those described in said Declaration 
of Taking; and that the said Declaration of Taking 
sets forth the estimate of just compensation made 
pursuant to law and tliat contemporaneously with 
the filing of said Declaration of Taking there was 
deposited in the registry [718] of this Court for 
the use and benefit of the persons entitled thereto 
the sum of Twenty Thousand Two Hundred Tnirty 
.',nd NoaOO Dollars ($20,230.00). 

It Is Ordered, Adjudged and Decreed thai by 
virtue of the filing of said Declaration of Taking 
and the deposit of said money, title to the estates 
and interests in said lands thus shown on Exhibits 
"A'' and "B", attached to said DeclaratioM of 
Taking, be and the same is hereby indefeasibly 
vested in the United States of America, subje'^-t to 
the conditions and reservations set forth iv said 
Declaration of Taking and described and delinf\'\ted 
01. Exhibits ''A" and ''B" attached to said Declar- 
ation of Taking. 

It Is Further Ordered that a copy of this Order 
be promptly served by the Uriited States Marshal 
upon each of the defendants in this cause having 
an interest in this proceeding. The Marshal is fur- 
ther ordered to post a copy hereof in a conspicuous 



396 United States of America vs. 

p]ace on the premises and to forthwith make due 
return of his said service to this Court. 

Bated Honolulu, T. H., this 1st day of November, 
1945. 

(Seal) /s/ D. E. METZGER, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Nov. 1, 1945. [719] 



Honolulu Plantation Co. 397 

Til flic District Court of tlie Unitod States 
f'oT' the District of Hawaii 

October 'rcrm 1945 

Civil No. 684 

UNIT^ED STATES OF AMERICA, 

Petitioner, 
vs. 

29.891 ACRES OF LAND, more or less, in Moana- 
lua and Halawa, Ewa, Oahu, Territory of 
Hawaii, Ernest Hay AVodehouse, Walter Francis 
Frear and John Edward Russell, Trustees under 
the Will and of the Estate of Samuel M. Damon, 
deceased, et al.. 

Defendants. 

PETITION FOR CONDEMNATION 

To the Honorable, the Presiding- Judsces of the 
United States District Court for the District of 
Hawaii : 

Now comes the Petitioner, the United States of 
America, by Charles F. Rathbun, Special Assistant 
to the Attorney General, acting under the instruc- 
tions of the Attornel General of the United States 
and at the request of the Secretary of the Navy 
of the United States and respectfully represents 
to the Court: 

I. 

That this proceeding is instituted under the au- 
thority of divers and sundry Acts of Conoress, 
among them the following: 



398 United States of America vs. 

The Act of Congress approved March 27, 
1942 (Public Law 507— 77th Congress) as 
amended by 

The Act of Congress approved December 20, 
1944 (Public Law 509— 78th Congress) 

The Act of Congress approved February 7, 
1942 (Public Law 441 — 77th Congress) and 

The Act of Congress approved February 26, 
1931 (46 Stat. 1421) [720] 

and that the Secretary of the Navy, acting under 
authority vested in him by law, has determined 
that it is necessary that the L^nited States of 
America acquire by condemnation, by judicial proc- 
ess, certain lands more particularly described in 
Exhibit "A" hereto annexed and made a part 
hereof as though set forth at length and shown 
upon maps marked Exhibits ^^B" and ''C" also 
attached hereto and made a part hereof. 

II. 

That the lands sought to be condemned are lo- 
cated in Moanalua and Halawa, Ewa, Oahu, Terri- 
tory of Hawaii, and lie wholly within the jurisdic- 
tion of this Court. 

III. 

That the estate sought to be condemned in this 
action together with all improvements (except such 
as are attached to the easements and reservations 
hereinafter set forth) and appurtenances thereto 
belonging, is title in fee simple, subject, however, 
to: 

1. ''As to Parcel D-15, the existing right of 



Honolulu Plantation Co. 399 

iho Hawaiian Electric Company, Limited, its suc- 
cessors and assigns, to operate, maintain and repair 
electric power transmission })oles and wire lines, 
together with the right of ingress and egress for 
such purposes, over the right of way, the center- 
line of which over Parcel D-15 is indicated on 
Exhibit ^'B" attached hereto, as follows: ''Center- 
line of Haw'n Electric Co.'s relocated pole line, 
installed May 26, 1944"; said right having been 
acquired by the said Hawaiian Electric Company, 
Limited, from the Trustees of the Estate of Samuel 
M. Damon, Deceased, by instrument dated 27 A})ri1 
1945 and filed in the Office of the Assistant Regis- 
trar, Land Court Territory of Hawaii (Bureau of 
Conveyances) on 18 May 1945 as Document N'o. 
78619 and noted on Certificate of Title No. 20,266. 

2. As to Parcel D-15, the right hereby reserved 
unto Ernest Hay Wodehouse, Walter Francis 
Frear and John Edward Russell, Trustees under 
the Will and of the Estate of Samuel M. Damon, 
deceased, their successors in trust, assigns and per- 
mittees to use said land for roadway purposes, 
jointly with the United States of America, subject 
to the authority of the Secretary of the Navy and 
jiis duly authorized representatives to promulgate 
and enforce such rules and regulations relating to 
file exercise of such right that may be required for 
Naval security purposes. 

3. The right hereby reserved unto; 

(1) George Miles Collins. John Kirkwood 
Clarke, Frank Midkiff, Edwin Pauhaulani Mur- 
3'ay, and Joseph Boyd Poindexter, as Trustees un- 



400 United States of America vs. 

der the Will and of the Estate of Bernice P. 
Bishop, Deceased, their successors in trust, assigns, 
and permittees, as to Parcel A; and [721] 

(2) Charles M. Hite, Trustee under the Will 
and of the Estate of Emma Kaleleonalani, his suc- 
cessors in trust, assigns and permittees, as to Par- 
cels B and E; and 

subject to existing leasehold rights of Honolulu 
Plantation Company, to cross and recross said 
above described parcels by way of foot, vehicles or 
l^ortable plantation railroad tracks, for so long only 
as said parties or their assigns other than the 
United States of America are fee owners of lands 
abutting on said parcels. 

4. An easement hereby reserved unto the fee 
owner, Charles M. Hite, Trustee under the Will 
and of the Estate of Emma Kaleleonarani, his suc- 
cessors in trust, assigns, and permittees, subject to 
the existing leasehold rights of Honolulu Plantation 
Company, for railroad tracks and facilities over Par- 
cel B, over and along the right of way described and 
shown as easement 1 in Exhibits ^'A'^ and '"C", 
attached hereto and made a part hereof, for so long 
only as said right of way is used for said purposes." 
and said lands are to be used for the establishment 
of a military road from Camp Catlin to Aiea Bar- 
racks, and for other naval purposes. 

IV. 

That Ernest Hay Wodehouse, Walter Francis 
Frear and John Edward Russell, Trustees under 
the Will and of the Estate of Samuel M. Damon, 
deceased; George Miles Collins, John Kirkwood 



Honolulu Plantation Co. 401 

Clarke, Frank Midkiff, Edwin Pauhaulani Murray 
and Joseph Boyd Poindexter, Trustees under tlie 
Will and of the Estate of Bernice P. Bishop, de- 
ceased; Charles M. Hite, Trustee of Emma Kale- 
Iconalani Estate; The Hawaiian Electric Company, 
Limited; Honolulu Plantation Company; City and 
County of Honolulu; Territory of Hawaii, and all 
other persons, companies or corporations, either 
known or unknown, who claim, to have or own any 
I'idit, title or interest of any character what^ncr 
in said lands are made defendants herein. 

AVherefore, your petitioner prays this Honorable 
Court to take jurisdiction of this cause and enter 
all orders, judgments and decrees necessary to 
determine title of said real estate condemned, oi* 
any part thereof; that upon payment into the 
registry of this Court for the uses of the persons 
entitled thereto of the sum adjudged to be full 
compensation for the condemnation of said land, 
that title of said land be vested in the United States 
of America in fee simple, subject to the exceptions 
herein set forth, and that the Court make distribu- 
tion of the final awards among the [722] persons 
entitled thereto as expeditiously as may be and for 
such other relief as to the Court may seem just 
and proper in the premises. 

UNITED STATES OF 
AJVIERICA, 

By /s/ CHARLES F. RATHBUN, 
Special Assistant to the 
Attorney General. 

(Duly Verified.) [723] 



402 United States of America vs, 

EXHIBIT A 

PARCEL A 

Being a portion of R. P. 6717, L.C.Aw, 7712 and 
8516 B to M. Kekuanaoa and Kanaikui at Halawa, 
Ewa, Oahu, T. H. Being* a portion of Military 
Road from Aiea to Catlin (100 feet wide). 

Beginning at the South corner of this strip of 
land, on the boundary of Lot 1-A of Land Court 
Application 966, the co-ordinates of said point of 
beginning referred to Government Survey Trian- 
gulation Station ''Salt Lake" being 1370.44 feet 
North and 7404.36 feet West, and thence running 
by azimuths measured clockwise from True South: 

1. 160° 27'— 1515.96 feet along the remainder of 
R. P. 6717, L.C.Aw. 7712 and 8516 B to M. Kek- 
uanaoa and Kanaikui; 

2. 185° 03' 30"— 46.56 feet along the remainder 
of R.P. 6717, L.CAw. 7712 and 8516 B to M. 
Kekuanaoa and Kanaikui, along United States 
Navy Reservation (Civil 535) ; 

3. 219° 42'— 93.79 feet along the remainder of 
R.P. 6717, L.C.Aw. 7712 and 8516 B to M. 
Kekuanaoa and Kenaikui, along United States 
Navy Reservation (Civil 535) ; 

4. 340° 27'— 1392.56 feet along the temainder of 
R.P. 6717, L.C. Aw. 7712 and 8516 B to M. 
Kekuanaoa and Kanaikui, to the boundary of 
Lot 1-A of Land Court Application 966; 

5. 357° 25'— 56.30 feet along Lot 1-A of Land 
Court Application 966, along United States 
Navy Parcel B; 



Honolulu Plantation Co. 403 

6. 345° 10'— 168.00 feet along T.ot 1-A of Land 
Court Application 966, along United States 
Navy Parcel B ; 

7. 76° 40—70.16 feet along Lot 1-A of T/md 
Court Application 966, along United States 
Navy Parcel B to the point of beginning and 
containing an area of 3.523 Acres. [724] 

PARCEL B 

Being a portion of Lot 1-A of Land Court Appli- 
cation 966 at Halawa, Ewa, Oahu, T. H. Being a 
portion of Military Road from Aiea to Catlin (100 
feet wide). 

Beginning at the South corner of this strip of 
land, being also the West corner of United States 
Navy Parcel D, the co-ordinates of said point of 
beginning referred to Government Survey Tri an- 
gulation Station ''Salt Lake" being 1826.79 feet 
South and 6428.27 feet West and thence running 
by azimuths measured clockwise from True South: 

1. 165° 54' 50"— 2012.68 feet along the remaifider 
of Lot 1-A of Land Court Application 966: 

2. Thence along the remainder of Lot 1-A of 
Land Court Application 966, on a curve to the 
left with a radius of 2814.93 feet, the direct 
azimuth and distance being 160° 29' 20" 532.26 
feet: 

3. 155° 03' 50"— 174.72 feet along the remainder 
of Lot 1-A of Land Court Application 966: 

4. Thence along the remainder of Lot 1-A of Land 
Court Application 966 on a curve to the right 



404 United States of America vs. 

with a radius of 5779.65 feet, the direct azi- 
muth and distance being 157° 45' 25" 543.12 
feet; 

5. 160° 27'— 87.27 feet along the remainder of 
Lot 1-A of Land Court Application 966; 

6. 256° 40'— 70.16 feet along R. P. 6717, L.C. Aw. 
7712 and 8516 B to M. Kekuanaoa and Kanai- 
kui, along United States Navy Parcel A; 

7. 165° 10'— 168.00 feet along R. P. 6717, L.C. 
Aw. 7712 and 8516 B to M. Kekuanaoa and 
Kanaikui, along United States Navy Parcel A ; 

8. 177° 25'— 56.30 feet along R. P. 6717, L.C. 
Aw. 7712 and 8516 B to M. Kekuanaoa and 
Kanaikui, along United States Navy Parcel A ; 

9. 340° 27'— 300.95 feet along the remainder of 
Lot 1-A of Land Court Application 966; 

10. Thence along the remainder of Lot 1-A of 
Land Court Application 966, on a curve to the 
left with a radius of 5679.65 feet, the direct 
azimuth and distance being 337° 45' 25" 533.72 
feet; 

11. 335° 03' 50"— 174.72 feet along the remainder 
of Lot 1-A of Land Court Application 966; 

12. Thence along the remainder of Lot 1-A of 
Land Court Application 966, on a curve to the 
right with a radius of 2914.93 feet, the direct 
azimuth and distance being 339° 36' 30" 461.91 
feet ; 

33. 354° 50' 30"— 28.24 feet along Exclusion 5 of 
Land Court Application 966, along United 
States Navy Parcel C; 

14. 264° 05' 30"— 5.19 feet along Exclusion 5 of 



Honolulu Plantation Co. 405 

Laud Court Applicatiou 966, aloug United 
States Navy Parcel C ; 

15. Tlience alon^- tJie remainder of T^ot 1-A of 
Land Court Application 966, on a curve to the 
right with a radius of 2914.93 feet, the direct 
azimuth and distance beins: 345° 18' 53.5" 60.95 
feet; 

16. 345° 54' 50"— 2001.84 feet along the remainder 
of Lot 1-A of Land Court Application 966; 

17. 69° 43' 30"— 100.59 feet along Exclusion 9 of 
Land Court Application 966, along United 
States Navy Parcel D to the i)oint of begin- 
ning and containing an area of 7.778 Acres. 

