The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-03-15

This case is brought under the provisions OF
the Civil Code referring to Pounds aud Es-
trays etc, (seetion pa ct seq.,) TO determine
whether the defendant lawfully ir6peuuded
the cattle Of plaintiff. =
From record of testimony on file itappears
that one J. KsBui is a shareholder ina Com
pany tHuD owning tract Of land in Manoa
valley. He leased by an instrument exhibit
ed, "Kona kuleana iloko Q ka alma Okla poe
Hui ma Manor" that is, his interest in the
land Of the Company for SIS per year, the
lease dated April 2sth. 1850, and without
specifying any term Of years.
There is also exhibited a schedule Of 80
rules governing this Company, signed-by the
members Of it including Kanui, and reference
is made to rule'Is. which may be rendered in
English thus Rule Is ''lf any member OF
the Company has no animals OF not-the full
namber. allowed, ard wishes TO hire, (the
pasture Of the remainder, he shall give it to
the manager Of the Company, who will hire to
the full number; il is not allowed TO the mem
bers OF the Hui 10 rent to another without the
consent Of tho manager # the HUI" The
manager Is the defeudant le5l AaA 81
By the 9th rule each member was allowed
%. run 10 head -ofiosttle. In pursuance of the
lease plaintiff put y head Of cattle on the land
where they remained till they were taken up
and impounded by the defendant.
The defence-is flat the lease to the plaintiff
Is inValid abeoarsea anotlmade in conformity
to the rules of the company.
The defendant testifes " Joe Burrows came
10 me to get me 10 write NY name on the lease
| from Kanui. REFUSED 20 write my nameon
the lease because tie rules cf the Hui re-
qufred that afaieases should he made by Ire
luna Of the Hui, and because the price was toe
jsw, only abost,S per head,per aHpum.
forbid hig1frert putting hiseattle on the
land"
Tie plaintiff testiles 4" / went 10 Paaluhi,
the una, with Narcisse Perry, He dbc luna
defendanD said he ought 10 make the lease
as he got q percentage Of the money.
offered 10 pay him his commission of 25 cents
hTIteis Aus mals clear that plaidtia had
notice Of the Rule The title under which
the s. Hui - hold this land is Royal Patent
| No. ] IL to W. H Rice as trustee for himseli
and sbms 81 other persons, the AplaintiiF
lease beng one of them As tanauts in com
mon, each one has the right to ALLEVIATE his
undivided share either by absolute conveyance
or,,as IN this case,. by a lease Of the privilege
Of pastnrago, unless Ics,fieted " some
covenant or agreement IN writing made by ali
Of them.
We think Rule Isrof the Constitution Of this
Hui is to be regarded as amumal agreement
which bound the tenants, SO long as 1t was
unresciuded, that they would not rent out the
right Of pasturage without the consent Of the
luna probably in order to avoid confusion,
the entry of animals on the land unknown 20
tho luna audJ he'll putting on of animals beyond
Che agreed limit ufl5 to eaen tenAnt in com
. ,rsrrf1I fkuf eftglt rrIp ruufual
ly made by the owners for the regulation Of a
pasture rland of restricted area would be
binding on parties uutl mutually rescnded in
the method agreed upon, and upon their
assigns or lessees, provided they had notice
Of the regulation.
But the luna Interpreted the rule to give
him arbitrary authority to refuse to sanction
the lease to plaintiff III was offered his
comnnssfon and The Opportunity of making
the .leaso bis oNtl actby signing it and tins
bringing it into conformity with the rules.
The lessee (paintif) had not exceeded the
right assigned lHnl, for he put onlysl2 bead of
cattle on the land, whereas he was entitled 10
run l5 The luna's objection that the fee OF
Sl5 per ye.u for the privilege. was 600 low
would not authorize him TO reject it, if the
lessor was satisfied with the terms ~ ,...
We think that the tenant Kanui and hi
lessee the plaintiff, have complied substantial
ly with rule Is and that the cattle put on the
land under these circumstances cannot be
considered as in trespasss ru7 q
Judgment Of Intermediary Court affirmed,
that the plaintiff recover his pound fees and
the costs Of Court
R. F. Bickerton for Plaintiff. Castle &
Hatch for Defendant.
Honolulu, March 3rd, 1882.