The Hawaiian gazette., 1872-11-13
Supreme Courr. Hawaiian Islands.
- Elnn IA KsInnln

\ peal iIem Tue IOhce Justice OF Hllo.
Before ALLEN, c. J., and WIdemann. J.
Chief Justice ALLEN delivered the decision Of
the Court as follows.
complaint was entered before the Police JUS
tce OF Hilo against the defendant in which il
was al. eyed that be had obsructed the public
highway at Punaluu in the District cf Kau. con.
trary to Sec 1, Chap &c, Of the Civil Code, in
the months Of February ard March last past.
The defendant plead not guilty, but ackuowl.
edged that lie had placed an obstruction on the
road, as charged, but that he was justified in
doing It. Judgment was rendered against him
BY the Police Justice upon which he entered an
appeal TO the Supreme Court.
Il appears 10 evidence that the Travelled high
way was injured by wave Of the sea, and
det0ur was made on the land Of the defendant
and others 70 accommodate the public travel
Aiter this opening Of new road by the Super
VISOR he called the owners Of the land together
and they consented that the land should be used
for road on condition that they were paid for
H. Afterwards the Minister of the Interior ap-
pointed Commission to appraise the land
damages, in which the defendant acquiesced, and
their opinion was that the defendant was not
entitled to any damage, as the land in their
judgment was valueless. 1t appears that the old
road. which was injured, was repaired in Novem-
Der ISL, aud that it was better road than the
new one al the time the defendant placed the
obstruction complained Of
The mode Of opening a new road is prescribed
by the Statute. 1t declares that upon the
request Of fifty or more poll-tax payers of any
district to the Minister Of the Interior. that a
new road be opened, or that an old road be shut
up IN that district said Minister may appoint a
jury OF twelve persons to decide on the propriety
OF the measure proposed, aud their decision,
when agreed 10 by at least nine of said jury,
shall be acted upon by the Road Supervisor of
such district
i is very plain proposition that when the
Statute prescribes mode for opening road, it
must be strictly pursued in order to constitute it
legal road. The laws scrupulously guard the
vested rights Of property. In this case, request
OF fifty or more poll-tax payers was not made to
the Minister OF the Interior that a new road be
opened, aud Of course no jury Of twelve persons
was appointed. to decide on the propriety Of the
measure. But the opinion Of the Supervisor
was taken upon the propriety Of the road, instead
OF The Judgment OF jury.
10 the case Of Pritchard vs.. Atkinson. 3 y.
IL, 355, the Court say, that the Selectmen are
empowered TO lay out roads only on application
made to them. They are not authorized to lay
out roads when and where they please, but TO
give them power to act an application must be
made to them by some person or persons. 1t
must therefore in some way appear that they
acted upon application, ii every case, in order
% render their proceedings legal
In the case Of the State VS.. Sturtevant, is
Maine II is decided that to maintain an indict-
meat Tor the obstruction Of a town or private
way, il must be shown that such way was laid
ont and established pursuant to Statute pro-
visions Wiggin vs.. Exeter, l3 n. H., 3O7
Our Statute is the same in principle. A re-
quest Of fifty or more poltax payers must first
Be made TO the Minister Of the Interior that
new road be opened, and then he may appoint
jury Of twelve persons to decide on the proprety
Of the measure. In this case none of these re-
qlisiies have been complied with, and therefore +
the road has not been legally opened. And as
there is no public highway as alleged, the allega-
tons in the complaint that distractions have
zen placed upon it must fail.
il was not competent for Kekaula, by any act .
Of bis, to iegalze the establishment of public .
highway. He could have conveyed to the Gov
eminent his title to the land, and his acts of OBJ
struc,ion, as charged would have been trespass,
for which he would have been liable; but as
there is 20 legally established road, the complaint
Of distractions upon it can not be sustained.
The decisiun Of the question of the legality OF
The road determines, in our opinion, the whole
matter in controversy; and therefore it is un-
necessary 70 consider the remaining points made
10 the case.
Judgment for Defendant.
Attorney General for the Crown.
W. c. Jones for the Appellant.