The Hawaiian gazette., 1877-01-17
OCTOBER TERM, 1876.
JOHN H. C0NEY rs. JAS..L DOWSET7.
OPINION OF A. FRANCIS JuDD.


as damages for the trespass of the defendants
cattle upon the land Honouliuli." in Eva.
Oahu, the property Of the plaintiff, since Oct
| 10TH 1873.
The Jury returned verdict for the plaintiff of
! 5000 and a motion is made TO set aside this
verdict and grant Il new trial. on the ground that
the jury must have mistaken or disregarded the
instructions of the court on the effect Of certain
leases under which the defendant justified, or
| that the Jury misunderstood the evidence.
! The first lease in question is dated March Sd,
1876, and, running for twenty-five years from
the lst of February of that year, expired on the
! lst of February, 81. 1t demises to John
! Meek and his heirs, the kula land at Lhue, and
the privilege that bis cattle should be undsturb
| ed at HONOLULU if they should 90 there.
| The second lease is dated 18th of July, 1851.
and leases to John Meek and his heirs and as.
signs the land called Waimanalo, at HONOLULU
! particularly as follows The kula and the kua-
hiwi and the rights appertaining thereto, and the
Poallnas the river with all the rights appertain-
ing thereto. 1t gives the boundaries as follows ::
| On the mauka side the lands previously leased
to John Meek that s, the kula of Lhue and
the kula of HonOuliu on the mnkai sides
! Nanakuli and the Koolinn. This lease expired
on the 9th Of July, 1876.
The third lease is dated the 10th of February.
1853 and it being for twenty-five years. does not
expire until the 10th Of February, 1878. BY
this lease there is conveyed to John Meek. his
heirs and assigns, all the remaining portions of
the lessons kula land at HonouliuIi this being
explained as follows: All parts of this kula land
not included 10 the previous leases made between
A. Keuahonu NJ. Kekauonoh and Jno. Meek
for that land called Lhue, on the Sd of March.
1916, and another lease between J. H. l..
Haaleea and John Meek, of all that land called
Waimanalo, on the 18th of July, 1851, the rents
of these two lands shall continue and their lease
until the expiration thereof. they are not in
cuded in this lease. Before considering the re.
servations, which are made at length and with
considerable particularly,
Let US go on to the fourth lease, which is
dated the LIST of February, 1871 aud which con-
veys all OF that certain piece or parcel of land
situated in the Ahupuaa Of Honolulu district
Of Eva, island Of Oahu, known as the Iii of
Lhue, for seven years, and which will not ex-
pire until the LIST of February, 1878.
The plaintiff claims that lease No. conveyed
not only Lihue but a portion of the kula of
Honolulu, and builds up an argument in sup
of this from the words of description of Wanna
nalo, above given, in which the mauka boundary
Of WaimanalO is stated to be the kula of Lhue,
and the kula OF Honolulu, and that the portion
of Honolulu conveyed by the first lease and not
included 10 the third lease, was not covered by
the fourth lease, which was lease of the Iii of
Lhue only. The plaintiff claims that as there
was abundant evidence that the defendants cat
tie pastured upon this tract of land within the
dates in which this trespnss is laid. the award of
the jury of 500 is far from excessive and should
be sustained. But can this position of the
plaintiff be sustained? .....
The first lease conveyed only Libue, the lessor
coveBanted in addition that the lessee's cattle
should be undlsturbed on HOnouliuli, if they
went there This does not lease any por-
ton of Honouuli outside of Lihue, but only
protected the lessee from being held liable for
trespass if his cattle st-ayed on Honolulu
This view is strengthened by the wording of
lease No. 3, made in 1853. which shows the in
depreciation put by the parties on their previous
leases after seven years of dealings with each
other as landlord and tenant. This lease No 3
distinctly says that the lease of 1876 was for
that land called Lihue, and that the lease of 1851
was for that land called Wa!manalo. Now, as
this lease No. 3 conveyed all parts of the kula
of Honolulu, not included in leases No. ! and
q it conveys all of Honolulu except Lihue
and Wamanalo and the reservations.
In former case between the parties to this
suit, the court held that if there exists an am
bguity, in the lease, then such construction
must prevail as is most strong again. the cove
nnntor for he might have expressed himself
ulOlS Dub tHclo 10 uU uululHubl ueT6
except perhaps the exemption from liability for
tresLass on Honolulu, and upon the principle
just suited it must be construed to be mere
license the actual territory over which the license
was granted in lease No. being leased by in
denture No. 3.
Wauanalo is described in the second lease as
being bounded on the mauka side by kua of
Lihue and of Honolulu. This cannot be ex-
planned except upon the theory that Its extent
was not at that time we'll defined.
1t is clear that the plaintiff does not claim
now that Waimauao stretches up to Lhue, and
! am inclined to read the description in this way.
The land previously leased to John Meek, that
is the kula of Lihne and the kula of Honolulu
on the mauka side. Certainly, if Waimanao is
an Lii at one end of Honolulu, it must have for
one boundary the main body OF the land of
Honolulu, where it joins the same. The clause
land the kula of Honolulu" is not necessarily
modified by the clause the land leased to John
Meek.
1t is claimed further by the plaintiff that as
the lease OF Waimanalo particuarzes kula and
kuahwi as being two distinct classes of land, the
kula being low land and kuahiwi being mountain
land, and as the third lease does not mention
specifically the kuahiwi Of Honolulu, 1t must be
considered as intended to be excluded
am of the opinion that in this lease No 8,
'kula means land not kalo land, however this may
be- the 'kuahiwi is not excepted in the large num-
Der of reservations made, and although the lease
does not convey the right to actually take the |
wood 10 the kuahiwi, it leases the right oil pas
turage therein, for the kHahwi is part of 'keia
alma kula komo ole iloko ma hoolmalima |
mua," (this kulu land not included in the previous
leases). To lease the whole of kua land, re-
serving certain specific portions and then to say
that this does not cover kuahiwi or pail, pun |
mhuna awaawa or other portions of land to which |
various typographical terms may be applied would |
be disngenuOus, and it is so manifesty contrary |
to the intention Of the parties as gathered from
all these instruments as not to be countenanced |
by the court observe, in passing that if the de-
fendantis now liable for trespass upon the kuahiwi
Of Honolulu or upon the portion of the kula of |
Honouliuli claimed by the plaintiffs counsel to |
be not conveyed by lease No. 8, be was liable
for trespass for the same reasons on the LIST of |
February, 1871, the date when the first lease of .
Dihue expired. a<
find therefore that as there was no part of |
the Honouliuli kula between Lihue aud Wanna
nalo not covered by the leases to the defendant
the jury we're not at liberty to consider 10 max.
ing up their verdict the evidence of the trespass
of defendants cattle on this territory.
The lease Of Waimanalo having expired on the
10Th Of July, 1876 the jury were instructed that
the defendant should be allowed a reasonable