Subject, However, to Easement I 

PARCEL E 

Being a portion of Lot 1-A of Land Court Ap- 
7)lication 966 at Halawa, Ewa, Oahu, T. H. Being 
V portion of Military Road from Aiea to Catlin 
(100 feet wide). 

Beginning at the South corner of this strip of 
h\nd, being also the West corner of United States 
Navy Parcel D-15, and on the Westerly boundary 
of the Lands of Moanalua (Land Court Applica- 
tion 1074) and Halawa (Land Court Application 
966), the co-ordinates of said point of beginning 
referred to Government Survey Triangulation Sta- 
tion ''Salt Lake'' being 2625.32 feet South and 
6227.90 feet West and thence running by azimuths 
measured clockwise from True South: 

1. 165° 54' 50"— 742.71 feet along United States 



406 United States of America vs. 

Navy Parcel E-1, along the remainder of Lot 
1-A of Land Court Application 966; [726] 

2. 249° 58'— 100.54 feet along Exclusion 9 of Land 
Court Application 966, along United States 
Na^y Parcel D; 

3. 345° 54' 50"— 697.85 feet along the remainder 
of Lot 1-A of Land Court Application 966; 

4. 46° 59'— 114.26 feet along the Westerly bound- 
ary of the Land of Moanalua (Land Court Ap- 
plication 1074), along United States Navy Par- 
cel D-15 to the point of beginning and contain- 
ing an area of 1.654 Acres. [727] 

EASEMENT 1 

(Railroad Right-of-Way, 40 feet wide) 

Over, along, upon and across a portion of United 
States Navy Parcel "B" (Military Road from Aiea 
to Catlin, 100 feet wide) at Halawa, Ewa, Oahu, 
T. H. Being a portion of Lot 1-A of Land Court 
Application 966. 

Beginning at the South corner of this strip of 
land, the true azimuth and distance from the South 
corner of United States Navy Parcel ''B" (Mili- 
tary Road from Aiea to Catlin, 100 feet wide^ 
being 165° 54' 50" 1084.65 feet, and the co-ordinates 
of said point of beginning referred to Govermnent 
Survey Triangulation Station ''Salt Lake" being- 
774.76 feet South and 6692.25 feet West and thence 
running by azimuths measured clockwise from 
True South: 



Honolulti Plantation Co. 407 

1. lf)5° 54' 50"— 45.15 feet along the romaindev 
of* Lot 1-A of Land Court Application 966; 

2. 228° 17'— 112.86 feet along the remainder of 
Lot 1-A of Land Court Application 966; along 
the remainder of United States Navy Parcel 

.*]. '?45° 54' 50" — 45. L5 feet along the remainder 
of Lot 1-A of Land Court Application 966; 

4. 48° 17'— 112.86 feet along the remainder of 
Lot 1-A of Land Court Application 966, alone: 
the remainder of United States Navy Parcel 
'^B", to the point of beginning and containing 
an area of 4514 square feet. [728] 

PARCEL D-15 

Being portions of Lots E. F and J of Land Court 
Application 1074 at Moanalua, Oahu, T. H. Beinir 
a portion of Alternate Highway from Honolulu to 
Schofield (100 feet wide). 

Beginning at a point on the Westerly boundary 
of the lands of Moanalua (Land Court Application 
1074) and Halawa (Land Court Application 966) 
and the co-ordinates of said point of beginning re- 
feiTcd to Government Survey Triangulation Sta- 
tion ''Salt Lake" being 2625.32 feet South and 
6227.90 feet West and thence running by azimuths 
measured clockwise from True South: 

1. 226° 59'— 114.26 feet along Lot 1-A of I,and 
Court Application 966; 

2. :U5° 54' 50"— 1739.58 feet along the remain- 



408 United States of America vs. 

ders of Lots J and F of Land Court Applica- 
tion 1074; 

3. Thence along the remainder of Lot J of Land 
Court Application 1074, on a curve to the left 
with a radius of 1860.08 feet, the direct azi- 
muth and distance being 336° 54' 50"— 581.96 
feet; 

4. 327° 54' 50"— 550.90 feet along the remainders 
of Lots J and E of Land Court Application 
1074; 

5. Thence along the remainder of Lot J of Land 
Court Application 1074, on a curve to the left 
with a radius of 1096.28 feet, the direct azi- 
muth and distance being 313° 00' 50" 563.78 
feet ; 

6. 298° 06' 50"— 2915.15 feet along the remainder 
of Lot J of Land Court Application 1074; 

7. Tlience along the remainder of Lot J of T^and 
Court Application 1074, on a curve to the left 
with a radius of 1859.89 feet, the direct azi- 
muth and distance being 282° 41' 07" 989.60 
feet; 

8. 27° 05'— 35.85 feet along Lot H of Land Court 
Application 1074, along Parcel D-6 ; 

9. 21° 10'— 74.71 feet along Lot H of Land Court 
Application 1074, along Parcel D-6 ; 

10. Thence along the remainder of Lot J of Land 
Court Application 1074, along Parcel D-13, on 
a curve to the right with a radius of 1959.89 
feet, the direct azimuth and distance being 
103° 23' 30" 996.34 feet; 

11. 118° 06' 50"— 2915.15 feet along the remainder 



Honolulu Plant at I on Co. 409 

of Lot J of Land Coiu't Ai)j)licatiori 1074, alon^ 
Parcol D-13 and Parcel D-1 ; [729] 

12. Tliencc along- the remainders of Lots J and E 
of Land Court Application 1074, along Pai'cel 
D-1, on a curve to the right with a radius of 
1196.28 feet, the direct azimuth and distance be- 
ing 133° 00' 50" 615.20 feet; 

13. 147° 54' 50"— 550.90 feet along the remainders 
of Lots J and E of Land Court Application 
1074, along Parcel D-1; 

14. Thence along the remainder of Lot J of Land 
Court Application 1074, along Parcel D-1, on 
a curve to the right with a radius of 1960.08 
feet, the direct azimuth and distance being 
156° 54' 50" 613.25 feet; 

15. 165° 54' 50"— 1684.31 feet along the remain- 
ders of Lots J and F of Land Court Applica- 
tion 1074, along Parcel D-1, to the point of 
beginning and containing an area of 16.936 
Acres. 

[Endorsed] : Filed Dec. 6, 1945. [730] 



[Title of District Court and Cause No. 684.] 

DECLARATION OF TAKING 

Whereas, pursuant to the Acts of Congress aj)- 
proved March 27, 1942 (Public Law 507, 77th Con- 
gress), as amended Iw the Act of Congress ajv 
l^roved December 20, 1944 (Public Law 509, 78th 
Congress), and February 7, 1942 (Public Law 441, 
77th Congress), the above styled condemnation pro- 
ceeding has been instituted. 



410 United States of America vs. [ 

I 
Now, therefore, pursuant to the provisions of ■ 

tlie Act of Congress approved February 26, 1931 

(46 Stat. 1421), I, Secretary of the Naw, do hereby ] 

make and cause to be filed this declaration of tak- ; 

ing, and by virtue of authority thereof [733] do ■ 

hereby state that the lands selected for acquisition ; 

aggregate 29.891 acres, more or less, at Moanalua j 

itud Halawa, Ewa, Oahu, Territory of Hawaii. ; 

more particularly described in Exhibit ''A" at- ; 

lached hereto and made a part hereof, and deline- i 

ated as Parcel D-15 on a map entitled ''Composite ' 

Boundary Map", designated as 14th N.D. Dwg. | 

No. OA-Nl-942, and Parcels A, B, and E on a map 

entitled "Military Road Aiea to Catlin Portion 

through Halawa, Ewa, Oahu, T. H.", designated 

as 14th N.D. Dwg. No. OA-Nl-1223, attached hereto 

as Exhibits "B" and "C" and made a part hereof. 

And I do declare said lands to be taken under 
the authority of the aforesaid Acts of Congress ; 
that the use to which said lands are to be put is 
for a niilitar}^ road, and for other Naval purposes, 
as authorized by said Acts. 

And I do further declare that the estate hereby 
taken in said lands, together with all improvements 
(except such as are attached to the easements and 
reservations hereinafter set forth) and appurten- 
ances thereto belonging, for the public use afore- 
said, is title in fee simple, subject, however, to: 

1. As to Parcel D-15, the existing right of the 
Hawaiian Electric Company, Limited, its successors 
and assigns, to operate, maintain and repair elec- 
tric power transmission poles and wire lines, to- 



Honolulu Plantation Co. 411 

gcthcr witJi the riglit of ingivss and egross For sucIl 
])urposos, ovpr the right of way, the centerline of 
Avliicli over Parcel D-15 is indicated on Exhibit 
"B" attached hereto, as follows: "Centei'liiic of* 
Haw'n Electric Co.'s relocated pole line, installcfl 
May 26, 1944"; said i-ight having been acquired by 
the said Hawaiian Electric Company, T^imitcd, 
from the Trustees of the Estate of Samuel ^f. 
Damon, Deceased, by instrument dated 27 April 
1945 and filed in the Office of the Assistant Regis- 
trar, Land [734] Court Territory of Hawaii (l^u- 
reau of Conveyances) on 18 May 1945 as Docu- 
ment No. 78619 and noted on Certificate of Title 
No. 20,266. 

2. As to Parcel D-15, the right hereby reserved 
unto Ernest Hay Wodehouse, Walter Francis Frear 
iuid John Edward Russell, Trustees under the Wifl 
and of the Estate of Samuel M. Damon, deceased, 
their successors in trust, assigns and permittees to 
use said land for roadway purposes, jointly with 
iho United States of America, subject to the au- 
thority of the Secretary of the Navy and his duly 
authorized representatives to promulgate and en- 
force such rules and regulations relating to th*' 
ex(>rcise of such right that may be required for 
Naval security purposes. 

3. The right hereby reserved unto: 

(1) George Miles Collins, John Kirkwood 
Clarke, Frank Midkiff, Edwin Pauliaulani Murray, 
and Joseph Boyd Poindexter, as Trustees under 
the Will and of the Estate of Bernice P. Bishop, 
Deceased, their successors in trust, assigns, and 
permittees, as to Parcel A; and 



412 United States of America vs. 

(2) Charles M. Hite, Trustee under the Will 
and of the Estate of Emma Kaleleonalani, his suc- 
cessors in trust, assigns, and permittees, as to Par- 
cels B and E; and subject to existing leasehold 
rights of Honolulu Plantation Company, to cross 
and recross said above described parcels by way of j 
foot, vehicles or portable plantation railroad tracks, ; 
fo]' so long only as said parties or their assigns 
other than the United States of America are fee I 
owners of lands abutting on said parcels. j 

4. An easement hereby reserved unto the fee i 
owner, Charles M. Hite, Trustee under the Will ' 
and of the Estate of Emma Kaleleonalani, his sue- i 
cessors in trust, assigns, and permittees, subject to ' 
the existing leasehold rights of Honolulu Planta- • 
Hon Company, for railroad tracks and facilities 
over Parcel B, over and along the right of way i 
described and vshown as Easement 1 in Exhibits : 
"A" and ^^C", attached hereto and made a part \ 
liereof, for so long only as said right of way is 
used for said purposes. ' 

And I, Secretary of the Navy, do hereby state ; 
"ill at the sum of money estimated by me to be jnst ; 
compensation for said lands, and improvements ! 
thereon and appurtenances thereunto belonging, is ', 
Six thousand one hundred fifty-four Dollars and j 
ninety-eight cents ($6,154.98), which sum is he'^eby I 
deposited into the registry of the court for the use \ 
and benefit of the [735] persons entitled thereto, \ 
and that the amounts of just compensation for said > 
lands and improvements thereon, which are hereby | 
taken, are shown on Schedule '*A" attached hereto j 
and made a part hereof. .; 



Honolulu Plantation Co. 413 

I am of the opinion that the iiltimato award Un- 
the takinp; of said lands will be within th(^ limits 
])rescTibed by Congress. 

In witness whereof, the petitioner, by iiiid 
through the Secretary of the Navy, has caused thi^ 
declaration of taking to be signed on the 5th day 
of September, 1945, in the City of Washington, 
Pistrict of Columbia. 

UNITED STATES OF 
AMERICA, 

By /s/ JAMES PORRESTAL. [736] 

SCHEDULE '^A'^ 

The names of the persons having title to or other 
interest in the lands described in the within dec- 
laration of taking, and the amounts estimated to 
be fair compensation for each respective ownership, 
including all improvements thereon, are as follows: 









Estimated Just 


Name of Ovraer 


Parcel 


Acres 


Compensation 


B. P. Bishop Est. 


A 


3.523 


$1,333.30 


Queen Emma Estate 


B&E 


9.432 


1,873.80 


S. M. Damon Estate 


D-15 


16.936 


2,947.88 



Total 29.891 $6,154.98 

[Printer's Note]: Exhibit ''A" is the same 
as Exhibit ^*A" set out at pages 402-409. 

[Endorsed] : Filed Dec. 6, 1945. [737] 



414 . United States of America vs. 

In the District Court of the United States 
for the District of Hawaii 

October Term 1945 

Civil No. 684 

UNITED STATES OF AMERICA, 

Petitioner, 

vs. 

29.891 ACRES OP LAND, more or less, in Moana- 
lua and Halawa, Ewa, Oahu, Territory of Ha- 
waii, Ernest Hay Wodehonse, Walter Francis 
Frear and John Edward Russell, Trustees under 
the Will and of the Estate of Samuel M. Damon, 
deceased, et al., 

Defendants. 

