Appendix — Ex parte Cloud

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Anited States

Circuit Court of Appeals

Fox the Ninth Circuit.

—_--——_-—

UNITED STATES OF AMERICA,

Appellant,

Vs.

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, deceased, et al..

Appellees,

and

UNITED STATES OF AMERICA,

Appellant,

vs

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, deceased, et al.,

Appellees.

el

Grauscript of Record

Upon Appeals from the District Court of the United

States for the District of Hawaii.

= —————SS——=== —————— J

PARKER PRINTING COMPANY. 548 SANSOME STREET. SAN FRANCISCO 00-8-14-48

Page

Answer of Bishop National Bank of Hawaii at

Honolulu (No. 434) es 26

Answer of the Trustees Under the Will of

Samuel M. Damon, Deceased (No. 434)... 24

Answer of the Trustees Under the Will of

Samuel M. Damoti, Deceased (No. $36)... 67

Appeal:

Designation of Contents of Reeord on (Cir-

euit Court of Appeals)... nus 449

Designation of Additional Contents of Ret-

ord on (Cireuit Court of Appeals) .::...... 453

Desigtiation of Contents of Reeord on (Dis-

trict Court) -...........: sistent : 100

Notice of (No. 434) set 36

Notice of (No. 436)... 76

Statement of Points on 0 452

Certifieate of Clerk to Transeript of Record....... 444

Declaration of Taking (No. 434). 15

Declaration of Taking (No. 436) 51

Designation of Cotitents of Record sii Appeal

(Cirenit Court of Appeals) 449

ne

United States of America

Index Page

Designation of Additional Contents of Record

on Appeal (Circuit Court of Appeals)........... 455

Designation of Contents of Record on Appeal

(District Court) 100

Instructions, Requested 78

Instructions to the Jury as Recorded by the

Court Reporter 422

Judgment (No. 434) 34

Judgment (No. 436) 75

Motion for a Directed Verdict (No. 434)... 31

Motion for Directed Verdict (No. 436)................ 71

Motion for Order of Payment of Deposit (No.

islken 28

Motion for Order of Payment of Deposit (No.

436) 68

Motion re Original Exhibits. 447

Names and Addresses of Attorneys of Record 1

Notice of Appeal (No. 434) 36

Notice of Appeal (No. 436) 76

Order and Judgment on Declaration of Taking

(No. 434) ti 21

Order and Judgment on Declaration of Taking

(No. 436) em

Order Consolidating Causes on Appeal... 97

Order Enlarging Time for Filing Record and

Docketing Cause (No. 434)

vs. John Waterhouse et al. iii

Index Page

Order Enlarging Time for Filing Record and

Docketing Cause (No. 436) 77

Order Enlarging Time for Serving and Filing

Designation of Reeord on Appeal (No. 434) 37

Order Enlarging Time for Serving and Filing

the Designation of Record on Appeal (No.

436) 78

Order Extending Time to File Record... 446

Order for Distribution of Money Deposited

Ci ON inn acdeladeiiplesilmbinmmoi 30

Order for Distribution of Money Deposited

(No. 436)... 70

Order for Judgment (No. 434)... 33

Order for Judgment (No. 436)...

Order for Transmittal of Original Exhibits....... 97

Order re Original Exhibits 448

Petition for Condemnation (No. 434)... 9

Petition for Condemnation (No. 436)... 39

Reporter’s Transcript (For Detailed Index

See ‘“‘Testimony’’) -. sinitiatiessues Tae

Request for Extension of Time to File Record 445

Statement of Clerk... ‘ ve

Statement of Points on Appeal... 452

Stipulation and Agreement for Consolidation... 93

i¥ United States of Amefica

Inflex Page

Testimony : aaa Sere 102

Certificate of Repottér to Tratiseript.___.. 44

Tnistfiicti6fis to the Jury 422

440

441

Verdict (No. 436)

Verdict (No. 434)

Witnesses for Defendants:

Castro, A. D.

—direct

Damon, Sam R.

—SGEe, GN. sonst

—redirert

—reeross

—redirect

—recalled, direct .....

Harrison, Wilfred F.

—direet ...............

ce SREY a AR cS Pec aa aR

CUO citi

—recross

—redirect

vs. John. Waterhouse et al.

Index

Henderson, Wellington 8.

—direct Le

Page

— Cross

Kearns, Ralph A.

—direct

-——CTO8s

—redirect

Russell, John F.

—direct

Nt) a |

Waterhouse, Albert

—direct

Waterhouse, John

—direct ...

Witnesses for Petitioner:

Crozier, Charles Campbell

—direct

—recalled, direct. .....

Fernandez, Vincent

—direct

Ee GREENS Seneca an Sager crm es

Verdict (No. 436)

. 140

in U. my C.C. A. Ninth Circuit.....---

Decree 7

Cader Ganging petition tor HES SS Fee

Order staying issuance of mandate ‘

Clerk's certificate

Order time within which to apply for :

certiorari :

560631—43

NAMES AND ADDRESSES OF ATTORNEYS

OF RECORD

For the Petitioner:

The United States of America:

JOHN J. COURTNEY,

Special Assistant to the Attorney Gen-

eral, and

ANGUS M. TAYLOR, JR.,

United States Attorney,

District of Hawaii,

Federal Building, Honolulu, T. H.,

For the Defendants:

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,

Mr. A. G. M. ROBERTSON of the firm of

Robertson, Castle & Anthony,

312 Castle & Cooke Building, Honouulu,

T.H,

Honolulu Plantation Company,

STANLEY, VITOUSEK, PRATT &

WINN,

404 Alexander & Baldwin Building,

Horolulu, T.7.,

United States of America

Bishop National Bank of Hawaii at Honolulu,

SMITH, WILD, BEEBE & CADES,

Bishop Trust Building, Honolulu, T.H.,

Territory of Hawaii, _

Mr. J. V. HODGSON, Attorney General,

Tolani Palace, Honolulu, T.H.,

City and County of Henolulu,

Mr. JON WIIG, City and County Attorney,

City Hall, Honolulu, T.H.,

Frank Leialoha Kaleimamahu,

Mr. CHARLES B. DWIGHT,

Damon Building, Honolulu, T.H. [1*]

vs. John Waterhouse et al. 3

In the United States District Court

for the Territory of Hawaii

Civil No. 434

“THE UNITED STATES OF AMERICA,

Petitioner

vB.

CERTAIN PARCELS OF LAND on the Island of

Oahu, Territory of Hawaii, et al., ete.,

Defendants.

Civil No. 436

THE UNITED STATES OF AMERICA,

Petitioner,

vs.

254.468 acres of land, more or less, in Moanalua,

Honolulu, Island of Oahu, Territory of Hawaii,

et al., ete.

Defendants.

CLERK’S STATEMENT

Time of Commencing Suit:

Civil No. 434

November 20, 1940 Petition filed

Civil No. 436

November 27, 1940 Petition filed

4

Civil No. 436

Dates and Filing Pleadings:

Civil No. 434

The United States of America,

Certain Parcels of Land on the

Island of Oahu,

John Waterhouse, Ernest Hay

Wodehouse, Walter Francis

Frear, and John Edward Rus-

sell, Trustees, Honolulu Plan-

tation Company,

Bishop National Bank of Hawaii

at Honolulu,

Territory of Hawaii, and City

and County of Honolulu,

The United States of America,

254.468 acres of land,

John Waterhouse, Ernest Hay

Wodehouse, Wat .. Francis

Frear, and John Edward Rus-

sell, Trustees, Honolulu Plan-

tation Company,

Bishop National Bank of Hawall

at Honolulu,

Territory of Hawaii, and City

and County of Honolulu,

November 20, 1940

December 10, 1940

United States of America

Names of Original Parties:

Civil No, 434

Petitioner

Defendants

Petitioner

Defendants

Petition for Condemna-

tion

Declaration of Taking

Certified copy Letter of

Necessity

Order and Judgment on

Declaration of Taking

Answer of the Trustees

under the Will of Sam-

uel M. Damon, Deceased

vs. John Waterhouse et al. 5

December 30, 1940

January 22, 1941

January 23, 1941

April 8, 1941

April 15, 1941

July 29, 1941

July 31, 1941

August 18, 1941

November 15, 1941

Civil No. 436

November 27, 1940

Civil No. 436 (Continued)

December 10, 1940

December 20, 1940

January 23, 1941

Answer of Bishop Na-

tional Bank of Hawaii at

Honolulu

Answer and Disclaimer

(City and County of

Honolulu)

Disclaimer of the Terri-

tory of Hawaii

Motion for Order of Pay-

ment of Deposit and

Notice

Order for Distribution of

Money Deposited

Motion for a Direct

Verdict

Verdict

Order for Judgment

Judgment

Petition for Condemna-

tion

Declaration of Taking

Certified copy Letter of

Necessity

Order and Judgment on

Declaration of Taking

[3]

Answer of the Trustees

under the Will of Sam-

uel M. Damon, Deceased

Appearance (Chas. B.

Dwight)

Answer of the City and

County of Honolulu

November 15, 1941

Dates When Proceedings Were Had:

Civil No. 434

November 20, 1940

Civil No. 436

November 27, 1940

Civil Nos. 434 and 436

July 21, 1941

July 22, 1941

July 23, 1941

July 24, 1941

July 25, 1941

July 28, 1941

6 United States of America

January 23, 1941 Disclaimer of the Terri-

tory of Hawaii

April 8, 1941 Motion for Order of Pay-

ment of Deposit and

Notice

April 15, 1941 Order for Distribution of

Money Deposited

July 29, 1941 Motion for a Direct

Verdict

July 31, 1941 Verdict

August 18, 1941 Order for Judgment

Judgment

Title of lands vested in

the United States of

America; Order and

Judgment on Declaration

of Taking signed and

ordered filed.

Title of lands vested in

the United States of

America; Order and

Judgment on Declaration

of Taking signed and

ordered filed.

Consolidation of cases

for trial; Jury empan-

eled ; Trial

Further trial

Further trial

Further trial

Further trial

Further trial [4]

vs. John Waterhouse et al.

Civil Nos. 434 and 436 (Continued)

July 29, 1941

July 30, 1941

July 31, 1941

Further trial

Farther trial

Verdicts

Proceedings in the above entitled matter were

had before the Honorable D. E. Metzger, Judge,

United States District Court, Territory of Hawaii.

Dates of Filing Appeal Documents:

Civil No. 434

November 15, 1941

Civil No. 436

November 15, 1941

Civil Nos. 434 and 436

February 2, 1942

February 3, 1942

February 4, 1942

Notice of Appeal

Order Enlarging Time

Order Enlarging Time

for Serving and Filing

the Designation of Ree-

ord on Appeal

Notice of Appeal

Order Enlarging Time

Order Enlarging Time

for Serving and Filing

the Designation of Rec-

ord on Appeal

Stipulation and Agree-

ment for Consolidation

Order Consolidating

Causes on Appeal

Motion for Order for

Transmittal of Original

Exhibits

Order for Transmittal of

Original Exhibits

Appellant’s Designation

of Record on Appeal

8 United States of America

CERTIFICATE OF CLERK TO THE ABOVE

STATEMENT

United States of America,

Territory of Hawaii—es.

I, Wm. F. Thompson, Jr., Clerk of the United

States District Court for the Territory of Hawaii,

do hereby certify the [5] foregoing to be a full, true

and correct statement showing the time of com-

mencement of the above-entitled causes; the names

of the original parties, the dates when the respec-

tive pleadings were filed; the dates when proceed-

ings were had; the name of the judge presiding;

and the dates when appeal pleadings were filed in

the above entitled causes.

In Witness Whereof, I have hereunto set my

hand and affixed the seal of said District Court, this

19th day of March, A. D. 1942.

(Seal) WM. F. THOMPSON, JR.,

Clerk,

United States District Court,

Territory of Hawaii. [6]

vs. John Waterhouse et al. 9

In the United States District Court

for the Territory of Hawaii

October 1940 Term

Civil No. 434

THE UNITED STATES OF AMERICA,

Petitioner,

vs.

CERTAIN PARCELS OF LAND on the Island of

Oahu, Territory of Hawaii, 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, HONOLULU PLANTATION COM-

PANY, BISHOP NATIONAL BANK OF

HAWAII AT HONOLULU, TERRITORY

OF HAWAII, CITY AND COUNTY OF

HONOLULU, JOHN DOE ONE TO JOHN

DOE FIFTY, INCLUSIVE and MARY ROE

ONE TO MARY ROE FIFTY, INCLUSIVE,

unknown owners and claimants,

Defendants.

PETITION FOR CONDEMNATION

To the Honorable, the Presiding Judge of the

United States District Court for the Territory

of Hawaii:

Comes now The United States of America, Peti-

tioner herein, by John E. Parks, Assistant United

10 United States of America

States Attorney for the District of Hawaii, and

acting under instructions of the Attorney General

and at the request of the Administrator of the Fed-

eral Works Agency, respectfully shows as follows:

I.

That in accordance with the Act of Congress

approved October 14, 1940 (Public No. 849—T76th

Congress), the President [8] of the United States

of America has found that an acute shortage of

housing exists in the area in or about the Island of

Oahu, Territory of Hawaii; that pursuant to this

finding and by virtue of the authority vested in him

by the Act of August 1, 1888, 25 Stat. 357, (United

States Code, Title 40, Section 257) ; the Act of Feb-

ruary 26, 1931, 46 Stat. 1421 (United States Code,

Title 40, Sees. 258 (a) to 258 (e)); the Aet of Octo-

ber 14, 1940 (Public No. 849—76th Congress), funds

having been appropriated under the Act of Sep-

tember 9, 1940 (Public 781, 76th Congress) and

transferred to the Federal Works Agency under

the provisions of said Act of October 14, 1940 (Ap-

propriation title ‘‘80-11X0004 (10) Emergency

Fund for the President, National Defense Housing)

transfer from war to said Federal Works Agency,

Publie Buildings Administration)’’), the Adminis-

trator of the Federal Works Agency has selected

for acquisition by the United States of America

the land hereinafter described and has designated

that said land and the title in fee simple absolute

are suitable and necessary for the purposes of the

vs. John Waterhouse et al. i

United States 2s a site for housing, for persons

engaged in national defense activities and their

families, which lands are situate at Moanalua, City

and County of Honolulu, Island of Oahu, Territory

of Hawaii, and being more particularly described

as follows:

Beginning at a point marked by a Territorial

Highway Monument set in the southwesterly

side of Dillingham Boulevard, said point being

a corner of the United States Military Reser-

vation designated as Hickam Field; thence

from said monument the following azimuths

(measured clockwise from true south) and dis-

tances: .

(1) Along Dillingham Boulevard to a monu-

ment 296° 10’ 30”, 1293 feet ;

(2) thence 26° 10’ 30”, 2047 feet to a monu-

ment; [9]

(3) thence 118° 14’ 30”, 2044.25 feet to a monu-

ment ;

(4) thence 226° 59’ 00”, 2110.93 feet to the

point or place of beginning,

containing an area of 77.288 acres, more or

less, and designated as Lots C-1 and C-2, as

shown by plat ‘Land proposed to be acquired

through condemnation proceedings for the De-

fense Housing Project at Fort Kamehameha

and Hickam Field, Hawaii’, blue print of

which is attached hereto and by reference made

a part hereof and marked Exhibit ‘A”’,

together with all improvements thereon.

12 United States of America

I.

That the interest sought to be condemned is an

estate in fee simple absolute.

ITT.

That the information acquired by Petitioner indi-

cates that the following persons are the purported

owners of or may have some interest in the lands

which are part and are contained in the interior

boundaries of the above described area:

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, Hono-

lulu Plantation Company, Bishop National

Bank of Hawaii at Honolulu, Territory of

Hawaii, City and County of Honolulu, John

Doe One to John Doe Fifty, inclusive and

Mary Roe One to Mary Roe Fifty, inclusive,

unknown owners and claimants,

whom are hereby made parties defendants to the

end that they may come into this Court and by

proper pleadings establish their claims, if any.

And in this behalf the Petitioner further avers

and shows that John Doe One to John Doe Fifty,

inclusive, and Mary Roe One to Mary Roe Fifty,

inclusive, named herein as defendants, are fictitious

[10] names and represent owners and claimants

of interests in said property, the true names of

whom are unknown to Petitioner and are therefore

vs. John Waterhouse et al. 13

made parties to this action by the name and de-

scription as aforesaid.

The above named defendants zenerally and all

and singular the heirs, husbands, wives, devisees,

executors, administrators, representatives, alienees,

successors, assigns of each and every of the above

named persons, and all unknown owners, lienors,

and claimants having or claiming any right, title,

estate, equity, interest or lien; and all occupants,

lessees, licensees of and users and holders of said

land and all owners or claimants to easements in,

on, over, across or through said land; and all per-

sons, companies, and corporations claiming any title

or interest to or in the whole or any part of any

of said tracts of land; are hereby made parties de-

fendant to the end that they may come into Court

and by proper pleadings make claim to said lands,

or to the proceedings arising therefrom.

Wherefore, Petitioner prays that the Court as-

certain and determine according to law the com-

pensation or damages for the taking of the land

to be herein condemned; to ascertain and determine

the rightful owners thereof and the parties entitled

to the sum awarded as just compensation for said

land; and upon payment to, or into the Registry of

the Court for the use of, the persons entitled there-

to, of the sum adjudged to be just compensation for

the land condemned, to adjudge and decree that the

title to said land is vested in the United States of

Ameriea in fee simple absolute, and to grant such

RE RNR en

4 United States of America

other and further relief as may be lawful and

proper.

THE UNITED STATES OF AMERICA,

Petitioner

By (s) JOHN E. PARKS,

Assistant United States Attorney,

District of Hawaii. [11]

The United States of America,

District of Hawaii—ss.

John E. Parks, being first duly sworn on oath, de-

poses and says:

That he is Assistant United States Attorney for

the District of Hawaii; that he has read the fore-

going Petition for Condemnation and knows the

contents thereof and that the same is true to the

best of his knowledge, information and belief.

JOHN E. PARKS

Subscribed and sworn to before me this 20th day

of November, 1940.

(Seal) (s) WM. F. THOMPSON, JR.

Clerk,

United States District Court

for the Territory of Hawaii

[Endorsed]: Filed Nov. 20, 1940. [12]

ve. John Waterhouse et al. pt]

[Title of District Court and Cause—Civil 434.]

