The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-03-13
Intermediary Court of Oahu.
TRIAL DAY, AUGUST, 1879.

AKoWAI vs.. LUPoNG, Trespass.-On appeal from
the Police Court.-C0rdm Mr.. Justice Judd
BY THE CoURT.-This is an action of trespas
qudre cIdusmn fyegit, for entering plaintiffs lane
at WaIpio. Eva, Oahu, and cutting and taking
away a crop OF rice growing thereon to the dam
age of the plaintiff $500.
The land in question is described in Roya
Patent No. 669S to Kuhiwahiwa, a little over ar
acre IN extent, being situated in the Iii of So Ho.
malkaIa," which is an lii Of the Ahupuaa of Wal
PIC. The land of Waipio as well as the Lii o.
Homalkala was the property of the late Hon
John Ii, which he held from ancient times to his
death, which occurred May 2nd, 1870. Mr.. Ii
devised the Iii of Homaikaia to j. Komoikeebu-
emu. This territory is swamp land. 1t is prov
ed by the testimony that the kuleana in question
had been planted with taro in ancient times un-
der the direction of Ii or his family, who arc
natives OF tins place, but no one remembers any
cultivation in this locality since 1850, until 1873,
when Komoikeehuehu commenced the cultiya.io
OF rice IN Homaikaia. The swamp had grown nm
with bulrushes. One old witness named Hulu-
hulu, who is a kamaaina and who has lived there
since the time of Kamehameha /, saws that he
never knew kuhiwahiwa or Of his planting this
kuleana. The date of the Award of this k1leana
is April 80, 1851, and Huluhulu saws that from
the time of the smallpox which reduced the pop
ulation very greatly in that district, all ~cultiva-
tlon there ceased, and it is quite likely that Ku-
hIwahiwa never actually cultivated this kuleana.
He probably died at or before the smallpox
(ISoS) The Royal Patent, upon confirmation
OF this Award, was taken out July 28th, 1875, by
parties who claim to be the heirs of Kuhiwahiwa,
and by them leased to the Plaintiff by an linden
ture dated March 18th, 1878.
The Defendant is lessee of the Iii of Homaikaia
under Komoikeehuehu now deceased, and his
widow as sole heir surviving, Kahikimua by name
The Defendant has had in cultivation for the past
i've years the whole of the Iii of Honaikaia in
Guiding the kuleana in question. In the early
months OF this year surveys of this and of the
kuleana were made. Defendant had Moved and
prepared this kuleana, for planting in it a new
crop of rice, when Plaintiff asserted his claim to
the kuleana and entered it by force and planted
two patches, which constituted about o. of the
kuleana. The Defendant planted the remainino
patch. Both parties claim to have watered and
tended the crop on this kuleana until it's maturity.
1t was all harvested by the Defendant in June of
this year, and he has the paddy resulting from it
In his possession. The Plaintiffs witnesses esti-
mate that the crop from the two patches which
he planted would yield about 5000 pounds. 1t is
worth &c. per pound. The Defendant however
swears that all three patches produced by actual
weight 5000 pounds.
The Defendant by his counsel, Mr.. Davidson.
urges that the statute of limitations has run
against the ownership of this kuleana, there being
no evidence of any actual occupation or %cultiya-
tIon by the Plaintiff S grantors from 1850 to 1873.
when defendants g~rantors took actual nossession
of this kuleana and commenced cultivating it in
rice.
The Plaintiff by his counsel, Mr.. Brown, urges
that the possession of the owner of the land in
which this kuleana is situated is not adverse to
the holder of the kuleana, and there must be visi-
Die and actual occupation by the Konohiki for
owner OF the circumscribing land) of the particu-
lar kuleana In order to have the statute of limit
atlons run against the owner of the Kuleana. To
put it In another way, the Plaintiff S claim is
that the abandonment of the kuleana for twenty
years, it not having been taken into the actual oc-
of the Konohiki for this period, does not
extinguish the right of possession of the owner of
the kuleana or his heirs in the same. This oues-
ton is one OF wide Importance, and affects the
owners OF Estates throughout the Kingdom. The
Court Is aware that there are many kuleanas in
the same position as this, totally deserted for over
twenty years, hitherto deemed valueless by their
owners, and only recently ofany market value.
incline to the opinion that the position of the
is sound. 10 order to bar the legal title
to the Kuleana, the possession of the Konohiki of
the particular kuleana in question must be actual.
notorious, distinct and hostile. (See
Manumanu aud Mahuka as. w. Fl. Rickcrd. de-
cided at the July Term, 1879, of the Supreme
.ourt.)
The title for a kuleana under an Award of the
Land Commission or a Royal Patent is distinct,
complete, and the general possession by the Ko-
nohlki of the Iii or Ahupuaa in which it NAV
be situated is not hostile to the owner of the Ku-
| find therefore for the Plaintiff, with damages
for 5000 pounds of rice at Sc. per pound, $4,000
cost of cultivation. $35 .O0,-S6l 90 and
Honolulu, September 6, 1879.