CONCURRING OPINION OP
THOMAS FITCH, Esg.I concur in the decision of the Court reversing the pro forma order of the First Judge of the First Circuit Court overruling a *96demurrer, to a bill for an injunction filed by the Attorney-General of Hawaii, in behalf of the Territory of Hawaii..
It is alleged in the bill that the title to all.lands on the shores of the Territory between high water mark and low water mark, is in the United States Government, as the sovereign power, subject to certain private rights of fishing, and cutting stone from rocks, and that the Territory of Hawaii is entitled to the possession, control, management, use, income and benefit of said lands except certain portions reserved by executive orders of the President. .The bill sets forth that the defendant "Wilson,.under a pretended authorization of the defendant ex-Queen Liliuokalani, is taking sand and gravel for commercial purposes from certain lands at Waikiki below high water mark, and will continue to do so unless restrained by injunction.. The bill further alleges that the beach where said lands are, is a general bathing resort; that the tide lands are of immense: value to the Territory for the health, recreation and pleasure of its citizens, and of tourists and others: that the carrying away of sand is greatly injuring and threatens to destroy the beach at Waikiki, and to render the ^ land between high and low tide unfit for, bathers, by reason’of coral, and will thus work irreparable injury to the rights and interests of the Territory.
The bill sets out fully not only the alleged title of the Territory but the title of the defendant — ex-Queen Liliuokalani— acquired by conveyance from the patentee; it recites in extenso the Hawaiian Act of August 14th, 1S60, for the relief of certain konohikis; it contains by stipulation the royal patent issued on the 23d of March, 1866, to the grantor of defendant, and appends thereto a translation thereof into English, and anticipating the objection that the royal patent which contains a description by metes and bounds, includes the land to low water mark along the sea-shore, the Attorney-General declares that the king had no lawful power or authority to convey the land below high water mark.
The habendum clause in the patent reads “To have and to hold the above granted land in fee simple unto the said A. Keo*97hoalole and his heirs and assigns, etc.” The words “Koe nae ke' kuleane o no kanaka” usually translated as “reserving however the rights of the people” contained in the Hawaiian version of the patent, are not included in the English translation, but, such omission evidently having been inadvertant, they will be considered as though they had been therein.
In my opinion the wrnrds “people’s lights” as used in the patent, had reference to the house lots and taro patches of native tenants, and the word “reservation” had reference to their right to claim small tracts within the boundaries of larger ones (see Principles Adopted by the Board of Commissioners to- Quiet Land Titles, Yol. II Statute Laws, page 73). The Attorney-General contends that among the “rights of the people” that ivere “reserved”, was a right to use the tide lands for bathing purposes. He claims that the defendants by taking sand from tbe beach in front of their own premises, impaired the value not only of that beach, but of the beach in front of adjacent lands for bathing purposes. There is no allegation in the bill that the Territory owns any tide land adjoining that of the ex-Queen,, and therefore the Attorney-General’s claim of a right to interfere, rests solely upon the assumed duty of the Territory to protect an alleged public -bathing privilege.
Without passing upon the right of a person Avho has gained a. laAvful entrance upon the beach beloAV high water mark, to-travel along the same, over the tide lands of any riparian owner, or littoral owner by grant of the same, or even to bathe upon the-same, I doubt whether such a right, if it exist, extends so- far thafr it can be used by the bather as a basis for an injunction restraining the riparian owner, or owner by grant from removing the-soil for commercial purposes, even if such removal should result in denuding the coral rocks of their covering of sand, so as to make wading in the Avater less pleasant to the bather.
In no usage, decree, constitution or law of the kingdom of Hawaii can be found any mention of such a thing as a right or privilege of bathing. The land commission in its declaration of *98principles governing its methods and its awards, which were enacted as and''given the force of law, set out the prerogatives of the government and the rights of the public which were not intended to pass by its awards (Statute Laws, Yol. II, pages 81-94).
. These, briefly stated, were “to forfeit for treason; to levy laxes; to encourage and even enforce the usufruct of the land for the common good; to provide roads and the like; to have the power of eminent domain.” (Page 85, authority last cited.)
“To encourage and even enforce the usufruct of the land for the common good”, was undoubtedly intended to cover the right of private persons and corporations to condemn land for quasi public purposes, and also the inalienable right,, not only to conduct commerce over navigable waters, .but to provide wharves and landing places for its accommodation.