ORDER AND JUDGMENT ON DECLARATION 
OF TAKING 

It appearing that on the 6th day of December, 
1945, the United States of America filed a Petition 
for Condemnation of certain lands described and 
shown upon Exhibits "A", '^B" and ''C" attached 
to th Petition filed herein, and on Exhibits "A'', 
^'B'' and "C' attached to the Declaration of Tak- 
ing filed herein, and it further appearing that said 
Declaration of Taking was this day filed herein; 
said Declaration of Taking being signed by James 
Forrestal, Secretary of the Navy, under and pur- 
.suant to the proAdsions of the Act of Congress 
approved February 26, 1931 (46 Stat. 1421), de- 
<'laring taken the title in fee simple to said lands, 
{^ub.iect to: 



Honolulu Plantation Co. 415 

1. ''As to Parcel 1)-15, tlie existing i-ight of thf^ 
Hawaiian Electric Company, Limited, its succes- 
sors and assigns, to operate, maintain and repair 
• 'lectric power transmission poles and wire lines, 
togethei* with the right of ingress and egress for 
such purposes, over the right of way, the centerline 
of which over Parcel D-15 is indicated on Exhibit- 
''B" attached hereto, as follows: "Centerline of 
Haw'n Electric Co.'s relocated pole line, installed 
May 26, 1944'^; said right having been acquired by 
the said Haw^aiian Electric Company, Limited, 
from the Trustees of the Estate of [747] Samuel 
M. Damon, deceased, by instrument dated 27 April 
1945 and filed in the Office of the Assistant Regis- 
trar, Land Court Territory of Hawaii (Bureau of 
Conveyances) on May 18 1945 as Document No. 
78619 and noted on Certificate of Title No. 20,266. 

2. As to Parcel D-15, the right hereby reserved 
nnto Ernest Hay Wodehouse, Walter Francis Frear 
and John Edward Russell, Trustees under the AVill 
and of the Estate of Samuel M. Damon, deceased, 
their successors in trust, assigns and permittees to 
use said land for roadway purposes, jointly with 
tlie United States of America, subject to the au- 
thority of the Secretary of the Navy and his duly 
authorized representatives to promulgate and en- 
force such rules and regulations relating to the 
exercise of such right that may be required for 
Naval security purposes. 

3. The right hereby reserved unto: 

(1) George Miles Collins, John Kirkwood 
Clarke, Frank Midkiff, Edwin Pauhaulani Mur- 



416 United States of America vs. 

ray, and Joseph Boyd Poindexter, as Trustees un- 
der the . Will and of the Estate of Bernice P. 
Bishop, Deceased, their successors in trust, assigns, 
and permittees, as to Parcel A; and 

(2) Charles M. Kite, Trustee under the Will 
and of the Estate of Emina Kaleleonalani, his suc- 
cessors in trust, assigns, and permittees, as to Par- 
cels B and E; and subject to existing leasehold 
rights of Honolulu Plantation Company, to cross 
and recross said above described parcels by way 
of foot, vehicles or portable plantation railroad 
tracks, for so long only as said parties or their 
assigns other than the United States of America 
are fee owners of lands abutting on said parcels. 

4. An easement hereby reserved unto the fee 
oAvner, Charles M. Hite, Trustee under the Will 
and of the Estate of Emma Kaleleonarani, his suc- 
cessors in trust, assigns, and permittees, subject to 
the existing leasehold rights of Honolulu Planta- 
tion Company, for railroad tracks and facilities 
over Parcel B, over and along the right of way 
described and shown as Easement 1 in Exhibits 
'*A" and '^C", attached hereto and made a part 
hereof, for so long only as said right of way is 
used for said purposes," 

that the uses of said land are those described in 
the said Declaration of Taking and in the Petition 
herein; and that the said Declaration of Taking 
sets forth the estimate of just compensation made 
pursuant to law and that contemporaneously with 
the filing of said Declaration of Taking, there was 
deposited in the registry of this Court for the nse 



Honolulu Plantation Co. 417 

of the pcisons ontitlcd thereto the sum uf Six 
Tliousjind One Hundred Fifty-foui- and 98/100 Dol- 
lars ($6,154.98), [748] 

It is ordered, adjudged and deereed tliat b}' \'i]'- 
tue of the filing of said Declaration of Taking and 
the deposit of said money, title in fee simple to the 
lands described and shown on Exhibits ''A'\ ''B" 
and **C", attached to the said Declaration of Tak- 
ing, is indefeasibly vested in the United States of 
America; subject to: 

1. ''As to Parcel D-15, the existing right of the 
Hawaiian Electric Company, Limited, its succes- 
sors and assigns, to operate, maintain and repair 
electric power transmission poles and wire lines, 
together with the right of ingress and egress for 
such purposes, over the right of way, the centerline 
of which over Parcel D-15 is indicated on Exhibit 
•'B" attached hereto, as follows: "Centerline of 
Haw'n Electric Co.'s relocated pole line, installed 
May 26, 1944"; said right having been acquired 
by the said Hawaiian Electric Company, Limited, 
from the Trustees of the Estate of Samuel M. 
Damon, Deceased, by instrument dated 27 April 
1945 and filed in the Office of the Assistant Regis- 
trar, Land Court Territory of Hawaii (Bureau of 
Conveyances) on 18 May 1945 as Document No. 
78619 and noted on Certificate of Title No. 20,266. 

2. As to Parcel D-15, the right hereby reserved 
unto Ernest Hay Wodehouse, Walter Francis Frear 
and John Edward Russell, Trustees under the Will 
and of the Estate of Samuel M. Damon, deceased, 
their successors in trust, assigns and permittees to 



418 United States of America vs. i 

iise said land for roadway purposes, jointly with | 

the United States of America, subject to the au- j 

thority of the Secretary of the Navy and his duly | 

authorized representatives to promulgate and en- i 

force such rules and regulations relating to the : 

exercise of such right that may be required for ! 
Naval security purposes. 

3. The right hereby reserved unto: | 

(1) George Miles Collins, John Kirkwood \ 
Olarke, Frank Midkiff, Edwin Pauhaulani Mur- 
ray, and Joseph Boyd Poindexter, as Trustees un- ' 
der the Will and of the Estate of Bernice P. ' 
Bishop, Deceased, their successors in trust, assigns, j 
and permittees, as to Parcel A; and | 

(2) Charles M. Hite, Trustee under the Will i 
iuul of the Estate of Emma Kaleleonalani, his sue- ; 
cessors in trust, assigns, and permittees, as to Par- i 
eels B and E; and subject to existing leasehold ' 
riiilits of Honoluhi Plantation Company, to cross ■ 
r.rid recross said above described parcels by way ! 
of foot, vehicles or portable plantation railroad , 
tracks, for so long only as said parties or their ; 
assigns other than the United States of America | 
iwv fee owners of lands abutting on said parcels. j 

4. An easement hereby reserved unto the fee j 
owner, Charles M. Hite, Trustee under the Will | 
and of the Estate of Emma Kaleleonalani, his sue- ; 
cessors in trust, assigns and permittees, subject to ' 
the existing leasehold rights of Honolulu Planta- \ 
tion Company, for railroad tracks and facilities over j 
Parcel B, over and along [749] the right of way ■ 
described and shown as Easement 1 in Exhibits ' 



Honolulu Plantation Go. 419 

•'A" and ''C", attached herot(> and made a par? 
Jiei-cof, for so long' only as said right of way is liscd 
Tor said p\iri)oses." 

It is further ordered that a eopy of tliis Oi-dfr 
1)(' promptly served by the United States Marsha! 
nj)on each of the defendants named. The Marslial 
is further ordered to post a copy hereof in a cmii- 
s])icuous place on the premises and to forthwith 
make due return of his said service to this Court. 

])ated: Honolulu, T. H., this 6th day of Decem- 
ber, 1945. 

(Seal) /s/ D. E. METZGER, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed Dec. 6, 1945. [750] 



[Title of District Court and Cause No. 684.] 

MOTION FOR ORDER AMENDING PETI- 
TION AND ORDER AND JUDGMENT ON 
DECLARATION OF TAKING 

Now comes the United States of America, Pc^ti- 
tioner herein, by Charles F. Rathbun, Special 
Assistant to the Attorney General, and moves the 
Court to amend the Petition herein by adding in 
Paragraph III thereof, on the second page thereof, 
a new ])aragraph 2-a to be inserted after the words 
"Naval Security Purposes" the following: 

As to Parcel B, the existing right of The 
Hawaiian Electric Company, Limited, its sue- 



420 United States of America vs. 

cessors and assigns, to operate, maintain and 
repair electric power transmission poles and 
wire lines, together with the right of ingress 
and egress for such purposes over the right of 
way; said right having been acquired by The 
Hawaiian Electric Company, Limited ft'om 
Charles M. Hite, Trustee under the Will and 
of the Estate of Emma Kaleleonalani, deceased. 
by instrmnent dated July 8, 1943 and filed with 
the Office of the Assistant Registrar, Land 
Court, Territory of Hawaii, Bureau of Con- 
veyances, on August 16, 1943, as Document No. 
69105 and 69106 and noted on Certificate of 
Title No. 20,226. 

And to amend the Order & Judgment on Declara- 
tion of Taking entered herein on December 6, 1945, 
by excluding therefrom the said easement as de- 
scribed [751] in said Amendment to the PetitioTi 
herein as paragraph 2-a, pursuant to a stipulation 
entered into in this cause between the Hawaiian 
Electric Company, Limited and the United States 
of America, which stipulation is this day filed in 
the above cause. 

Dated: Honolulu, T. H., this 22nd day of April, 
1946. 

UNITED STATES OF 
AMERICA, 

By /s/ CHARLES F. RATHBUN, 

Special Assistant to the 
Attorney General. 

[Endorsed] : Filed April 22, 1946. [752] 



Honolulu Plantation Co. 421 

[Title of District Court and Cause No. 684.] 

ORDER AMENDING PETITION AND ORDER 

AND JUDGMENT ON DECLARA^J^ION 

OF TAKING 

This iTiattor comin,G: on to ho heard, upon the 
Motion of the Petitioner herein, to amend the Pe- 
tition in the above cause and to exchide from the 
Order & Judgment on Declaration of Taking a 
(certain easement reserved unto the Hawaiian Elec- 
tric Company, Limited, pursuant to a Stipulation 
this day filed herein which Stipulation is executed 
by the Hawaiian Electric Company, TJmited and 
the United States of America, 

It is hereby ordered, adjudged and decreed that 
the Petition herein be amended by adding in Para- 
graph III thereof, on the second page thereof, a 
new paragraph 2-a to be inserted after the words 
*' Naval Security Purposes" the following: 

As to Parcel B, the existing right of Th*- 
Hawaiian Electric Company, Limited, its suc- 
cessors and assigns, to operate, maintain and 
repair electric power transmission poles and 
wire lines, together with the right of ingress 
and egress for such purposes over the right of 
way; said right having been acquired by Thr* 
Hawaiian Electric Company, Limited from 
Charles M. Hite, Trustee under the Will and 
of the Estate of Emma Kaleleonalani, deceased, 
by instrument dated July 8, 1943 and filed with 
• '^. the Office of the Assistant Registrar, Land 
Court, Territory of Hawaii, Bureau of Con- 



422 United States of America vs. 

veyances, on August 16, 1943, as Dociunent No. 
69105 and 69106 and noted on Certificate of 
Title No. 20,226. [753] 

And that there be excepted from the provisions 
of the said Declaration of Taking and the Ordei' 
of Judgment on Declaration of Taking entered 
herein the following: 

As to Parcel B, the existing right of The 
Hawaiian Electric Company, Limited, its suc- 
cessors and assigns, to operate, maintain and 
repair electric power transmission poles and 
wire lines, together with the right of ingress 
and egress for such purposes over the right 
of way; said right having been acquired by 
The Hawaiian Electric Company, Limited from 
Charles M. Hite, Trustee under the Will and 
of the Estate of Emma Kaleleonalani, de- 
ceased, by instrument dated July 8, 1943 and 
filed with the Office of the Assistant Registrar, 
Land Court, Territory of Hawaii, Bureau of 
Conveyances, on August 16, 1943, as Document 
No. 69105 and 69106 and noted on Certificate 
of Title No. 20,226. 

Dated: Honolulu, T. H., this 22nd day of April, 
1946. 

(Seal) /s/ J. FRANK McLAUGHLIN, 

Judge of the United States District Court for the 
District of Hawaii. 

[Endorsed] : Filed April 22, 1946. [754] 



Honolulu Plantation Co. 423 

[Title of District Court and Cause No. 684.] 

ANSWER OF HONOLULU PLANTATION 
COMPANY 

One of* the Defendants Above Named 

Comes now Honolulu Plantation Company, a cor- 
])()ration, organized under the laws of the State 
of California, and doing business in the Territory 
of Hawaii, one of the defendants in the above en- 
titled cause, and for answer to the petition filed 
lierein says: 

I. 

That is has neither knowledge or information 
sufficient to form a belief as to the allegations set 
fortli and contained in Paragraphs I, III, IV, V, 
VI and VII of said petition, and therefore it 
neither admits nor denies the same but leaves the 
petitioner to its proof thereof. 

II. 

That it admits the allegations contained in Para- 
graph II of said petition. 

III. 

That with respect to the allegations of said })eti- 
tion that it claims an interest in the property de- 
scribed in said petition this defendant admits the 
same and alleges that at the time of the filing of 
said petition and until judgment or order was en- 
tered on [756] declaration of taking filed in said 
causes it was the owner of an interest in the lands 
and in some of the improvements thereon and also 
admits that its lessor has an interest in the lands 
described in said petition which are under lease 



424 United States of America vs. 

to this defendant; that the lease creating such 
interest and estate will be submitted to the Court 
on the trial of said causes. 