DECLARATION OF TAKING

I, John M. Carmody, Federal Works Adminis-

trator of the Federal Works Agency of the United

States of America, do hereby declare that:

1. (a) The lands described in Schedule A

hereto attached are hereby taken for the use of the

United States under the authority of the Act of

August 1, 1888, 25 Stat. 357 (U. 8. C. Title 40, Sec.

257); the Act of February 26, 1931, 46 Stats. 1421

(U. 8. C. Title 40, Sees. 258(a) to 258(e)) ; the Act

of October 14, 1940 (Public No. 849, 76th Congress),

funds having been appropriated under the Act of

September 9, 1940 (Public No. 781, 76th Congress )

and transferred to the Federal Works Agency un-

der the provisions of said Act of October 14, 1940.

(b) The public use for which lands are taken is the

purposes prescribed in said Act of October 14, 1940.

2. A description of said lands sufficient for the

identification thereof is set forth in Schedule A,

annexed hereto and made a part hereof.

3. The estate taken for said public use is the full

fee simple title in and to said lands.

4. A plan showing said lands is annexed hereto

as Schedule B [14] and made a part hereof.

5. The sum of money estimated by me to be just

compensation for said lands, including all buildings

and improvements thereon, if any, all appurtenances

thereto, and all interests therein is set forth in

Schedule A annexed hereto and made a part hereof.

16 United States of America

Said sum I herewith deposit in the registry of this

Court to the use of the persons entitled thereto.

I am of the opinion that the ultimate award of

compensation for the taking of said lands will be

within any limits prescribed by law to be paid as

the price therefor.

In Witness Whereof, I, John M. Carmody, Fed-

eral Works Administrator, thereunto duly author-

ized have signed this Declaration of Taking, as

Federal Works Administrator this 15th day of No-

vember, 1940, in the City of Washington, District

of Columbia.

UNITED STATES OF AMERICA

By JOHN M. CARMODY

Federal Works Administrator [15]

SCHEDULE “A”’

A tract of land lying and being at Moanalua, City

and County of Honolulu, Territory of Hawaii, and

described as follows:

Beginning at a point marked by a Territorial

Highway Monument set in the southwesterly

side of Dillingham Boulevard, said point being

a corner of the United States Military Reser-

vation designated as Hickam Field; thence from

said monument following azimuths (measured

clockwise from true south) and distances:

(1) Along Dillingham Boulevard to a monu-

ment 296° 10’ 30”, 1293 feet ;

vs. John Waterhouse et al. 17

(2) thence 26° 10’ 30”, 2047 feet to a monu-

ment. ;

(3) thence 118° 14’ 30”, 2044.25 feet to a monu-

ment ;

(4) thence 226° 59’ 00”, 2110.93 feet to the point

or place of beginning,

containing an area of 77.288 acres, more or

less, and designated as Lots C-1 and C-2,

as shown by plat ‘‘Land proposed to be ac-

quired through condemnation proceedings

for the Defense Housing Project at Fort

Kamehameha and Hickam Field, Hawaii’’,

blueprint of which is attached herete and

by reference made a part hereof; together

with the improvements thereon.

The sum of money estimated by the acquiring

authority to be just compensation for the aforesaid

land in this proceeding and hereby taken is $33,-

498.00.

ae,

United States of America

DEPARTMENT OF JUSTICE

November 15, 1940

Pursuant to Title 28, Section 661, U. S. Code

(Sec. 882, Revised Statutes), I hereby certify that

the annexed paper is a true copy of the original

record in this Department, of a letter dated No-

vember 15, 1940, from John M. Carmody, Admin-

i8 United States of America

istrator, Federal Works Agency, to the Attorney

General, requesting the institution of a condemna-

tion proceeding, and the filing therein of a declara-

tion of taking, for the acquisition of certain lands

at Moanalua, Honolulu, County of Honolulu, Island

of Oahu, Territory of Hawaii, for use as a site for

housing for persons engaged in national defense

activities.

In Witness Whereof, I have hereunto set my

hand, and vaused the seal of the Department of

Justice to be affixed, on the day and year first above

written. ;

[Seal] NORMAN M. LITTELL

Assistant Attorney General. [18]

FORT KAMEHAMEHA, HAWAII

HICKAM FIELD

DEFENSE HOUSING PROJECT

In reply please quote: L-McC

November 15, 1940

The Honorable,

The Attorney General of the United States.

My dear Mr. Attorney General:

The President of the United States has found,

pursuant to the provisions of the Act of October 14,

1940 (Public No. 849, 76th Congress), that in the

area in or about the Island of Oahu, Territory of

Hawaii, an acute shortage of housing exists or im-

ve. John Waterhouse et al. 19

pends which will impede national defense activities..

By virtue thereof and pursuant to the authority

vested in me by the Act of August 1, 1888, 25 Stat.

957 (U. 8. C. Title 40, Sec. 257); the Act of Feb-

ruary 26, 1931, 46 Stat. 1421 (U. 8. ©. Title 40,

Secs, 258(a) to 258(e)); the Act of October 14, 1940

(Public No, 849, 76th Congress), funds having been’

appropriated under the Act of September 9, 1940

(Public No. 781, 76th Congress) and transferred to

the Federal Works Agency under the provisions of

said Act of October 14, 1940 (appropriation title

‘‘80-11X0004(10) Emergency Fund for the Presi-

dent, National Defense Housing (transfer from War

to Federal Works Agency, Public Buildings Admin-

istration)”’), I have selected as a site for housing

for persons engaged in national defense activities,

and their families, certain lands at Moanalua, lying

and being in the City of Honolulu, County of Hono-

lulu, on the Island of Oahu, Territory of Hawaii,

and more particularly described in Schedule A at-

tached to and forming a part of the Declaration of

Taking.

I am informed that this land is owned by the

Damon Estate. |

I am of the opinion that it is necessary and ad-

vantageous to the interests of the United States that

said land be acquired by condemnation. I have the

honor, therefore, to request that you cause the

necessary proceedings to be instituted (including

the filing of a Declaration of Taking) for the im-

a nc A ee

tet ALT CLE:

20 United States of America

mediate acquisition, by condemnation, of said land

together with all improvements thereon and any

leaseholds and other interests therein.

Prior to confirmation of any award will you kindly

cause to be submitted to this Agency for considera-

tion a statement showing the damages proposed to

be allowed, separately, for land, buildings, lease-

holds and other interests, and indicating the period

of time within which such award must be confirmed.

[19]

I enclose herewith the following:

(a) Copy of the Construction Engineer’s re-

port, together with copies of offer for the sale

of the land submitted on behalf of the Damon

Estate, as has been received ;

(b) Declaration of Taking;

(ec) <A check of the United States drawn in

favor of Clerk of the United States District

Court for the District of Hawaii, in the amount

of $33,498.00, representing the sum of money

which I have estimated to be just compensation

for the land to be taken.

Kindly advise the United States Attorney or Spe-

cial Attorney in charge of the case that the informa-

tion contained in the Construction Engineer’s report

is confidential.

Sincerely,

JOHN M. CARMODY

Administrator

[Endorsed]: Filed Nov. 20, 1940. [20]

vs. John Waterhouse et al. 21

[Title of District Court and Cause—Civil No. 434.]

ORDER AND JUDGMENT ON

DECLARATION OF TAKING

It appearing to this Court that on the 20th day of

November, 1940, the United States of America filed

herein a Petition for Condemnation of certain lands

hereinafter described and that together therewith

was filed a Declaration of Taking signed by John

M. Carmody, Administrator of the Federal Works

Agency, acting in accordance with a finding by the

President of the United States of America (as

provided by the Act of October 14, 1940, Public

849, 76th Congress) that an acute shortage of hous-

ing exists in the area in or about the Island of

Oahu, Territory of Hawaii and, by virtue of the

authority vested in him by the Act of August 1,

1888, 25 Stat. 357 (U. S. C. Title 40, Sec. 257) ;

the Act of February 26, [22] 1931, 46 Stat. 1421

(U. 8. C. Title 40, sees. 258(a) to 258(e) ; the Act

of October 14, 1940 (Public No. 849, 76th Congress,

funds having been appropriated under the Act of

September 9, 1940 (Publie No. 781, 76th Congress)

and transferred to the Federal Works Agency under

the provisions of said Act of October 14, 1940; and

It appearing that said Declaration of Taking sets

forth the taking of the fee simple title to said lands

for the uses and purposes described in said acts of

authority ; and further sets forth the ascertaining of

just compensation for said lands to be deposited

into the Registry of this Court for the use of the

22 United States of America

persons entitled thereto in the amount of the esti-

mated compensation for the purchase of said lands;

and

Whereas it further appears that there has been

paid into the Registry of this Court the sum of

Thirty Three Thousand Four Hundred Ninety-Eight

Dollars ($33,498.00), with the schedule designating

the funds as the estimated just compensation for the

taking of said lands, said lands being described as

follows:

Beginning at a point marked by a Territorial

Highway Monument set in the southwesterly

side of Dillingham Boulevard, said point being

a corner of the United States Military Reser-

vation designated as Hickam Field ; thence from

said monument the following azimuths (meas-

ured clockwise from true south) and distances:

(1) Along Dillingham Boulevard to a monu-

ment 296° 10’ 30”, 1293 feet ;

(2) thence 26° 10’ 30”, 2047 feet to a monu-

ment ;

(3) thence 118° 14’ 30”, 2044.25 feet to a monu-

ment ;

(4) thence 226° 59’ 00”, 2110.93 feet to the

point or place of beginning

situated at Moanalua, City and County of Hono-

lulu, Island of Oahu, Territory of Hawaii, and

containing an area of 77.288 acres, more or less,

and designated as Lets C-1 and C-2, as shown by

plat ‘‘Land proposed to be acquired through

condemnation proceedings for the Defense

vs. John Waterhouse et al, 2

Housing Project at Fort Kamehameha and

Hickam Field, Hawaii’, blue print of which is

attached to the Petition for Condemnation

herein [23] ,

And good cause appearing,

It is hereby Ordered and Adjudged that the title

to the lands hereinabove described is indefeasibly

vested in the United States of America;

And it is further Ordered and Adjudged that the

owners, claimants, and occupants of said lands and

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 is further Ordered that a certified copy of

this Order with a certificate of the Clerk of this

Court showing the payment into the Registry of

the Court of the sum hereinabove set forth, shall

be served upon each and every person or persons

in possession of said lands.

And it is further Ordered that due and legal

service be had upon all of the persons, firms and

corporations named as defendants or claimants in

the petition on file herein, and all and singular

their heirs, husbands, wives, devisees, executors, ad-

ministrators, representatives, alienees, successors

and assigns of each and every named person, firm

and corporation, and all unknown owners, lienors

and claimants having or claiming any title, estate,

equity or lien, and all occupants, lessees, licensees

24 United States of America

and users and holders and owners of and claimants

to easements in, on, over, across or through said

lands; and all persons, companies and corporations

claiming any title to or in any of said tracts of iand

requiring said parties to answer in this cause set-

ting forth any claim, right, title, interest or pos-

session of any kind or nature in and to said de-

scribed lands.

Dated: Honolulu, Territory of Hawaii, this 20th

day of November, 1940.

D. E. METZGER,

Judge

[Endorsed]: Filed Nov. 20, 1940. [24]

[Title of District Court and Cause—Civil No. 434.]

ANSWER OF THE TRUSTEES UNDER THE

WILL OF SAMUEL M. DAMON, DECEASED.

Now come 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, deceased, defendants in the

above entitled cause, and answering the petition

filed in said cause, allege and show as follows:

ed

ey eo <cgeettie,

ct te ts ae

eee ee

1.

That they have not sufficient knowledge, or infor-

mation to form a belief as to the matters and things

alleged in paragraph I of said petition to either

vs. John Waterhouse et al. 25

admit [30] or deny the same, and therefore leave

the petitioner to its proof thereof.

Il.

That these defendants are the owners in fee

simple of the property deseribed in said petition,

subject only to a leasehold interest held by Honolulu

Plantation Company, expiring the 31st day of De-

eember 1943.

Wherefore, these defendants pray that in case

said property shall be condemned and taken as

prayed for in and by said petition, the value there-

of and the compensation to be paid therefor may

be determined and ordered to be paid to these de-

fendants.

Dated, Honolulu, T.H., December 10, 1940.

JOHN WATERHOUSE,

ERNEST HAY WODEHOUSE,

WALTER FRANCIS FREAR and

JOHN EDWARD RUSSELL,

Trustees under the Will and of the

Estate of Samuel M. Damon, de-

ceased,

By ROBERTSON, CASTLE & ANTHONY

By A. G. M. ROBERTSON,

their attorneys.

(Acknowledgment of serviec.)

[Endorsed]: Filed Dee. 10, 1940. [31]

26 United States of America

[Title of District Court and Cause—Civil No. 434.]

ANSWER OF BISHOP NATIONAL BANK

OF HAWAII AT HONOLULU

Comes now Bishop National Bank of Hawaii at

Honolulu, one of the defendants in the above en-

titled cause, and for answer to the petition of the

petitioner alleges and shows unto the Court as fol-

lows:

I.

That it has not sufficient knowledge or informa-

tion to form a belief as to the matters and things

alleged in Paragraphs numbered I, IT, and III of

said petition either to admit or deny the same, and

therefore leaves the petitioner to its proof thereof,

except as to the matters hereunder alleged and set

forth. [41]

II.

That this defendant is informed and believes 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, are the owners ir fee simple of

that certain parcel of land referred to in said

petition designated as Lot C-1 containing an area

of 2.249 acres, as shown by the Map or Plat thereof

attached to said petition; that by Indenture of

Lease dated September 12, 1940 said Trustees did

lease and demise said Lot C-1 to this defendant

for the term of thirty (30) years beginning with

the Ist day of July, 1940, which said Indenture of

vs. John Waterhouse et al. 27

Lease this defendant asks leave to introduce upon

the hearing of this cause; that the leasehold interest

created in and by the terms of said Indenture of

Lease is of great value to this defendant, and de-

fendant cannot adequately be compensated fur the

taking thereof by the payment of money; that said

leasehold is used and is intended to be used in

connection with the operation of the branch of this

defendant which is operated on the military reser-

vation of the United States of America at Hickam

Field adjoining the area sought to be condemned,

wnder a license issued by the Secretary of War

dated May 9, 1940; that this defendant has offered

and does hereby offer io relinquish and quitclaim

without compensation unto the petitioner in case

the property shall be condemned in aceordance with

the petition all of its right and interest under said

Indenture of Lease on condition that petitioner con-

currently therewith grants to this defendant and to

persons desiring access to said [42] branch of this

defendant an easement for right of way and for

parking purposes covering the area described in

said Indenture of Lease or such other area as may

mutually be agreed upon for the same purposes,

said easement to continue during the existence of

the license referred to above granted by the Sec-

retary of War to this defendant, or any extension,

renewal, or substitution thereof.

Wherefore this defendant prays that in case said

property shall be condemned and taken as prayed

2 United States of America

for in and by said petition, and in case the United

States of America shall neglect or refuse to accept

the offer of this defendant and grant to it an ease-

ment as hereinabove provided in form satisfactory

to the petitioner and this defendant, then the value

of this defendant’s interest in said leasehold should

be determined and the compensation therefor or-

dered to be paid to this defendant.

Dated: Honolulu, T. H., December 30, 1940.

BISHOP NATIONAL BANK OF

HAWAII AT HONOLULU

By SMITH, WILD, BEEBE & CADES

By(s) J. RUSSELL CADES

Its Attorneys

(Acknowledgment of Service)

[Endorsed]: Filed Dec. 30, 1940. [43]

[Title of District Court and Cause—Civil No. 434.]

MOTION FOR ORDER OF PAYMENT

OF DEPOSIT

Now come 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, deceased, and respectfully

tmove this Honorable Court to enter an order direct-

ing the Clerk of Court to distribute the sum of

$33,498.00, now on deposit in said Court, to these

defendants.

vs. John Waterhouse et al. 29

This motion is based upon the record in the above

entitled cause.

Dated: Honolulu, T.H., April 8, 1941.

JOHN WATERHOUSE,

ERNEST HAY WODEHOUSE,

WALTER FRANCIS FREAR and

JOHN EDWARD RUSSELL,

Trustees as aforesaid,

By ROBERTSON, CASTLE & ANTHONY

By (s) A. G. M. ROBERTSON

their attorneys [59]

NOTICE

To: John E. Parks, Assistant U. S. Attorney, Dis-

trict of Hawaii,

Honolulu Plantation Company, and Stanley,

Vitousek, Pratt & Winn, its attorneys, and

Bishop National Bank of Hawaii at Honolulu,

and Smith, Wild, Beebe & Cades, its attor-

neys:

Please take notice that the foregoing motion will

be presented to the Court, Honorable Delbert E.

Metzger, presiding judge, on Thursday, April 10,

1941, at 10 o'clock, a.m., or as soon thereafter as

counsel can be heard.

ROBERTSON, CASTLE & ANTHONY

By (s) A. G4. M. ROBERTSON

Attorneys for Movants

ee

30 United States of America

Receipt of a copy acknowledged this 8th day of

April, 1941.

STANLEY, VITOUSEK, PRATT &

WINN (H.H.M.)

SMITH, WILD, BEEBE & CADES

(D.G.R.)

JOHN J. COURTNEY

[Endorsed]: Filed Apr. 8, 1941. [60]

[Title of District Court and Cause—Civil No. 434.]

ORDER FOR DISTRIBUTION OF

MONEY DEPOSITED

[61]

The motion of the Trustees of the .Estate of

Samuel M. Damon, deceased, defendants in the

above entitled cause, filed in said cause on April 8,

1941, having come on for hearing, and no opposition

to the granting of said motion being made,

It is hereby ordered that the Clerk of this Court

forthwith draw a check for the money on deposit

in the registry of this court in said cause, to be

signed by the Judge and the Clerk, viz:

John Waterhouse, Ernest H. Wode-

house, Walter F. Frear and John

E. Russell, Trustees Estate Samuel

M. Damon, deceased... 833,498.00

[62]

ve. John Waterhouse et al. 31

It is further ordered that said payment shall be

made without prejudice to the defendants, Honolulu

Plantation Company, and the said Trustees of the

Estate of Samuel M. Damon, deceased, to claim

additional compensation and/or damages in said

cause in excess of the amount aforesaid.

Dated: Honolulu, T.H., April 15th, 1941.

(s) D. E. METZGER

Judge of the above entitled

Court

Clerk

Approved:

STANLEY, VITOUSEK, PRATT &£ WINN

Attorneys for By RAV

Honolulu Plantation Company

[Endorsed]: Filed Apr. 15, 1941. [63]

[Title of District Court and Cause—Civil No. 434.]

