(dissenting).
The authorities on which this dissent rests are given extended* treatment in the dissent to the opinion and decision in United States v. John Ii Estate et al. (C.C.A.) 91 F.(2d) 93, this day decided, and which should be read first for a full understanding of the dissent.
In Kelly v. U. S., 300 U.S. 50, 57 S.Ct. 335, 81 L.Ed. 507, the Supreme Court comments on the fact that the majority opinion of this court omitted to state that the technical ruling which frustrated the consideration of the merits of the appeal, 83 F.(2d) 783, was raised ex industria by the court and had not been considered and argued by the frustrated party, 300 U.S. 50, 54, 57 S.Ct. 335, 81 L.Ed. 507.
Similarly here and is the Ii Estate Case the majority opinion fails to state the few words of special finding used by the judge and which he designates his “findings,” but which the court holds are so improperly stated that they frustrate the consideration of the merits.
It is a part of the dissent that the majority opinions, in both cases, by the omission of the text of the claimed findings, which they condemn, fail to give to the appellant its right to such a statement of the matters ruled upon, as can be presented on application for certiorari, without compelling the Supreme Court to search the record. Not only is this unnecessarily embarrassing to the litigant but, in these cases, in my opinion, without due regard to the rights of the criticized District Judge and the profession.
The majority hold as not constituting special findings of the value of the four condemned rights, the following: “I therefore find (capitalizing at 6% a $3600 annual net rental value) that the amount of compensation to which the owners of the commercial mullet rights in this fishery are entitled is $60,000; and this sum, plus the $7500 pua value, the $10,000 nehu value and the $1500 value for the ‘outside fishery’ interest, brings the entire award to the aggregate sum of $79,000.” (Italics supplied). (Tr. 75.)
This is preceded by the following: “The value of ‘the property taken,’ as shown by the evidence and stipulations in this case, is comparatively easy of ascertainment, Captain Pollock, while testifying for the Government, fixed the sum of $1500 as the reasonable value of that portion of the ‘outside fishery’ which the Government is now taking. This value is adopted by both the Campbell Estate Trustees and the O. R. & L. Co., and will be adopted by the Court. As to the ‘inside fishery,’ stipulations between the Government and the Konohilcis place the value of the pua and nehu rights (subject to the Government’s objection that the konohilci should be limited to the value of the tabued mullet) at $7,-500 and $10,000, respectively (see stipulations of Mar. 28, and Mar. 26, 1934, reporter’s transcript).” , (Italics supplied.) (Tr. 72, 73.)
Between the two there is nothing but a brief discussion of probative fact as to the value of mullet, testified to by one witness.
*91The entire matter above described is complete in itself. It is a separate performance of the court’s function of finding and a separate statement of findings. .1 cannot believe that any veneration for technicality requires our refusal to consider them as separate special findings because not in a separate paper. To describe this compact matter as findings scattered “here and there” throughout a thirty-seven page opinion, instead of quoting the few words actually used, constitutes one of the matters to which this dissent is directed.
Immediately succeeding it is the conclusion of law that the owner of the Honouliuli fishery is entitled to an award for the value of all the three kinds of fishing rights and is not limited to one fish or one-third of the catch. Even if the reasoning leading to this conclusion of law makes an opinion of this matter succeeding (but not a part of) the special findings,, it cannot change their character as findings.
Preceding these findings are thirteen pages of the decision devoted to the disposition of the several issues raised by ten defendants other than the konohiki appellees. The separate disposition of the rights of these ten other litigants certainly cannot make any the less findings, the succeeding separately stated findings on another and separate issue.
Succeeding and separately stated is the disposition of an entirely different issue, the right to damages for interference prior to the condemnation. Surely the separate disposition of this separate issue, though containing matters of opinion, does not convert the previous separate and compact body of findings also into an opinion.
The “Summary of Award” is in the following language: “The Campbell Estate Trustees (owners of the konohiki rights) and the Oahu Railway & Land Co. (lessees of the Campbell Estate) are awarded jointly (as requested) the sum of $79,000 as representing the entire value of the Honouliuli Fishery on June 13, 1932 (when this proceeding was instituted).” (Tr. 90, 91.)
Though the sum total of the award is not succeeded by the parenthetical statement in the Ii Estate Case of the value of the several fishing rights composing it, it is preceded in the “Decision” by the same statement of the value of these rights constituting the summarization: “The Court having hereinbefore decided that the sum of $79,000 (representing 'inside fishery’ values of $7500 for pua, $10,000 for nehu and $60,000 for commercial mullet; and the full value of that portion of the 'outside fishery’ taken; at $1500) should he awarded for the konohiki interests in the Honouliuli Fishery (same to be the subject of a joint award to the Campbell Estate Trustees and Oahu Railway & Land Co., as requested). * * *” (Tr. 79, 80.)
As suggested in the Ii Case, to hold that these findings are in such a form that the merits of the claim, that under the Hawaiian law the award should have been for but one of the fishing rights or one-third of the total catch of the three, cannot be considered, is burying the essence in the form.
