OPINION OP
PERRY, J.,CONCURRING IN PART AND DISSENTING IN PART.
In the petition for registration it is alleged that “the Territory of Hawaii has the power of disposing of the legal estate in fee simple absolute” of the parcel of land situate at Lahaina, Maui, known as Pa Pelekane, which is the subject of the proceeding. If this were the only allegation on the subject, the Territory would doubtless be at liberty to' present, under the pleading and without amendment, proof of derivation of its title from any legal source or sources whatever; but the allegation does not stand alone. It is followed by the statement that “the Hawaiian Kingdom obtained title to said property on August 29, 1850, by a resolution of the Privy Council reserving and confirming the said Pa Pelekane as government property, said resolution being on file in the office of the Department of Public Lands of the Territory of Hawaii in Volume 3, page 129, of the Privy Council records and the Territory of Hawaii obtained title to said property by virtue of its political succession to the said Hawaiian Kingdom.” The later statement qualifies the first and is to be read as a part of it. It is immaterial that the two are in separate paragraphs. The allegations read together are in effect an assertion that the fee simple absolute which the Territory claims as the successor of the Kingdom was derived by the *189Kingdom under the resolution referred to. If it is found as matter of law that the resolution was not an exercise of the power of eminent domain and did not have the effect claimed for it, the whole averment of title fails and without amendment evidence of the derivation of title from other sources would be inadmissible. It may be that under the statutes relating to the registration of titles to land it was not incumbent on the Territory to specify the source of its title but. having voluntarily done so it undertook, under the ordinary rules of pleadings and procedure, to prove the title as alleged and to confine itself to that issue,. — subject always, of course, to its right to amend under the statute. None of the respondents, however, demurred to the petition nor was the point raised at the trial. Without objection on the ground just mentioned, evidence was offered and received to show (a) the acquisition of title by the Kingdom and the Territory by adverse possession as well as by eminent domain by virtue of the resolution of the Privy Council and also, perhaps, (b) by continuation of the ancient title of the king in his successors by reason of the absence of any award or patent. Since in any event a new trial is to be granted on other grounds, the Territory should under these circumstances and in view of the liberal provisions of the statute in this respect be now permitted to amend its petition so as to cure the defect .above noted and render admissible evidence of any lawful claim of title which it may deem fit to present.
The presentation and the admission of evidence of the acquisition of title by the petitioner by adverse possession, during its case in chief, while at the same time it was claiming that the land remained unawarded, was not inappropriate or erroneous. Whatever rule is ordinarily followed in actions of trial of title to land, the Territory was at least not required to refrain from presenting its evidence of adverse possession until its case in rebuttal. The offer of the evidence was an appropriate precaution against the possibility of a successful motion to dismiss *190based upon tbe weakness in law or in fact of the other claims advanced.
One of the contentions of the Territory at the trial and in this court is that the Kingdom derived title by virtue of the power of eminent domain exercised by means of a resolution of the Privy Council adopted August 29, 1850, and reading: “Resolved, that the premises known as Beretania in Bahama, Maui, be and is hereby confirmed as government property and that Governor Kekuanaoa’s claim therefor is hereby negatived.” It is unnecessary to consider whether or not the Privy Council possessed in 1850 or at any other time the power of eminent domain. Assuming for the purposes of this appeal that it did, a sufficient answer to the contention now under consideration is that the resolution was not an exercise of that power. It did, not on its face purport to be. On the contrary, it clearly appears from its language that it was not. It is recorded in the minutes of the proceedings of the council for the day named that “Kekuanaoa on behalf of Victoria claimed, a piece of land called Beretania and a wharf lot in Bahama that had belonged to Kaahumanu” and that “it was acknowledged on all hands that Victoria was the heir of Kaahumanu.” Then follows the resolution and there is no other reference to the subject,. The terms of the resolution and of the preamble expressly negative the view that private property was thereby taken. What the record of the council shows is that a private individual claimed the land as successor in interest to Kaahumanu, that the council conceded in the claimant’s favor that she was the heir of Kaahumanu but declared that in spite of that admission the land, was the property of the government and that the individual’s claim was therefore “negatived” or denied. The resolution was a distinct assertion that the title was already in the government and that Victoria’s claim could not be acquiesced in. This is further emphasized by two earlier resolutions of the Privy Council, also offered in evidence by the Territory. Under date of March 5, 1850, the record shows: “Mr. Bee *191brought forward his” (H. Swinton’s) “application and the following resolution was passed: 'Resolved, that Pelekane in Lahaina, Maui, be not sold to H. Swinton as it is a place to which many historical associations are attached and which has already been set apart as a place not to be sold.’ ” On Mjay 16, 1850, the proceedings were: “Mr. Armstrong brought forward the application of Mr. H. S. Swinton to lease a piece of ground in Lahaina; Resolved that the lot Beretania in Lahaina applied for by Mr. Swinton be not sold or leased as the government may require it for Public Buildings.” This language is irreconcilable with the view that the Council intended by the resolution of August 29, 1850, to condemn or take property which belonged to another. It tends to show that the Council believed that the property belonged to the government and refused to sell it or to lease it or to sanction any hostile claim to it.
So, also, the resolution of August 29, 1850, if it was intended as legislation, did not operate as a limitation of the power of the Land Commission to award the land to a private individual. The Privy Council did not possess legislative powers. Territory v. Liliuokalani, 14 Haw. 88.
The three resolutions were admissible, however, as evidence in support of the claim that Pa Pelekane was not at the date of the Land Commission award a part of the ahupuaa of Paunau and was not, therefore, by that award granted to Victoria Ramamalu. It is well settled that an award of the Land Commission, unappealed from as by the law then in force provided, is final and binding and not subject to collateral attack but it is not an infringement of this rule to ascertain, with or without the aid of extrinsic evidence as the case may be, and to declare the identity and the extent of the land described, or named in the award. What were the ancient boundaries of the ahupuaa of Paunau is not necessarily the sole inquiry, in this respect, iii the case at bar. It may be that Pa Pelekane, though originally a part of Paunau, was not at the date of the award a part of the ahupuaa. I concur in what is said in the opinion of the chief *192justice on this branch of the case and with reference to the admissibility of the three resolutions, the evidence of claim, occupation and use by the government and other evidence as tending to throw light on the issue of whether or not Pa Pelekane is still unawarded land.
' I concur also in the views expressed by the chief justice relating to judicial notice of the laws of Hawaii enacted prior to annexation and of the principal facts of Hawaiian history, and to the admissibility of official records preserved in the government archives; in the rulings in detail concerning the erroneous exclusion of other evidence specifically referred to; in the views that the examiner’s opinions are not evidence upon a trial of the issues in a contested case, that evidence (more than a scintilla) was offered by the Territory tending to show (a) that Pa Pelekane was unawarded land and (b) that as to certain parts at least of Pa Pelekane title if it had ever passed by the award, had been acquired by the government by adverse possession, and that petitions for registration are amendable so as to conform to proof of title of a part only of the land claimed; and in the conclusion that a new tidal should be granted.