The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1883-05-23
Aalraiialr 6azette,
WEDNESDAY. MAY %. 1883.
supreme Court of the Hawaiian Islands
In Bauco---Equity

srrr.7ns Court of the Hawaiian Islands
In Banco---Equity.
LuyAL1Lo TRUSTEES VS. RUTH KEELIKoLANI.
CRoss BILL
Ruth KEEL1KoLAEI vs.LUNAL1Lo TRUSTEES.
BEFORE Jrad C. j., Mcc~lly aud Austin J. J. QriH-
| ion Of the Court by Austin J.
The question in these cases come before US
on appeal from the decision of the Chancellor
in equity everything the demurrer to the orig
| inal bill and allowing the demurrer to the cross
| bill. The original bill was in the nature Of a
| bill qtid fir1ef to remove cloud upon title to
real estate. The cross bill sets up a claim in
| fee to about 1000 acres of the land referred to
in the bill.
"a cross bill is generally considered as
"defence, and the original cause and.the cross
"bill are but one cause. 1t is so effectual as
ga defense, that if cross bill is taken as con-
"fessed it may be used as evidence against
I" the complainant in the original suit on the
"hearing, and will have the same effect as if
"he admitted the facts in an answer"
See Barb. Oh. Pr. vol. 2, p. l2I, Hemp. VS..
Mackrell 3 Atk sl2, Field VS.. Schiefelin Z
John, Oh. r. 249-52 Kent Chancellor; Cart
| wright and another VS.. Clark Metcalf lO4,
| lO9-lO.
The cross bill must relate to the former suit
only.
Story's Eq. Pl. Secs. 4Ol, 63l, Dill VS.. stra-
han Is Ala. 69i.
The bill and cross bill were therefore prop
| erly considered together by the Chancellor,
and we shall so treat them here. If the orig
| inal bill was in any respect incomplete or In
sufficient the defendants answer in the cross
1 L - aid of
allegations. 1t is even better for that purpose
than if written down in the original bill, for the
defendant, under oath, affirms it to be true. The
defendant, then, spreads upon the record
claim that she is the owner Of the Ahupuaa OF
Waiaiae-nui which property includes about
| 1000 acres of land now held and possessed by
the plaintiffs as alleged in the original bill.
Under all the authorities cited by the coun-
sci for both parties, this sets at rest the ques-
| ton of Jurisdiction to hear and determine this
cause.
The second point made by the defendant is
| that the decree as to boundaries which he at
tacks was invalid because it was entered after
| the death of Kamehameha V, one Of the ad-
| Joining owners, who was party to the pro-
i ceeding to determine boundaries.
On examining the records it appears that
there were several adjoining owners who were
4
There is no rule of law which requires that
the death Of one of SO many, or of any less
/ than all the parties defendent, should abate
| proceeding where all the evidence is in, and
/ the Court is ready TO make its decision, as
shown in this case. Such a rule would require
MANY unnecessary delays and ought not to lie
established.
The authorities cited by the Chancellor and
the plaintiffs' counsel are enough we think to
sustain the ruling below.
The third and last point made by the defend
ant is that the statute as to settling boundaries
was not complied with because the defendant
had no notice of the proceeding and was enu-
| tied to it, and so she is not bound by IT. Sec
ton provides that the petition shall specify
the names of adjoining owners 'rtere kno'rH,
and Section provides that the owners oil ad-
Joining lands shall be notified. This means
such owners as are specified in Section 1, that
is B7,o,ra o1rners. In this petition the party
named as owning Waialae-nui now claimed
| by defendant is Victoria Kamamalu the sister
of the defendant and Kamehameha V. Nicto-
ria Kamamalu was then dead. After this lapse
of time it is to be presumed that the owner
ship of this land was alleged to be in the one
dead, the original patentee, because the petit
TONERS did not certainly know who were her
heirs. AS matter Of fact Kamehameha was
| notified and strenuously contested the boundary
| before the commissioner.
The statute does not point out how parties
shall be notified or proof of notification made
| or recorded. Personal service is not necessary
under it. The record recites that all the adIoln-
ing owners were notified. This is presump-
tive proof of it, and after being unquestioned
for nearly ten years we must hold 1t conclu-
| sive.
In actions of eiectment, the Code, Section
1929 SAYS, ait shall be sufficient to serve the
partv in actual possession or if nobody is in
possession, to post notice upon the premises.
In analogy to this Kamehameha V, who was
in possession, was notified and fought. 1t is
to be presumed that the Court believed him TO
be the owner, Before the boundary decision
was made Kamehameha V died, and the de-
PENDANT ayers that she then became lis heir TO
one half the land she now claims OF the Plaln-
tihs. For that one half she is certainly bound
by the acts of Kamehameha V, from whom she
inherits it. The defendan! for that half and
on her own account did not appeal, as she
might, from the boundary decision. She al
lowed nearly ten years TO pass before question:
ing the boundaries settled. This was laches
on her part and we must hold her concluslyely
bound by the decision of which she complains.
We discriminate between matter for the
settlement of land boundaries and an ordinary
case at law or in equity. The proceeding be-
fore the boundary Commissioner is in the ma
ture of proceeding in rem. He is to deter
mine certain geographical lines, that is, he is
to ascertain what in fact were the ancient
boundaries of lands, which have been awarded
by name only. He gives notice to adjoining
owners so far as they are made known to him.
If the boundaries of such Conterminous lands
have been previously fixed by grant with
surveyed lines, or by Judgment of bound
airy Commissioner, such lines cannot be va
ried by subsequent determinations of the COM
missioner If the boundaries of any neighbor-
ing land have not been determined, then it is
made the duty of the owner or owners thereof
to apply TO the Commissioner for settlement,
and it was equally the duty of the owners of
Waialae-nui to have gone on their petition be-
fore the Commissioner without notification on
the part of another party.
At the time of the passage of the Act to es-
tablish boundary Commission, the boundaries |
of lands known and awarded by names by the |
land Commission, were in great uncertainty. |
The work of the boundary Commissions has |
been of great utility to the country in the |
proper settlement of such boundaries. In the |
absence of the appeal provided for by the Act, |
we ought not to allow their decisions to be |
lightly questioned.
The decisions below must be affirmed with
costs.