Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1859-05-14

court, follows:
This is action of trespass brought at the last Oc-
tober Term of this court, by the plaintiff Prince Lot
Kamehameha, to damages from the defendants
for cutting down fence and entering upon q certain
premises, the property Of the plaintiff situated in the
town of Lahaina, and known the g HoapH premis-
es" The defendants admitted the plaintiffs owner
ship, and their entry upon the premises as alleged
but filed plea of justification on the ground that there
is public right Of way the premises in question.
The principal object of the suit being to the valid
lty Of the claim to right of way, it stipulated by
agreement of the parties that the should 90
trial before the Court, without the Intervention of
jury, and that the plaintiff should not insist on the
damages claimed in his petition.
The testimony adduced before us is quite voluminous
and somewhat conflicting in its character and we shall
not attempt to rehearse it at length. We understand
the evidence proving in substance that previous to
the erection Of the Protestant Mission Church at aha
ma, which was built about the year 1892 there was a
pathway running from the land called g Waiokama'
through what is the Church Lot and the Hoapili
Premises, towards the North side of Lahana which
pathway was not, however, the main public pathway
(or dtdLOa) which situated some distance mquka
near the course Of what and has been since 1885,
public street that soon after the erection of the
church stone wall was built by the people, separating
the Church lot from the Hoapili premises with gate
or opening however, through which the people went
into and out of the church lot by the old pathway
to " Waiokama - that about the same time the late
high chief HOapiwahine, the wife Of HOapih the then
Governor of the Island Of Maua took up her residence
upon what is the plaintiffs premises for the pur
pose Of being near the church, in the prosperity of
which she and her husband took lively interest and
she being also at the time feeble in body that previous
TO the erection Of the stone house which now stands
upon the premises HOapwahine lived in grass house
the foot path, where the plaintiff her adopted son.
according to ancient custom, and at that time infant
lived with her under the of his Kahu that on ac
count Of the dust raised by the people passing through
the premises in the dry season, and the inconvenience
and annoyance resulting from the of the pathway
by the public HOapilIwahne placed restriction upon
it, permitting only the chiefs and upper class of people
with the pastor and his family, TO pass through her
premises, while the Of the congregation went 10
the church by the diaOa, public road, which runs
along the maukd side of the church lot except when
the aLoa rendered impossible by the winter rains
when she allowed all to pass through her premises
that the pathway shsed from its original track so
TO the Hoapi premises farther aakqi and the
restriction upon the of il continued, but with
abated stringeney, up to the time of Hoapwahine's
death, which occurred in the Year 1872 years af-
ter that Of her husband that after the death of Hoa-
pllwahine, the stone dwelling house and the premises
i'll question were almost entirely unoccupied for num-
Der Of years, and fell into state Of diapidaton that
from the time HOapilwahine died until the year lS47
l848 the title to the premises unsettled but at
that time it decided by the chiefs in council that
the plaintiff was the owner, upon which occasion pos
session relinquished by Mr.. Kanaina to Governor
kekuanaoa, the plaintiffs father and natural Guard
property:
that in l847, the early part of IS4S Polea as land
agent of Mr.. kanaina, in carrying out nstruc-
tions given him in relation to enclosing the premises
shut up Obstructed the pathway, that petition
or complaint sent to the Legislature, by certain
church members, praying that the way might be re-
opened, way to the Church that soon after this
Mr.. John Ii being about to visit Lahaina business,
was requested by Governor KekuanaOa to attend to
this matter, and to set off road for the people the
Hdkai part of the Hoap premises, in accordance with
-, % 81, a..
finding the way shut up obsfructed by stone wall
built by Poea caused the obstruction to be removed
opened the way and set off road about twenty feet
IN width for the people, through the premises in ques
uon to the church gate that subsequently the road
worked and put in ORDER under the direction of
the LlmaGuau of the District, who at that time had
control Of road labor under the Governor; and that
from lS4S until 1857 the road used by the public,
as way to the church, without interference dis
pute.
PENDANTS, that the public have acquired right of
way the premises in question, either by preserp
ton, or by express grant dedication.
So far as the defence rests upon the claim to right
of way by prescription, we are clearly of the opinion
that 1t cannot be sustained 1t appears by the evidence
that the ancient pathway from g Waiokama' through
the land now occupied by the church and the Hoapii
premises, was but by path, crossing what then
unenclosed land, and public path for general
leading through the District, or around the Island.
public way, in proper sense its character such
entirely changed by the enclosing of the church land
and Hoapi premises, and the erection of gates, shortly
after the church was built, to prevent its being
used public thoroughfare for all purposes. Its
even as way to the church repeatedly and effect
ually interrupted by Hoapiwahine much that
cannot regard the partial enjoyment of the way
during her life time, anything more than permis-
sive 1t will not be denied for moment, by the
defendants by any one acquainted with the Of
I'll ntrvD n he of n m
lS40 that Governor Hoapli, his wife, Hoapiliwahi
ne, could at any tme before that, have shut up the
pathway in question, and entirely precluded all persons
from using it, their will being law in that respect sub
ject only to the control of the King himself HOapil-
wahne did, in fact, stop all persons from nsng the
cent path her premises but permitted the priv
ieged class to use pathway to the church, on the
track of the road afterwards off by Mr. Ii, the
sRakdi boundary of the premises The use of the way
by the public, from the death of Hoapiiwahine up to
the time of its interruption by POea too short to
found right by prescription. And whether long or
short, ought not perhaps, to be allowed to operate
against the right Of the plaintiff inasmueh as during
that period, the title to the premises was in an unset
tied state For these reasons, do not consider as
established the justification set up by the defendants,
the ground of public right Of way by Preserip-
ton.
But it is argued that in the year lS48, there was
express grant Dedication to the public OF right
Of way to the church, the HOaplh premises, by
Governor Kekuanaoa, while acting as the guardian Of
the plaintiff, and having the care and control OF his
property, he being then minor.
To this it is objected that Governor Kekuanaoa was
not the guardian of the plaintiffs estate that even if
he had been is necessary for the defendants to show
written grant, under SEAL and for valuable consd
Grafton and that any such grant made by Governor
Kekuanaoa such guardian, would not bind the plain
tiff after he became of age
That Governor KekuanaOa in 1S4S, as the natural
guardian of the plaintiff rightfully had and exercised,
uDder the law this KiDTdOn. the control and
agement of the plaintiffs property, is think too
clear proposition to admit Of question and, that
any grant of a right Of way the plaintiffs land.
any conveyance whatever of any part of his estate
made by Governor kekuanaoa during the plaintiffs