The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1869-09-08

etc, from interfering in any manner with the
an illegal obstruction to the highway, and
referred TO in the said order as the defend
ants property. The restraining order, citing
said Everett 10 show cause why the injunc-
at the trial. The defendants sworn Bill for
this injunction was attached, and the fact
that it was attached was In evidence, but the
Bill was not read to the jury. This order,
obtained as such orders usually are, upon an
er parte hearing, was no justification of the
defendants own action in regard to the
fences, and was no authority for him to con-
tinue to maintain them as a nuisance. No
such mode of legalizing nuisance was ever
heard of, or can for moment be admitted
When the testimony was all in, the de-
feudant's counsel requested the Court to
give 10 the jury the following instructions,
which were given, but with the notifications
as set forth:
l. "That unless they find upon the evil
dence that the road in question was legally
laid out and opened, and the land over
which it runs was dedicated by the owners,
Manu-, Humphreys, Crowningburg, and Now
line, for the use of the public, they will find
the defendant not guilty." modified by the
Court, with the law as laid down in Green
leaf on Ev., upon Presumptions of fact as to
regularity of proceedings, &C."
a a.. A.
dence, that the owners of the land over
which the road runs, dedicated, by some
clear and manifest act, without the intention
of reclaiming it, they viii find the defendant
not guilty." modified by the Court, "But
knowledge of, or aequiescence in public user,
if continued for sufficiently long time,
would be evidence to show such intention to
dedicate"
3. THAT unless they believe from the evil
dence, that Nowline consented to the road
running over his land, then as Cornwell had
the right to place the wire fence on said land
which he purchased of Nowline, on the Wal
luku road, they will find the defendant
not guilty." Modified by the Court, PRO
yided they find that the road actually went
over Nowlineis land"
4. THAT if they find from the evidence,
that the fences are now maintained by re-
straintng order or temporary injunction from
the Chancellor of the Kingdom, then 1t is
not the act of the defendant, and they will
find him not guilty" Modified by the
Court, "unless they find that since Everett
took down (or put up) the fences, the de-
fendant has actually erected, kept up or main
tanned them himself"
5. "That the dedication of a road to the
public over waste and unenclosed lands, ought
not to be inferred from bare user alone.
Therefore, unless they believe from the evi-
dence, that there was an express or implied
dedication of the road by the owners Of the
land, including Mann, Humphreys, Crownin-
burg and Nowline, they will find defendant
not guilty"
That the acts of Crowninburg, Hum
phreys, and the owner of the land in Waika-
pu, by the erection of fences or the placing
of gates over and on the road, are circum-
stances to rebut the presumption of dedica-
tion:" Modified by the Court, "unless they
find that the land was actually dedicated for
a road, before those acts"
T. "That the failure to work on and keep
the road in repair, by the proper authorities,
and the authorities not requiring removal
of the distractions, are circumstances going
to disprove the presumption of dedication:"
Modified by the Court, "if resting on dedi-
cation alone"
8. "If the jury entertain a reasonable
doubt of the guilt of the defendant, they will
give him the benefit of that doubt, and find
him not guilty"
Exception was also taken to the in
struction given by the Court, "that if
the jury considered in evidence, the sworn
bill for injunction of defendant against Ev-
erett and others, it was conclusive as to the
fact of erecting and maintaining the fences,
the nuisance complained of up to the time of
obtaining said injuction."
1t was argued that the instructions should
have been given in the form as prayed for,
and not with such notifications and further
as would destroy the effect
sought. But such is not the law The ques-
tion is, did the instructions as given, when
compared together, correctly state the law
upon the subjects Adams rs. Nantucket, IL
Allen, 2O3.
The instruction given in regard to the force
Of the defendants act in obtaining an injune-
tion, was correct The defendant now insists
upon his legal right to continue these very
fences by virtue of his ownership of all the
land over which the road runs, and which be
claims was never legally dedicated for the
purpose of public highway His defence
is, " have not erected or maintained these
fences,-and if have, 1 have a right to do
So" This defence is correct by our rules of
pleading, but no Court, on failure to sus-
tain a plea in justification, would allow
the defence Of general denial. When the
defendant prayed for an injunction, he
claimed bis legal right to have the fences
kept in their then condition, and presented
his claim in as solemn form as he could.
OF course, he is not held answerable for what
ever Everett may have done in the premises,
and the jury were rightly told to acquit unless
the defendant had maintained the fences
since Everett's action concerning them.
The law Of dedication by long continued
public user, with the knowledge and acqui-
eseence Of the owner Of the land; that land
once legally dedicated to the public is be-
yond the owners control, and that non-user