The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-09-13

Opinion Of the Court By MeCuHy, J..
The appeal in this case is as follows: Tn,
DESCENDANTS. by their Attorney. moved to dismis
the cause herein Oh the ground that the Plaintiff
had not brought her action under sections "a
aud 245 Of the Civil Code, but had brought al
action TO recover the possession of the property o.
Its value, which property was then in possession
Of the pound keeper at Waialua, who was not
party to the suit, and that judgment was giveI
for the restitution of said property in the posses
sion Of said pound keeper, which motion wal
oyerruled by the Court, on which holding Of The
Court, the Defendants by their Attorneys took ar
appeal as follows:
That upon the trial Of said cause the following
facts were proven or admitted in evidence THAI
Defendants were in possession Of about 6,00C
acres Of grazing land, which was enclosed, and
that within the limits of said grazing land
Plaintiff had l02 acres not enclosed; that Defend.
ants cattle and horses run on Plaintiffs land
that Plaintiffs horses and cattle had run and
graZed in common on Defendants land for several
months that Defendants tried to make an agree
ment with Plaintiff as to the number Of horses
and cattle that she should Craze on the land, but
she refused to make an agreement; that Defend
ants after notice took up eleven head Of horses on
their land and let seven go, driving four head to
the pound and there impOunding them, after no
tice and demand Of Sl.l0 per head of Plaintiff,
which was refused by her. There are the horses
IN question. the Defendants alleging at the time
A1lV AkNE AAAEg1h4@A NA1N ~ ~ ~
ses that the plaintiff was entitled OF permitted to
run on their land was only seven, and that the
four they impounded was in excess Of that num-
Der. IL further appeared IN evidence that the
number Of the Plaintiffs stock running on De-
PENDANTS land was 80 head, while Defendants
had upwards Of 200; and further, that Plaintiff
paid no money 10 the District Judge at Waialua,
and gave no bond as required by the statute pre-
yiOus TO the commencement Of the suit.
The Court held that this state Of facts showed
- r. DTms-FsH~a L.-aaa ehar- hafn. m
understanding to run in common, but without
settlement Of the proportion and that the i'm
pounding was unlawful.
From which opinion Of the Court, the Defend
ants by their Attorney appealed.
By me COuTt.-Thes sections pa and 245 Of the
Civil Code, above referred to, prescribe, that
whenever any dispute arises between the owner Of
the land trespassed on and the owner OF the ami
mails impOunded. the latter may get immediate
possession Of them by depOsiting the amount
claimed OF n bond with a District Justice and
afterwards trying the question as to the legality
of the arrest, or The amount Of the damage, be-
fore the Justice. IL appears by the record that
the Defendants were cited in the District Court,
upon n complaint which may be translated thus.
The said Defendants have illegally impound-
ed four Of Plaintiffs horses in the Government
pound, on the 18th Of October 1873. The Plain
tiff demands in this Court that they return the
said horses describing them) or pay the Plain
tiff $50 damages with cost" The animals were
then in the custody Of the pound keeper, who was
not q party to the suit, but upon the Plaintiffs
recovering a judgment, they were surrendered,
whether voluntarily by the pound keeper, or
whether the Defendants, who had impOunded
them. procured their release, does not appear,
but the Plaintiff now holds them.
We are asked to dismiss the appeal because
the Plaintiff instead of depositing money or a
bond, suffered the horses themselves to remain
pending the action upon the legality Of the
pounding, and secondly, because the complaint
having some features OF trover is brought against
parties who did not have possession, and not
Joining the pound master who held possession.
BY reference to the Statute 1t will be seen that
what is there provided for is, that the owner of
the trespassing animals may get the Immediate
custody, use and keeping of them without wait
Ing for the termination OF a trial. Horses or cat
tie used in teaming, it might be a heavy loss to
hold them, while the mere question of trespass or
the amount OF damage may be determined by liti-
CATION But we do not see that the statute IN
providing this method for the immediate surrender
to the owner prohibits his leaving them IN Gus
tOdy IL he plan to do 80, until he mas brought suit,
nor does It appear sound to dismiss the case, be-
cause the horses were restored by the pound
keeper, not being a party to the suit. The part
les who have been made Defendants herein are
admitted to be the proper Defendant, if the action
had been brought as prescribed In sections ~
-245.
The substantial matirr set forth in the COM
plaint was that the Defendants had illegally seiz-
ed and impounded the Plaintiff s horses, winch
was a matter within the jurisdiction of the Dis
trict Justice
adjoining pieces Of land. liz does not affect the
principle Of the case, that the Defendants land
was Of greater extent or that it surrounded che
Plaintiff ; piece, or that Defendants had a fence
on the exterior boundaries Of their land, that 10,
where they joined some other persons than the
Plaintiff. Each party holds his land by the
~ eel. or a vranf from tie (rnvernmenE Ethar
rarity had the right to arrest animals Of the other
trespassing on his land, unless the right had been
suspended by agreement or by a decision Of the
fence Commissioner.
There was no fence between these parties.
There was an understanding or informal agree
meut, which had been acted upon for some time,
that neither party should modest animals Of the
other, they were to run in common, the number,
which each might run not having been deter
mined.
The Defendants had proposed to the Plaintiff to
agree to limit her animals 10 u certain number,
but she bad not consented and the agreement to
run IN common had not been rescinded, nor had
notice been given Of an intention to rescind and
permit each party TO stand ON his right to arrest
animals which should trespass. The Defendants
cattle we're moving over Plaintiffs land without
mOlestatiOn.
Under these circumstances the Defendants
drove in eleven head Of Plaintiff $ stock and re-
leasing seven, made a demand for SLIP damage
per head Tor iOur as u IN tIespAss' anu the ue-
mand being refused, put them in the pound
claiming that inasmueh az these were in excess Of
Plaintiffs proportion, in the judgment of the De-
PENDANTS, they were trespassers-
But If the animals were on Defendants land
by permission they could not be deemed tresPass-
ers. BY mutual agreement there was to be no
trespass in the pasturing Of their animals on the
land of either party, and this agreement was
without regard to the number of animals which
either might run. The Defendant makes an
argument on the fact that Defendants had desir-
ed the Plaintiff to agree to restrict the number OF
her stock to some figure, but if she had not con-
sented. there was no contract, and the parties re-
NAMED on their agreement to run in common
any umbe Of stock that either had. If this
bargain were inequitable, owing to the disparity
of the areas which were put in common, it IS still
the bargain which the parties have made, and on
which they must stand till either may rescind it.
Ii is 10 the power Of the Defendants to protect
themselves from being Overrun by the stock OF