MOTION FOR A DIRECT VERDICT

Comes now The United States of America and

at the close of all of the testimony in this cause

moves that the Court instruct the jury to return a

verdict in favor of the defendants for the sum of

Thirty-three Thousand Four Hundred Eighty-nine

Dollars ($33,489.00), as and for the fair cash mar-

ee ee ne ne

ec TT EEL

32 United States of America

ket value of the lands condemned, exclusive of grow-

ing crops or improvements thereon.

Dated at Honolulu, T.H., this 29th day of July,

1941.

THE UNITED STATES OF AMERICA

B; (s) JOHN J. COURTNEY

Special Assistant to the Attorney

General

The above entitled Motion is overruled.

(s) D. E. METZGER

Judge,

United States District Court

for the District of Hawaii

Dated at Honolulu, T.H. this 29th day of July,

1941.

[Endorsed]: Filed Jul. 29, 1941. [67]

[Title of District Court and Cause—Civil No. 434.]

VERDICT

We the Jury in the above eutitled cause, find the

fair market value of the lands condemned herein,

exclusive of crops and improvements, to be in the

sum of $61,830.40.

Dated at Honolulu, T.H., this 31st day of July,

1941.

(s) DAVID L. OLESON

Foreman

[Endorsed]: Filed Jul. 31, 1941. [69]

ve. John Waterhouse et al. 33

[Title of District Court and Cause—Civil No. 434.]

ORDER FOR JUDGMENT

This cause having duly come on for hearing be-

fore this Court and a Jury for the determination

of the fair market value of the lands coademned

herein, exclusive of crops and improvements there-

on, and said cause having been tried by the Court

and submitted to the Jury and the verdict of said

Jury having been entered herein on July 31, 1941,

assessing the fair market value of the lands con-

demned as aforesaid, exclusive of crops and im-

provements thereon, in the sum of $61,830.40 and,

It appearing that there was heretofore deposited

in this cause the sum of $33,498.00 as the estimated

compensation for the lands condemned, which said

sum was duly disbursed to 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.,

on April 15, 1941, and due receipt given therefor,

and :

In pursuance of the provisions of the Statute in

such ease made and provided, the Defendants afore-

said are entitled to a Judgment [71] against the

United States of America for the difference between

the amount of said deposit and the amount assessed

by the Jury in the verdict aforesaid, that is to say

the sum of $28,332.40.

Therefore, on Motion of the Respondents and of

the United States of America, it is ordered, and the

en a AT LO ATI

34 United States of America

Clerk be and hereby is directed to enter a Judg-

ment against the United States of America, assess-

ing the fair market value of the lands condemned

hert:, exclusive of crops and improvements there-

on, as the sum of $61,830.40, and tie sum of $33,-

498.00, having heretofore been deposited and paid,

is credited thereon, and the balance of said sum,

to-wit: $28,332.40 shall bear interest at the rate of

6% from November 20, 1940.

Let Judgment be entered accordingly.

Dated at Honolulu, T.H., this 18th day of August,

1941.

(s) D. E. METZGER

Judge of the United States

District Court for the

Territory of Hawaii

Approved :

ROBERTSON, CASTLE & ANTHONY

Attys. for Trustees Estate S. M. Damon

[Endorsed]: Filed Aug. 18, 1941. [72]

[Title of District Court and Cause—Civil No. 434.]

JUDGMENT

Pursuant to the order for judgment made and

entered in the above entitled cause on August 18,

1941, by the Honorable D. FE. Metzger, United

States District Judge,

vs. John Waterhouse et al. 35

It is hereby ordered, adjudged and decreed that

the fair market value of the lands described in the

petition and condemned herein, exclusive of crops

and improvements, is determined to be the sum of

$61,830.40, and

It is further ordered, adjudged and decreed 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, defendants herein, do have and

recover of the United States of America, petitioner

herein, the difference between said sum of $61,-

830.40 and the sum of $33,498.00 heretofore de-

posited herein and paid [74] to said defendants, or

the sum of $28,332.40, together with interest thereon

at the rate of six per cent (6%) per annum from

November 20, 1940, and

It is further ordered, adjudged and decreed that

this judgment be and it is hereby entered nune pro

tune as of August 18, 1941.

Dated: Honolulu, Hawaii, November 15, 1941.

(Seal) (s) WM. F. THOMPSON, JR.

Clerk of the United States

District Court for the

Territory of Hawaii

The foregoing judgment is hereby approved.

(s) D. E. METZGER

United States District Judge

[Endorsed]: Filed Nov. 15, 1941. [75]

ee

—

86 United States of Acnerica

[Title of District Court and Cause—Civil No. 434.]

NOTICE OF APPEAL

Notice is hereby given that the United States of

America hereby appeals to the Circuit Court of

Appeals for the Ninth Circuit, from the Final

Judgment of this Court entered in this action on

August 18th, 1941, determining the fair market

value of the lands condemned herein, exclusive of

crops and improvements thereon, to be the sum of

$61,830.40, upon which sum there had been here-

tofore deposited the sum of #33,498.00 under the

Declaration of Taking, the deficiency thereon,

to-wit: the sum of #28,332.40, bearing interest at the

rate of 6% from November 20, 1940.

Dated at Honolulu, T.H., this 15th day of No-

vember, 1941. .

UNITED STATES OF AMERICA,

Petitioner,

By (s) NORMAN M. LITTELL,

Assistant Attorney General

NORMAN M. LITTELL,

By (s) JOHN J. COURTNEY

Special Assistant to the

Attorney General

JOHN J. COURTNEY

[Endorsed]: Filed Nov. 15, 1941. [78]

ve. John Waterhouse et al. 37

[Title of District Court and Cause—Civil No. 434.]

ORDER ENLARGING TIME

On Motion of the United States of America and

for good cause shown, it is

Ordered that the time for filing the record and

docketing the action in this cause in the United

States Cireuit Court of Appeals for the Ninth Cir-

cuit be and it is hereby extended for the full period

of ninety (90) days from November 15th, 1941,

the date of the filing of the notice of appeal herein.

Dated at Honolulu, T.H., this 15th day of No-

vember, 1941.

(s) D. E. METZGER

Judge,

United States District Court

for the Territory of Hawaii

[Endorsed]: Filed Nov. 15, 1941. [80]

[Title of District Court and Cause—Civil No. 434.]

ORDER ENLARGING TIME FOK SERVING

AND FILING THE DESIGNATION OF

RECORD ON APPEAL

On Motion of the United States of America and

for good cause shown, it is

Ordered that the time for serving and filing the

designation of the portions of the record, proceed-

ings and evidence to be contained in the record on

OE

38 United States of America

appeal in this cause in the United States Circuit

Court of Appeals for the Ninth Cireuit be and it is

hereby extended for the full period of ninety (90)

days from November 15, 1941, the date of the filing

of the notice of appeal herein.

Dated at Honolulu, T.H., this 15th day of Ne-

vember, 1941.

(s) D. E. METZGER

Judge,

United States District Court

for the Territory of Hawaii

[Endorsed]: Filed Nov. 15, 1941. [82]

ve. John Waterhouse et al.

In the United States District Court

for the Territory of Hawaii

October Term 1940

Civil No. 436

THE UNITED STATES OF AMERICA,

Petitioner,

vs.

254.468 acres of land, more or less, in Moanalua,

Honolulu, Island of Oahu, Territory 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, deceased, HONOLULU PLANTA-

TION COMPANY, BISHOP NATIONAL

BANK OF HAWAII AT HONOLULU, TER-

RITORY OF HAWAII, CITY AND COUNTY

OF HONOLULU, JOHN DOE ONE TO

JOHN DOE FIFTY, INCLUSIVE, and

MARY ROE ONE TO MARY ROE FIFTY,

INCLUSIVE, unknown owners and claimants,

Defendants.

PETITION FOR CONDEMNATION

[83]

the Honorable, the Presiding Judge of the

United States District Court for the Territory

of Hawaii:

The petition of the United States of America

brought by Angus M. Taylor, Jr., Acting United

40 United States of America

States Attorney for the District of Hawaii, acting

under the instructions of the Attorney General and

at the request of the Acting Secretary of the Navy,

acting for and in behalf of the Secretary of the

Navy, respectfully shows as follows:

|

That pursuant to the provisions of an Act of

Congress approved June 28, 1940 (54 Stat. 676)

and an Act of Congress [84] approved September

9, 1940 (54 Stat. Chap. 717), the Secretary of the

Navy is authorized and directed to acquire the here-

inafter described land for the establishment of

necessary housing at Moanalua, Honolulu, Island of

Oahu, Territory of Hawaii, as may in his dis-

cretion and judgment be necessary for the estab-

lishment of necessary housing for naval personnel

engaged in national defense activities, which in his

discretion he may deem advisable, and that the Con-

gress of the United States of America has duly

appropriated and made available funds for the ac-

quisition of said land and the establishment of this

site to be utilized for the establishment of necessary

housing for navy personnel engaged in national

defense activities.

TT.

That pursuant to and in conformity with said

authority the Acting Secretary of the Navy, acting

for and in behalf of the Secretary of the Navy, has

duly selected for aequisition by the United States

of Amerien the lands hereinafter deseribed for the

vs. John Waterhouse et al. 41

establishment of necessary housing for naval per-

sonnel engaged in national defense activities, and

that said lands are necessary, in his opinion, for

the purpose of utilizing the same as and for a site

for the establishment of necessary housing for naval

personnel engaged in national defense activities.

IIT.

That pursuant to the provisions of the Act of

Congress approved August 1, 1888 (25 Stat. 357;

United States Code, Title 40, Section 257) and the

Act of Congress approved February 26, 1931 (46

Stat. 1421; United States Code, Title 40, Section

258(a)) and supplementary and amendatory acts,

the Acting Seeretary of the Navy, acting for and in

behalf of the Secretary of the Navy, has determined

and is of the opinion that it is useful, proper, neces-

sary, advantageous and to the interests of the

United States of America to acquire title to the

lands hereinafter described by [85] condemnation

under judicial process, and has made application to

the Attorney General of the United States to cause

such proceedings to be commenced, in pursuance of

which application the Attorney General has in-

structed and directed the United States Attorney

for the District of Hawaii to institute this proceed-

ing.

IV.

The United States of America institutes this pro-

ceeding to acquire certain lands at a fair, reason-

able and just compensation.

a

42 United States of America

. Vv.

That the land which it is necessary for the

United States to acquire for the purpose herein-

before set forth set forth is situated at Moanalua,

Honolulu, Island of Oahu, Territory of Hawaii,

contains an aggregate of two hundred fifty-four and

four hundred sixty eight thousands (254.468) acres

of land, more or less, all as set forth upon the maps

attached hereto and made a part of this Petition

and marked Exhibits “A’’, ‘“B”’, and ‘‘C”’’, respec-

tively.

That the land is more fully described as follows:

Lot D Being Lot D, Subdivision of R. P. 7858,

Land Court Application 1074 (Amended) of the

S. M. Damon Trust Estate, situate at Moanalua,

Honolulu, Oahu, Territory of Hawaii.

Beginning at a point on the North boundary of

the 40.0 foot Oahu Railway and Land Co.’s

right of way the coordinates of said point of

beginning referred to Government Survey Tri-

angulation Station ‘“‘Salt Lake’’ being 8031.90

feet South and 8274.24 feet West and running

by true azimuths measured clockwise from

South:

116° 10 30” 2735.51 feet along the North boun-

dary of the Oahu

Railway and Land

Co.’s right of way.

vs. John Waterhouse et al. 43

226° 59’ 00” 2257.76 feet along the East boun-

dary of Land Court

Application 966

(Amended) at Hal-

awa, Ewa, Oahu,

T. H. [86]

348° 25’ 00” 1713.26 feet along the West boun-

dary of the 80.0 foot

Kamehameha High-

way to a point; thence

to the left on a curve

with a_ radius of

1950.08 feet, the azi-

muth and length of

the chord being;

331° 47’ 47” 1115.55 feet to a point on the

curve, thence

26° 10’ 30” 46.26 feet

46° 42’ 30” 64.07 feet to the point of begin-

ning and containing

an area of 61.512

acres. This excludes

that portion of the

original Lot D ac-

quired by the Terri-

tory of Hawaii at the

intersection of Kame-

hameha Highway and

Dillingham Boule-

vard.

Together With All Improvements Thereon.

ee ee

United States of America

Lot C-3-A_ Being a portion of Lot C-3 cf Land

Court Application 1074, situated at Moanalua,

Honolulu, Oahu, T. H.

Beginning at the Northwest corner of this par-

cel of land, being also the Northeast corner of

Lot C-2, on the South side of Dillingham Boule-

vard from which point a Territorial Highway

Monument at the Northwest corner of Lot C-1,

being the original Northwest corner of Lot C

is by true azimuth 116° 10’ 30” 1293.00 feet, and

thence running by azimuths measured clockwise

from true south;

296° 10’ 30” 1054.00 feet along the South side

of Dillingham Boule-

vard.

26° 10’ 30” 2085.04 feet along Lot C-3-B;

118° 14’ 30” 1054.82 feet along Hickam Field

(U. 8S. Military Res-

ervation) ;

206° 10’ 30” 2047. feet along Lot C-2 to the

point of beginning

and containing an

area of 50.0 acres.

Together With All Improvements Thereon. [87]

Lot C-3-B-1 Being a portion of Lot C-3-B of

Land Court Application 1074 situated at Mo-

analua, Honolulu, Oahu, T. H.

Beginning at the Northwest corner of this par-

cel of land, being also the Northeast corner of

Lot C-3-A, on the South side of Dillingham

Boulevard from which point a Territorial

vs. John Waterhouse et al. 45

Highway Monument at the Northwest corner of

Lot C-1, being the original Northwest corner of

Lot C is by true azimuth 116° 10’ 30” 2347.20

feet, and thence running by azimuths measured

clockwise from true South:

296° 10’ 30” 500.00 feet along the South side

of Dillingham Boule-

vard ;

26° 10’ 30” 2102.88 feet along Lot C-3-B-2;

Thence on a curve to the right with a radius of

1008.60 feet, the di-

rect azimuth and dis-

tance being 117° 40’

28” 19.99 feet;

118° 14’ 30” 480.33 feet along Hickam Field

(U. 8. Military Res-

ervation) ;

206° 10’ 30” 2085.04 feet along Lot C-3-A to

the point of begin-

ning and containing

an area of 24.036

acres.

Together With All Improvements Thereon.

Lot C-3-B-2-A Being a portion of Lot C-3-B-2

of Land Court Application 1074 situated at

Moanalua, Honolulu, Oahu, T. H.

Beginning at the Northwest corner of this par-

cel of land, being also the Northeast corner of

Lot C-3-B-1, on the South side of Dillingham

Boulevard from which point a Territorial

Highway Monument at the Northwest corner of

United States of America

Lot O-1, being the original Northwest corner

of Lot © is by true azimuth 116° 10’ 30” 2847.20

feet, and thence running by azimuths measured

clockwise from true South:

296° 10° 30” 55.74 feet along the South side

of Dillingham Boule-

vard ;

266° 10’ 30” 20.00 feet along the South side

of Dillingham Boule-

vard;

296° 10’ 30” 1215.80 feet along the South side

of Dillingham Boule-

vard;

Thence on a curve to the left with a radius of

2935 feet, the [88]

direct azimuth and

distance being 287°

36’ 55” 873.69 feet;

279° 03’ 20” 618.19 feet along the South side

of Dillingham Boule-

vard;

9° 03’ 20” 1469.00 feet along Lot C-3-B-2-B;

97° 20’ 2994.38 feet along Hickam Field

(U. 8. Military Res-

ervation) ;

Thence on a curve to the right with a radius of

1008.60 feet, the di-

rect azimuth and dis-

tance being 107° 13’

11” 346.34 feet;

ve. John Waterhouse et al. 47

206° 10 30” 2102.88 feet along Lot C-3-B-1 to

the point of beginnnig

and containing an

area of 118.92 acres.

Together With All Improvements Thereon

Wie

That the estate to be taken for said public uses

and purposes is the full fee simple title, absolute

thereto.

VII.

That the information acquired by this petitioner

indieates that the following persons are the pur-

perted owners of or may have some interest in the

lands which are part and are contained in the in-

terior boundaries of the above described areas:

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,

Henolulu Plantation Company,

Bishop National Bank of Hawaii at Honolulu,

Territory of Hawaii,

City and County of Honolulu,

John Doe One to John Doe Fifty, inclusive,

and

Mary Roe One to Mary Roe Fifty, inclusive,

unknown owners and claimants,

whom are hereby made parties defendants to the

end that they may come into this Court and by

48 United States of America

proper pleadings establish their claims [89] if any.

And in this behalf the Petitioner further avers

and shows that John Doe One to John Doe Fifty,

inclusive, and Mary Roe one to Mary Roe Fifty,

inclusive, named herein as defendants, are fictitious

names and represent owners and claimants of inter-

ests in said property, the true names of whom are

unknown to Petitioner and are therefore made par-

ties to this action by the name and description as

aforesaid.

The above named defendants generally and all

and singular the heirs, husbands, wives, devisees,

executors, administrators, representatives, alienees,

successors, assigns of each and every of the above

named persons, and all unknown owners, lienors,

and claimants having or claiming any right, title,

estate, equity, interest or lien; and all occupants,

lessees, licensees of and users and holders of said

land and all owners or claimants to easements in,

on, over, across or through said land; and all per-

sons, companies, and corporations claiming any title

or interest to or in the whole or any part of any of

said tracts of land: are hereby made parties defend-

ant to the end that they may come into Court and

by proper pleadings make claim to said lands, or

te the proceedings arising therefrom.

Wherefore, petitioner prays that this Honorable

Court will take jurisdiction of this cause and will

make and have entered all orders, judgments and

decrees necessary to bring all of the owners of the

vs. John Waterhouse et al. 49

said land before this Court and will make all un-

known parties having interest therein parties de-

fendants hereto, and will proceed to fix the value

of said lands according to the law in such instances

applicable and the amount of compensation to which

the owners thereof are entitled for such appropri-

ation and made and have entered all such further

orders, judgments and decrees as may be necessary

to vest the entire and unencumbered fee thereof in

the United [90] States of America, and to make just

distribution of the final awards among those en-

titled thereto as expeditiously as possible.

THE UNITED STATES OF AMERICA,

Petitioner,

By ANGUS M. TAYLOR, JR.,

Acting United States Attorney,

District of Hawaii

By (s) JOHN E. PARKS,

JOHN E. PARKS,

Assistant United States Attorney,

District of Hawaii

The United States of America,

District of Hawaii—as.

