The Hawaiian gazette., 1877-01-17
when the testimony Of Mr.. j. Il. Wood is

When the testimony Of Mr.. ]. Fl. Wood is
considered who testihes that Wananalo is
worth nothing for pasturage at present. as there
is nothing green it, it is clear that the amount
of 5000, il awarded for damage for trespass on
this land, is excessive for If the jury found that
defendants cattle were allowed to remain on this
land an unreasonable time after the lease ex-
pired, the damage awarded should have been but
nominal aad not beyond tue statutory amount
Of 1879 cts. for each animal.
The reservations in lease No. are as follows:
"These are the places reserved to the party of the
FIRST part; the fish ponds IN said kua land, hag-
ind fish in them, aud two lots intended to be en-
closed hereafter; also Mokumena adjoining the
enclosed taro lands and also that piece between
uaIakai and &. W Vlnceut's lot that place
known as IA pa Uhi 10 also reserved the sea
fishery and its rights are also reserved similar TO
the Wuimanalo sea-right reservation; also the
Pa alma at Honolulu and the said enclosure !:
and also the cultvatabIe land at Poupouwela;
all of which are reserved and not included in this
lease but John Meek's cattle shall not be mo-
Tested should they 90 on to these places reserved
if not fenced in with afence sufficient to prevent
cattle from trespassng. Poupouwela will still
remain as in times gone by, and is not intended
to be fenced in as its situation is good. not need
ing fence. The tabued woods of the noun
tains of the lands mentioned 10 this lease are
also reserved to the party Of the first part, but
he. John Meek, can take said tabued wood for
his own use, as much as lie wishes but not to
dispose Of to other parties"
The clause, " but John Meeks cattle shall not
be moested should they go on to these places
reserved. if not fenced in with fence sufficient
TO prevent cattle from trespassng fixes the obi.
cation upon the lessor to keep his reservations
and harm. nm offa m
the Jury to show that this was done, they were
not at liberty to found their verdict upon evil
dence that the cattle of defendant were accus-
'omed to Craze and get water on the reserved
portions. 1t is urged that though the lessor
covenants that the cattle shall not be consider
ed as trespassing if they shall 90 on the re-
served portions, unless fenced, still the evidence
shows that the cattle were continually on one Of
these portions. that is Pa alma, for water and
that this is in excess of the license, and there
lore trespass would lie. | am of the opinion this
is not sound, for there could be no trespass on
Pa alma. unless fenced with fence capable of
turning stock.
The law will not allow pit-fall for the un.
wary to be thus dug when it was possible, in
framing the lease, to make the intention of thu
lessor to hold his tenant TO such liability more
clear.
nc TeBhuo OupOuWcluy lNF anna ulduiui 10 It-
served This is translated cultivated or cult
vatable land. Whichever rendering is taken
there is no evidence that Dowsett's cattle tres
passed upon either the cultivated land or the
land capable of cultivation 10 Poupouwea. The
evidence was confined to the statement that the
cattle driven from Waimanalo between the 18th
and 18th of July we're driven frGm Lhue to water
at Poupouwela and back again, but there was
evidence that this water was in The limits of the
alma mahai. am of the opinion, though the
jury were not so instructed. that no trespass
could be maintained even on the alma mahlai OF
Poupouwela, as the clause in reference to i'm
munity from trespassiDg applies to it, and the
lessor disavows his intention of fencing it, as the
situation of the land did not require it. The
legal inference from this is, that he took the risk
of cattle trespassing on it, though unfenced
The jury were instructed in regard to the tes-
timony that the cattle of defendant had spread
thorny acacia over the land as follows That the
plaintiff could not recover damages for this if
done while the cattle we're lawfully upon the
plaintiffs land, for he must be held to have for
seen the natural result of the pasturage of cattle
ia disseminating weeds and thOrns on his lands,
when he made the lease and as regards acacia
being spread on Waimanao, the defendant could
only be held liable for whatever damage was
thus done since July l5 1876, of which there
was no distinct evidence.
The court charged The jury that up to the 18th
of July 1876, when the WaimanalO lease expir-
ed, the defendant had thu right of exclusive pos
session of all HOnoulinli except the reserved
portions, but on suggestion of plaintiffs counsel
made the qualification that il the jury found that
there was any portion of Honolulu conveyed by
lease No. l and not included in lease No. 3 and
not re.conveyed by lease No. A, they might find
that trespass was committed on such portion.
In giving this modification the court had no in
tenton of allowing the jury to infer that there
was any such Unbiased portion Of Honolulu, for
it had charged the contrary. But this may have
mised the jury, which is to be regretted.
1t is apparent to me that the jury must have
understood the instructions of the court upon the
evidence of trespass upon any portion Of Honou
liuli, except Waimanalo, and as to Wamanalo,
if the verdict was founded upon trespass on this
land the amount of damage is so clearly exGes-
sive as to lead to the inference that the jury
based their assessment of damage on some erron-
eous principle.
Exercising the sonnd and legal discretion vest
ed in me, am of the opinion that the verdict
should be set aside and new trial granted,
which is done accordingly.
A. FRANCIS JUDD,
Justice Supreme Court.
L. McCully and E. Preston for plaintiff, A. s.
Hartwell and w. G Jones for defendant.
Honolulu, Oct. %, 1876,