- It is inconceivable that even the primitive government in existence during the earlier period of Hawaiian nationality should have so legislated as to compel ships to anchor and unload their •cargoes from lighters, lest the construction of wharves should lessen the comfort and convenience of bather’s. No authority upholding such an assumed superior right of the public to bathe has been called to my attention and the only case I have been Able to find on the subject holds against such a contention. Blundell v. Catherall, 5 Bam. & Aid. 268.
In that case Baily, Judge, after finding that there has never heen such right under English law, goes on to say that the right 'claimed if it exists at all must exist upon every part of the sea-¡shore. “Every private building then erected upon the seashore and even wharves and quays would be an obstruction to that right and in consequence abatable. Every embankment by which land is redeemed from the sea would obstruct the exercise ■of this right and be a nuisance, and so would be the erection of stakes for holding nets, and yet how frequently such embankments are made and such stakes set up.” The judge concluded by observing that the inconvenience which would result from .■such .a right afforded to his mind a strong argument against its exMenae (5 Bam. & Old. 304).
*99Abbott, Chief Justice, observes iu a separate opinion that “in some parts of the coast where the ground is nearly level and the tide ebbs .to a great distance embankments have been built, and thousands of acres gained from the sea for pastures and tillage.” And he asks how such improvements could have been made Avithout a destruction or infringement of this supposed Aright if it did exist? (Bam. & Aid. 310.) •
It seems to me that this reasoning is entirely satisfactory, and that if the right of bathing, claimed by the Attorney-General, exists at all, it is subordinate to any other lawful use that the riparian owner,.or OAvner by grant, may desire to make of the soil.
The decision of the First Judge of the First Circuit overruling the demurrer might be reversed solely upon the ground that while the right of navigation and the right of-free fishery are public rights whose threatened invasion might be prevented by injunction, yet the privilege of using the tide lands for the purpose of bathing is not a public right which equity would enforce.
But in the case at bar, the Attorney-General places the claim of the Territory to an injunction not merely upon an alleged interference with the bathing rights of the public, but upon the broad ground that it was never in the power of the king to convey land below high Avater mark, and the question of the power of the king Avith respect to the disposition of the public lands is therefore the main subject for consideration.
Prior to the Bill of Nights promulgated in 1839 in the reign of Eamehameha III, the power of the king was restrained by usage only. Kamehameha I, by right of conquest became lord paramount of these islands. He was an absolute monarch. His Avill Avas law. He was the lord of life and death. He was unrestrained by any constitution. He was the OAvner of all the land in the kingdom, whether under the sea or above it. Kamehameha ITI, as his successor possessed technically the same absolute power and the same ownership of the soil. But by 1840 the influence of the early missionaries coupled Avith American and English enterprise, had developed the inhabitants of these *100islands from a barbarous into a semi-civilized people. With tbe exception of the people of Japan no Asiatic or Malayese race ever exhibited such capacity for rapid assimilation and adoption of western civilization as the Hawaiian». In 1840 the first constitution was adopted. All of the law, prior to Volumes I and II of the statute laws, was gathered into a little volume by Rev. William Richards entitled “The Constitution and Laws of 1840.” It contains translations of the various acts, promulgations and declarations of the constituted authorities down to the year 1842.
There were no allodial titles here under the ancient system, and feudal holdings, not unlike those of Europe, save the military features, alone existed. The right of possession of the larger tracts of land passed with the gift of the sea frontage which was of the greater value because of the right to take fish. On page 26 of the Rev. William Richards’ little compilation will be found the last feudal declaration of the king. He debelares that he takes the fishing grounds from those who- now possess them, from Hawaii to Kauai, and gives one portion to' the common people, another to the landlords, and a third he reserves to himself. After giving certain grounds by name to the people, by which word is meant the common people or tenants, he declares, “But the fishing grounds from the coral reef to the seabeach are for the landlords and for the tenants of their several lands and not for others. But this exclusive right does not extend into the deep sea beyond the coral reef.” (Bag© 29, Richard’s Volume.)
It appears from these authorities that in the earliest days exclusive individual rights in the non-navigable waters were given and recognized by the sovereign. These exclusive rights however, did not extend beyond the coral reefs which are the natural barriers of commerce where reefs exist.