John E. Parks, being first duly sworn on oath,

deposes and says:

That he is Assistant United States Attorney for

the District of Hawaii; that he has read the fore-

going Petition for Condemnation and knows the

50 United States of America

contents thereof and that the same is true to the

best of his knowledge, information and belief.

(sgd) JOHN E. PARKS

Subscribed and sworn to before me this 27th day

of November, 1940.

(Seal) (s) WM. F. THOMPSON, JR.

Clerk,

United States District Court

for the Territory of Hawaii

[Endorsed]: Filed Nov. 27, 1940. [91]

vs. John Waterhouse et al. 51

[Title of District Court and Cause—Civil No. 436.]

DECLARATION OF TAKING

Whereas, it has become necessary that the lands

which are the subject of condemnation in the above

entitled proceeding be taken for immediate public

use by the United States of America for the estab-

lishment of necessary housing in Moanalua, Hono-

lulu, Oahu, Territory of Hawaii, for naval per-

sonnel engaged in national defense activities, upon

the filing of this declaration of taking.

Now, therefore, I, James Forrestal, Acting Secre-

tary of the Navy, acting for and in the capacity of

the Secretary of the Navy, under and pursuant to

the provisions of the Acts of Congress approved

June 28, 1940 (54 Stat., 676); September [99] 9,

1940 (54 Stat., Chap. 717), and February 26, 1932

(46 Stat., 1421; U. S. C., title 40, sec. 258a), do

hereby make and cause to be filed this declaration of

taking, pursuant to said acts of Congress and any

acts amendatory thereof or supplementary thereto,

and by virtue and authority thereof, do hereby state

that I have selected for acquisition four parcels of

land, with all improvements thereon, situated at

Moanalua, Honolulu, Oahu, Territory of Hawaii,

containing an aggregate of two hundred fifty-four

and four hundred sixty-eight thousandths (254.468)

acres, more or less, which said parcels are known as

Lot D, Lot C-3-A, Lot C-3-B-1, and Lot C-3-B-2-A.

Lot D, and Lot C-3-A are shown on 14th N. D.

Drawing No. OA-N1-261 of ‘‘Moanalua, Honolulu,

52 United States of America

Oahu, T.H., 8. M. Damon Trust Esta ” approved

October 18, 1940, Lot C-3-B-1 is shown on 14th N. D.

Drawing No. OA-N1-264 of ‘Moanalua, Honolulu,

Oahu, T.H., 8. M. Damon Trust Estate,”’ approved

October 25, 1940, and Lot C-3-B-2-A is shown on

14th N. I. Drawing No. OA-N1-265 of ‘‘Moanalua,

Honolulu, Oahu, T.H., S. M. Damon Trust Estate,”

approved October 29, 1940, photostatie copies of

each of said drawings being hereto attached as Ex-

hibits ““A’’, ““B”, and “‘C”’ respectively and made

a part of this declaration of taking. Said respec-

tive parcels of land are more particularly described

as follows:

Lot D Being Lot D, Subdivision of R. P. 7858,

Land Court Application 1074 (Amended) of the

S. M. Damon Trust Estate, situate at Moanalua,

Honolulu, Oahu, T. H. [100]

Beginning at a point on the North boundary of

the 40.0 foot Oahu Railway and Land Co.’s

right of way the coordinates of said point of

beginning referred to Government Survey Tri-

angulation Station ‘Salt Lake’’ being 8031.90

feet South and 8274.24 feet West and running

by true azimuths measured clockwise from

South:

116° 10 30” 2735.51 feet along the North boun-

dary of the Oahu

Railway and Land

Co.’s right of way.

vs. John Waterhouse et al. 53

226° 59 00” 2257.76 feet along the East boun-

dary of Land Court

Application 966

(Amended) at Hal-

awa, Ewa, Oahu,

T. H.

348° 25’ 00” 1713.26 feet along the West boun-

dary of the 80.0 foot

Kamehameha High-

way to a point; thence

to the left on a curve

with a radius of

1950.08 feet, the azi-

muth and length of

the chord being;

331° 47’ 47” 1115.55 feet to a point on the

curve, thence

26° 10’ 30” 46.26 feet

46° 42’ 30” 64.07 feet to the point of begin-

ning and containing

an area of 61.512

acres. This excludes

that portion of the

original Lot D ae-

quired by the Terri-

tory of Hawaii at the

intersection of Kame-

hameha Highway and

Dillingham Boule-

vard.

United States of America

Lot C-3-A_ Being a portion of Lot C-3 of Land

Court Application 1074, situated at Moanalua,

Honolulu, Oahu, T. H.

Beginning at the Northwest corner of this par-

[101]

cel of land, being also the Northeast corner of

Lot C-2, on the South side of Dillingham Boule-

vard from which point a Territorial Highway

Monument at the Northwest corner of Lot C-1,

being the original Northwest corner of Lot C

is by true azimuth 116° 10’ 30” 1293.00 feet, and

thence running by azimuths measured clockwise

from true south;

296° 10’ 30” 1054.00 feet along the South side

of Dillingham Boule-

vard. |

26° 10’ 30” 2085.04 feet along Lot C-3-B;

118° 14’ 30” 1054.82 feet along Hickam Field

(U. 8S. Military Res-

ervation) ;

206° 10’ 30” 2047.00 feet along Lot C-2 to the

point of beginning

and containing an

area of 50.0 acres.

Lot C-3-B-1 Being a portion of Lot C-3-B of

Land Court Application 1074 situated at Mo-

analua, Honolulu, Oahu, T. H.

Beginning at the Northwest corner of this par-

cel of land, being also the Northeast corner of

Lot C-3-A, on the South side of Dillingham

vs. John Waterhouse et al. 55

Boulevard from which point a Territorial

Highway Monument at the Northwest corner of

Lot C-1, being the original Northwest corner of

Lot C is by true azimuth 116° 10’ 30” 2347.20

feet, and thence running by azimuths measured

clockwise from true South:

296° 10’ 30” 500.00 feet along the South side

of Dillingham Boule-

vard ;

26° 10 30” 2102.88 feet along Lot C-3-B-2;

Thenee on a curve to the right with a radius of

1008.60 feet, the di-

rect azimuth and dis-

tance being 117° 40’

28” 19.99 feet;

118° 14’ 30” 480.33 feet along Hickam Field

(U. 8S. Military Res-

ervation) ;

206° 10’ 30” 2085.04 feet along Lot C-3-A to

the point of begin-

ning and containing

an area of 24.036

acres. [102]

Lot C-3-B-2-A_ Being a portion of Lot C-3-B-2

of Land Court Application 1074 situated at

Moanalua, Honolulu, Oahu, T. H.

Beginning at the Northwest corner of this par-

cel of land, being also the Northeast corner of

Lot C-3-B-1, on the South side of Dillingham

Boulevard from which point a Territorial

Highway Monument at the Northwest corner of

United States of America

Lot C-1, being the original Northwest corner

of Lot C is by true azimuth 116° 10’ 30” 2847.20

feet, and thence running by azimuths measured

clockwise from true South:

296° 10° 30” 55.74 feet along the South side

of Dillingham Boule-

vard ;

266° 10’ 30” 20.00 feet along the South side

of Dillingham Boule-

vard;

296° 10’ 30” 1215.80 feet along the South side

of Dillingham Boule-

vard ;

Thence on a curve to the left with a radius of

2935 feet, the direct

azimuth and distance

being 287° 36° 55”

873.69 feet;

279° 03’ 20” 618.19 feet along the South side

of Dillingham Boule-

vard;

9° 03’ 20” 1469.00 feet along Lot C-3-B-2-B;

97° 20’ 2994.38 feet along Hickam Field

(U. 8. Military Res-

ervation) ;

Thence on a curve to the right with a radius of

1008.60 feet, the di-

rect azimuth and dis-

tance being 107° 13’

11” 346.34 feet;

vs. John Waterhouse et al. 87

206° 10° 30” 2102.88 feet along Lot O-3-B-1 to

the point of beginnnig

and containing an

area of 118.92 acres.

[103]

And I do declare said lands to be taken under

authority of the aforesaid acts of Congress; that the

use for which said lands are to be put is the same 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 ease-

ments, if any.

And I, James Forrestal, Acting Secretary of the

Navy, acting for and in behalf of the Secretary of

the Navy, do hereby state that the sum of money

estimated by me to be just compensation for all of

said lands, improvements thereon and appurtenances

thereunto belonging is one hundred twenty-three

thousand eight hundred seventy-one dollars and

ninety-four cents ($123,871.94), which said sum hav-

ing been appropriated by Congress is hereby de-

posited into the registry of this court for the use

and benefit of the persons entitled thereto, and that

the names and addresses of the owners of said prop-

erty or interests therein and the amounts of just

compensation for each of the respective parcels, and

improvements threon, which are hereby taken are

shown on Schedule “‘A’’ which is hereto attached

and made a part of this declaration of taking. I

am of the opinion that the ultimate award for the

58 United States of America

taking of said land will be within the limits pre-

scribed by Congress on the price to be paid.

In Witness Whereof, the petitioner, by and

through the said James Forrestal, Acting Secretary

of the Navy, [104] acting for and in behalf of the

Secretary of the Navy, has caused this declaration

of taking to be signed in its name and has caused

the seal of the Navy Department to be affixed hereto

on this 19th day of November, 1940, in the City of

Washington, District of Columbia.

UNITED STATES OF AMERICA

[Seal] By (8S) JAMES FORRESTAL

Acting Secretary of the Navy [105]

SCHFDULE “A”

The owners of each of the lots or parcels of land

taken by the within declaration of taking, to wit:

Lot D, Lot 0-3-A, Lot C-3-B-1, and Lot C-3-B-2-A

are: ~*~

John Waterhouse, Ernest Hay Wodehouse,

Walter Francis Frear, and John Edward Rus-

sell, Trustees under the will of Samuel Mills

Damon, deceased, their address being Honolulu,

Hawaii.

Each of said lots is under a lease to the Honolulu

Plantation Company, whose address is Honolulu,

Hawaii.

The respective amounts hereby deposited into

Court as fair compensation for each of said lots,

ineluding growing crops and iraprovements thereon,

are as follows:

vs. John Waterhouse et al.

Lot D

Land, 61.512 acres @ $430.00 per

acre $ 26,450.16

Improvements (Irrigation ditches) ~ 600.00

Cane ratoons 2,865.90

$ 29,916.06

Lot C-3-A

Land, 50 acres @ $430.00 per acre_.$ 21,500.00

Improvements (Irrigation ditches). 800.00

Cane ratoons 1,254.00

$ 23,554.00

Lot C-3-B-1

Land, 24.036 acres @ $430.00 per

acre $ 10,335.48

Improvements (Irrigation ditches) 480.00

Cane ratoons 1,680.00

$ 12,495.48

Lot C-3-B-2-A

Land, 118.92 acres @ $420.00 per

acre $ 49,946.40

Improvements (Irrigation ditches). 1,000.00

Cane ratoons 6,960.00

$ 57,906.40

Total... -..----.----.$123,871.94

[Endorsed]: Filed Nov. 27, 1940. [106]

60 United States of America

[Title of District Court and Cause—Civil No. 436.]

ORDER AND JUDGMENT ON DECLARATION

OF TAKING

It appearing to this Court that on the 27th day

of November, 1940, the United States of America

filed herein a Petition for Condemnation of certain

lands hereinafter described and that together there-

with was filed a declaration of taking signed by

James Forrestal, Acting Secretary of the Navy,

acting for and in behalf of the Secretary of the

Navy, under and by virtue of the provisions of the

Act of Congress approved June 28, 1940 (54 Stat.

676) and the Act of Congress approved September

9, 1940 (54 Stat. Chap. 717) and pursuant to the

provisions of the Act of Congress approved August

1, 1888 (25 Stat. 357) and the Act of Congress

approved February 26, 1931 (46 Stat. 1421) and

therein setting [113] forth the taking of the fee

simple title to said lands and that the uses of the

lands acquired are as described in said acts of

authority; and further setting forth the ascertain-

ing of just corapensation for said lands to be depos-

ited into the Registry of this Court to the use of the

persons entitled thereto in the amount of the esti-

mated compensation for the purchase of said lands;

Whereas, it further appears that there has been

paid into the Registry of this Court the sum of

One Hundred Twenty Three Thousand Eight Hun-

dred Seventy Qne Dollars and Ninety Fou” Cents

($123,871.94), with schedules designating the funds

as the estimated just compensation for the taking

vs. John Waterhouse et al. 61

of said lands, said lands being described as follows:

Lot D Being Lot D, Subdivision of R. P. 7858,

Land Court Application 1074 (Amended) of the

S. M. Damon Trust Estate, situate at Moanalua,

Honolulu, Oahu, T. H.

Beginning at a point on the North boundary of

the 40.0 foot Oahu Railway and Land Co.’s

right of way the coordinates of said point of

beginning referred to Government Survey Tri-

angulation Station ‘‘Salt Lake’’ being 8031.90

feet South and 8274.24 feet West and running

by true azimuths measured clockwise from

South:

116° 10 30” 2735.51 feet along the North boun-

dary of the Oahu

Railway and Land

Co.’s right of way.

226° 59’ 00” 2257.76 feet along the East boun-

dary of Land Court

Application 966

(Amended) at Hal-

awa, Ewa, Oahu,

=; ae

848° 25’ 00” 1713.26 feet along the West boun-

dary of the 80.0 foot

Kamehameha High-

way to a point; thence

to the left on a curve

with a_ radius of

1950.08 feet, the azi-

muth and length of

the chord being;

United States of America

331° 47’ 47” 1115.55 feet to a point on the

curve, thence [114]

26° 10° 30” 46.26 feet

Together With All Improvements Thereon.

Lot C-3-A. Being a portion of Lot C-3 of Land

Court Application 1074, situated at Moanalua,

Honolulu, Oahu, Territory of Hawaii.

Beginning at the Northwest corner of this par-

cel of land, being also the Northeast corner of

Lot C-2, on the South side of Dillingham Boule-

vard from which point a Territorial Highway

Monument at the Northwest corner of Lot C-1,

being the original Northwest corner of Lot C

is by true azimuth 116° 10’ 30” 1293.00 feet, and

thence running by azimuths measured clockwise

from true south:

296° 10 30” 1054.00 feet along the South side

of Dillingham Boule-

vard.

vs. John Waterhouse et al. 63

26° 10’ 30” 2085.04 feet along Lot C-3-B;

118° 14’ 30” 1054.82 feet along Hickam Field

(U. 8. Military Res-

ervation);

206° 10’ 30” 2047.00 feet along Lot C-2 to the

point of beginning

and containing an

area of 50.0 acres.

Together With All Improvements Thereon

Lot C-3-B-1 Being a portion of Lot C-3-B of

Land Court Application 1074 situated at Mo-

analua, Honolulu, Cahu, T. H.

Beginning at the Northwest corner of this par-

cel of land, being also the Northeast corner of

Lot C-3-A, on the South side of Dillingham

Boulevard from which point a Territorial

Highway Monument at the Northwest corner of

Lot C-1, being the original Northwest corner of

Lot C is by true azimuth 116° 10 30” 2347.20

feet, and thence running by azimuths measured

clockwise from true South:

296° 10’ 30” 500.00 feet along the South side

of Dillingham Boule-

vard;

26° 10° 30” 2102.88 feet along Lot C-3-B-2;

[115]

Thence on a curve to the right with a radius of

1008.60 feet, the di-

rect azimuth and dis-

tance being 117° 40’

28” 19.99 feet;

United States of America

118° 14’ 30” 480.33 feet along Hickam Field

(U. 8. Military Res-

ervation) ;

206° 10’ 30” 2085.04 feet along Lot C-3-A to

the point of begin-

ning and containing

an area of 24.036

acres.

Together With All Improvements Tb<reon.

Lot O-3-B-2-A Being a portion of Lot C-3-B-2

of Land Court Application 1074 situated at

Moanalua, Honolulu, Oahu, T. H.

Beginning at the Northwest corner of this par-

cel of land, being also the Northeast corner of

Lot C-3-B-1, on the South side of Dillingham

Boulevard from which point a Territorial

Highway Monument at the Northwest corner of

Lot C-1, being the original Northwest corner

of Lot C is by true azimuth 116° 10’ 30” 2847.20

feet, and thence running by azimuths measured

clockwise from true South:

296° 10° 30” 55.74 feet along the South side

of Dillingham Boule-

vard ;

266° 10’ 30” 20.00 feet along the South side

of Dillingham Boule-

vard ;

296° 10’ 30” 1215.80 feet along the South side

of Dillingham Boule-

vard;

vs. John Waterhouse et al. 65

Thence on a curve to the left with a radius of

2935 feet, the direct

azimuth and distance

being 287° 36° 55”

873.69 feet;

279° 08’ 20” 618.19 feet along the South side

of Dillingham Boule-

vard;

9° 03’ 20” 1469.00 feet along Lot C-3-B-2-B;

97° 2 2994.38 feet along Hickam Field

(U. 8. Military Res-

ervation) ;

Thence on a curve to the right with a radius of

1008.60 feet, the di-

rect azimuth and dis-

tance being 107° 13’

11” 346.34 feet;

206° 10° 30” 2102.88 feet along Lot C-3-B-1 to

point of beginning

[116] and containing

an area of 118.92

acres.

Together With All Improvements Thereon

And good cause appearing,

It is hereby Ordered and Adjudged that the title

to the lands hereinabove described is indefeasibly

vested in the United States of America.

And it is further Ordered and Adjudged That

the owners, claimants, aad occupants of said lands

and every part and parcel thereof forthwith deliver

to the petitioner herein, and to its duly authorized

ee ee

66 United States of America

agents, the immediate and exclusive possession of

said lands.

And it is further Ordered that a certified copy

of this Order with a certificate of the Clerk of this

Court showing the payment into the registry of the

court of the sum hereinabove set forth, shall be

served upon each and every person or persons in

possession of said lands.

And it is further Ordered that due and legal

service be had upon all of the persons, firms and

corporations named as defendants or claimants in

the petition on file herein, and all and singular their

heirs, husbands, wives, devisees, executors, adminis-

trators, representatives, alienees, successors and as-

signs of each and every named person, firm and

corporation, and all unknown owners, lienors and

claimants having or claiming any title, estate, equity

or lien, and all occupants, lessees, licensees and

users and holders and owners of an claimants to

easements in, on, over, across or through said lands ;

and all persons, companies and corporations claim-

ing any title to or in any of said tract of land re-

quiring said parties to answer in this cause setting

forth any claim, right, .itle, interest or possession

of any kind or nature in [117] and to said described

lands.