And this defendant further alleges as follows: 

That for and during a period of over forty years 
this defendant has been continuously operating and 
conducting and is now operating and conducting a 
sugar mill and plantation at Aiea in the District 
of Ewa, Island of Oahu, T. H., and has been at all 
times during said period and now is engaged in the 
business of growing sugar cane and manufacturing 
sugar therefrom; 

That most of the acreage of land taken, by rea- 
son of the fertility of the soil thereon, their low 
elevation, and the comparatively small expense with 
which they can be irrigated, is peculiarly adapted 
to the cultivation and growth of sugar cane, and 
that this defendant was at the time of the filing of 
the petition in this cause and until the date fixed 
for the surrendering of possession by the judg- 
ment or order on the Declaration of Taking en- 
tered in this cause and for many years prior thereto 
had been profitably using said lands for the culti- 
vation and growth of sugar cane; 

That the lands included within the area sought 
to be condemned which are held by this defendant 
under lease as aforesaid have a special and en- 
hanced value by reason of the establishment by 
this defendant of a sugar mill and works, in close 
proximity to said lands, for the manufacture of 
sugar from cane grown and cultivated thereon and 



Honolulu Plantation Co. 425 

oil other lands owned and/or leased by this defend- 
ant and by reason of the development by this de- 
fendant of a water supply for the irrigation of 
said lands, and other lands as aforesaid by means 
of artesian wells, pumping machinery and othc^r- 
wise; [757] 

Tliat for the purpose of cultivating the sand 
lands, this defendant has constructed improvements 
tliercon ; 

That the parcel of land sought to be condemned 
))y said petition in which this defendant has lease- 
hold interest was at the time of the filing of the 
said petition in this cause and until judgment or 
order was entered on Declaration of Taking filed 
in this cause, and for many years prior thereto 
had been, occupied and cultivated by this defend- 
ant as integral parts of the sugar plantation oper- 
ated and conducted by it at Aiea aforesaid and in 
connection with other large and contiguous tracts 
situated outside of the lands described in said peti- 
tion but comprised within the said plantation and 
demised to this defendant by a number of leases 
and that by the taking of said lands described in 
the said petitions the integrity of said sugar plan- 
tation will be destroyed and the unitary value of 
Ihe leasehold interests and estates of this defend- 
ant in such other and contiguous tracts of land will 
l)(^ greatly impaired and diminished. 

Wherefore this defendant prays (1) that the 
damages suffered by this defendant by reason of the 
takino" of the lands and properties described in 



426 United States of America vs. 

said petitions may be determined and the amount 
thereof be awarded to and paid to this defendant, 
and (2) for such other and general relief as may; 
be meet and proper in the premises. 

Dated: Honolulu, T. H., June 18, 1946. 

HONOLULU PLANTATION 
COMPANY, 

By /s/ VITOUSEK, PRATT & WINN, 
Its Attorneys, 
Defendant above named. 

[Endorsed] : Filed June 18, 1946. [758] 



Honolulu Plantation Co. 427 

In the District Court of th(^ United States 
for the District of Hawaii 

No. 514 — United States of America, I'etitioner, vs. 257. (i54 Acres 
of land, more or less, at Moaiialiia and llalawa, Oahu, Terri- 
tory of Hawaii, et al., Defendants. 

No. 525 — United States of America, Petitioner, vs. 216.124 Acres 
of land, more or less, in Moaualua, Honolulu, Oahu, Terri- 
tory of Hawaii, et al.. Defendants. 

No. 529 — United States of America, Petitioner, vs. 344.893 Acres 
of land, more or less, at Manana ^nd Waiawa, Ewa, Oahu. 
Territory of Hawaii, et al.. Defendants. 

No. 533 — United States of America, Petitioner, vs. 218.349 Acres 
of land, more or less, at Waiawa (julch, Waiawa, Oahu, Ter- 
ritory of Hawaii, et al., Defendants. 

No. 535 — United States of America, Petitioner, vs. 145.848 Acres 
of land, more or less, situate at Halawa and Aiea, Ewa, 
Island of Oahu, Territory of Hawaii, et al.. Defendants. 

No. 544 — United States of America, Petitioner, vs. 317.705 Acres 
of land, more or less, situate at Moanalua, Honolulu, Oahu, 
Territory of Hawaii, et al.. Defendants. 

No. 548 — United States of America, Petitioner, vs. 63.725 Acres 
of land, more or less, situate at Moaiialua, Honolulu, Oahu, 
Territory of Hawaii, et al., Defendants. 

MOTION FOR CONSOLIDATION 

Conies now Honohilu Plantation Company, a cor- 
poration, one of the defendants in each and all of 
the above entitled proceedings which are pending- 
in the said United States District Court for the 
])istrict of Haw^aii, by Stanley, Vitousek, Pratt c^ 
AVinn, its attorneys, and moves that Honorable 
Court that the seven above entitled proceedings be 
consolidated into one proceeding insofar as this 
}novaiit is concerned and insofar as it has any claim 
for damages or may claim damages by reason of 
the taking under the above entitled proceedings: 
and that this movant be j^ermitted to file one answer 



428 United States of America vs, 

iu the consolidated proceedings and that the trial 
in said consolidated proceedings be had in the same 
manner as if all of said takings had been in one 
proceeding and as if all of the allegations contained 
in the various petitions filed in said proceedings 
liad been embodied in one petition. 

This motion is based upon all of the pleadings in 
the above entitled proceedings and upon the afii- 
da^dt of S. L. Austin hereto attached. 

Dated: Honolulu, T. H., this 17th day of Febru- 
ary, 1945. 

HONOLULU PLANTATION 
COMPANY, 
By STANLEY, VITOUSEK, 
PRATT & WINN, 
Its Attorneys, 
By /s/ C. DUDLEY PRATT. 

[Endorsed] : Filed Felx 17, 1945. [760] 



[Title of District Court and Causes.] 

AFFIDAVIT FOR CONSOLIDATION OP 
ACTIONS 

District of Hawaii, 

City and Coimty of Honolulu — ss: 

S. L. Austin, being duly sworn, says that he is 
the Attorney-in-Fact of Honolulu Plantation Com- 
pany, a corporation, one of the defendants in each 
and all of the above entitled actions which are 
pending in the United States District Court for the 
District of Hawaii as aforesaid; that each of said 



Honolulu Plantation Co. 429 

actions is a proceeding in eminent domain by the 
United States of America to obtain for govern- 
mental use lands held under lease by the said Hon- 
olulu Phintation Company; that the Honolulu 
Plantation Company owns and operates a sugar 
plantation on the Island of Oahu in the vicinity 
of Pearl Harbor; that the lands held and operated 
by it are contiguous; that said lands being acquired 
])y the United States in said proceedings all form 
an integral part of the i)roperties being held and 
operated by the said Honolulu Plantation Comj^au}- 
in the conduct by it of a sugar plantation ; 

That the said Honolulu Plantation Company in- 
tends no defense to the institution as such of the 
above entitled proceedings; that the sole matters 
for consideration and at issue are the determina- 
tion of the ])arties entitled to compensation and 
their respective interests in the property involved, 
the amounts to be paid therefor, and the just com- 
i:>ensation that is due the said parties because of 
such taking; 

That the trial of the seven (7) suits, set forth in 
the title heading hereof, will subject said Honolulu 
Plantation Company to unnecessary costs, expenses 
and delays; 

That the consolidation of the said proceeding- 
Avill render [762] umieeessary the duplication of 
proof with respect to the enterprise of said Hono- 
lulu Plantation Company and the properties used 
])y it in conducting the same, the effect of remov- 
ing the property being condemned therefrom and 
numerous other points with respect to title, occu- 



430 United States of America vs. 

pancy, use and numerous factors affecting Aaluo 
and damges suffered and further that the damages 
suffered by this defendant by reason of the taking of 
property by means of said proceedings is directly 
affected by the aggregate of the amount of prop- 
erty taken by condemnation; that said property 
condemned is merged in all of this defendant's 
farming property as one ''unity in use", operated 
together and that the severance or taking away of 
the condemned property will result in substantial 
damages to the remainder, difficult if not impos- 
sible of full and adequate proof in seven separate 
proceedings ; that the damages to be claimed by this 
defendant by reason of said taking would require 
the same amount of proof in each of the seven 
cases if tried separately and would require little, if 
any, more evidence in a consolidated case than 
would be required in each of said cases if tried 
separately; that the amount of land to be taken 
in the aggregate by reason of said seven cases is 
very substantial and the proof of the damages that 
will be suffered by this defendant can more clearly 
and readily be shown than could be shown in each 
of the cases separately, and this is particularly 
true of the cases where the area involved is rela- 
tively small in comparison to the total area held 
and operated by this defendant ; that the said Com- 
pany will be unable to properly present the ques- 
tion of damages if such proceedings are not con- 
solidated and would thereby be deprived of sub- 
stantial right; that requiring this defendant to try 
each of said takings separately would subject this 



Honolulu Plantation Co. 431 

defendant to such excessive expenses and loss of 
dnnia^c^es suffered as to constitute a deprivation of 
pT()[)erty without due process of [763] law and n 
takino' for public use without just compensati(jH 
in violation of the Fifth Amendment of the Con- 
stitution of the United States. 

Further affiant sayeth not. 

/s/ S. L. AUSTIN. 
Subscribed and sworn to before me this 17th day 
of February, 1945. 

(Seal) /s/ ALBERT C. AHANA, 

Notary Public, First Judicial Circuit, Territory of 
Hawaii. 

My conunission expires June 30, 1945. 

[Endorsed] : Filed Feb. 17, 1945. [764] 



[Title of District Court and Causes.] 

STIPULATION FOR CONSOLIDATION 

It is hereby stipulated by and between the United 
States of America, petitioner in the above entitled 
cases, and Honolulu Plantation Company, a cor- 
poration, one of the defendants in each and all of 
the above entitled cases, by their respective attor- 
neys : 

That said above entitled proceedings may be con- 
solidated into one proceeding insofar as Honolulu 
Plantation Company is concerned and insofar as 
it has any claim for damages or any claimed diim- 
a,s>es ])v reason of such taking under said above? 
entitled proceedings; and 



432 United States of America vs. 

It is hereby further stipulated that Honolulu 
Plantation Companj^ may be permitted to file one 
answer in the consolidated proceedings and that the 
trial in said consolidated proceedings may be had 
in the same manner as if all of said takings had 
been in one proceeding and as if all of the allega- 
tions contained in the various petitions filed in said 
proceedings had been embodied in one petition. 

Dated: Honolulu, T. H., this 17th day of Feb- 
ruary, 1945. 

UNITED STATES OF 
AMERICA, 

By /s/ CHARLES F. RATHBUN, 

Special Assistant to the 
Attorney General. 

HONOLULU PLANTATION 
COMPANY, 

By STANLEY, VITOUSEK 
PRATT & WINN, 
Its Attorneys, 

By /s/ C. DUDLEY PRATT. 

[Endorsed] : Filed Feb. 17, 1945. [766] 



No. 12023 
(dourt of Appeala 

fur tl|r Ninttr (Eirrttit 



UNITED STATES OE AMERICA, 

Appellant, 
vs. 
HONOLULU PLANTATION COMPANY, 

Api)ellee. 
and 

HONOLULU PLANTATION COMPANY, 

Appellant, 
vs. 
UNITED STATES OF AMERICA, 

Appellee. 



^mmtxxpt at ^Havh 

(In Four Volumes) ■ ili»t»-«.-. 

(Pages 433 to 840) ULt Oi- 1340 ^i 



PAUL P. (raRiefitVi. 



Appeal from the United States District Court 
for the District of Hawaii 



Type Press, 398 Pacific. San Francisco lJ-17-48 — 60 



No. 12023 
(Unurt nf Appeals 

fnr tlyr Niittli (fiirrtiit 



UNrPED STA/PKS OF AMf:RICA, 

A))|)(^]laiit, 
vs. 

HON()LUL[T PLANTATION COMPANY, 

A])pellee. 
and 

HONOLITIJT PLANTATION COMPANY, 

Appellant, 
vs. 
UNITED STATES OF AMERICA, 

Appellee. 



afrattBmpt of IJ^rnrb 



(In Four Volumes) 

VOLUME II 

(Pages 433 to 840) 



Appeal from the United States District Court 
for the District of Hawaii 



'1 









Honolulu Plantation Co. 433 

[Title of District Court and Causes. 1 

ORDER FOR CONSOLIDATION 

Upon the motion of Honolulu Plantation Com- 
pany, a corporation, one of the defendants in each 
and all of the above entitled proceedings which are 
pending in the United States District Court for 
the District of Hawaii, and good cause appearing 
therefor. 

It Is Hereby Ordered that the seven above en- 
titled proceedings be consolidated into one prceed- 
ing insofar as the Honolulu Plantation Company 
\ is conct-rned and insofar as it has any claims for 
damages or may claim damages by reason of the 
taking under the said yn'oceedings : and 

It Is Hereby Further Ordered that said Hono- 
hilu Plantation Company be and it is hereby i-iith- 
orized to filed one answ^er in the consolidated pro- 
ceedings and that the trial in said consolidated 
proceedings be had in the same manner as if all of 
said takings had been in one proceeding and c;s if 
all of the allegations contained in the various peti- 
tions filed in the various proceedings had been em- 
bodied in one petition. 

Dated Honolulu, T. H., this 17th day of Febru- 
ary, 1915. 

(Seal) /s/ J. FRANK McLAUGHLIN, 

Judge of the Above Entitled Court. 

[Endorsed] : Filed Feb. 17, 1945. [768] 



I 



434 United States of America vs. 

[Title of District Court and Causes.] 