Volumes I and II of the statute laws of Hawaii are a compilation and a code. They are of a wholly different character from the group of promulgations published in the constitution and laws of 1840. They are based on English ideas and were evi*101dently written by men who were more or less familiar with American law.
We may draw enlightenment on most subjects from the decisions of English and American courts, but there is little occasion to resort elsewhere than to the written and unwritten laws of the Hawaiian kingdom in order to ascertain the rights of the king either individually or in his representative capacity to the lands between high and low water mark. We cannot look to the civil law for precedent, for these islands were never owned, claimed or colonized by any Latin power or people. Neither can we depend altogether upon the common law of England, for, although largely controlled by American influence, Hawaii was never either an. English or an American colony, and even if it had been, it could not be assumed in the absence of statutory adoption, that the common law of England as it existed in 1776 ever came here and abided here unchanged, for the common law of England is less a system than a growth. It is not a collection of fixed rules but an adaptation of elementary principles to changing conditions, and it draws its maxims alike from the pandects of Justinian and the edicts of -Saxon kings. Yet in many particulars the political and social history of Hawaii resembles that of Great Britain. The English people were centuries in passing from the iron collars of Oedric to the pledge of Magna Charter, while Hawaii made the transit in half a century.
Even under the common law of England the crown never possessed a title to the tide lands that it was not able to alienate. Those lands were subject to the right of all persons to use the waters flowing over the same for the purposes of navigation and fishery, unless restrained by law; but the bed or soil belonged to the crown, and could be alienated by the crown, and in very many instances the tide lands belonged and to this day belong by grant or by immemorial usage, or by virtue of riparian rights, to the lord of the manor fronting on. the sea.
In Meyer’s Federal Decisions, Sec. 37, Yol. 23, it is said: “The soil on which the tide ebbs and flows may be parcel of a manor. When the sea flows admiralty has jurisdiction but when *102the sea ebbs the land may belong to a subject, and everything done on the land when the sea is ebbed shall be tried by common law, for it is then parcel of the country and mfra corpus comitatus/’
The exclusive right of taking fish as far out as the coral reef extends, or, where there are no reefs, then for a distance of one geographical mile from low water mark, is recognized and. confirmed by Hawaiian law in the landlords “whose lands by ancient recognition belong to the same.” It will be observed that with the ancient Hawaiian, the idea prevailed in marked contrast with our own traditions, that the land belonged to the fishery, not that the fishery was incident to ownership of the land (Vol. 1, page 90, Laws of Hawaii).
In support of the grounds assigned by the Territory for asking an injunction in this case, the Attorney-General claims:
1st. That by the constitution of 1840 it was declared that Kamehameha I. held all the lands in the islands but not as his private property; that the lands belonged to the chiefs and people in common, of whom Kamehameha I. was head.
2d. That the great mahele of 1848, which divided the lands between the king, chiefs and people, did not alter the character of the lands; that they remained crown lands, or public lands; and that no grantee could obtain a title to any other or ’greater rights than the grantor possessed.
3d. That the privy council on August 29, 1850, passed a resolution declaring “that the rights of the king as sovereign extend from high water mark a marine league to sea, and no private right can be sustained except private rights of fishing and of cutting stone from the roads as provided for and reserved by law.”
4th. That by virtue of the privy council resolution of August 29, 1850, the king and his premier were divested of any authority to convey a title to lands between high water mark and low water mark; and so much of the deed of the king and premier made in 1856 to appellant’s grantors as purports' to convey such lands is null and void.
*103In order to dispose of this contention of the respondent, it is not necessary to inquire whether the exposition, contained in the constitution of 1840, of the principles on which the dynasty of the Kamehamehas was founded, deprived the reigning king of that individual ownership of all lands which Kamehameha I. obtained by right of conquest. In the great mahele of 1848 the absolute title in fee of the king as an individual, in one-third of all the lands, was conceded and granted. But admitting for the purposes of argument that from the inception of the kingdom all the lands belonged to all the people, it yet does not appear that the law debarred the people from granting through the king, to private individuals the public lands between high water and low water mark. The restriction on the granting power attempted to be made by the privy council resolution of August 29, 1850,. was no restriction at all, because the constitution of 1840 expressly provides that no- law shall be passed without the assent of a majority of both the house of nobles and the house of representatives. The privy council was a body with executive not legislative functions (Civil Code 26) and there are many reasons why the resolution of 1850 found in Yol. 3, Eecords of the Privy Council, page 425, ought not to be accepted as a full statement of private and public rigjits in the waters surrounding these islands, the most obvious of which is, perhaps,'that it has. no reference to the great subject of commerce and commercial needs. The resolutions of the privy council were not required by law to be kept among the public archives. The public did not contract with a view to privy council resolutions, nor was any one required to take notice of them. The proceedings of the privy council were always kept more or less secret, and any privy council resolution ought to receive very little recognition as a declaration of public and general custom.