Dated at Honolulu, Territory of Hawaii, this 27th

day of November, 1940.

D. E. METZGER,

Judge.

[Endorsed]: Filed Nov. 27, 1940. [118]

vs. John Waterhouse et al. 67

[Title of Distriet Court and Cause—Civil No. 436.]

ANSWER OF THE TRUSTEES UNDER THE

WILL OF SAMUEL M. DAMON, DE-

CEASED

Now come John Waterhouse, Ernest Hay Wode-

house, Walter Francis Frear and John Edward

Russell, Trustees under the Will of the Estate of

Samuel M. Damon, deceased, defendants in the

above entitled cause, and answering the petition

filed in said cause, allege and show as follows:

I.

That they have not sufficient knowledge or in-

formation to form a belief as to the matters and

things alleged in paragraphs I, II and III of said

petition to [120] either admit or deny the same,

and therefore leave the petitioner to its proof

thereof.

Il.

That these defendants are the owners in fee

simple of the property deseribed in paragraph v

of said petition, subject only to a leasehold interest

held by Honolulu Plantation Company, expiring

the 3lst day of December 1943.

Wherefore, these defendants pray that in case

said property shall be condemned and taken as

prayed for in and by said petition, the value there-

of and the compensation to be paid therefor may be

determined and ordered to be paid ts these defend-

ants.

ym meee

68 United States of America

Dated, Honolulu, T. H., December 10, 1940.

JOHN WATERHOUSE,

ERNEST HAY WODEHOUSE,

WALTER FRANCIS FREAR,

and

JOHN EDWARD RUSSELL,

Trustees under the Will and of

the Estate of Samuel M. Da-

mon, deceased,

By ROBERTSON CASTLE &

ANTHONY,

By (s) A. G. M. ROBERTSON,

their attorneys.

Receipt of a copy acknowledged this 10th day of

Dee. 1940.

(s) JOHN E. PARKS

Asst. U. 8; Atty.

[Endorsed]: Filed Dee. 10, 1940. [119]

[Title of District Court and Cause—Civi! No. 436.]

MOTION FOR ORDER OF PAYMENT

OF DEPOSIT

Now come 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, deceased, and respectfully

move this Honorable Court to enter an order di-

vs. John Waterhouse et al. 69

recting the Clerk of Court to distribute the sum

of $123,871.94, now on deposit in said Court, to

these defendants.

This motion is based upon the record in the above

entitled cause.

Dated: Honolulu, T. H., April 8, 1941.

JOHN WATERHOUSE,

ERNEST HAY WODEHOUSE,

WALTER FRANCIS FREAR and

JOHN EDWARD RUSSELL,

Trustees as aforesaid,

By ROBERTSON, CASTLE &

ANTHONY,

By (s) A. G. M. ROBERTSON,

their attorneys. [148]

NOTICE

To:

John E. Parks, Assistant U. 8. Attorney, Dis-

trict of Hawaii,

Honolulu Plantation Company and Stanley,

Vitousek, Pratt & Winn, its attorneys, and

Frank Leialoha Kaleimamahu and Chas. B.

Dwight, his attorney:

Please take notice that the foregoing motion will

be presented to the Court, Honorable Delbert E.

Metzger, presiding Judge, on Thursday, April 10,

70 United States of America

1941, at 10 o'clock, a.m., or as soon thereafter as

counsel can be heard. .

ROBERTSON, CASTLE

ANTHONY

By (s) A. G. M. ROBERTSON

Attorneys for Movants.

Receipt of a copy acknowledged this 8th day of

April, 1941,

STANLEY, VITOUSEK, PRATT &

WINN (H.M.)

CHARLES B. DWIGHT (S.G.F.)

JOHN J. COURTNEY (s)

[Endorsed]: Filed Apr. 8, 1941. [149]

[Title of District Court and Cause—Civil No. 436.]

ORDER FOR DISTRIBUTION OF

MONEY DEPOSITED

The motion of the Trustees of the Estate of

Samuel M. Damon, deceased, defendants in the

above entitled cause, filed in said cause on April 8,

1941, having come on for hearing, and no opposi-

tion to the granting of said motion being made,

It is hereby ordered that the Clerk of this Court

forthwith draw a check for the money on deposit

in the registry of this Court in said cause, to be

signed by the Judge and the Clerk, viz:

John Waterhouse, Ernest H. Wodehouse, Wal-

ter F. Frear and John E. Russell, Trustees Es-

ve. John Waterhouse et al, 71

tate Samuel M. Damon, deceased.......$123,871.94

[151]

It is further ordered that said payment shall be

made without prejudice to the defendants, Hono-

lulu Plantation Company, and the said Trustees of

the Estate of Samuel M. Damon, deceased, to claim

additional compensation and/or damages in said

cause in excess of the amount aforesaid.

Dated: Honolulu, T. H., April 15, 1941.

(8) D. E. METZGER

Judge of the above entitled

Court

Clerk

Approved :

STANLEY, VITOUSEK, PRATT &

WINN

Attorneys for Per RAV

Honolulu Plantation Company

[Endorsed]: Filed Apr. 15, 1941. [152]

[Title of District Court and Cause—Civii No. 436.]

MOTION FOR A DIRECT VERDICT

Comes now The United States of America and at

the close of all of the testimony in this cause moves

that the Court instruct the jury to return a verdict

in favor of the defendants for the sum of One

72 United States of America

Hundred and Three Thousand Nine Hundred and

Eighty-nine Dollars ($103,989.00), as and for the

fair cash nuarket value of the lands condemned, ex-

clusive of growing crops ox improvements thereon,

Dated at Honolulu, T. H., this 29th day of July,

1941.

THE UNITED STATES OF

AMERICA

By (s) JOHN J. COURTNEY

Special Assistant to the Attorney

General

Dated at Honolulu, T. H., this 29th day of July,

1941.

The above entitled Motion is overruled.

(S) D. E. METZGER

Judge,

United States District Court

for the District of Hawaii

[Endorsed]: Piled July 29, 1941. [156]

[Title of District Court and Cause—Civil No. 436.]

VERDICT

We the Jury in the above entitled cause, find the

fair market value of the lands condemned herein,

exclusive of crops and improvements, to be in the

sum of $203,574.40.

vs. John Waterhouse et al. 73

Dated at Honolulu, T. H., this 31st day of July,

1941.

(8S) DAVID L. OLESON

Foreman

[Endorsed]: Filed July 31, 1941. [158]

[Title of District Court and Cause—Civil No. 436.]

ORDEK FOR JUDGMENT

This cause having duly come on for hearing be-

fore this Court and a Jury for the determination

of the fair market value of the lands condemned

herein, exclusive of crops and improvements thereon,

arid said cause having been tried by the Court and

submitted to the Jury and the verdict of said Jury

having been entered herein on July 31, 1941, assess-

ing the fair market value of the lands condemned

as aforesaid, exclusive of crops and improvements

thereon, in the sum of $203,574.40, and,

It appearing that there was heretofore deposited

in this cause the sum of $123,871.94, as the esti-

mated compensation for the lands condemned,

which said sum was duly disbursed to 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, et al., on April 15, 1941, and due receipt

given therefore, and

in pursuance of the provisions of the Statute in

A —

74 United States of America

such case made and provided, the Defendants afore-

said are entitled to a Judgment against the United

States of America for the difference between the

amount of said deposit and the amount assessed

by the Jury in the verdict aforesaid, that is to say

the sum of $79,702.46. [160]

Therefore, on Motion of the Respondents and of

the United States of America, it is ordered, and

the Clerk be and hereby is directed to enter a Judg-

ment against the United States of America, assess-

ing the fair market value of the lands condemned

herein, exclusive of crops and improvements there-

on, as the sum of $203,574.40, and the sum of $123,-

871,94. having heretofore been deposited and paid,

is credited thereon, and the balance of said sum,

to-wit: $79,702.46 shall bear interest at the rate of

6% from November 27, 1940.

Let Judgment be entered accordingly.

Dated at Honolulu, T. H., this 18th day of Aug-

ust, 1941.

(S) D. E, METZGER

Judge of the United States

District Court for the Ter-

ritory of Hawaii

Approved :

ROBERTSON, CASTLE &

ANTHONY

Attys. for Trustees Estate S. M.

Damon

[Endorsed]: Filed Aug. 18, 1941. [161]

vs. John Waterhouse et al. 15

[Title of District Court and Cause—Civil No. 436. J

JUDGMENT

Pursuant to the order for judgment made and

entered in the above entitled cause on August 18,

1941, by the Honorable D. E. Metzger, United States

District Judge,

It is hereby ordered, adjudged and decreed that

the fair market value of the lands described in the

petition and condemned herein, exclusive of crops

and improvements, is determined to be the sum of

$203,574.40, and

It is further ordered, adjudged and decreed that

John Waterhouse, Ernest Hay Wodehouse, Walter

Francis Frear, and John Edward Russell, trustees

under the will and of the estate of Samuel M. Da-

mon, deceased, defendants herein, do have and re-

cover of the United States of America, petitioner

herein, the difference between said sum of $203,-

574.40 and the sum of $123,871.94 heretofore de-

posited herein and paid to said defendants, or the

sum of $79,702.46, together with interest thereon at

the rate of six per cent (6%) per annum [163]

from November 27, 1940, and

It is further ordered, adjudged and decreed that

this judgment be and it is hereby entered nunc pro

tune as of August 18, 1941.

Dated: Honolulu, Hawaii, November 15, 1941.

(S) WM. F, THOMPSON, JR.

Clerk of the United States Dis-

trict Court for the Territory

of Hawaii.

76 United States of America

The foregoing judgment is hereby approved.

(S) D. E. METZGER

United States District Judge.

[Endorsed]: Filed Nov. 15, 1941. [164]

[Title of District Court and Cause—Civil No. 436.]

NOTICE OF APPEAL

Notice is hereby given that the United States of

America hereby appeals to the Cireuit Court of

Appeals for the Ninth Circuit, from the Final Judg-

ment of this Court entered in this action on August

18th, 1941, determining the fair market value of

the lands condemned herein, exclusive of crops and

improvements thereon, to be the sum of’ $203,574.40,

upon which sum there has been heretofore deposited

the sum of $123,871.94 under the Declaration of

Taking, the deficiency thereon, to wit: the sum of

$79,702.46, bearing interest at the rate of 6% from

November 27, 1940.

Dated at Honolulu, T.H., this 15th day of No-

vember, 1941.

THE UNITED STATES OF AMERICA,

Petitioner

By (s) NORMAN M. LITTELL,

Assistant Attorney General

By (s) JOHN J. COURTNEY,

Special Assistant to the Attorney General

[Endorsed]: Filed Nov. 15, 1941. [179]

vs. John Waterhouse et al. 77

[Title of Distriet Court and Cause—Civil No. 436.]

ORDER ENLARGING TIME

On Motion of the United States of America and

for good cause shown, it is

Ordered that the time for filing the record and

docketing the action in this cause in the United

States Circuit Court of Appeals for the Ninth Cir-

cuit be and it is hereby extended for the full period

of ninety (90) days from November 15th, 1941, the

date of the filing of the notice of appeal herein.

Dated at Honolulu, T.H., this 15th day of No-

vember, 1941.

(s) D. E. METZGER

Judge,

United States District Court

for the Territory of Hawaii

[Endorsed]: Filed Nov. 15, 1941. [181]

a

[Title of District Court and Cause—Civil No. 436.]

ORDER ENLARGING TIME FOR SERVING

AND FILING THE DESIGNATION OF

RECORD ON APPEAL

On Motion of the United States of America and

for good eause shown, it is

Ordered that the time for serving and filing the

designation of the portions of the record, proceed-

ings and evidence to be contained in the record on

78 United States of America

appeal in this cause in the United States Circuit

Court of Appeals for the Ninth Circuit be and it is

hereby extended for the full period of ninety (90)

days from November 15, 1941, the date of the filing

of the notice of appeal herein.

Dated at Honolulu, T.H., this 15th day of Novem-

ber, 1941.

(s) D. E. METZGER

Judge,

United States District Court

for the Territory of Hawaii

[Endorsed]: Filed Nov. 15, 1941. [183]

GENERAL INSTRUCTION No, 1

By agreement of the parties, you have been try-

ing two separate cases: one known as Civil No. 434

which is a condemnation by the Federal Works

Agency for Arnoy housing facilities of 77.288 acres;

the other the condemnation of two parcels of land

known as Civil No. 436, one parcel A consisting of

61.512 acres arid parcel B consisting of 192.956

acres. These properties adjoin one another and are

owned by the same persons. They have, therefore,

been tried as ome case. But in deciding this case

you must render a separate verdict for the property

appropriated as: Civil No. 434, and another verdict

for the property appropriated as Civil 436.

The latter ease was condemned at the request of

the Navy Department for its use.

vs. John Waterhouse et al. 79

This is a taking or a condemnation suit by the

United States Government and under the provisions

of the Fifth Amendment to the Constitution, the

United States is required to pay just compensation

for the property appropriated. That is the purpose

of your being called upon as jurors to sit in this

ease to determine what that just compensation is.

Just compensation is the fair cash market value

of the property at the time of the condemnation.

In this instance, one condemnation was commenced

on November 20, 1940, the other on November 27,

1940, but the parties have, by agreement in the

record, stipulated that the fair market value for

both suits should be considered as the fair and

reasonable market value as of November, 1940,

without relation to the small difference in time.

If in the course of this trial this Court has by

word or expression appeared to favor one side or

the other, it was not so intended. It is the duty

of the Court and the duty of the jury to [184] do

absolute, equal and fearless justice to both the land

owners and the Government. You are to take the

law from the Court and to confine yourselves solely

to a consideration of the testimony produced in

this ease in arriving at a verdict, without limiting

your consideration to any isolated portion of such

testimony, by considering it as a whole, fairly

weighing all of the testimony and all of the evi-

dence. You must not decide this case upon any

knowledge which may have come to you by any of

the avenues of information which sometimes reach

80 United States of America

jurors, nor by any outside comment, suggestion or

influence. Such information and conversation, how-

ever innocently given, accomplishes a dishonest re-

sult and the highest degree of honesty and fearless-

ness is required of you under your oaths in acting as

jurors in any case.

Given as amended [185]

GENERAL INSTRUCTIONS

One of the rights of the sovereign, that is the

Government of any nation, is to appropriate the

property of individual citizens for the public use

of all. In the United States every person holds land

subject to condemnations by the Government for

publie use whenever the necessities of the people

shall require them. But in the United States, unlike

some other places in the world, under its Constitu-

tion, the Government must pay to the person whose

property is condemned just compensation therefor.

Just compensation as I have defined it elsewhere

in these instructions means the fair and reasonable

cash market value of the property at the time of |

the condemnation, because it is this fair vash market

value which is taken from the individual for the use

of the people. The United States brings this suit as

a Petitioner for the purpose of determining that

fair cash market value. But that fact is not to

influence you in any way. The Government is en-

titled to and asks the same consideration from you

as any other litigant, neither more nor less. Each

person coming into the Court Room as a litigant

vs. John Waterhouse et al. 81

is equal in the eyes of the law. But on the other

hand the United States must not be penalized be-

cause it brings this suit. Nor must it be required

to pay @ premium over and above the fair cash

market value of this property because of the fact

that it has condemned land for public use, nor be-

cause of any unwillingness on the part of the owner

to give up his property for public use. The deter-

mination of value which you are to make in this

case, is not to be measured by the necessities of the

publie nor the unwillingness of the owner to part

with his property, but is to be determined solely

and only by a determination from all the evidence

of a fair cash mark:t value as I have defined that

term to you.

Given as modified [186]

DEFTS. INSTRUCTION No. 2

You are instructed that the judicial ascertain-

ment of the amount that shall be paid to the owner

of private property taken by the government for

_..., public use under the power of eminent domain is

always a matter of importance, for in any society

the fullness and sufficiency of the security which

surrounds the owner in the use of his property

constitutes one of the most certain tests of the

character and value of the government.

When property is taken in this manner the owner

becomes entitled to receive the full and exact equiva-

lent of it in money. He is entitled to be put in as

good a position pecuniarily as if his property had

82 United States of America

not been taken. When he has received a full and

fair cash market value of his property he has been

put in as good a position pecuniarily as if his prop-

erty had not been taken.

Given as modified [187]

DEFTS. INSTRUCTION No. 3

The just compensation which the owner is entitled

to receive includes all elements of value that inhere

in the property, but it does not exceed the market

value fairly determined. The amount required to be

paid to the owners does not necessarily: depend upon

the use to which they have devoted the land, but is

te be arrived at upon a just consideration of all the

uses for which you find the evidence to show the

land is suitable. In this connection you may take

into consideration any evidence which indicates the

best and most profitable use to which the land is

adapted and can probably be put in the reasonably

near future.

The highest and best use for which the property

is adaptable or likely to be needed in the reasonably

near future, so far as shown by the evidence in this

case, is properly to be considered by you, not neces-

sarily as the exact measure of compensation to be

paid for the property, but to the full extent that the

prospect of demand for such use affected the market

‘value of the property while held in private owner-

ship in November 1940.

Given as modified [188]

vs. John Waterhouse et al. 83

DEFTS. INSTRUCTION No. 4

You are instructed that market value is not to

be determined by what the property would bring at

a forced sale where the owner was compelled to part

with it without consideration as to whether or not

anybody desired to purchase it. ;

The term ‘‘market value”’ is equivalent to ‘‘cash

value.”” It means the value which a willing pur-

chaser would pay to a willing seller of the property

at the time of the taking, paid in money, taking

into consideration all of the uses to which the land

was adapted and for which it was reasonably

capable ; ¥

In other words, the fair value of the property as

between one who wants to purchase and one who

wants to sell at a sale which a prudent owner would

make if at liberty to fix the time and conditions of

sale.