STIPULATION 

It Is Hereby Stipulated by and between the 
United States of America, Petitioner in the above 
entitled cases, and Honolulu Plantation Company, 
a corporation, one of the defendants in each and 
n)l of the above entitled cases, by their resp<^ctive 
attorneys : 

1. Tiiat Two Hundred Eighty-five Thousand and 
00/100 Dollars ($285,000.00) is just compensation, 
inclusive of interest to and including the 18th day 
of February, 1945, to which the Honolulu Planta 
tion Company, a corporation, one of the defendants ; 
in each and all of the above entitled cases, is en- 
titled as just and full compensation for its grovving , 
crops a^)d stools, by reason of the condemnation of 
the properties in each of the proceedings herein 
and by reason of the destruction of growing crops 
and stools in and along a certain military road, de- 
Imeateri as Parcel D-15, an area of 16.9368 acres, 
on 14th Naval District Map OA-Nl-942 dated Janu- 
ary 5, 1945 attached hereto as Exhibit ''A", and 
delineated as Parcels A, B, C. D, and E, an area 
oi 13.142 acres, on the 14th Naval District Map 
OA-Nl-1223 and attached hereto as Exhibit ''B" 
and for the destruction of growing crops and stools 
by reason of the construction of a certain fresh 
water j>ipe line, the center line of which is shown 
on 14tii Naval District Map OA-Nl-912 as portions 
N-1, T-1, N-2, T-2, N-3, B and E, which map is 
attached hereto as Exhibit "C": and that the said 



Honolulu Plantation Co. 435 

sum of $285,000.00 shall be in full ^atisfaetic'ii of 
and just compensation for any and all claims and 
damages sulfered by said [770] defendant, Hono- 
lulu Plantation Company, in each of the above 
styled cases and references, for the taking of its 
growing cro})s and stools by the United States of 
America; said sum shall also be inclusive of any 
claim said defendant may have or claim to have 
against the United States of America or any de- 
pi. rtment or agency thereof for compliance pay- 
ments imder the Sugar Control Act for thf pro- 
duction of sugar with respect to the unharv^ested 
growing crops on the real property first above 
described, but shall not include the settlement of 
any other claims for damages. 

2. That on the 10th da}^ of February 1945, there 
was deposited by the petitioner in case Civil No. 
514 the sum of $46,666.10; that on the 10th day of 
February, 1945, there was deposited in case Civil 
No. 525 the siun of $10,655.53; and on the 29th day 
of January, 1945, there was deposited in case Civil 
No. 541 the sum of $66,039.94; as estimated just 
compensation to the said Honolulu Plantation Com- 
pany. 

3. That said Honolulu Plantation Companv is 
entitled to a judgment against the United States 
of America for the sum of $285,000.00, inclusive of 
Interest to February 18, 1945, and that the entry 
of said judgment shall be accomplished by entering: 
a judgment in the sum of $285,000.00, inclusive of 
interest to February 18, 1945, in each of the said 
se^Tn cases aboA'e as consolidated, and it is agreed 



436 United States of America vs. 

that the Clerk may issue his check to said Honolulu 
Plantation Company for the sum of $123,361.57, ; 
total amount of the deposits in the cases above 
nientioned as estimated just compensation to Hono- 
lulu Plantation Company and the balance of '^161, 
638.43 shall be paid by petitioner to the Clerk of ,' 
this Court. 

It Is Further Stipulated and Agreed th^.t an 
executed copy of this stipulation shall be fi^ed in 
each of the above entitled cases and the pirties 
hereto consent to the entry by this Court ^f all 
orders and decrees necessary and appropriate to 
effectuate this stipulation and agreement. 

Dateti Honolulu, T. H., this 17th day of Fobru- 
ary 1945. 

UNITED STATES OF 
; AMERICA, 

Petitioner, 

By /s/ CHARLES F. RATHBITN, 
Special Assistant to the 
Attorney General. 

HONOLULU PLANTATION 
COMPANY, 

By STANLEY, VITOUSEK, 
PRATT & WINK, 
Its Attorneys, 

By /s/ C. DUDLEY PRATT. 
I Endorsed] : Filed Feb. 17, 1945. [770-a] 



Honolulu Planiatio): Co. 437 

In the District Court of the United State's 
For the District of Hawaii 

[Cases >^os. 514, 525, 529, 533, 535, 548.] [771] 

JUDGMENT 

This case coining on to be heard upon the files 
and records in the above proceedings and upon the 
Stipulation dated the 17th day of February. 1945, 
and executed by and between the United States of 
Araericci and the Honolulu Plantation Company, 
a corporation, one of the defendants in the above 
cause, and filed in this cause as consolidated on 
the 17th day of February, 1945, and it appearing 
from the said Stipulation that the sum of ^285,- 
000.00, mclusive of interest to February 18, 1945, 
is full and just compensation to which said Hono- 
lulu Plantation Company is entitled by reason of 
the taking of the growing crops and stools in said 
proceedings belonging to or claimed by said Hono- 
lulu Plantation Coniyjany and by reason of destruc- 
tion of growing crops and stools in connection with 
other properties not involved in the condemn .-ition 
cases above mentioned but which are shown and 
described in the said Stipulation, and maps at- 
tached thereto, and including any claim by said 
Honolulu Plantation Company again^jf the United 
States of America or any department or ncency 
thereof for compliance payments under the Suear 
Control Act for production of sugar with respt-ct to 
the unharvested growing crops on the real property 
above inentioned: but excluding claims of Hono- 
lulu Plantation Company for the taking of its im- 



438 United States of America vs. ^ 

.3 

provements and for any and all other damages j 
claimed by it; and j 

It appearing that on the 10th day of Pebrnary, j 
1915, there was deposited by the petitioner in case | 
Civil No. 514 the smn of $46,666.10: that on the I 
10th day of February, 1945, there was deposited 
in case Civil No. 525 the smn of $10,655.53: and 
on the 29th day of January, 1945, there was de- 
posited in case Civil No. 544 the smn of $66,03J.94; 
as estimated just compensation to the said Hono- 
luhi Plantation Company; and [772] 

!t appearing that said Honolulu Plantation Com- , 
pany is entitled to a judgment, subject to the above 
inclusions and exclusions, against the United States 
of America for the sum of $285,000.00, which sum 
includos interest to February 17, 1945: 

Now Therefore, on motion of the Honolulu Plan- 
tation Company and of the United States of Amer- 
ica, It Is Ordered that the Clerk be and he is 
heieby directed, pursuant to the terms of said Stip- 
ulation, to enter a judgment against the United 
S rates of America, petitioner, in the above causes 
as consolidated, fixing the amount of the compen- 
sation and damages, present and future, to its grow- 
inf2' crops and stools by reason of the condemna- 
tions and takings aforesaid at the sum of $?85,- 
000.00, and that the said Honolulu Plantation Com- 
pany do have and recover of the United States of 
America in cases Civil 514, 525, 529, 533, 535, 544 and 
548, as consolidated, in the sum of $285,000.00, in- 
/'liiding interest to February 18, 1945, and that 
the said judgment in each of said cases wi 1 be 



Honolulu Plantation Co. 439 

satisfiefl by the issuance by the Clerk of this Court 
of his check in the sum of $123,3^)1.57, payable to 
said Honolulu Plantation Company and by the pay- 
ment on or before February 18, 1945 of tie sum 
of $161,638.43 to the Clerk of this Court, wliich 
lasi suiti named shall be paid by the Clerk of this 
Court to said Honolulu Plantation Company after 
it is so deposited, and upon the payment of said 
sums by the Clerk of this Court on ot- before 
February 18, 1945, the said judglnent so entered in 
each of said seven cases as consolidated, shall be 
satisfied in each of said cases as herein lm»ited, 
and a i*eceipt and satisfaction shall be filed vith 
the Clerk of said Court covering any and all claims 
For compensation and damages on accoimt of the 
growing crops and stools taken or destroyed in con- 
TKX^tion with the properties referred to in the Stip- 
ulation on file herein and shown on Exhibits '^\'' 
*'B" and ''C" attached thereto leaving the issues 
[773] with respect to the damages claimed by the 
defendant Honolulu Plantation Company covering 
its improvements taken and other damages planned, 
by it open for further disposition. 

Dated Honolulu, T. H., this 17th day of Febru- 
ary, 1915. 

(Seal) /s/ WM. F. THOMPSON, JR., 

Clerk of the Above Eiititled Court. 

Let the foregoing JiidgTnent be entered: 

/s/ J. FRANK McLaughlin, 

Judge of the Above Entitled Court. 
[Endorsed]: Filed Feb. 17, 1945. [774] 



440 United States of America vs. \ 

[Title of District Court and Causes.! 1 

SATISFACTION OP JUDGMENT j 

'i 
To the Clerk of the Above Entitled Court: • 

The judgment entered in this cause awarding ; 
just compensation in the sum of Two Hundred { 
Eighty-five Thousand and 00/100 Dollars ($285,- 
000.00)^ which includes interest computed to Feb- 
ruary 18, 1945, to Honolulu Plantation Company 
for the taking by petitioners of growing crops and 
stools taken or destroyed in the above mentioned 
proceedmgs and in connection with other proper- 
ties not involved in said condemnation cases but 
shown and described in the stipulation filed in said 
matter and the maps attached thereto but exclud- 
ing all other claims for damages, has been fully 
satisfied and discharged and the Clerk of this Court 
is authorized and directed to satisfy the same of 
record. 

Dated Honolulu, T. H., this 19th day of Febru- 
fivy, 1945. 

HONOLULU PLANTATION 
COMPANY, 

By /s/ S. L. AUSTIN, 

Its Attorney-in-Fact. 

[Endorsed] : Filed Feb. 19, 1945. [776] 



Honolulu Plantation Co. 441 

In the District Court of the United States 
for the District of Hawaii 

No. 514 — United States of America, Petitioner, vs. 257.654 Acres 
of land, more or less, at Moanaliia and llalawa, Oahu, Terri- 
tory of Hawaii, et al., Defendants. 

No. 521 — United States of America, Petitioner, vs. 49.058 Acres 
of land, more or less, McGrew Point, Kalauao, Ewa, Oahu, 
Hawaii, and Katherine McGrew Cooper, et al.. Defendants. 

No. 525 — United States of America, Petitioner, vs. 216.124 Acres 
of land, more or less, in Moanalua, Honolulu, Oahu, Terri- 
tory of Hawaii, et al., Defendants. 

No. 527 — United States of America, Petitioner, vs. 93.355 Acres 
of land, more or less, in iMoanalua, Honolulu, Oahu, Hawaii, 
et al., Defendants. 

No. 529 — United States of America, Petitioner, vs. 344.893 Acres 
of land, more or less, at Manana and Waiawa, Ewa, Oahu, 
Defendants. 

No. 532 — United States of America, Petitioner, vs. 8.279 Acres 
of land, more or less, at Halawa, Oahu, Territory of Hawaii, 
et al., Defendants. 

No. 533 — United States of America, Petitioner, vs. 218.349 Acres 
of land, more or less, at Waiawa Gulch, Waiawa, Oahu. Ter- 
ritory of Hawaii, et al.. Defendants. 

No. 535 — ITnited States of America. Petitioner, vs. 145.848 Acres 
of land, more or less, situate at Halawa and Aiea, Ewa, 
Island of Oahu, Territory of Hawaii, et al.. Defendants. 

No. 536 — United States of America, Petitioner, vs. 26.222 Acres 
of land, more or less, situate at Waiawa, Waimalu, Ewa, 
Island of Oahu, Territory of Hawaii, et al., Defendants. 

Xo. 540 — United States of America, Petitioner, vs. 124.914 Acres 



442 United States of America vs. 

of land, more or less, situate at Haiku Valley, Heeia, Koolau- 
poko, Oahu, Territory of Hawaii, et al., Defendants. 



!No. 544 — United States of America, Petitioner, vs. 317.705 Acres ■ 
of land, more or less, situate at Moanalua, Honolulu, Oahu, ! 
Territory of Hawaii, et al., Defendants. i 

Iso. 548 — United States of America, Petitioner, vs. 63.725 Acres \ 

'i 
of land, more or less, situate at Moanalua, Honolulu, Oahu, jl 

) 
Territory of Hawaii, et al., Defendants. 1 

i 
jS'o. 684 — United States of America, Petitioner, vs. 29.891 Acres I 

of land, more or less, in Moanalua and Halawa, Ewa, Oahu, ' 

Territorv of Hawaii, et al., Defendants. I 

I 

MOTION FOR CONSOLIDATION 

Comes now Honolulu Plantation Company, a cor- 
poration, one of the defendants in each and all of 
the above entitled proceedings which are pending 
in the said United States District Court for the 
District of Hawaii, by Vitousek, Pratt and Winn, 
its attorneys, and moves the Honorable Court that 
the six above entitled proceedings Numbered 521, 
527, 532, 536, 540, and 684 and the consolidated j' 
proceedings (being the consolidation of Civil Cases j! 
Numbers 514, 525, 529, 533, 535, 544, and 548) be \\ 
consolidated into one proceeding insofar as this I, 
movant is concerned and insofar as it has any i 
claim for damages or may claim damages by reason 
of the taking under the above entitle proceedings; j 
and that the trial in said consolidated proceedings 
l^e had in the same manner as if all of said takings 
had [782] been in one proceeding and as if a'l of 
the allegations contained in the various petitions 



Honolulu Plantation Co, 443 

filed in said i)io(('('diTigs had been embodied in one 
]>etition. 

This motion is based upon all of the pleadinj^s in 
the above entitled proceedings and upon the affi- 
davit of S. L. Austin hereto attached. 

Dated Honolulu, T. H., this 9th day of October, 
1946. 

HONOLULU PLANTATTOX 
COMPANY, 

By VITOUSEK, PRATT & WINN, 
Its Attorneys. 

By /s/ R. A. VITOUSEK. ["83] 

AFFIDAVIT FOR CONSOLIDATION 

OF ACTIONS 

District of Hawaii, 

City and County of Honolulu — ss. 

