The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-03-13
Supreme Court, In Banco-January Term,
1880.
HlRRIs, G. j.; MCCULLY, j.
j. p. MENDoNcA VS.. HAUPU.
Opinion of the Court by Nc Gully, j

Opn10n OF me C0nTL Oy McCuAy, j.
This is an application to the Fence Commission
ers of the district of Waialua, by the Plain
tiff, Mendonca, against the Defendants, praying
that they may be required to join with him in
building 1 fence around the land in the possession
of the DEFENDANTS, said land being conterminous
with the Plaintiffs. On the 9Th day of Deem
Der last, the Fence Commissioner aforesaid rem
dered a oecision that the fence should be built at
the expeIse of the Plaintiff Mendonca and the De-
PENDANTS. said fence to be of wire, and to be built
within SIX months from the date of the decision
18th, December, 1879; that it should be five #.
high, capable Of turning cattle. AL of which is
in accordance with the second section of the
g Act to promote fencIng.'' See page 424 of the
Civil Code.
The evidence is, that the land in question is 1I2
chains long by 10 wide, running from the sea in
land, and the Plaintiff says he has had lawsuits
with the Defendants, for the last two years, and
now wishes to have the land fenced, that he NAV
live in peace. 1t farther appears that a wire
fence costs from $500 to 5000 a mile, or SIS one
of the witnesses says, from 90 to .75cts a fathom.
The Plaintiff says that he estimates the value of
Defendants land at So. 90 an acre. And it far
Their appears that the Plaintiff is in possession of
5000 acres of land which lies on both sides ofthe
Defendants land, and that, since the trouble be-
tween them commenced, the Plaintiff has fire.
quenty offered to the Defendants to exchange
land With them on favorable terms, SO as to make
the Defendants land more useful and more COM
pact, and so that it could be fenced off inexpeu-
sively But the Defendants have refused to do
that.
The Defendants have taken this appeal from
the Fence Commissioners, alleging that the build
ing of the fence is ~ Inexpedient " on account of
the expensiveness of the fence in comparison with
the value of the land, and cite section 4th of the
same Act, which reads as follows 8 In all
cases, where, in the opinion of the commissioners
it is = : nexpedient - to establish a fence, between
adjoining lands, either from the nature of the
land, the scarcity of fencing materials, or the
conflicting rights of landowners, said commission
es shall, upon the application of either of such
owners, decide how many animals each shall be
at libery to pasture upon his land, under a pen
atty to De specified by the commissioners, a GER
titled c,py of whose decision, filed with any Dis
trict Justice of the District shall, upon ~satisfact-
ory prof Of a violation thereof, entitle the ag-
grieyed party to judgment and execution as in civil
cases, fer so much of the penalty as such justice
shall dem just"
1t is argued that it would be unjust and Oppres-
size to compel a man whose land is only worth
S4OO OF $500, to build a fence of which his share
would exceed the value of the land. But the
hardship appears to US to be upon the other side.
1t mus be apparent to any one that this long
and narrow strip of land has been purchased with
the deign of not only enjoying 1t, but the ada
cent lnd as well and from litigation which has
come fom the District Court of Waialua to this
Court, it is apparent that the present defendants
have proposed, and do now propose to enjoy the
Plaintiffs land as well as their own.
Weapprehend that there is a mistake being
made regarding what constitutes the 80 inexped-
iency'' contemplated by the statute. 1t is not
the Poverty or wealth of the Defendant, but it is
the natural circumstances Of the land and the
uss to which it is to be put. 1t would be very
ips1pedient if a man had a cane-feld of one hun
drel acres, and another man had a five acre lot
inside of it. upon which he chose to keep FIVE
he'd of cattle and when the owner of the cane
6eH applied to the Fence Commissioners to
build a fence around the five acres, for which the
petitioner would have to pay one half of the ex-
pese, he should be answered that the other man
isvery poor, and therefore it is - inexpedient y
fc him to build, and he may pasture 5 head, and
yu may pasture 100.
1t appeared in the course of this hearing and
il the suits which led up to it, that the petition
elm this ease, had fenced in a large portion, or
nrbaps the whole of his 5000 acres; and the
Respondents proposed in point of fact. to take adj
vintage of his fences to restrain their cattle, and
rIn as many cattle as they may see fit, on his
lnd, because they hold, say, 1l2 acres inside
tbs tract, or as an alternative that the Fence
Commissioners decree them to run II horses or
u head of cattle on their land and the petition
e $50 head of cattle on his 1000 acres, and
sery time he transcribed the $50 head to be
summoned before the District Justice to answer
b the penalty of the bond prescribed by the
salute. Or again, having obtained a decree of
he commissioners similar 70 tnat ABOVE set Iorth,
md afterward the petitioner fences in a thousand
eres for paddocks, the Respondents in this action
tould sue him-this Petitioner-for preventing
heir cattle running over the whole D 200 acres,
q compel him to reduce his proportion by one
fifth, or if he should buy say 500 acres, he would
70 Obliged to summon these Respondents to see
Iow many more cattle he should run. Thus the
yhole of Mendonoa's capital and industry is to
pe subordinate or sacrificed to the owner Of the
II acres inside. This would be very 50 inexped-
emit" The fact is, that the fourth section of
his act was meant to apply to the regulation of
affairs between conterminous land-holders, who
we're pasturIng cattle on somewhat equal or like
terms and was very applicable to the state of
the country as it existed at the time of the enact