Given. [189]

GOVERNMENT’S REQUESTED

INSTRUCTION No. 7

SPECULATIVE DAMAGES

I charge you that in determining what the fair

market value of this property is, you are to consider

that price which a willing purchaser would pay to

a willing seller, neither being under any compulsion

and each being able to carry out the bargain. You

are to consider the present use of the property. You

may also consider potential uses, if you find that

84 United States of America

those potential uses would occur in the reasonably

near future and because of that fact would impel

a purchaser and a seller, in a free sale, to arrive at

a different price from that based on the present use

of the property. I charge you that you must not

speculate on future uses. You must not allow your

imaginations to run away with you. The fair

market value which you are to arrive at in this case

must not be based upon any dream of possible fu-

ture development depending upon any contin-

gencies which may or may not occur. You are not to

consider any prospective future profits depending

upon future contingencies. You will view this case

in the light of your experience as men of affairs and

arrive at a valuation which in your opinion would

represent a fair cash market value of this prop-

erty tested by the rule of good common sense, hard-

headed and sound business judgment. The market

value of these properties must not increase simply

because of a condemnation suit. You must not ex-

pect the condemnor to pay any more for this prop-

erty than would be arrived at in fair negotiations

between business men acting without any compul-

sion and each being able to carry out his bargain.

It is the fair cash market value of the property

which is taken from these defendants. That and

nothing more is what the government must pay.

Given as modified.

GOVERNMENT’S REQUIRED

INSTRUCTION No. 8

In this case there has been some testimony on the

vs. John Waterhouse et al. 85

part of the land owners of their future plans with

respect to this property. You are not to consider

the personal plans of the owner except insofar as

they tend to show adaptability of the lands to their

highest, best and most profitable use in the reason-

ably near future.

Given as modified. [191]

GOVERNMENT’S REQUESTED

INSTRUCTION No. 9

In this case it is admitted without dispute in the

testimony that the lands condemned are a part of

a holding of lands in the immediate vicinity, owned

by the same respondents. In deciding this case, you

are not to assume any particular type or policy of

management on the part of the trustees with re-

spect to the remainder of said lands. The very

theory and hypothesis upon which this case is being

tried is the assumption of a free and open market,

of a willing purchaser and a willing buyer in a free

transaction. In considering this case, therefore, you

are not to assume that the Trustees of the Damon

Estate would not release any of the lands in the

immediate vicinity from their present status. And

you are entitled to assume, if that fact has any

bearing on market value in your opinions, that the

lands immediately adjoining and in the general

vicinity, are the subject of free competition in the

open market.

Given as modified.

United States of America

DEFTS. INSTRUCTION No. 7

In determining by your verdict what amount of

money to be paid to the owners would be the full

equivalent of the property taken, you should take

into consideration the earning power of money as

you may find it to be from the evidence in this case,

Given. [193]

DEFTS. INSTRUCTION No. 8

It is common knowledge that one of the most im-

portant factors in determining the value of property

is the income which it produces. And although it

is market value which you are to consider in these

cases, nevertheless the investment of the proceeds

by the owner is one of the elements to be considered

in determining market value, because’ that is an

element which naturally would be taken into con-

sideration in any bargaining between an owner

willing to sell and a purchaser willing to buy.

Given. [194]

DEFTS. INSTRUCTION No. 9

In this proceeding the Honolulu Plantation Com-

pany, the lessee of the Damon Estate, is not making

a claim for any leasehold interest in the land.

The Trustees of the Damon Estate are therefore

entitled to the full amount of compensation to be

paid for the taking of the land without any deduc-

tion by reason of the fact that at the time of the

taking the land was subject to the lease.

Given by agreement [195]

vs. John Waterhouse et al. 817

GOVERNMENT’S REQUESTED

INSTRUCTION No. 5

In this case the Court has permitied you to re-

ceive the testimony of certain witnesses who, be-

cause of their business and experience, are termed

‘‘experts.”” The law receives this evidence because

these experts sometimes aid in determining question

of value. But I charge you that the ultimate weight

you may give to the testimony of such witnesses is

for you to determine. There is no rule of law which

requires you to surrender your cwn judgment to

any person testifying as an expert witness. In other

words, the testimony of an expert, like that of any

other witness, is to be received by you and given

such weight as you think it is properly entitled to.

But I charge that you are not bound or concluded

by the testimony of any such witness, expert or

other. Such testimony is merely the opinion of the

particular witness and should be considered in the

light of all of the evidence. You should consider

the opportunity of such-persons to know the values

for which they contend. You should weigh the rea-

sonableness or unreasonableness of their estimate of

such value as demonstrated in their testimony. You

should apply to this your own sound judgment and

good sense in arriving at the fair and reasonable

market value of this property in the light of all

the evidence. If you believe from the testimony in

this case of any witness, that that witness has mag-

nified, exaggerated or overestimated the fair market

value to which he has testified, because of his in-

88 United States of America

terest in this suit, or his prejudice, or his want of

knowledge or experience, or his untruthfulness, or

his opportunity for or lack of opportunity of know-

ing the things about which he testifies, or for any

other reason, then it is your [196] duty to disregard

the evidence of such witness insofar as it has un-

justly magnified, increased or overestimated the

value of the land to be taken.

Given [197]

DEFTS. INSTRUCTION No. 10

Whether the testimony of expert witnesses is to

be considered strong or weak depends large! upon

the skill and character of the respective witnesses,

their knowledge, experience and opportunities for

acquiring information, and all attendant facts and

circumstances, including the reasons, if any, which

were given by the witnesses for their respective

opinions.

Given [198]

DEFTS. INSTRUCTION No. 5

By order of this Court and with the consent of

the parties, you went upon the lands involved in

these cases and viewed them in order that you might

understand and apply the evidence from seeing the

lay of the land, its location and character, and you

are instructed that since the testimony as to the

value of the lands and the compensation to be paid

for the taking of them is conflicting, you may resort

vs. John Waterhouse et al. 89

to your own knowledge including what you have

geen on your visit to the locality concerning the

elements which affect the value and compensation,

in order to determine the relative weight to be given

the conflicting testimony.

Given [199]

DEFTS. INSTRUCTION No. 11

You, gentlemen of the jury, are the exclusive

judges of the credibility of the witnesses who have

testified before you, and of the weight to be given

to their testimony. Your verdict should be based

upon the preponderance of the evidence. This does

not necessarily mean the greater number of wit-

nesses. It means the greater weight and value of

the testimony which has been adduced as you may

find it to be.

If you find from the evidence that the lands in

question were in November 1940 worth not more

than the Government contends, then it is your duty

to, and I instruct you, to return a verdict in the

following sums:

For Civil No. 434, 77.288 acres, the sum of

$33,498.00

For Civil No. 436, 254.468 acres, the sum of

$103,989.00

Given as amended [200]

DEFTS. INSTRUCTION No. 12

It is your duty to base your verdict entirely on

the law and the evidence. That means, the law as

m cama neem ed eee

90 United States of America

explained to you in these instructions and the facts

shown by the testimony which has been given by the

witnesses who have testified before you and the

facts observed by you from your view of the prem-

ises in question. You will, therefore, give no con-

sideration to anything you may have heard outside

the courtroom, nor will you allow your verdict to

be affected by any bias or prejudice against or any

sympathy in favor of either of the parties to this

proceeding.

Given [201]

DEFTS. INSTRUCTION No. 13

The court instructs you that in the decision of

these cases you are to refrain from entering into

what is known as a ‘“‘Quotient Verdict.’’ Such a

practice is to be condemned. A quotient verdict

arises in a situation where each member of the jury

writes down a figure and such twelve figures are

added together and then divided by twelve. The

mere mention of this practice demonstrates very

clearly that the figure which is arrived at does not

represent the considered judgment of the jury on

what the fair market value of the property is.

Given [202]

GOVERNMENT’S REQUESTED

INSTRUCTION No. 1

I instruct you that there is no competent evidence

introduced by the land owners in this case. Evi-

vs. John Waterhouse et al. 91

dence of value which is based upon capitalization of

prospective rentals is not competent to determine

the fair market value of real estate, and evidence

of value which is based upon the so-called prospec-

tive selling price of subdivided lands, which have

not actually been subdivided, is not competent in

proof of fair market value.

Refused [203]

GOVERNMENT’S REQUESTED

INSTRUCTION No. 2

I charge you that you are to return a verdict in

Civil No. 436 in the sum of $103,989.00 as the fair

and reasonable market value of the property con-

demned.

Refused [204]

GOVERNMENT’S REQUESTED

INSTRUCTION No. 3

I charge you that you are to return a verdict in

Civil No. 434 in the sum of $33,498.00 as the fair

and reasonable marke: value cf the property con-

demned.

Refused [205}

GOVERNMENT’S REQUESTED

INSTRUCTION No. 6

BURDEN OF PROOF

I charge you that the burden of proof in this case

92 United States of America

is upon the land owner, that is to say the Damon

Estate, to establish their claim for the value of the

land taken by the fair preponderance of evidence,

that is to say by the greater weight or convincing

power of the evidence. The greater weight and con-

vineing power does not depend on the number of

witnesses, but it does mean that the evidence intro-

duced by the land owners who have the burden of

proof must be more convincing in your minds and

must outweigh that of the government’s witnesses

if you are to find a value for which the land owners

contend. If you find from the evidence that the

proofs are equally balanced as to the value of the

land taken, then it is your duty to and I instruct

you, to return a verdict in the following sums:

For Civil No. 434, the sum of $33,498.00; -

For Civil No. 436, the sum of $103,989.00.

Refused, Defts. No. 11 as modified given

instead. [206]

INSTRUCTION No. 6

You are further instructed that since any use

for which the property is reasonably capable may

be considered, if you find from the evidence and

from what you saw when you visited the premises,

that the land is adapted for the purpose for which

the government has taken it, you may take that fact

into consideration, as well as the other evidence, in

determining the value of the property.

Refused [207]

vs. John Waterhouse et al. 93

In the United States District Court

for the Territory of Hawaii

Civil No. 434

THE UNITED STATES OF AMERICA,

Petitioner,

Vs.

CERTAIN PARCELS OF LAND on the Island of

Oahu, Territory of Hawaii, 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, HONOLULU PLANTATION COM-

PANY, BISHOP NATIONAL BANK OF

HAWAII AT HONOLULU, TERRITORY

OF HAWAII, CITY AND COUNTY OF

HONOLULU, JOHN DOE ONE TO JOHN

DOE FIFTY, INCLUSIVE, and MARY ROE

ONE TO MARY ROE FIFTY, INCLUSIVE,

unknown owners and claimants,

Defendants.

G4 United States of America

Civil No. 436

THE UNITED STATES OF AMERICA,

Petitioner,

vs.

254.468 acres of land, more or less, in Moanalua,

Honolulu, Island of Oahu, Territory 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, deceased, HONOLULU PLANTA-

TION COMPANY, BISHOP NATIONAL

BANK OF HAWAII AT HONOLULU,

TERRITORY OF HAWAII, CITY AND

COUNTY OF HONOLULU, JOHN DOE

ONE TO JOHN DOE FIFTY, INCLUSIVE,

and MARY ROE ONE TO MARY BOE

SIFTY, INCLUSIVE, unknown owners and

claimants,

Defendants.

STIPULATION AND AGREEMENT

FOR CONSOLIDATION

Whereas, upon Motion of the United States of

America, Petitioner above named, prior to the trial

of the above cases, [209] said cases were consoli-

dated for the purposes of trial, and by reason thereof

said cases were consolidated and tried before this

Court and a Jury for the determination of the fair

ve. John Waterhouse et al. 95

market value of the lands condemned herein, exclu-

sive of crops and improvements thereon, and the

only purpose upon the trial of said cases was to

determine the fair market value of the lands con-

demned, exclusive of the crops and improvements

thereon, and said fee owners of said lands con-

demned were the Trustees under the Will and of

the Estate of Samuel M. Damon, deceased, defend-

ants above named, and that no other parties defend-

ant hat any interest in the value of the fee simple

in the lands in question ; and

Whereas, the verdict of the Jury was entered in

the above mentioned Civil No. 434, assessing the

fair market value of the lands condemned, exclusive

of crops and improvements thereon, in the sum of

$61,830.40, and in Civil No. 436 assessing the fair

market value of the lands condemned, exclusive of

the crops and improvements thereon, in the sum of

$203,574.40, and separate judgments were entered

in each of said causes on August 18, 1941; and

Whereas, the United States of America, Peti-

tioner above named, has filed its Notice of Appeal

in each of said cases above named, and it is the

intention of said Petitioner to appeal said cases to

the Ninth Cireuit Court of Appeals;

Therefore, it is stipulated and agreed by and be-

tween the United States of America, Petitioner, by

Angus M. Taylor, Jr., United States Attorney for

the District of Hawaii, and the Trustees under the

Will and of the Estate of Samuel M. Damon, de-

- United States of America

ceased, Defendants, by Robertson, Castle & An-

thony, their attorneys, that said causes, to wit, Civil

Nos. 434 and 436, as [210] above designated, be con-

solidated as one cause for the purpose of appealing

the same to the Ninth Circuit Court of Appeals. It

is further agreed that but one appeal be prosecuted

regarding such consolidated cases, and that the ree-

ord be printed and treated as one, and that all con-

siderations, orders, judgments and mandates made

by the Ninth Circuit Court of Appeals be effective

in each case above described, the same as if the

appeal had been taken in each case individually.

Dated at Honolulu, T.H., this 2d day of Febru-

ary, 1942.

THE UNITED STATES OF mpc

Petitioner

By (s) ANGUS M. TAYLOR, JR.

United States Attorney for the

District 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, De-

ceased,

By ROBERTSON, CASTLE & ANTHONY’

Their Attorneys

By (s) A. G. M. ROBERTSON

[Endorsed]: Filed Feb. 2, 1942. [211]

vs. John Waterhouse et al. 97

[Title of District Court and Cause—Consolidated.]

ORDER CONSOLIDATING CAUSES

ON APPEAL

Upon the filing and reading of the Stipulation

and Agreement to consolidate the above designated

causes, and good cause [213] appearing therefor,

It is hereby ordered that Civil No. 434 and Civil

No. 436 of this Court, as above designated, be and

the same are hereby consolidated for the purpose of

appealing the same to the United States Circuit

Court of Appeals for the Ninth Circuit, and it is

further ordered that but one appeal be prosecuted

regarding such consolidated causes, and that the

record be printed and treated as one and the same

appeal.

Dated at Honolulu, T.H., this 3rd day of Febru-

ary, 1942.

(s) D. E. METZGER

Judge,

United States District Court,

Territory of Hawaii

[Endorsed]: Filed Feb. 3, 1942. [214]

[Title of District Court and Cause—Consolidated. ]

ORDER FOR TRANSMITTAL OF ORIGINAL

EXHIBITS

The Motion of the United States of America,

Appellant in the above consolidated causes, for an

98 United States of America

order directing the [219] Clerk of this Court to

transmit to the United States Circuit Court of Ap-

peals for the Ninth Circuit all of the original ex-

hibits offered in evidence and all of the original

exhibits received in evidence in the above entitled

consolidated causes, together with the transcript

on appeal herein, coming on to be heard, and it

appearing to the Court that such ex*ibits are many

in number and it would be inordinately expensive

to reproduce all of said exhibits, and that such origi-

nal exhibits are necessary for the full and proper

consideration of the questions involved in said ap-

peal, and

Whereas, due to the present War and the uncer-

tainty of transporting said exhibits safely to said

United States Circuit Court of Appeals for the

Ninth Circuit, the Appellant has agreed to place in

the files of this Court duplicates of said original

exhibits, and the Court being fully advised in the

premises,

It is hereby ordered that the Clerk of this Court

be and he is hereby authorized and directed to trans-

mit to the Clerk of the United States Circuit Court

of Appeals for the Ninth Circuit together with the

transcript of the record on appeal herein, all of the

original exhibits offered in evidence and all of the

original exhibits received in evidence at the trial

of the above designated consolidated causes, with

instructions to said Clerk of said Circuit Court of

Appeals to return said original exhibits to this

vs. John Waterhouse et al. 99

Court upon the rendition of final decision in said

Circuit Court of Appeals, and

It is further ordered, that the Appellant herein

place im the files of the Clerk of this Court dupli-

cates of said original exhibits, said original exhibits

consisting of the following: [220]

United States’ Exhibits:

Ex. A—Detail map, 14th Naval Dist. Drawing

OA-N1-264, approved Oct. 25, 1940.

Ex. B—Map—Moenalua and Kahauiki— Hono-

lulu, ‘‘Drawing No. 1168 by H.T. Dee.

1932. Source W.H.&4W. USGS.”’

Ex. C—Portion of Moanalua. Land Ct. App. 1074

at Moanalua, Wright, Harvey & Wright,

March 13, 1940.

Ex. D—Map—subdivision of Land of Lot C-3-

B-2 of Land Ct. App. on Map 23 filed in

office of Asst. Reg. of Land Ct. into Lots

C-3-B-2-A and C-3-B-2-B, Wright, Har-

vey & Wright, and photographs 1 to 5

inclusive attached to map.

Ex. E—Photographs 1 to 15 inclusive and map

Lots C-2, C-3-A, C-3-B-1, C-3-B-2, Lot

D and Lot E.

Ex. F—Site sketch Moanalua, Map Nov. 27, 1940

of Lot C-1, C-2, C-3-A, C-3-B-1, C-3-

B-2-A and D.

. G—Location sketch [a sketch of whole area

of lands around P. H.]

100 United States of America

Defendant's Exhibits:

Ex. 1—Deed of sale Trustees of Damon Est. to

City & County of Honolulu, dated Dee,

17, 1937, 3 acres of land at Moanalua

(Recorded B. 1417, p. 481)

Ex. 2—Lease dated June 27, 1927, Trustees Da-

mon Est. and Honolulu Plantation Co,

covering certain land at Moanalua, re-

corded Book 888, p. 111.

Ex. 3—Lease dated Sept. 12, 1940 Trustees Da-

mon Est. to Bishop National Bank of

Honolulu covering 2.249 acres of land at

Moanalua.

Dated at Honolulu, T. H., this 4th 1d of Febru-

ary, 1942.

(8) D. E. METZGER

Judge,

United States District Court,

Territory of Hawaii

[Endorsed]: Filed Feb. 4, 1942. [221]

_

[Title of District Court and Cause—Consolidated.]

APPELLANT’S DESIGNATION OF RECORD

ON APPEAL [222]

Comes now the United States of America, Appel-

lant above named, by Angus M. Taylor, Jr., United

States Attorney for the [223] District of Hawaii,

vs. John Waterhouse et al. 101

and designates all the proceedings and evidence in

the above consolidated causes for inclusion in the

record on appeal.

Dated at Honolulu, T. H., this 4 day of February,

1942.

THE UNITED STATES OF

AMERICA,

Appellant

By (s) ANGUS M. TAYLOR, JR.

United States Attorney for

the District of Hawaii

Service of the within Designation of Record on

Appeal and receipt of a copy thereof is acknowl-

edged this 4th day of February, 1942.