S. L. Austin, being- duly sworn, says that he is 
the attorney-in-fact of Honolulu Plantation (Com- 
pany, h corporation, one of the defendants in each 
and all of the above entitled actions which are 
pending in the United States District Court for the 
District of Hawaii as aforesaid; that each of said 
dctions is a proceeding in eminent domain by the 
United States of America to obtain for stover n- 
mental use lands held under lease or in fee by the said 
Honolulu Plantation Company; that the Honolulu 
Plantation Company owns and operates and at the 
lime each of said actions was filed, owned and oper- 
ated a sugar plantation on the Island of Oahu, 



444 United States of America vs. 

Territory of Hawaii, in the vicinity of Pear Har- 
bor: that the lands held and operated by it were 
eojotiguous; that said lands acquired by the United 
States in said actions all formed an integral part 
of the i)roperties that were being so held, used and 
operatv^d by the said Honolulu Plantation Company 
as a unit in the conduct by it of said sugar planta- 
tion ; 

That there has been taken from the operating 
properties of the said Company 1079.66 acres of 
cane land (together with certain improvements) by 
r en son of said above entitled actions, leaving for 
operation 3309.25 acres of cane land (both fee and 
leasehold) and a sugar mill, camps, pumps, irriga- 
tion systems and other properties that formed a 
part of said sugar plantation enterprise; 

That upon the 17th day of February, 1945, by 
order of this Court, the above-named actions num- 
bered respectively Nos. [784] 514, 525, 529, 533, 535, 
544 and 548 were consolidated into one proceeding 
insofar as the Honolulu Plantation Company was 
coTicerned and insofar as it has any claims for dam- 
ages or may claim damages by reason of the taking 
under the said proceedings; 

That the said Honolulu Plantation Company in- 
tends no defense to the institution as such of the 
above entitled actions; that +he sole matters for 
consideration and at issue are the determination of 
the parties entitled to compensation and their re- 
f^pective interests in the property involved, the 
amount-^ to be paid therefor, and the just compen- 
sation that is due the said parties because of such 



Honolulu Plantation Co. 445 

taking and the Company is claiminu' no clan>ages 
pxccpt against the United States; 

That the separate trial of the consolidated action 
and of the remaining six (6) actions, makinir in all 
seven (7) actions to be tried, will subject said 
Honolulu Plantation Company to unnecessary costs, 
expenses and delays; 

That the Honolulu Plantation Company claims 
compensation for specific improvements, for pre- 
paid rental, for fee simple land and for other speci- 
fic property taken and in addition it claims (lam- 
ages for depreciation in market value of the phy- 
sical properties of the Company remaining after 
the taking of the properties being condemned in 
the said above entitled actions; 

^rhat the consolidation of the said actions will 
render umiecessary the duplication of proof with 
respect to the enterprise of said Honolulu Planta- 
tion Company and the properties used by it in con- 
ducting the same, the effect of removing the prop- 
erty being condemned therefrom and numerous 
other points with respect to title, occupancy, use 
and numerous factors affecting value and damages 
suffered, and further that the [785] damages suf- 
fered by this defendant by reason of the taking' of 
property by means of said proceedings is directly 
affected by the aggregate of the amount of prop- 
erty taken by condemnation : that said property con- 
denmefl is merged in all of said Company's sugar 
producing property as one ''unity in use", oper- 
ated together and that the severance or taking awav 



446 United States of America vs. 

of the condemned property will result in substantial 
damages to the physical properties of this dcf'?nd- 
ant remaining after the taking of the properties 
involved in said actions, difficult if not impossible 
of full and adequate proof in seven (7) separate 
proceedings; that the damages to be claimed by 
said Company by reason of said taking would re- 
quire the same amount of proof in each of the 
seven (7) proceedings if tried separately and would 
r(,*quire little, if any, more evidence in a consoli- 
dated action than would be required in each of said 
actions if tried separately; that the amount of iand 
to be taken in the aggregate by reason of ^^aid 
actions is very substantial and the proof of the 
damages that will be suffered by this defendant 
can more clearly and readily be shown in one con- 
solidated proceeding than could be showm in each 
o^ the actions separately, and this is particularly 
true of the actions where the area involved is rela- 
tively small in comparison to the total area held 
and operated by said Company; that the said Com- 
pany will be unable to properly present the ques- 
tion of damages if such actions are not consolidated 
and would thereby be deprived of substantial right; 
that requiring said Company to try each of said 
takings separately would subject it to such -exces- 
sive expense and loss of damages suffered r^s to 
constitute a deprivation of property without due 
piocess of law and a taking for public [786] use 
without just compensation in violation of the fifth 
Amendment of the Constitution of the United 
States ; 



Honolulu Plantation Co. 447 

l^hat the practice of Icusmg lands instead of 
owning them and of building up enterprises witli 
leased lands for the purpose of raising sugar cane 
wah^ the prevailing practice in all of the Hawaiian 
Jslands. particularly on the Island of Oahu, both 
at the time of the filing of each of the above en- 
titled actions and at all times prior thereto since 
the year 1851; that there is not land availably to 
Bonoluhi Plantation either through purchas'i or 
lease suitable for sugar cane raising purposes to 
replace the land taken in the above entitled actions; 
that because of the well established business prac- 
tices prevailing in the Hawaiian Islands and par- 
ticiilariy on the Island of Oahu said Honolulu 
l^lantation could and did feel assured, and had 
every reason to so do, that its leases of cane lands 
\v(nild be renewed on reasonable terms on the re- 
spective expiration dates; 

That the filing of the separate actions above men- 
lioried amounts to chopping the interests of Hono- 
lulu Plantation Company into bits and such actions 
become instruments of confiscation and not the 
means of obtaining just compensation for whit is 
})eing taken and just compensation for the damages 
caused to the remainder of the property of said 
Co»npany by reason of the taking; 

That the Company presented a claim bill to the 
Ignited States Congress asking' for damages to its 
I'eal property, mill, water systems, remaining lease- 
liolds, and otlier enter])rise ])roperties not expro- 
])riated by the United States for the depreciation in 



448 United States of America vs. 

the market value thereof arising out of the takings 
under A'arious condemnation actions both in the 
above captioned cases and in others previously 
brought; that the bill was presented because of the 
consistent contentions of the government that such 
[787] loss could not be recovered in condemnation 
suits ; 

That such bill iDassed the House of Representa- 
tives authorizing the Court of Claims to adjudicate 
the same and while said bill was pending in the 
Senate, the Attorney General wrote a letter oppos- 
ing? it on several grounds, one of which being that 
the question was posed to this court in these actions 
and had not been determined; an exact copy of 
said letter is hereto attached as Exliibit '*A" and 
is here])y made a part of this affidavit; 

That it is not clearly apparent from said letter 
whether or not the Attorney Gleneral of the United 
States now admits that such damages can legally 
be awarded said Company; 

That if the United States admits that said Com- 
pany is legally entitled to recover by way of dam- 
ages the loss in the market value of its physical 
properties remaining after the taking, occasioned 
by the taking, such loss can only be fairly and 
justly ascertained by consolidating all of the said ac- 
tions and having one trial of said consolidated ac- 
tions; if the United States denies that this Com- 
pany is legally entitled to recover such damages, 
such defense can as readily be interposed and can 
cei'tainly more expeditiously be interposed in a trial 



Eonohdu Plantation Co. 449 

of said actions consolidated into one proceeding 
than it could in a separate trial of ^^aid actions. 

Further affiant sayeth not. 

/s/ S. L. AUSTIN. 
Subscribed and sworn to before me this 7th day 
of October, 1946. 

(Seal) /s/ LILLIAN H. MARKHAM, 

Notary Public, First Judicial Circuit, Territory of 
Hawaii. 

My Ooimnission expires Jime 30, 1949. [788] 

EXHIBIT ''A" 

Honorable Allen J. EUender July 22, 1946 

Chairman, Committee on Claims 
United States Senate 
Washington, D. C. 

My dear Senator: 

I invite your attention to the bill (H. R. 2688) 
to confe." jurisdiction upon the United States Court 
of Claims to hear, determine and render jud.gment 
upon the claim of the Honolulu Plantation Com- 
pany. This bill, prior to its amendment within the 
House Committee on Claims provided for an ap- 
])ropriation of $3,250,000 for alleged damages sus- 
tained by the company. 

At the request of the Chairman of the House 
Committee on Claims, this Department made a re- 
port on the original draft of the bill. The char- 
acter of the bill has been fundamentally chan2:ed 
as a result of the amendments made in the House. 



450 United States of America vs. 

As so amended it would confer jurisdiction .Mpon 
the Court of Claims, ''notwithstanding any prior 
determination, statute or decision, to hear, deter- 
mine, Mnd render judgment upon the claim of the 
Honolulu Plantation Company, a California cor- 
poration, for damages to its real property, mill, 
water system, remaining leasehold and other enter- 
prise p7operties not expropriated by the United 
States Govermnent, and located on the Island of 
Oahu, in the Territory of Hawaii, for the depi'ec- 
iation .'n the market value thereof arising out of 
expropriations by the United States of divers land 
upon which said claimant held leases, in proceed- 
ings wherein said lands were condemned in the 
United States District Court in and for the Terri- 
tory of Hawaii, and designated as civil numbered 
416, 430, 434, 436, 442, 452, 514, 525, 529, 533, 535, 
541 and 548." 

The (ondenmation proceedings referred to in the 
bill were instituted beginning in the case of civil 
numbered 416 on October 30, 1939. The case niun- 
bered 548 is the one last filed and that occiirred 
on January 20, 1945. As to six of the cases, namely 
Nos. 416, 430, 434, 436, 442 and 452, I find that 
a stipulation with the attorneys for the Honolulu 
Plantation Company was entered into and filed in 
the of&ce of the clerk of the court on January 8, 
1943. This stipulation contains the following: ''That 
$239,413.58 is just compensation (exclusive of in- 
terest) to which Honolulu Plantation Company, one 
of the respondents and/or defendants in each and 
all of the above entitled cases, is entitled by reason 



Honolulu Plantation Co. 451 

cf the condemnation in said proceedings of any 
I)rGperties belonging to or claimed by said Hono- 
lulu Plantation Company, or any interest it Triay 
have in the properties condenmed in said proceed- 
ings, and on account of any damages, j^resent and 
future, suffered by it by reason of said condemna- 
tion proceedings, including, without limitation as 
to the generality of the foregoing, severance dam- 
age, value of crojjs, claims for compliance pay- 
ments, and any other claims it had or may have 
against the United States of America, or any de- 
partment or agency thereof, by reason of said con- 
demnation proceedings, * * *." 

In view of this stipulation it would seem that 
a< ieast with respect to the six cases covered by it 
tlie Honolulu Plantation Company has had its day 
ii^. court and has agreed that it has received full 
com|)en8ation ''on accomit of any damages, present 
and future, suffered by it by reason of said con- 
dcamation ])roceedings, including, without Imiita- 
tion as to the generality of the foregoing, sever- 
ance damage, value of crops, claims for compliance 
payments, and any other claims it had or may 
have against the United States of America, or any 
I)e]iartment or agency thereof; by reason of said 
( on demnation proceedings ' '. 

With respect to the seven remaining' cases speci- 
fied in the bill, T find that an answer was filed in 
the office of the clerk of the court on February 17, 
1945. This answer claims compensation not only 
for the value of the interests asserted by the Oom- 
j)ariy in the particular parcels involved, but it in- 



452 United States of America vs. 

eludes a claim for *'a special and enhanced value" 
of these interests "by reason of the establishment 
by this defendant of a sugar mill and works in 
close proximity to said lands, for the manufacture 
of sugar cane grown and cultivated thereon and on 
other lands owned and/or leased by this defendant 
and by reason of the development by this [T90] 
defendant of a water supply for the irrigation of 
said lands and other lands as aforesaid by means 
of artesian wells, pumping machinery and other- 
wise". The answer also alleges with respect to these 
particular parcels of land that they were for many 
years prior to the filing of the condemnation pro- 
ceedings ''occupied and cultivated by this defend- 
ant as integral parts of the sugar plantation oper- 
ated and conducted by it, * * * and in connection 
with other large and contiguous tracts situated out- 
side of the lands described." The allegation is also 
made in the answer that "the integrity of said 
sugar ]jlantation will be destroyed and the imitary 
vMlue of the leasehold interests and assets of this 
defendant in such other and contiguous tracis of 
land will be greatly impaired and diminished." The 
answer contains a prayer for damages with respect 
to the ':aking of the particular parcels and "for 
such other and general relief as may be meet and 
proper in the premises". 

On February 17, 1945, a stipulation signed by 
the attorneys for the Honolulu Plantation Com- 
pany was filed with the clerk of the court cover- 
ing the seven cases in question. It was agreed in 
this stipulation that the siun of $285,000 constituted 



Honolulu Plantation Co. 453 

^'just and full compensation" for growing crops 
imd stools, and that the sum of $285,000 '' sha'l be 
in full satisfaction of and just compensation for 
nny and all claims and damages * * * in ."Mh of 
the above styled cases of reference, for the taking 
of its growing crojjs and stools by the United 
States of America". It is, however, provided in 
tli.is stipulation that this sum "shall not in/lude 
the settlement of any other claims for damages" 
it would seem to follow that the claims for dam- 
ages with respect to the entire properties of the 
Honolulu Plantation Company which are cohered 
in the answer filed with respect to these seven cases 
is still pending in the court, as the stipulation by 
its very terms does not cover that part of the claim 
asserted in the answer. As a matter of fact in the 
condemnation proceedings in the United States Dis- 
trict Court Ibefore Judge McLaughlin on Mav 10, 
1946, the seven cases in question were set down for 
tr-al in that court on Otcober 7, 194f>. [7911 

j\j\ analysis of the thirteen cases specified in the 
bill thus discloses that the United States District 
Court for the District of Hawaii has already fully 
disposed of the claims of the company with respect 
to six of the parcels and that its claims are still 
pending" there for determination as to the other 
seven parcels. It would seem to follow that there 
i« no justification for referring those same cl.'iims 
to aiiother tribunal for adjudication. Indeed, if the 
bill should be enacted it is possible that there n-ight 
bo i)ending at the same time a part of the claim 
])oth in the United States District Court for the 



454 United States of America vs. 

District of Hawaii and the Court of Claims. Fur- 
t]}ermore, in view of the words ''notwithstanding 
any prior determination, statute or decision" con- 
tained in lines 15 and 16, page 2 of the bill, pos- 
sibly the company would be entitled to sue iii the 
Court of Claims with respect to the claims previ- 
ously adjudicated in their entirety in the six cases 
n^entioned above. 