Western civilization is now rapidly extending its spheres of' influence in the eastern hemisphere. A commerce of incalculable extent and value is being developed between the lands whose shores are washed by the vast eliptic of seas which extend from Yalparaiso to''Vladivostok, from Alaska to New Zealand*104Hawaii is almost the centre where the currents of commerce must meet. Maritime cities will necessarily be developed here. Are piers, and wharves, and dry docks to remain unbuilt, and ■ is progress to be checked if not destroyed by a fishing resolution of the advisers of Ivamehameha passed fifty years ago ?
As the privy council resolution of 1850 was not law, not having received the approval of a majority of either the house of nobles or the house of delegates, it could not limit or extend the rights of the king, either as an individual or as a monarch, over tide lands.
If the power of the crown to alienate tide lands in favor of • private individuals existed in the crown by the analogies of the common law of England, and by ancient Hawaiian law, traditions, and practices, and was not (because under the constitution it could not be) taken away by the privy council resolution of 1850, then how and when and where did the crown lose: it?
On page 107 of Vol. 1. of the Laws of Hawaii will be found the law creating the commission to quiet land titles. It was this commission that, with the exception of a few awards made to chiefs by the Minister of the Interior, under the Act of August 24, 1860, for the relief of certain konohikis, settled and established the inception of private land titles in this Territory. It was authorized to ascertain and establish the titles of private individuals to all the landed property in the kingdom. It was organized in the year’ 1846 and continued its work under general authority until the year 1854, after which time it heard and awarded by special authorization certain claims of konohikis or chiefs.
This commission was a court with jurisdiction to hear and dispose of all claims to private lands. Koyal patents were issued upon these awards, but were of a ministerial character and neither conveyed nor confirmed title (Bruns v. Minister of Interior, 3 Haw. 787).
An Act of June 19th, 1852, provided that the board might grant large tracts by name without survey, and the Act of *105August 23d, 1862, provided for the appointment of a boundary commission which was empowered to take evidence, survey the lands and fix the boundaries, and the Minister of the Interior was expressly prohibited from issuing any patent in confirmation of an award until the boundaries were so ascertained.
This court, in the matter of the boundaries of Pulehunui (4 Flaw. 239) considering and construing this act, held that in granting these large tracts it was intended to include whatever rvas included in the tract according to its boundaries as known and used from ancient times. From prehistoric times every portion of the lands constituting these islands were included in some division, large or small, which had a name, and of which the boundaries were known to the people living thereon or in the neighborhood. These, the land commission awarded, and, in the case of large tracts the boundary commissioner defined. Both were judicial determinations, and were the only legal mode of confirming and fixing boundaries, and, when pursued were binding upon the whole world. The grant in this case was made specifically to low water mark, but if it had been made to “navigable waters” it would in my opinion have conveyed the tide lands between high Avater and low water mark.
This court has held that the title to the soil beneath navigable Avaters is in the state and is inalienable (King v. Oahu Railway and Land Company, 11 Haw. 717-725). But this court did not in that decision, or in any other, define navigable waters as Avaters flowing over tide lands; nor would such a definition be in harmony with the conditions existing on these shores or with the Aveight of American authority. The semi-diurnal or free tidé Avave produced by the action of sun and moon, ebbs and flows in about twelve hours and twenty-four minutes. . In high northern latitudes land which is bare at lew tide may be covered at high tide with sufficient water to float a line of battle ship; while on the shores of Hawaii, the tide lands are, even when the sun and moon are in conjunction and the time is near the equinoxes, rarely covered with sufficient water to float a fishing boat.
The reasonable definition of the term “navigable waters” is *106that only waters which, are navigable in fact are “navigable waters.” Such was the rule in the earliest English cases and many titles have been recognized by the English courts as valid which included tide lands adjoining ancient manors. Later a dicta, many times repeated, stated that by the common law all waters, where the tide ebbed and flowed were navigable and. public or royal waters.
