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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