It is to be noted that the bill provides that the 
damages to be ascertained and adjudged shall be 
the difference in the fair market value of the fee 
lands of the mill and other enterprise properties 
of the claimant as the same existed in 1936 prior 
to the filing of the condemnation suits and as the 
f^ame remained in 1945 after the severance and loss 
of the beneficial use of the lands condemned by the 
TTnited States. Since the first of the condemnation 
suits specified in the bill was filed in October 1939 
there would seem to be no justification for s^.elect- 
ing the year 1936 as the one from which the com- 
parison is to be made as to the value of the com- 
pany's properties in relation to their value in .1945. 
However, a much more serious objection to this 
language is that it may be interpreted to set forth 
a measure of damages, leaving to the Court of 
Claims only the computation of the amount of the 
recovery. 

The bill furthei' provides that all testimony ad- 
duced before and all documents and evidence re- 
t'oived by the subcommittee of the Committee on 
(Claims of the House of Representatives shall be 
competent evidence of damages sustained as fully 



Honohdu Plantation Co. 455 

'And to the same extent as though the witnesses 
were present and without further i)roof and (rerti- 
cation. The justification for such a provision is not 
apparent, for the [792] Court of Claims ought to 
be permitted to determine, according to tlie prin- 
ciples of law and the establislied rules of evjience, 
if the evidence received by the subcommittee is 
competent and whether there exists an obligntion 
on the part of the Government to compensate the 
Honolulu Plantation Company for damages suf- 
fered. C^ertainly fairness and justice require that 
both parties present and the Court receive their 
evidence according to the same rules. The Govern- 
ment should not be denied the right to confront 
anci cross-examine the claimant's witnesses and to 
obiect to the introduction of improper evidence. 

For the foregoing reasons I am unable to recom- 
mend ihe enactment of the bill. 

I have been advised by the Director of the Bu- 
reau of the Budget that there is no objection to 
the submission of this report. 

With kind, personal regards, 

Sincerely yours, 

/s/ TOM C. CLARKE, 
Attorney General. 

[Endorsed] : Filed Oct. 9, 1946. [793] 



456 United States of America vs. 

[Title of District Court and Causes.] 

MOTION FOR BILL OF PARTICULARS 

Comes now the United States of America, peti- 
tioner lierein, in each of the foregoing causes and 
moves for the particulars of the claim or claims 
of Honolulu Plantation Company as set forth in 
the various answers filed herein by said Honolulu 
Plantation Company, with particular reference to 
the following: 

1. Which property condemned in these pi'oceed- 
ings is owned by Honolulu Plantation Company m 
fee simple; 

2. U])on which of said properties so condemned 
is Honolulu Plantation Company the owner of a 
leasehold interest, giving full particulars as to said 
leases, if any; 

3. A detailed list and location of any improve- 
ments '.existing on the property condemned and 
w^h ether or not such improvements were removed 
and returned to said Honolulu Plantation Company 
by the United States of America or any of the 
agencies thereof; 

4. A list of the improvements placed upon the 
premises allegedly occupied by the Honolulu Plan- 
tation Company as lessee and whether or not said 
imijrovcments became the property of the lessor 
upon termination of the lease by virtue of the pro- 
visions thereof; [797] 

5. The precise nature and extent of the claim 



Honolulu Plant ai ion Co. 457 

of PTonolulii Plantation Company which forms the 
basis of the claim made in the answer filed by said 
company statino- "that by the takini': of said lands 
described in the said petitions the integrity ot said 
sugar plantation will be destroyed and the un:'tary 
value of the leasehold interests and estates of this 
defendant in such other and contiguous takint,s of 
l.'snd will be greatly impaired and diminished '^ 

And the petition, of the United States of Amer- 
ica, further says, in connection with the application 
to this Court for a Bill of Particulars as aforesaid, 
that it IS unable to jjroperly and accurately prepare 
it? case for trial without the information ^lore- 
meritioned. 

Dated Honolulu, T. H., this 6th day of Novem- 
ber, 1946. 

UNITED STATES 
OF AMERICA, 

Petitioner herein. 

By /s/ CHARLES F. RATHBUN, 

Special Asst. to the Atty. Gren. 

By /s/ WILMER H. DRIVER, 

Special Asst. to the Atty. den. 

I hereby certify that I have read the foregoing 
motion for a Bill of Particulars, and further cer- 
tify th:\t, in my opinion, it is necessary that said 
motion be complied with in order for the Urjited 
States 1o properlj' prepare its case for trial, and 



458 United States of America vs. 

I do further certify that this motion for Bill of ^ 
Particulars is not taken for purpose of delay. ! 

By /s/ CHARLES F. RATHBUN, ] 

i 

Special Asst. to the Atty. G-en. \ 

Service of copy admitted this 6th day of Novem- ] 
ber, 1946. i 

R. A. VITOUSEK, ■ 

By YOLANDA HOLCK, \ 

VITOUSEK, PRATT & WINN, ! 
Attorneys for Honolulu Plantation Company. I 

[Endorsed] : Filed Nov. 6, 1946. [798] j 



FROM THE MINUTES OF THE UNITED 
STATES DISTRICT COURT FOR 'CHE 
DISTRICT OF HAWAII 

Thursday, November 14, 1946 

[Title (>f Court and Causes.] 

On this day came Mr. Wilmer H. Driver, Special 
Assistant to the Attorney General of the United 
States, and also came Mr. Roy A. Vitousek of the ; 
firm Y.'tousek, Pratt and Winn, counsel for the 
Honolulu Plantation Company, a defendant herein. 
Tliese cases were called for hearing on motion for 
consolidation. 



1: 



There being no objections by Mr. Driver, the ',.. 
Court .n'anted said motion for consolidation. [799] I 



Honolulu Plantation Co. 459 

FROM THE MINUTES OF TPTE UNITED 
STATES DISTRIC^r COURT FOR ^'^HE 
DISTRICT OF HAWAII 

Tuesday, November 26, 1946 

[Title of Court and Causes.] 

On this day came Mr. Charles F. Rathbun and 
Mr, Wilmer F. Driver, Special Assistants to the 
Attorney General of the United States, and also 
came Mr. Roy A. Vitousek of the firm Vitousek, 
Pratt and Winn, counsel for the defendant he-^ein, 
Honolulu Plantation Company, Limited. Q^hese 
cases were called for hearing on motion for bill of 
particulars, requested by the government. 

Following argument by respective counsel, said 
motion was denied by the Court, and exceptions 
were allowed the petitioner. 

Trial by jury was waived by respective counsel. 

[800] 

[Title of Court and Causes.] 

ORDER FOR CONSOLIDATION 

Upon the Motion of Honolulu Plantation Com- 
pany, a corporation, one of the defendants in each 
and all of the above entitled proceedings which are 
pending in the United States District Court for the 
District of Hawaii, and good cause appearing tl'.ere- 
fcr. 

It Is Hereby Ordered that the six above entitled 
proceedmgs Numbered 521, 527, 532, 536, 54C, and 
684 and the consolidated proceedings (being the 



460 United States of America vs. 

consolidation of Civil Cases Numbers 514, 525, 529, 
533, 535, 544 and 548) be consolidated into one pro- 
ceeding in so far as the Honolulu Plantation Com- 
pany is concerned and in so far as it has any claims 
for damages or may claim damages by reason of the 
taking under the said proceedings; and 

It Is Hereby Further Ordered that the trial in 
said consolidated proceedings be had in the same 
manner as if all of said takings had been in one 
proceedings and as if all of the allegations con- 
tained Jn the various petitions filed in the various 
proceedi'ngs had been embodied in one petitio»i. 

Dated Honolulu, T. H., this 22nd day of Novem- 
ber, 1946. 

(Seal) /s/ J. FRANK McLAUGHLIN, 

Judge of the Above Entitled Court. 

[Endorsed]: Filed Nov. 22, 1946. [804] 



Eonohihi Plantation Co. 461 

[Title of District Court and Causes.] 

.L Frank McJjaughlin, Jud^e • 

Attorneys for Petitioner: Charles F. Rath bun, 
Esq., Special Assistant to th(^ Attorney General; 
Wilmev H. Driver, Esq., Special Assistant to the 
Attorney General. 

Attorneys for Defendant, Honolulu Plan^^ation 
Company: Stanley, Vitousek, Pratt & Winn, Alex- 
ander K^ Baldwin Bldg., Honolulu, T. H. [80^] 

DECISION 

Prior to the institution by the United States, in 
exercise of its eminent domain powers, of these 
consolidated thirteen condemnation cases, the Hono- 
lulu Plantation Company operated adjacent to 
Pearl Harbor, upon the Island of Oahu, and irri- 
gated 4,397.34-acre sugar plantation and also a 
refinery. Since its inception in 1899 this California 
corporation has conducted its business upon leased 
land, except for scattered parcels which by rrood 
fortime from time to time it has been able to buy 
in fee. Leasehold plantations, incidentally, oy^ the 
rule rather than the exception in Hawaii, for us- 
able land in Hawaii is scarce and tightly held by 
a comparatively few large corporation, trusi, and 
estate owners who buy but rarely sell. As ilhi^tra- 
tive, in 1945 of the 886,560 acres comprising' the 
Island of Oahu 61.04% of all the land was owned 
by twenty-eight owiiers, of whom but one was an 



462 United States of America vs. 

individual. Governmental agencies owned 2^.o3% 
of the land, leaving but 12.33% as owned by all ; 
others — the bulk of Oahu's population of 348,045 ] 
(July 1. 1945). See Exhibit No. 14. '{ 

As a result of these thirteen takings in connec- i 
tion with the expansion of the Naval base known j 
as Pearl Harbor — all of which takings under the \ 
stipulation of consolidation were agreed to be as | 
of June 21, 1944 — the Honolulu Plantation Com- \ 
pany was reduced m size from a 4,397.34-acre en- \ 
terprise to a 3,309.75-acre plantation, or put in i 
terms of tons of raw sugar, from a 21,000-ton j 
piantatjon to a 15,000- ton plantation. [810] j 

Arising out of the 1,364.35-acre takings by the | 
Government in these cases, of which 1,087.59 acres j 
w^ere cane land — crop damage having been settled, 
the Honolulu Plantation Company claims here just 
compensation for: 

1. The taking of certain fee simple land and 
the improvements thereon owned by it; 

2 The taking of certain improvements upon 
land which it held under lease; 

3. Rent prepaid under a lease; and 

4. Severance damage. 

The jury- waived trial of these issues was of con- 
siderable length (December 2, 1946, to January 
35, 1947, inclusive of recesses for holidays an J the 
illness of defendant's chief attorney, of which after 
the trial he suddenly died), and the final brief was 
fil-^d herein June 5, 1947. 

The questions will be resolved in the order ibove 
'stated, a sequence which reserves to the last the 



/ 



Honolulu Plantation Co. 463 

principal issue between the parties, whicli haj'pens 
also to have been an issue considered by the Com- 
mittee on Claims of the House of Representatives, 
79th Congress, 1st Session, Report No. 1313 d-ited 
November 28, 1945. H. R. 2688 passed the House, 
but not the Senate. 

I. 

What was the fair market value on June 21, 
1944, of lands and improvements owned in fee by 
the Honolulu Plantation Company? 

The evidence given by the witnesses may be sum- 
marized as follows: [811] 



464: United States of America vs. 

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Honolulu Plantation Co. 465 



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466 United States of America vs. \ 

]n Civil No. 521 I find the fair market value ^ 
of parcel 2-A to be $100 and of parcel 2-B to be | 
$75. 

From these two findings it is obvious that as to ] 
thfdr market value I have adopted the opinion of j 
John Francis Child, Jr., local appraiser. I have J 
done so because I have been impressed with his j 
careful analysis of the factors involved and the | 
reasons given by him for his opinion. On the con- 
trary, (xeorge Robert Ewart Til, manager of the 
land department of the Company's agent, C. 
Brewer & Company, Ltd., based his judgment upon 
a base of $1,000 an acre, and A. L. Moses, local ap 
Draiser, upon his opinion of the two ku^eanas' 
worth to surromiding owners. It seems to be that 
Mr. Ewart, a plantation man so to speak, was think- 
ing in terms of the commonly referred to $1,000- 
an-acre rule as to sugar-cane lands. In any event, 
due to the size, shape, and condition of these 
kuleanas even Mr. Ewart would, I am sure, con- 
cede that the land is not all usable farm land. Mr. 
Moses, experienced as he is, seemed to place his 
v^eight upon the nuisance value which a ku\eana 
might have to the one who owns the land surround- 
ing it. Such does not reflect market value. 

In Civil No. 529 as to both parcel F-1 and parcel 
F-2. I uisregard Mr. Moses' opinion as being based 
ujjon the nuisance value to the owners whose land 
suirounds the two kuleanas. 

And as to the land, here again Mr. Child's ap- 
proach and reasoning is to my mind a better reflec- 
tion of market value than Mr. Ewart 's. Here, in- 



! 