ROBERTSON, CASTLE &

ANTHONY

Attorneys for John Water-

house, Ernest Hay Wode-

house, Walter Francis

Frear and John Edward

Russell, Trustees under the

Will and of the Estate of

Samuel M. Damon, De-

ceased.

By (s) A. G. M. ROBERTSON

for the foregoing attorneys.

[Endorsed]: Filed Feb. 4, 1942. [224]

eh eet

102 United States of America

[Title of District Court and Cause—Consolidated,]

TRANSCRIPT

Of proceedings had and evidence adduced be-

fore the Honorable Delbert E. Metzger, Judge

Presiding, commencing at 9:00 o’clock am

Monday, July 21, 1941; the Petitioner being

represented by John J. Courtney, Esquire, Spe

cial Assistant to the Attorney General of the

United States; the defendants John Water-

house, Ernest Hay Wodehouse, Walter [228]

Frear and John Edward Russell, Trustees un-

der the Will and of the Estate of Samuel M.

Damon, deceased, being represented by A. G. M.

Robertson, Esquire, of the law firm of Robert-

son, Castle & Anthony ; the defendant Honolulu

Plantation Company being represented by Roy

A. Vitousek, Esquire, of the law firm of Stan-

ley, Vitousek, Pratt & Winn.

Upon stipulation of counsel, and with the ap-

proval of the Court, Anne R. Whitmore was by the

Clerk duly sworn to act as Court Reporter in the

above entitled proceedings.

Mr. Vitousek: I appear for the Honolulu Plan-

tation Company. In this matter I wonder if we

could have a stipulation entered of record: Hono-

lulu Plantation Company is one of the respondents,

and it is my understanding that the purpose of this

case is to determine the value of the fee simple of

the lands in question. We made our adjustment with

vs. John Waterhouse et al. 103

the owner, the lessor, so the lessor will carry the

burden of the case. With regard to the lessee’s

interest in the improvements and crops, the claim

for damages, I believe that would be a matter for

subsequent adjustment, and if necessary to come

to Court we will file a motion to consolidate the

various cases in so far as the Honolulu Plantation

Company is concerned, so we will not appear in

this case.

The Court: Your client’s interest is solely pre-

sented as a lessee?

Mr. Vitousek: We have had our adjustment with

the lessor, so the lessor may claim for full value

on the land. The lessee makes no claim. [229]

Mr. Courtney: Satisfactory to the Government. I

believe that preliminary to that motion, however,

we should make a motion to consolidate the two

eases, Case No. 434 and Case No. 436.

The Court: I will entertain that motion.

Mr. Courtney: I so move and it may be entered

in the Term Minutes.

The Court: Any objection to the consolidation

of Cases Nos. 434 and 436?

Judge Robertson: No objection, Your Honor.

Mr. Vitousek: No objection.

Mr. Courtney: No objection.

The Court: The motion for consolidation is

granted, and the stipulation is agreeable to all

parties of record and to the Court. Are the parties

all ready ?

104 United States of America

Mr, Courtney: The Government is ready, Your

Honor.

Judge Robertson: I appear for the Trustees un.

der the Will of Samuel M. Damon, deceased. We are

ready.

The Clerk: Civil No. 434, the United States of

America, Petitioner, versus Certain parcels of land

on the Island of Oahu, etc., Defendants, and Civil

No. 436, the United States of America, Petitioner,

versus 254.468 acres of land, etc., omemnaae. Cases

called for trial.

The Court: There are no other parties interested

in the value of the freehold?

Mr. Courtney: Not as to the value of the fee, Your

Honor.

The Court: Draw a jury, Mr. Clerk..,

(Thereupon the Clerk drew the names of twelve

persons from the jury panel, calling their names

‘aloud, and the [230] said members of the jury panel

so called took their places in the jury box.)

The Clerk: Will all the jurors in the courtroom

arise and raise your right hands please.

(Thereupon all the members of the jury panel

were by the Clerk duly sworn on their Voir Dire

as to their legal qualifications to serve as trial

jurors. )

Mr. Courtney: May it please the Court and mem-

bers of the jury panel: This is a condemnation suit

by the United States of property which is located

at the outside of Pearl Harbor gates and adjoining

vs. John Waterhouse et al. 105

Hickam Field. There are two cases being consoli-

dated in the trial. The one is the condemnation by

the Federal Works Agency for the United States

Army housing. That is known as Civil No. 434 and

it consists of 77 and a fraction acres of land for

Army housing, and adjoining that, and in the di-

rection my finger now points, down Kamehameha

Highway is the condemnation by the United States

of some 254 acres of land to be used, and actually

now in use, for Naval housing facilities. There is

also a small triangular piece in that 254 acres at the

point indicated by my finger now,—that is between

Kamehameha Highway and the entrance of Pearl

Harbor and what I would call the Schofield Road,

—that is the triangle. You have heard indicated that

the only question that the jury will be called upon

to decide will be the fee value of the land. The prop-

erty was occupied by the Honolulu Plantation Com-

pany at the time of the condemnation, but as you

heard here this morning any questions of differences

of opinion between the Honolulu Plantation Com-

pany and the Government and the fee owners is not

before you, if there should be any such differences.

Neither are we concerned with the value [231] of

any improvements on the land, whether put on there

by the Honolulu Plantation Company or anyone

else. The defendants in this case are the Trustees

of the Damon Estate and, of course, the beneficiaries

of the Damon Estate. The Trustees are John Water-

house, Ernest Hay Wodehouse, Walter Francis

Frear and John Edward Russell. The beneficiaries

106 United States of America

of the Damon Trust Estate, and who were the fee

owners of both of these properties, are Mary M.

Damon, Samuel R. Damon, Harriet Baldwin, Fran-

ces Damon, Joan Damon and Henry E. Damon. The

Bishop National Bank has a bank building on the

property. Any controversy that may exist with ref.

erence to that building is not before the jury. We

are dealing solely with the fee value of the land,

The reason the cases are consolidated of course ig

because the lands adjoin one another and because

the defendants in each case are exactly the same.

(Thereunvon the impanelling of a jury was com-

menced and completed at 10:45 o’clock a.m., and

thereupon the Jury was duly sworn and im-

panelled. )

The Court: All those jurors who were called this

morning and have not been sworn to try this case

are excused until further call by officers of the

Court. We will take a recess at this time.

(Recess—10:50 to 11:05 a.m.)

Mr. Courtney: At this time the Government moves

that the jury be permitted to view the premises

under such restrictions and regulations and require-

ments as the Court may impose. I suggest that the

view should occur tomorrow morning as the Court —

is not to sit in the afternoons. The [232] distances

are not great and the access is not very difficult. I

offer the suggestion that we leave here at say 9:00

o'clock tomorrow morning, that would be plenty of

time.

vs. John Waterhouse et al. 107

Judge Kobertson: I join in the suggestion, Your

Honor. i think the jury in any condemnation case

should see the land we are talking about.

The Court: What about transportation ?

Mr. Courtney: I shall undertake to arrange trans-

portation, just as was done before. We will have the

ears here at the building at 9:00 o’clock tomorrow

morning, or at any time the Court directs.

Judge Robertson: Does that include transporta-

tion for me and my client, or do you want us to

furnish our own?

Mr. Courtney: We will be glad to furnish trans-

portation. I am frank to say I had not planned on

going with the jury unless I am required to do so.

I thought if the jurors were shown the borders, or

the boundaries of the property by one representative

of the Army and Navy and one of the land owner,

who would know the location of the boundaries, that

that would be sufficient.

The Court: You have an engineer or surveyor?

Judge Robertson: I ean produce an engineer and

surveyor, or I can have Mr. Sam Damon there.

The Court: That will be just as good, and the

plaintiff will have the Naval Engineer?

Mr. Courtney: I suppose in deference to the

Services I might also have got an Army Engineer.

In any event we will have someone there to show the

boundaries.

Judge Robertson: You will have a map? [233]

Mr. Courtney: And a map.

The Court: May I see the map.

108 United States of America

Mr. Courtney: (Handing to the Court a map of

the area involved in these proceedings) I did not

exhibit it to the Court because it wasn’t introduced

in evidence.

The Court: Gentlemen of the Jury, unless counsel

on either side wants to make some further prelimi-

nary statement of the case at this time there will

be nothing more for us to do this morning. Tomor-

row morning meet here promptly at 9:00 o’elock,

At that time conveyances will be here and the

Court and jury and counsel will go down and look

at this land, so as to get it fixed in your minds,

where it is and what it is like, geographically, topo-

graphically, ete.

Mr. Courtney: There will be no testimony to-

morrow ? ;

The Court: None on the ground. Whether we will

have any testimony here or not I would like to hear

from you. Do you want to open your case with tes-

timony after we return here?

Mr. Courtney: I think it will be nearly 11:00 or

half past 11:00 before we finish viewing the prop-

erty. I would suggest that we just view the property

tomorrow and then start the next day with the tes-

timony.

The Court: If it is going to be as late as that

perhaps you are right. We will just devote the day

to looking at the land tomorrow, is that satisfactory,

Judge?

Judge Robertson: Yes, Your Honor. We will be

here at 9:00 o’clock, Your Honor.

vs. John Waterhouse et al. 109

The Court: I don’t know that you will have any

great amount of walking to do, but I call it to your

[234] attention that we are going to look at real

estate, and if you think it advisable to put on a

pair of tramping shoes do so. The jury is excused

until 9:00 o’elock tomorrow morning, Meet here at

that time.

(Adjourned 11:15 o’clock a.m.)

On Tuesday, the 22nd day of July, 1941, at 9:07

o’clock a.m., all parties being present in the court-

room, the following further proceedings were had:)

The Clerk: Civil No. 434 and Civil No. 436. Cases

called for further trial.

The Court: Let the record show the jury are all

present and in the box.

Mr. Courtney: If the Court please, I have a map

prepared and outlined indicating the two different

areas involved, which I have exhibited to counsel,

and if the Court is agreeable and counsel for the

defendant that it be introduced in evidence and used

for such detail as contained thereon, I offer the same

in evidence.

The Court: Any objection to the map?

Judge Robertson: No, Your Honor. I understand

this map will be taken along this morning to have

it on the ground.

The Court: Yes. It may be accepted in evidence

marked as Government’s Exhibit ‘“‘A’’. I suggest

that you pass it to the jury and explain it to the

lav United States of America |

jury, if there is any explanation needed, at this

time.

Mr. Courtney: I doubt if there is any explanation

needed except to say the red lines indicate the Army

the yellow the Navy. I think the other detail is

perfectly obvious. This area, Civil No. 436, makai

of the Highway [235] (of the Highway) is marked

into three sections, as a matter of fact it is all one

section.

The Court: There are two distinct lots, one being

taken by the government under some housing

agency——

Mr. Courtney: Federal Works Agency which is

the successor of the W.P.A., and which has taken

over and undertaken the Army housing.

The Court: On the bigger or the smaller piece ?

Mr. Courtney: The smaller.

The Court: That is Case——

Mr. Courtney: That is Case 434.

The Court: And the other is being taken by the

Navy?

Mr. Courtney: That is right.

The Court: The jury will have to keep that in

mind, I take it, because each lot will have to be sep-

arately appraised or assessed by the jury.

Mr. Courtney: Yes, Your Honor. I want to turn

this map over to the jury.

The Court: It would be better to turn it over to

the Clerk.

(Mr. Courtney does so.)

The Court: Mr. Clerk, mark the original Govern-

ment’s Exhibit ‘‘A’’.

vs: John Waterhouse et al. 111

(Thereupon the map referred to was by the Clerk

marked Government’s Exhibit ‘‘A’’)

The Court: Anything else to present to the Court

or to the jury before we go to view the property ?

Judge Robertson: Nothing on behalf of the de-

fendants.

Mr. Courtney: Nothing on behalf of the Govern-

ment.

The Court: Transportation ready? [236]

Mr. Courtney: Ready, Your Honor, on the side

of the building.

The Court: The jury will understand they are

to keep together and to listen to no remarks of any-

one other than those designated by the Court to

point out the boundary lines. That is the principal

thing any outside person will have to do. Mr.

O’Farrell on behalf of the Navy and Mr. Damon

on behalf of the defendants will be there to desig-

nate the boundary lines. The purpose for which the

jury goes to view the land is to make themselves

acquainted with the location, the nature and quality

of the land, its proximity to other things, that is its

general surroundings, to be better prepared to con-

sider and weigh the evidence. You do not go out to

determine at this time for yourselves the value

of the land, and listen to nothing that tends to try

to impress you as to the value or anything else con-

cerning the land. All the evidence you are to re-

ceive will be from the witness stand here, or at least

in the courtroom. No testimony will be taken today

while you are viewing the premises, and I admonish

112 United States of America

you, if anyone should try to impress upon you their

views as to value or other pertinent cireumstances

{n connection with the land to call the attention of

the Court to that fact, either on this occasion or

at any time during the course of the trial. We will

(Thereupon at 9:15 o’clock a.m., the Court, jury,

Clerk, Marshal, Court Reporter, counsel, Mr. Oliver

O’Farrell, Engineer, United States Navy, and Mr.

Sam R. Damon, proceeded to the lands referred to

in these proceedings, [237] where Mr. O’Farrell

on behalf of the Government and Mr. Sam R.

Damon on behalf of the defendants pointed out to

the jury the various boundary lines.)

The Court: Jurymen, your official duty for the

morning is over now. You are recessed until 9:00

o’cloeck tomorrow morning to appear at the court-

room for the further trial of this case. The rest of

whatever excursion we make is merely a sightseeing

tour, taking advantage of the fact that we are out

this way, and as to what you have seen, the lands

in question, you will retain in your memory any

physical aspects, the general surroundings, location,

ete., and do not discuss the case or the purpose of

the trip or what you have seen with anyone. Wait

until you get the evidence, vou can then discuss it

in vour deliberations as to the question of value.

Recessed officially until tomorrow morning at 9:00

o’clock.

(Adjourned—11 :00 o’clock a.m.)

vs. John Waterhouse et al. 113

On Wednesday, the 23rd day of July, 1941, at

9:00 o’clock a.m., all parties being present in the ©

courtroom, the following further proceedings were

had:

The Clerk: Civil Cases Numbers 434 and 436.

Cases called for further trial.

The Court: The jury is present and in the box.

Opening statement to the jury by Mr. Courtney.

The Court: Judge Robertson, will the defendant

care to make any opening statement now ¢

Judge Robertson: I think I will reserve my

statement to the usual time, Your Honor. [238]

TESTIMONY FOR THE GOVERNMENT

Mr. Courtney: I assume it may be stipulated

that the values to which the witnesses address them-

‘selves are values in November of 1940. In other

words, the date and the year of immediate pos-

session.

Judge Robertson: There are two different dates,

about a week apart. However, as far as the exam-

ination of witnesses is concerned I think we can

use the month of November, 1940.

Mr. Courtney: The month of November, 1940.

One condemnation proceeding was filed on the 20th

of November, 1940, and the other on the 27th of

November, 1940. I take it there was no substantial

change in that time. Call Mr. Crozier.

114 United States of America

CHARLES CAMPBELL CROZIER

being first duly sworn as a witness for the Peti-

tioner testified as follows:

Direct Examination

Questions by Mr. Courtney:

Q. Mr. Crozier, for the sake of the record, you

will have to give your full name.

A. Charles Campbell Crozier.

Q. And your business, Mr. Crozier?

A. At present I am Deputy Tax Commissioner

in charge of the real and personal property of the

Territory of Hawaii.

Q. How long have you been so employed?

A. July of 1931.

Q. Prior to that time what was your business?

* [239]

A. I was for a period of two years an inde-

pendent realtor, in the real estate and general in-

surance and agency business.

Q. And prior to that time?

A. For some fifteen years I had been connected

with the Guardian Trust Company that subse-

quently merged with the Bishop Trust Company,

some fifteen years.

Q. In the Real Estate Department?

A. General Land Department.

Q. Having to do with the value of property and

its management and sale? A. That is correct.

Q. Have you kept abreast of the transactions re-

lating to real estate in this Territory ?

vs. John Waterhouse et al.

(Testimony of Charles Campbell Crozier. )

A. I have.

Q. You were born and raised in the Territory?

A. I was.

Q. Lived here all your life? A. T have.

Q. Are you familiar with the various uses made

of various classes of land in this Territory ?

A. Iam.

Q. Followed the development of various areas

or parts of this Territory ? A. Ihave.

Q. And in particular the Island of Oahu?

A. And in particular the Island of Oahu.

Q. Are you familiar with the lands involved in

these condemnations ? A. I am.

Mr. Courtney: I think for the sake of the record

I [240] will have to speak of them as “‘these lands”’,

—I see no point in breaking it up.

Q. As a result of your experience in the real

estate business and in connection with your work

in the Tax Division, or general experience, are you

able to form an opinion as to what the fair and rea-

sonable value of these lands is considering their

highest and best uses? A. TI believe so, sir.

Q. Did you make an examination of these prop-

erties prior to the time they were condemned ?

A. Yes.

Q. Will you step down to this board please, and

just tell the Court and jury, referring to the lands

in Civil No. 434, based on your examination what

use was being made of it?

A. Prior to the date of condemnation, at the re-

2 ENS Re

alleen

116 United States of America

(Testimony of Charles Campbell Crozier.)

quest of the United States Government, I was asked

to view this property here (witness indicates an

area on Government’s Exhibit ‘‘A’’), that is the

area of some 77 acres under case No. 434, and svb-

sequent to that I was also asked to view the prop-

erty on the Honolulu side of 434 and the property

mauka, of it, which is the triangular piece which

is under Case 436.

Q. Tell us what you observed with respect to

Parcel 434?

A. Prior to the date of condemnation, or prior

to November, 1940, both these properties were situ-

ated on the two highways, one leading out to the

country, the Kamehameha Highway, and then the

lower, Puuloa Road, that leads into - United

States Navy Yard Gate.

Q. The question is with reference to 434, just

tell us what you found, the use made of 434? [241]

A. Under 434, in November, 1940, a little area

known as Lot C-1 was unoceupied or unimproved,

or no use was being made of it. There had been a

eanefield there and it had been allowed to fallow;

the balance of the acreage was in growing cane.

Q. With respect to the other properties, 436,

what was their condition ?

A. The two parcels in 436 were both in growing

cane.

Q. Did you consider the location of these prop-

erties with respect to development nearest them?

A. I did.

Q. And as a result of your examination and

based on your experience did you arrive at an opin-

vs. John W ‘terhouse et al. 117

(Testimony of Chrr!es Campbell Crozier.)

jon as to wh * ad reasonable market value

of the parce! J4 was as of November,

1940? A.