But the courts in the United States, while occasionally repeating this dicta, have almost uniformly denied its application to-our situation, have refused to adopt is at a test, and have declared that it was only adapted to the rivers and estuaries of Great Britain. So that the rule has come to be recognized everywhere,, save in New England, that only those waters are navigable in law which are navigable in fact (Willow River Club v. Wade, 42 L. R. A. 305).
Conceding that the soil under the navigable waters belong to the United States as the successor in sovereignty of the Eepublic and the kingdom of Hawaii, to whom does the soil lying between the shore and the line that divides the navigable and non-navigable waters belong? How is the line dividing the navigable from the non-na,vigable waters to be determined?
There have been two lines of reasoning employed to define the non-alienable rights of the public and those of riparian owners. Some courts have held, the Supreme Court of "Wisconsin for instance, that the adjoining riparian owners have the title to the soil, subject to the public easement of navigation; others, the Supreme Court of Minnesota for instance, that the title to the soil remains in the state until the land is filled in and reclaimed. But these latter courts also hold that the riparian owner has a right to fill in, to remove the soil, to convey, and to use the land, provided he does not interfere with the dominant right of public navigation (Willow River Club v. Wade, supra; Bradshaw v. Duluth Imp. Mill Co., 52 Minn. 59; Gilbert v. Emerson, 55 Minn. 254-260; Miller v. Mendenhall, 43 Minn. 95; Yates v. Milwaukee, 10 Wall, 497).
*107The Supreme Court of the United States in those matters follows the decision of the local or state courts. (Kankana, Water Power Co. v. Green Bay Corral Co., 142 U. S. 254; Parker v. Bird, 137 U. S. 661; Hardin v. Jordan, 140 U. S. 371-382.)
In view of the decision of this court in King v. Oahu, Railway and Land Co. I am of opinion that the result reached by both lines of reasoning is best expressed by holding that the soil under waters navigable in fact belongs to the United States, and that the soil between the shore and the line dividing the navigable from the non-navigáble waters is in the riparian owner, or owner by grant.
How is the line defining the navigable from the non-navigable waters to be determined?
The Constitution of the United States gives Congress the control of commerce, and Congress has authorized the Secretary of War to establish harbor lines (1 Eupp. Rev. Stat. U. S. 802; Gould & Tucker, Notes, 608-614).
Where lines have been established by the Secretary of War they are conclusive. Where no lines have been established the riparian owner’s right to reclaim extends to the line of practical navigation. The line of practical navigability has been well defined by the United States Court of Appeals of the Seventh Circuit in the case of Illinois v. Illinois Railway Co., 91 Fed. 955. The circuit court there said:
“The extent of this riparian right” (to build wharves and dredge slips) “is a relative question. A pier that might have met the conditions of commerce fifty years ago would be wholly inadequate at the present time * * * Eegard must be had to the object for which the right is conferred. It is to reach out to accommodate the vessels that plow the waters of the lake. It is in aid of the commerce of the lake, and that right for that purpose should be liberally interpreted and upheld.”
I am therefor of opinion that in this Territory, in the absence of established lines, the right extends far enough out to accommodate deep sea-going ships.
The bill of the Attorney-General shows that, in this instance *108there was an award and grant-including the land between high and low water mark. In England and America thei right of the state to convey tide lands has been frequently recognized and upheld (Waverly Water Front Co. v. White, 45 L. R. A. 227; Sale v. Pratt, 19 Pick, 197; Church v. Meeker, 34 Conn. 427; Nudd v. Hubbs, 17 N. H. 526).
¡ This Oourt is required by the decisions of the Supreme Court of the United - States to recognize all vested rights, including those to the soil under public navigable waters, if any exist. (Knight v. U. S. Land Association, 142 U. S. 182; San Francisco v. Leroy, 138 U. S. 666.)
The Attorney-General in his argument insisted that the propositions I have attempted to discuss are inapplicable because there was no power in Kameliameha to make the grant to the grantee named in the patent. It is an all sufficient answer to say that the grant was an award duly made, upon which the patent issued, ■presumably after the boundaries of the ancient right had been ascertained by a boundary commission. And in the absence of anything to the contrary the law will presume that to have been done which the law required to be done.