Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1858-12-18
Ole DoIpuesian.
Supreme Courr--ocrober Term, 1858.

Oll VS.. JOhn NECK.
JUSTICE ROBERTSON delivered the decision of the
Court, as follows:
Plaintiff brought an action against the defendant,
in the Police court of Honolulu TO the value
of horses, taken by the defendant his land
honolulu. and afterwards impounded and sold, as
estrays The defendant agreed that judgment should
be entered against him in the court below, reServng
by consent his right appeal in order that the case,
which involves questions of great Importance,
and will determine the rights of many other persons
besides the present plaintiff and defendant, night be
heard and decided by this court.
1t appears by the evidence submitted to that
the defendant holds under three several leases the
entire Kula land of the Ahupuaa Of Honolulu, with
the exception Of certain porons expressly reserved
by the terms of the latest lease, made the 10th
day of February 1858 that the plaintiff is Aoa-
alma of honolulu, residing some part of that
Ahupuaa, either upon land awarded 40 him a hU-
leana, by the Lind Commission, or otherwise and
that two horses belonging to him seized as es
trays by the defendants order. part of the
land leased to him, and carried to the government
pound, where they were subsequently sold under the
estray law.
During the argument of the case great stress was
laid by the Plaintiff S counsel upon the clause in the
lease of the 10th of February, 1853, which reads
follows, viz: "Aole e hiki kea hoolimama Ike kue
aku ka pono ma kanaka noho ana malalo ka
malu ka aoao mua" That is to say, 4" This lease
shall not be construed conflicting Cor nterferne)
with the rights OF the people living under the shade
of the party of the first part (the Konohiki.') He
argued that by this clause the rights of the plaintiff
and all others living under the shade of the Kono
hiki, expressly reserved by the grantor, Mr..
Haalelea; and that those rights included the right
of pastuTage for their animals. Neither the lease of
the Sd of March, 1916, which covers the Iii of Lhue,
nor that OF the 10Th of July 1851 which the
Iii of Wamanao, contain any clause parallel to that
we have just quoted nom the lease of the 10th of
February, 1858. So that before the plaintiff could
claim to recover, by force of the reservation III favor
of the rights of the people living under the Konoh-
ki, made III the lease of 1853, he must first prove
that his horses seized on the land covered by
that lease because 1t is expressly declared in that
lease that neither the Iii of Lhue the Iii of al
manalo are included in it, and that the terms and
conditions of the several leases made in 1916, and
1851 are not affected in any way whatever by the
lease OF 1858. No evidence having been introduced
by the plaintiff, to prove that his horses were seized
for trespass upon any part of the land covered by the
latter Lease OF the opinion that. far as his
claim depends upon the reservation referred TO, in
said lease, it must fall to the ground.
And il it can be considered that the~!in of afgu-
ment set up by the defendant, waived the necessity
of proving this still of the opinion that the
plaintiff claim cannot stand upCn the narrow basis
of the reservation in the lease for the clause which
have quoted fairly be construed to be any
thing than simply reservation of the rights
belonging by law TO the hoaainas living under the
Konohiki, on the 10th of February, 1853. We re-
gard the clause therefore of very little practical
Importance inasmueh those rights would, as it
to US, have been equally well preserved with
ont such a clause and it not in the power of
the Kenohiki had he been disposed, to ALLEVIATE
single right secured by law to the plaintiff.