Q. What, ii. os the fair and rea-

sonable market va . pareel, or case 434, as

of November, 1940?

A. The value of the land in case 434, containing

an area of 77.54 acres, was $33,498.00.

Q. Now in arriving at that fair market value,

your opinion as to the fair market value of this

property you just testified to, did you attempt to

apportion that value among the different classes of

land, or the portions of that property, with respect

to its highest potential use? A. I did.

Q. Now explain to the jury how you appor-

tioned the value you have indicated, how you did it?

A. In the valuation of land there are certain

fundamental factors that can be taken into consid-

eration, one is its [242] location, second is its size

and shape, third its topography, its possibilities and

the utilities that surround the parcel, and, fourth,

might be termed its productivity, or ability to pro-

duce. This parcel lies on the makai side of the

highway leading to the Navy Yard. Most of it had

been used for the growing of cane,—that had been

going on for many years. In going over the |and

it was my opinion that there was a certain frontage

along that highway that had possibly a higher value .

than the cane land value.

Q. For what reason?

118 United States of America

(Testimony of Charles Campbell Crozier.)

A. The road frontage. This area along the road,

it had the environment of the road and the factors

that go into making road values. There had been

further toward the Navy Yard Gate certain im-

provements other than the growing of cane along

that same highway, the bank site and the garages

outside the Navy Yard Gate.

Q. There was the Bank of Hawaii on the mauka

side and the Bishop Bank on the makai side?

A. Bank of Bishop was in Hickam Field res-

ervation. Lot C-1 had been cut out to serve some

utility for the Bank, so I felt there was a close

environment here that had possibly more value than

the rear area which was and is being used for the

cultivation of cane.

Q. What, in your opinion, would be the appor-

tionment of that valuation ?

A. Bearing in mind that the valuation is taken

from some area that might be termed the ‘‘hot

spot’’ outside the Navy Gate, we found an environ-

ment by reasons of its use and oecupancy at a

elightly higher rate than the surrounding back area

of the cane land. That valuation [243] was its

highest at the point where that condition exists. As

you get away from that that land tapers off some-

where here (indicating a point on Government’s

Exhibit ‘“‘A’’). No locations as we found here

showed that at the corner of the Hickam Field

Boundary. I felt it was worth 214¢ a square foot

vs. John Waterhouse et al. 119

(Testimony of Charles Campbell Crozier.)

at this point. As we came toward town this front-

age of over 1,000 feet- (witness indicates a point on

Government’s Exhibit ‘‘A’’) it decreased in value.

When I came to this point (witness indicates a

point on Government’s Exhibit ‘‘A’’) my figure

was 114¢. Merging those two you would find 17¢,

or at the rate of $816.75 an acre for this frontage

of 250 feet.

Q. That is the depth from——

A. Frontage of 200 feet.

Q. From the mauka boundary which you say

has this slightly higher value with respect to the

remainder of the property ?

A. Yes. Taking the frontage out there remained

roughly 71 acres in the rear, and that in my opinion

had a value of $400.00 an acre.

Q. That was based on what you considered to be

its highest and best use?

A. Under the conditions, yes.

Q. What was that?

A. For the growing of cane.

Q. Did you know what the productivity of this

land had been? A. I did.

Q. What was it?

A. This area is made up of two fields, Field 96

was on the Hickam or Navy Yard side of the tract

and it is a portion [244] of the Field 95 that over-

lapped into both the tracks. The productivity or

the tons “of sugar slightly vary in Field 95. The

productivity estimated from its crop record here

120 United States of America

(Testimony of Charles Campbell Crozier.)

was 10.70 tons of sugar per acre, and in Field 96

the productivity was 10.10 tons of sugar per acre,

Field 95 was 10.70 tons of sugar per acre and Field

96 10.10 tons of sugar per acre.

Q. You considered all that in arriving at your

opinion of values?

A. Yes, in each case to the Plantation records

relative to the yields, and the factors that go to de-

termine cane land value.

Q. This field, or those fields, have been in use

for cane quite a number of years?

A. For many years.

Juror: May I have the permission of the Court

to ask the witness a question ?

The Court: Yes.

Juror: Mr. Crozier, this 10.70 and 10, 10 tons of

sugar per acre, do you mean by that one crop or is

it an average?

Witness: Estimated yields for these fields. The

record heretofore has been slightly lower, but they

have changed the grade and type of cane and some

of their methods of cultivation.

Juror: The last crop harvested ?

Witness: Yes. From the growing record they

estimated this tonnage.

Mr. Courtney: Any further questions?

Q. (By Mr. Courtney): Now passing from that

over to Case 436, what was your opinion of that

as to the fair and [245] reasonable market’ value of

those two properties, for the land only ?

vs. John Waterhouse et al. 121

(Testimony of Charles Campbell Crozier. )

A. Dealing with the 190 odd acres, the 193 acres

of Case 436 on the lower side of the road, the same

factors in valuation are present, and that is that the

193 odd acres, 192 odd acres, the lower portion has

a road frontage. Bearing in mind we have estab-

lished, arrived at a valuation for the road frontage

on 434, with that environment carried on to a point

where the two roads intersect, or the Karnehameha

Highway goes into Puuloa Road, and at 1% cents

at this point, that same environment, by reason of

the conditions then existing, carried to the right

jog of the road, at 114 cents a square foot or $544.00

an acre for that 200-foot zone.

Q. That is an average, giving the greater value

to the portion of the land which is nearer the Gate?

A. That is correct. That is this piece (witness

indicates an area on Government’s Exhibit ‘‘A’’).

Q. That follows your same reasoning that you

used with respect to Case 434?

A. There is a division of flow of traffic at this

point (witness indicates a point on Government’s

Exhibit ‘‘A’’) from the jog in the road opposite

the intersection. The balance of the property would

be carried at 1-cent or $435.00 an acre.

Q. That is for the frontage? A. Yes.

Q. That has a depth of 200 feet ?

A. That has a depth of 200 feet. That is the

zone,—we zoned that and called it the economic zone

of influence. [246] Now, the balance of the area is

all in cane and represents about 173 acres of the

122 United States of America

(Testimony of Charles Campbell Crozier.)

192 acres, and that in my opinion had a value of

$400.00 an acre.

Q. How about the productivity of the cane on

this land makai of the highway in 436?

A. Those 192 acres consist of a number of fields

of Honolulu Plantation. Field 92, or the field near-

est Honolulu, and that field overlapped, they took a

portion of the field, Field 92. Field 92 had a highest

productivity, I believe, of 11.90 tons of sugar per

acre. They have changed their cultivation methods

and grade and type of cane, and these estimates are

the Plantation’s estimates for the present crop that

is growing and to be harvested.

Q. How about prior crops?

A. The productivity was slightly lower for

Field 92.

Q. Field 92 had a’ productivity of 11.90 tons of

sugar per acre? A. Yes.

Q. Field 93?

A. 10.30 tons of sugar per acre. Field 94 was

in the middle here (indicating an area on Govern-

ment’s Exhibit “A’’) yielded 10.70 tons of sugar

per acre.

Q. Can you give us the acreages of these fields,

Mr. Crozier?

A. Yes. Field 92 being a portion of the field and

that portion of the field taken was 39.88 acres. Field

93, the total field was taken, contained 58.25 acres.

Field 94, the total field was taken, contained 62

acres.

Q. Now 95, which overlaps? [247]

vs. John Waterhouse et al.

(Testimony of Charles Campbell Crozier.)

A. Field 95 contained 24.25 acres.

Q. What about the productivity of that?

A. That was 10.70 tons of sugar per acre.

Q. What do you consider the highest and best

use of the land which lies back of this road front-

age?

A. This area here (witness indicates an area on

Government’s Exhibit “‘A’’) the growing of cane.

Q. With respect to the property which is located

mauka of the highway, the triangular piece ?

A. The triangular piece is a little different,—

different shape, little different conditions exist. It

is surrounded by the main highway going out here

(witness indicates a point on Government’s Exhibit

“A’’). A portion of the property lies at an inter-

section, and it was my opinion that the tip of the

intersection had what we call road frontage environ-

ment and could be used for something possibly more —

than its past use, could be given over to something

more than the growing of cane. It has roughly 64

feet of frontage. There are two depths, it is not

straight, it is pointed, and a 200-foot environment or

an area in there of roughly an acre and a half, 1.51

acres, I felt carried a value of 2-cents a square foot.

Going out the highway we have the same conditions

as on the lower side; there was a certain amount of

road frontage environment that carried a cent a

square foot, and the balance inside which is for

the cultivation of cane at $400.00 an acre.

Q. What about the productivity of cane on this

triangular piece?

1%4 United States of America

(Testimony of Charles Campbell Crozier.)

A. Within Lot “D’’, or this triangular piece of

land [248] there are two fields, 97-A and 97-B, and

the productivity of 97-A is 10.10 tons of sugar per

acre, and 97-B is 10.10 tons of sugar per acre; they

both have the same estimated tons of sugar per

acre. bs

Q. Was that after the change was made in the

type and grade of cane, the estimate? A. Yes,

Q. What was the experience prior to that time

as to yield? A. Less.

Q. I notice, Mr. Crozier, that you don’t make

the same distinction on the frontage, or that por-

tion which is nearest the gate at the lower left hand

corner which you did with respect of 434, why is

that ? '

A. This cane land of Lot ‘‘D’’ has no frontage

environment at all because it adjoins the O. R. & L.

tracks. There is no way of capitalizing or making

use of it as it is next to the railway right-of-way.

It is not a public highway. You could not use that

frontage at all by going across the tracks.

Q. I think you testified that you considered the

general environment of these properties?

A. Yes.

Q. Both of them? A. I did.

Q. In your opinion, the sums you testified to be

the fair market value, do they represent the fair

market value considering all the possible uses of

the properties? A. They do.

vs. John Waterhouse et al. 125

(Testimony of Charles Campbell Crozier.)

Q. Which would reflect themselves in the pres-

ent market value? [249]

A. If I could just finish——

Q. I am sorry, I thought you had. Go ahead.

A. Field 97-A has 46.50 acres of cane; Field

97-B has 11 acres of cane; that makes a total of

cane in 62 parcels of 436 of 241.88 acres.

Q. Now, the land itself lies fairly level?

A. That is correct.

Q. On both sides of the highway? A. Yes.

Q. It has no utilities serving it other than the

road ? A. No. Do you want the values?

Q. Will you apportion the values of these two

tracts ?

A. The tract, the lower side of 436 of 192 acres

in my opinion has a valuation of $78,706.00, and

the triangular portion of 436 has a valuation of

$25,283.00, or a total valuation for the land in 436

of $103,989.00.

Mr. Courtney: I think there are no further ques-

tions, Your Honor.

Cross Examination

Questions by Judge Robertson :

Q. With regard to the 77-acre area in Case 434,

beginning at the Hickam Field entrance, you put a

value of 21% cents a square foot on that, as I under-

stand it? A. For 200 feet, Judge, yes.

Q. Is that the far end of that line?

A. That is the far end of Case 434.

126 United States of America

(Testimony of Charles Campbell Crozier.)

Adjoining the land in 436?

That is correct.

That I think you said figured at——

1.87. [250]

187? A. Yes.

Cents? A. Cents, Judge.

That is how much an acre?

At the rate of $816.75 an acre.

That is for that 200-foot strip, as I under-

stand you were allowing in the 77-acre area?

A. That is correct, Judge.

Q. What leads you to differentiate in these

areas, that is to say you pué a higher value on this

200-foot strip than you do on the rest, what is that?

A. You are getting away from a peint that has

the highest value in that area. The highest value

of the ownership outside the Navy Yard would be

immediately outside the Navy Gate. That has been

somewhat well established by the use that that area

has been turned over to outside the Navy Gate, the

bank went there, the mediocre service stations went

there.

Q. In other words, that 200-foot strip had a

higher and better use than for cane growing?

A. Yes, that is correct.

Q. A more profitable use?

A. That is correct.

Q. In other words, the owner could rent that

strip at a higher rental than the cane area in the

rear? A. That is correct.

OPOCOOPOoPOS

vs. John Waterhouse et al. 127

(Testimony of Charles Campbell Crozier.) —

Q. Your idea of putting that higher value on

that strip is because a willing buyer would take that

factor into consideration in making an offer to

buy the land, is that the idea? [251]

A. If he was looking for that type of property,

Judge, yes.

Q. In other words, when you talk about market

value here you mean the price that a willing buyer

would pay to a willing seller in November, 1940?

A. That is my understanding of the definition

of market value.

Q. And that willing buyer is assumed to be

intelligent enough to have in mind the possible uses

that that land could be put to?

A. That is correct.

Q. In other words, he would not necessarily be

bound to maintain cane cultivation in that area

after he purchased it?

A. If he was contemplating it for anything other

than that that is what he could have in mind. If

buying in for cane he would not pay any additional

valuation for road value.

Q. It is assumed a willing buyer would take into

consideration the nature and situation of that iand

and the purposes for which it was reasonably

adapted ? A. That is correct, Judge.

Q. Including the best and most profitable use?

A. That is correct.

Q. Taking all those things into consideration

then, in your aggregate valuation here, that is your

128 United States of America

(Testimony of Charles Campbell Crozier.)

opinion of what that willing buyer would have paid

a willing seller in November, 1940, for that 77-acre

area? A. That is correct.

Q. I assume then back of this 200-foot strip that

faces the highway there, you would be unable to see

anything higher [252] or better for that area than

eane cultivation ?

A. That is my opinion, Judge.

Q. Did you make any investigation along that

line?

A. Yes; there was a question of whether you

could take that back area, by reason of its size and

other factors, and use it for something better than

cane land, but there are many other areas that could

be used for that in this general location that would

possibly be absorbed or taken prior to this 71 acres

in the rear.

Q. That is the best you could see in that areat

A. That is correct.

Q. Now taking Lot “‘D”’ the gore lot as it is

sometimes called, portion of Case 436, on which side

of that lot did I understand you to consider a strip

200 feet deep?

A. Or. the makai side of Kamehameha Avenue,

or the mauka boundary of Lot ‘‘D”’.

Q. ‘That is running from the mauka tip of that

lot down to the junction?

A. The junction on the northerly point, Judge,

yes, from the tip going out Kamehameha Avenue

out to the country.

vs. John Waterhouse et al. 129

(Testimony of Charles Campbell Crozier.)

Q. This 200-foot strip, as I understand you,

faces on the Kamehameha Highway running from

the mauka tip down to the junction of the two high-

ways? A. That is correct, Judge.

Q. And in that connection you allowed nothing

for a corresponding strip along Dillingham Boule-

vard ? A. Nothing at all, Judge.

Q. In differentiating a 200-foot depth along Ka-

mehameha Highway from the rest of the area, you

did that for what reason? [253]

A. As you cover the ground you find that this

tract, this triangular tract has a road frontage. By

reason of its location, its proximity and the differ-

ent factors, that 200-foot strip along the road could

have a slightly higher value than the rear agricul-

tural value. In other words, a man would not sell

an acre in the middle of Lot ‘‘D’’ at the same price

as he would sell an acre along the road.

Q. What difference between the two have you

figured out?

A. The factors or value, Judge?

Q. The value. For instance, I understand you to

say there is a 200-foot strip along Kamehameha

Highway which you have figured at 2-cents a square

foot, what would that be an acre?

A. Kamehameha frontage, Judge, would be 1-

cent a foot, that is $435.00 an acre, the 2-cents is

for the tip.

Q. That 2-cents is just for the tip?

A. Just the corner half acre. Then the road

130 United States of America

(Testimony of Charles Campbell Crozier.)

frontage going out Kamehameha Avenue is a cent

a square foot or $435.00 an acre, and the rear acre.

age of some 48 acres is $400.00 an acre.

Q. In other words, what you call the cane land

area you value at $400.00 an acre?

A. That is correct, Judge.

Q. And the road frontage at $35.00 an acre ad-

ditional, in other words, $435.00 an acre?

A. That is correct, Judge.

Q. Is that the main difference you can find be-

tween those two areas? [254]

A. That is my opinion, Judge.

Q. Similarly, with what you have said with ref-

erence to the 77-acre area in 434, when you say that

there is a better value for this 200-foot, strip along

Kamehameha Avenue, that is based on the idea that

a willing buyer would take that situation into ac-

count in making his price?

A. That is correct. If he had the choice between

the frontage in 434 and Lot “‘D’’ he would take the

Lot ‘“‘D”’ frontage and pay the higher price.

Q. In other words, you attribute the greater

value to the road frontage in 434 then you do as to

this lower lot? A. I do, Judge.

Judge Robertson: That is all.

Mr. Courtney: That is all.

The Court: We will take a recess before you call

the next witness.

(Recess—9 :55 a.m. to 10:15 a.m.)

vs. John Waterhouse et al. . 1

(Testimony of Charles Campbell Crozier.)

Judge Robertson: If the Court please, may I be

permitted to ask Mr. Crozier another question ¢

The Court: Yes. Mr. Crozier, Judge Robertson

wants to ask you another question as a witness.

Q. (By Judge Robertson) Mr. Crozier, when

you had this sect of values under consideration

and arrived at the result that you have described

here, were you aware of the fact that there was a

lease on these areas to the Honolulu Plantation?

A. There were two leases. Lot C-1 was under

lease to the Bishop National Bank, that is the small

portion in 434, and the balance of the land was

under lease to the Honolulu Plantation and had

about two years to go. [255]

Q. Do you remember the date of the expiration

of that Honolulu Plantation lease?

A. To expire December 31, 1943, being a 15-year

lease from January 1, 1929.

Q. And in arriving at the values which you have

stated, being your opinion of what a willing buyer

would have paid for that land in November, 1940,

you had the fact that there was that lease in mind,

did you not?

A. That is correct. The area in cane carried a

$23.50 per acre rental valuation and a man buying

it would have to wait until the expiration of the two

leases.

Q. And in the meantime he would get the rent?

A. That is correct.

Judge Robertson: That is all.

Mr. Courtney: That is all, Mr. Crozier.

132 United States of America

VINCENT FERNANDES

Being first duly sworn as a witness for petitioner,

testified as follows:

Direct Examination

Questions by Mr. Courtney:

Q. Your full name, please?

A. Vincent Fernandes.

Q. Your business?

A. Licensed real estate broker and appraiser.

Q. Tell us some of your previous experience in

that business ?

A. My experie

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Appendix — Ex parte Cloud · 321 U.S. 743 | Frix