The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-08-09
Supreme Court, Hawaiian Islands, July
Term, 1879.

Manumanu * and Mahuka wv VS.. w Rickard-In
HARRIS. Gu. j., JUDD AND McCULLY, j.. ].
Opinion by Judd, j.
This case comes before us on a bill of exceptions from
the Circuit Court of the Third Judicial Circuit, alleging
that the justices of that Court, by whom the case was
heard, the jury being waived, erred in holding that the
facts shown did not make out the defense of n title by
prescription.
The action was ejectment for a tract OF Q 40 acres of
land in Hamakua, Hawaii, which, prior to defendants
occupation FIVE years ago, was unfenced and uncultivated
and not in the actual occupation of defendants grantor,
or of any person.
The plaintiff proved title to the land by inheritance
from the patentee Kekoa, and to this finding no exception
is taken.
The law is clear that " the nature of that adverse pos
session of land, which is required to constitute a bar to
the legal title, must be an actual, visible, notorious, dis
tinct and hostile possession" 2 Washburn on Real Pro
perry, p. 4s9. Although the character of that possession
may be varied according to the nature of the land in
question, still it must be of such notoriety as that the
owner may be presumed to have notice of it.
We find, upon q review of the testimony, that the &C.
casional visits to the land by defendants grantor, with
out .~residence or occupation and her declarations, not
brought to the knowledge of plaintiffs, that the land was
hers, were not sufficient; and that the Circuit Court did
not err in holding that the defendant had not shown title
by prescription.
Judgment was given by the Court for the plaintiff for
the land with damages assessed at 800. for the entire
period of defendants occupation and costs. The Court
added that the question of improvements was to remain
open unless settled by the parties. 1t appears from the
evidence sent up that there was some testimony tending
to show that defendants house was partially over the
boundary of the land in question, and that there was
cane planted by defendant, which might turn out to be
on this land. The testimony was not explicit, it being a
matter of uncertainty as to where the boundaries of this
land were with reference to the house and the cane, as
the defendant had other land adjoining. 1t is alleged
that this judgment is wrong, because it does not purport
to be final.
The judgment of the Court was final as to the posses
sion of the land and the damages. The remark as TO i'm
provements was unnecessary, but it was perhaps made in
order to afford the defendant an opportuIi ty to show
more accurately what improvements lie had put on the
land, which he could legally remove. He, not having
taken advantage Of the opportunity afforded him to
make a further showing while that Court was still in
session. cannot now claim. that the Judgment is invalid
on the ground that it indicated that there were other
questions, which might after arise which the Court did
not settle. If further litigation between the parties on
the question Of improvements is not barred by this judg-
ment, it is certain that all questions as TO the right to the
land are settled by this judgment. 1t is therefore final.
Exceptions oyerruled.
Castle & Hatch for plaintiffs; Richard f Bickerton for
defendant.
Honolulu, August 2nd, 1879.