Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1861-03-09
SUPREME COURT---In BancO.

MANUEL PICo rS Ira RICHARDSON.
JUSTICE ROBERTSON delivered the decision Of the
Court as follows aft
This is action of respass gu. d fr., brought for
the alleged wrongful entry of the defendant upon
tain pasture land held by the plaintiff under lease
from Governor Kekuansoa, and for daily driving
herd of cattle the same, subsequently, to the lst of
April, 1861 to the damage of the plaintiff. The action
was commenced as of the July term, 1860, and has
been heard by the Court, without the aid of jury by
agreement of the parties. The land leased by the plain
tiff is called KnIdpohaku and is situated on the taper
ing mountain ridges between the valleys Of Nuuanu
and kalihi.
The defendant admits that he has been in the habit
of driving herd of the plaintiffs land, twice
every day, to and from Kalhi to his homestead in
Nuuanu valley and claims to justify his doing
the ground of there being . public highway over the
land in question. -s H.-... 3 8 81 eco
large amount Of testimony has been laid before
the Court and we have also had the opportunity,
which is often very desirable in Of this nature, Of
personally viewing the locality of the controversy.
After a careful examination of the evidence before
US, and due deberaOn the case, Of the opn-
ion that the defendant has failed to establish the exist
ence Of public way over the plaintiffs land, in the
place where the defendant has been in the habit of drv
ing his CATTLE and where the trespass has been COM
mitted. ssrf
1t is in proof that in ancient times there public
highway across Kalsepohaku, which entered the land
at q point situated considerable distance seward or
below, the end Of what is now known Judd Street.
Tor Kalhi Street) and which crossed the land the
plain fiat. under the rocky ridges from which the
land probably derives its name. This was once the
common public road, leading the western portions Of
the island but has long since ceased to be used such;
although parts Of it still used private ways Of
convenience and necessity BY persons residing its
track, and travelling on foot or horseback.
1t IS also IN evidence that there two paths crossing
the plaintiffs land the ridges located farther inland
above the place where the defendant has entered with
his cattle. These paths have been used less,
far back the memory Of living witnesses runs by
people crossing from Nuuanu Valley to Kalih foot
horseback and there proof that these paths
not still used by the public in that manner, least
to q limited extent. +.s-.l- -si. q ss.r .sz1t.s
But this cannot avail the defence for while the de-
fendant has right to those paths the public at
large may them, he cannot, by any means, claim
the right to either Of the paths dyt-ray, for
crossing the plaintiffs land with herd Of cattle 9TH
animals for there is evidence Of the existence Of
such way there nor of public highway Of such .
character be held to include drift-way. The
plaintiff therefore entitled Judgment, but, in view
of all the circumstances Of the case, we think the dam
ages should be merely nominal.
Let Judgment be entered Of the last day Of the
July term, in favor of the plaintiff, for Eve dollars
damages, and for the costs. sssfs sas ss1
Mr.. Bates for the plaintiff ., --
Mr.. Harris for the defendant
Honolulu. 2Sth February, 1861. 81 -lts y -