However, as in the Ti Case, these findings do not stand alone. The case was argued and submitted on briefs in which the appellant United States tenders the issue on the merits before us, as follows:
“Assuming appellees Campbell Estate and Oahu Railway & Land Company entitled to compensation, they are limited to their only existing right — a Konohiki right to mullet — and the court erred in awarding to them additional values for nehu and pua.” (Brief for appellant, p. 57.)
This issue is squarely met in the appellee’s first reply brief, as follows: “Appellees, Campbell Estate and Oahu Railway and Land Company, are entitled to compensation for the value of the entire fishery, including mullet, pua and nehu.” (Brief for appellees, p. 10.)
“The trial court correctly determined the compensation to be awarded for the condemnation of the appellees’ right to mullet in the sea fishery of Honouliuli.” (Brief for appellees, p. 89.) .
Both chapters of the appellees’ brief defend the right of the konohiki to all the fish as given by the Hawaiian law, without suggesting that the issue is not before the court, because there are no separate special findings. On the contrary, the brief states concerning the stipulation of the value of nehu and pua- found by the court as at $10,000 and $7,500, respectively, that: “Stipulations which were entered into at the hearing in the court below, concerning the value of the nehu and pua rights, appear on pages 216 and 262 of the printed record.” (Brief for appellees, p. 29.)
At page 97, the appellees’ brief recites the findings in full, as follows: “ * * *92I therefore find (capitalizing at 6% a $3600 annual net rental value) that • the amount of compensation to which the owners of the commercial mullet rights in this fishery are entitled is $60,000; • and this sum, plus the $7500 pua value, the $10,000 nehu value and the $1500 value for the “outside fishery” interest, brings the entire award to the aggregate- sum of $79,000.’” (Italics supplied.)
Then, instead of claiming they are not special findings, the brief states the question before this court is whether these “findings” shall be disturbed.
“ * * * this Court is then confronted with the question of whether or no it will disturb the findings of the lower court which is the sole judge of the credibility of' witnesses before it and the weight to be given their testimony. The rule in this regard on matters on appeal is that the Appellate Court will not review the findings of the trial court made in the face of conflicting evidence unless it appears from the record that the Court has decided against the overwhelming weight of the evidence.” (Italics supplied.) (Brief for appellees, p. 98.)
As in the Ii Estate Case, the appellees filed a brief after argument, in which, for the first time, they claim that there are no special findings, but only a general finding of an indivisible total award. Strangely enough, also as in the Ii Case, they precede this contention by agreeing with the appellant as to the findings by. referring each of the four amounts sum-totalled in the $79,-000, to the very place in the decision of the District Court in which he uses the words “I find”:
“(3) That the fair market value of the Honouliuli sea fishery condemned by the Government was $79,000. (Rec. 75, {“I find”] No. 7975) which figure is made up of the following items:
(a) Commercial mullet rights in the inside fishery (Rec. 75) [“I find”]..........$60,000.
(b) Value of outside Honouliuli fishery (Rec. 75) [“I find”]................. 1,500.
“(There is no dispute as to this item, both parties agreeing that the sum of $1,-500.00 is the fair market value of the outside fishery.)
(c) ■ Pua1 rights (which value is . stipulated to by the Gov- . ernment-Rec. 75, [“I find”] 262).............$ 7,500.
(d) Nehu rights (which value is stipulated to by the Government-Rec. 75, [“I find”] 216).............10,000.”
(Answer to appellant’s reply brief, pp. 2,3.) ' ^
This is in complete agreement with the statement of these facts and. findings in appellant’s brief, as follows:
“The court found, * * * that:. * * *
“(b) Appellees Campbell Estate Trustees and Oahu Railway & Land Company entitled to a joint award of $79,000.00 for the konohiki rights of fishery, determined not-'to be restricted to mullet, computed as follows: ‘outside’ fishery $1500.00; ‘inside’ fishery $60,000.00 for mullet, $7500.00 for pua and $10,000.00 for nehu.” (Brief for appellant, p. 10.)
The Supreme Court cases cited in the Ii Estate Case, holding that the findings are to be considered in connection with the “facts admitted and concessions made by the parties,” and that, even if the facts are’ in an Opinion (which the “Decision” on the konohiki issue is not), they will be considered as sustaining or not -sustaining the judgment if “counsel for both parties in this court have agreed to'certain parts of the opinion as containing the- material facts of. the case,” are controlling here.
These cases are fully considered in the dissent in the Ii Estate Case, which, from the quotation of the majority ruling on page 8 of that dissent, 91 F.(2d) 93, presents the further reasons why I consider the refusal to entertain the issue of the merits on the value of the konohiki rights "is a denial .of justice to the United States.
I concur in the decision that the amount of the award cannot be reduced by the pos- ■ sibility of the government’s exercise of a nonexistent.power to take the several fish-' ing rights without compensation, and that in this proceeding damages for interference with the fishing rights prior to the condemnation cannot be recovered and to. the reversal of that portion of the judgment; but I dissent to the refusal to consider the merits on the issue above dis-, cussed.