Honolulu Plantation Co. 467 

deed, Mr. Child is higher than Mr. Ewai-t, for he 
used a $l,000-an-Acre base adjusted for size, while 
Mr. Evvart used a base of $600 [813] an acre. I'oth 
men agreed that these kuleanas would be best used, 
as was their original x)urpose, as homesites, and Mr. 
Child |..ointed out that due to size they would be 
uneconomic as farm sites and based his opinion 
upon a sale of a larger area across the stream froin 
parcel F-2, an instance of 9.916 acres selling for 
$1,347 an acre. 

So as to parcel F-2, I find the value to be $75. 

The crucial point as to parcel F-1 relates to the 
four wells and pump house. Here the question is: 
Though the value of the improvements must be 
stated separaately under the Hawaiian st:itute 
(KSection 314, Revised Laws of Hawaii 1945>, to 
what extent, if any, did the buildings and the wells 
enhance the value of the land? 

On this point defendant produced H. A. R. Aus- 
tin, a civil engineer, who testified that: 

1. Though the defendant's books revealed a theo- 
retical depreciation of 2 percent, or 68 percent 
good, the 4 sixteen-year-old encased artesian wells 
were actually 80 percent good, for all that was 
needed to operate them was pipe, fittings, a^.^ an 
adequate pump — if in 1944 such things could be 
purchased — and the pmnping station could bo put 
into operation in about two months, as against six 
months to dig and equip new wells. Re-equipped 
these wells would supply many millions of gallons 
of fresh water daily. 

As before noted, the Honolulu Plantation Com- 



468 United States of America vs. ,| 

pany had removed its puinp for use elsewhxre, as J 
it obtained used water cheaper from the Lvearby ! 
Hawaiian Electric Company power station — water j 
which the Electric Company had first used for cool- i 
ing purposes. i 

Mr. Austin figured the replacement cost of the ■ 
pumping station and wells to be $27,916.72, and I 
that hence the current value of these things was I 
$23,000 [814] upon a basis of 80 percent good. \ 

Mr. Austin said his figure represented the extent ! 
to which the pumpiug plant enhanced the land's \ 
value, and that he considered the demand for water 1 
by the City, the Navy, and others and genera] con- I 
ditions at the time (Jmie 1944). He agreed that i 
Aery little of the water available would be needed 
in the .77 acre in parcel F-1, so he visualized use ^ 
or sale of the water off the parcel. 

2. As to his $23,000 figure. Mr. Austin added 
as a rough guess $1,500 for the house and sHeds 
adjacent to the pump house — a frame, singlp-v:all, ] 
two-sto:y, plantation-type house with a corregated 
iron roof — and thus obtained his figure of $21,500. 

3. He conceded that the land surrounding p ircel 
F-1 was not owned by defendant and that a buyer 
would liave to obtain easements for a pipeline to 
get water off parcel F-1 for use elsewhere or forj 
sale. 

4. Though he had not reflected upon it previous- 1< 
ly, the wells and pump house would have a sal- 
vage vaUie of $1,000. 

Conti-asted with the civil engineer's approach is] 
that of Mr. Child, who stated: 



Honolulu Plantation Co. 469 

(a) The puinp house, excluding- a pump, had a 
replacement value of $4,320 and was 58 percent 
good, or had a value of about $2,500 ^ 

(b) The frame house (480 sq. ft.) had a replace- 
ment value of $2,400 and was 32 percent ^o'^^i in 
June 1944, or had a value of $768; 

(c) To the sheds he gave a nominal value of 
{^100; and 

(d) To the four wells he gave a figure of $10, 
for [815] he claimed them to be an overimprove- 
ment Por the .77 acre which was best used as a 
homesite. Mr. Child noted, of course, the fact that 
as the land was surrounded by land of others, it 
Wiuld not be possible to take the water ofP p.ircel 
T^A without easements, so he considered it onh'' as 
an independent kuleana. 

There is a degree of somidness to Mr. Child's 
position insofar as the kuleana itself is concerned, 
for indeed it could never use all of the w'ater that 
could be developed thereon. And it is true also that 
the problem is not the special value which this lot 
Mith its water might have to the Honolulu Planta- 
tion Company, which, by the way. the evidence 
showed is now very little as the wells have been 
abandoned m favor of a cheaper source and hence 
?ire now but a potential standby source of water. 

On the other hand, it is common knowledge that 
here in the middle of the Pacific not only is fresh 
water always relatively scarce, but particularly at 
the date of taking was it so. The Island's ])opula- 
tion had more than doubled due to the wpr, and 
the Navy needed more fresh water constantly for 



470 United States of America vs. 

Ha ships. I am thus inclined to accept Mr. Austin's 
statement that in view of the demand for wptor by 
the Board of Water Supply of the City and Gcunty 
of Honolulu, the nearby Pearl City water system 
(suburban), and the Navy and the condition of the 
times — war conditions, a prospective buyer would 
consider as enliancing the value of the kul^ana 
the fact that an abundant supply of fresh water 
could be developed upon the land from the exist- 
ing wells by the installation of a [816] few new 
pipes and a good pump. The Government stresses 
the lack of availability to civilians of such t'iings 
as pipes and pumps in June 1944. But even if it is 
not: required to assume a normal state of n'ff'airs 
in fixing market value, still it is reasonable to as- 
sTune for such a vital commodity as fresh watei for 
purposes of human consumption or agricultural use 
that at that time appropriate priorities to obtain 
the needed equipment could readily be obtaiuf.d by 
a buyer. 

And if in the McCandless case, 298 U. S. 342 
(1936), it was error for this Court to refuse an 
offer to prove that water could be developed else- 
where and transported miles over land owned by 
others to make the subject land sugar-cane land, 
here in the reverse it would seem also to be in order 
to assume that a buyer could at a reasonable cost 
obtain the necessary pipeline easement to ^'ef the 
water off the land in order to use it elsewhere or 
sell it. 

Thus I find the market value of parcel F-1 in 
Civil No. 529 to be $24,638, representing: 



i 



Honolulu Plantation Co. 471 

TliH land filoiH- ^ 770 ((."hiid's basis of $1,000 

an acre, .77 acre.) 
The degree to wliicli the puiiip 

house and lour wells enhanced 

its value $23,000 (Austin) 

The frame house 768 (Child) 

The sheds 100 (Child) 

$24,638 

In Civil No. 535 Mr. Moses and Mr. Child a.^Teed 
as to tlie descrif>tion of th(; land and in jD^^neral 
relied [817] upon comparable data. But here again 
I accept Mr. Child's opinion, for it seems to me 
his concrete application of the comparable da' a to 
tlu subject property is more helpful and exact 
than Mr. Moses' general conclusion from like but 
unai)j)lied data that he gave the parcel an o^er-all 
value of 15 cents a square foot. 

Thus I find the market value of the 2.732 acres 
in Civil No. 535 to be $14,100. 

II. 

]s the Honolulu Plantation Company entitled to 
compensation for a concrete supplv ditch con- 
structed upon land leased by it from (1) the Bishop 
Estate and (2) the Oahu Railway and Land Com- 
pany ? 

The state of the evidence is as follows: 
1. The ditch, though ])artly on the land of two 
fee owners, is a continuous one. It is a 2 by 1.8 
foot concrete supply ditch, and has headwalh, cul- 
verts, and openings and where it passes under a 
road siphon boxes also made of concrete. From 
this ditch water brought to it by pumps is taken 



472 United States of Am erica vs. 

off as rjeeded into irrigation ditches to water the 
sugar cyne. 

2. Tvro thousand five hundred sixty-five (2,565) 
feet of tlie ditch, built in 1937, are on land leased 
from the Bishop Estate. 

3. One thousand nme hundred forty-five Q,945) 
feet of it, built at the same time, are on land leased 
from the Oahu Railway and Land Company. 

4. Neither it nor any of its parts are removable, 
except as useless concrete rubble. [81 S] 

5. ^Ir. Child considered it as a good imrr^ovable 
improvement of the fee but as having no vahie 
apart therefrom. 

6. Mr. Austin, who designed and laid out the 
d*l"ch, in reliance upon provisions in the two leases 
which vill be mentioned, stated upon a replaccnent 
cost less depreciation the part of the ditch on Oahu 
Railway and Land Company land enhanced the fee 
by $7,725 and the part of the ditch on Bishop Es- 
tate land enhanced the fee by $11,750. 

By assmning that each lease would run until its 
sp«=^cified exi)iration date, he depreciated the value 
of the ditch to the end of the lease to deter^nine 
the present value of the lessor's interest, which 
he deducted in each case from the above figure, 
and thus stated that $6,185 represented the value 
of the lessee's interest in the ditch on Oahn Rail- 
wav and Land Company land upon the dal^^ of 
tfjking and $9,400 was the value of the lessee's in- 
terest in the part of the ditch on Bishop Estate 
land upon the date of taking. 

The question is basically: Is the Honolulu Plan- 



Honolulu Plantation Co. 473 

tation Company entitled to these amounts or to 
nothing for the supply ditch? 

The answer will depend upon the construction 
of the two leases. 

The Oahu Railway and Land Comj^any Irrise to 
the Honolulu Plantation Company (Exhibit 9-1) 
provides that upon the expiration of the lease *'or 
sooner determination" all improvements sha-1 be- 
come the lessor's property. The Bishop Estate lease 
(Exhibit 9-G) similarly so provides. [819] 

But each lease also has an additional prov'sion 
that in the event of condemnation the lessee's es- 
tate shall cease and determine and it shall not be 
entitled to any compensation, except as to cei-tain 
improvements. As to improvements made by the 
lessee after January 1, 1936, in the case of the 
Bishop Estate lease (December 2, 1943 amendment 
to the lease) or after the date of the execution of 
the Oahu Railway and Land Company lease (July 
24, 193(i), such compensation as shall be awarded 
for improvements built by the lessee after 1936 
shall be divided ''as their [lessor-lessee] interests 
shall appear, dependent upon the then unexj^ired 
term of the lease; * * *." 

The Government contends that imder these leases 
the Honolulu Plantation Company owns nothing 
for whivih it can be compensated because both l*»ases 
state that at the end of the term "or sooner ter- 
mination '* all improvements shall become the prop- 
erty of the lessor. True, but the Government chooses 
io overlook the specific provisions controlling in the 
event o.'' condenmation. It is my belief th-it here 



472 United States of America vs. 

off as rjeeded into irrigation ditches to water the 
sugar cane. 

2. Two thousand five hundred sixty-five (2,565) 
feet of the ditch, built in 1937, are on land leased 
from the Bishop Estate. 

3. One thousand nine hundred forty-five Q,945) 
feet of it, built at the same time, are on land leased 
from the Oahu Railway and Land Company. 

4. Neither it nor any of its parts are removable, 
except as useless concrete rubble. [818] 

5. Mr. Child considered it as a good improvable 
improvement of the fee but as having no value 
apart therefrom. 

6. Mr. Austin, who designed and laid out the 
d'k'h, in reliance upon provisions in the two leases 
which V ill be mentioned, stated upon a replacement 
cost less depreciation the part of the ditch on Oahu 
Railway and Land Company land enhanced the fee 
by $7,725 and the part of the ditch on Bishop Es- 
tate land enhanced the fee by $11,750. 

By assuming that each lease would run until its 
specified expiration date, he depreciated the value 
of the ditch to the end of the lease to deterinine 
the present value of the lessor's interest, which 
he deducted in each case from the above figure, 
and thus stated that $6,185 represented the value 
of the lessee's interest in the ditch on Oahu Rail- 
way and Land Company land upon the dal'^ of 
taking and $9,400 was the value of the lessee's in- 
terest }n the part of the ditch on Bishop Estate 
land npon the date of taking. 

The question is basically: Is the Honolulu Plan- 



Honolulu Plantation Co. 473 

tation Company entitled to these amounts or to 
notliing for the supply ditch? 

The answer will depend upon the construction 
of the two leases. 

The Oahu Raihvay and J^and Com])any lo^^se to 
the Honolulu Plantation Company (Elxhibit 9-1) 
provides that upon the expiration of the lease *'or 
sooner determination" all improvements sha'l be- 
come the lessor's property. The Bishop Estate lease 
(Exhibit 9-G) similarly so provides. [819] 

But each lease also has an additional provision 
tiiat in the event of condenmation the lessee's es- 
tate shall cease and determine and it shall not be 
entitled to any compensation, except as to certain 
improvements. As to imx)rovements made by the 
lessee after January 1, 1936, in the case of the 
Bishop Estate lease (December 2, 1943 amendment 
to the lease) or after the date of the execution of 
the Oahu Railway and Land Company lease (July 
24, 193(3), such compensation as shall be awarded 
for improvements built by the lessee after '936 
shall be divided ''as their [lessor-lessee] interests 
shall appear, dependent upon the then unexpired 
term of the lease; * * *." 

The Government contends that under these leases 
the Honolulu Plantation Company owns nothing 
for which it can be compensated because both l^^ases 
state that at the end of the term ''or sooner ter- 
mination" all improvements shall become the prop- 
erty of the lessor. True, but the Government chooses 
to overlook the specific provisions controlling in the 
event of condemnation. It is my belief th:it here 



474 United States of America vs. 

the specific governs the general provisions, and it 
is obvious that the general clause does not in^ olve 
termination of the lease by condemnation. In any 
event the parties took this possibility out from un- 
der the general clause by specifically providing for 
such a contingency, and the specific controls. See 
Brooklj^n Eastern Dist. Terminal v. City of New 
York, 139 F. 2d 1007 (CCA. 2d 1944), and Re- 
statement, Contracts, Vol. I, paragraph 236. 

In view of this holding, upon the basis of the 
evidence — indeed the only evidence on the point — ■ 
[820] and believing it proper for valuation pur- 
poses to assmne that the leases would run their 
full terms, I find in Civil No. 529 the fair value 
of the Honolulu Plantation Company interest in 
this ditch on June 21, 1944, to be : 

1. $6,185 for the part of the Oahu Railway and 
Land Company land ; and 

2. $9,400 for the