The Hawaiian gazette., 1883-05-23
5arraiiair 6azrtte.
WEDNESDAY, MAY %. 1858.
supr,me Court of the Hawaiian Islands
In Bauco---Equity-

I
Cross BILL
RrrH KEELIKoLASI vs.LUSALILo TRUSTEES.
Be,,y, J-sa c. J., Mec-lly aud A-s,ia J. J. Opir-
ioH Of ne 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 org-
inal bill and allowing the deuurTor to the cross
bill. The original bill was in the nature Of a
| bill qua fiaei to remove a cloud upon tile 10
real estate. The cross bill sets up 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. II is so etiectual as
"a defense, that if cross bill is taken as con-
"fessed it may be used as evidence against
" the complainant in the original suit on the
hearing, and will have the same effect as if
be admitted the facts in an answer"
See Barb. Oh. Pr. vol. ?, p. III, Hemp. VS..
Mackrell , Atk. sl2, Field vs.. Schiefielin
John, Ch r. 2i9-52 Kent Chancellor; Cart
wright and another VS.. Clark Metcalf lOi,
lO9-lo.
The cross bill must relate to the former suit
only.
Story's Eq. ri. Secs. 4Ol, 63I, Dill VS.. Stra-
han rs Ala. Sol.
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
bill can be used by the plaintiffs in aid Of their
allegations. 1t is even better for that purpose
than if written down in the original bill, for the
defendant, under oath, afiirms it to be true. The
defendant, then, spreads upon the record a
claim that she is the owner Of the Ahupuaa of
Waialao-nui watch 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 q party 10 the pro-
ceeding to determine boundaries.
On examining the records it appears that
there were several adjoining owners who were
notified and took part in the proceedings.
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 abato a
proceeding where all the evidence is in, and
the Court is ready TO make its decision, as
shown in this case. Such 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 emit
tied to it, and so she is not bound by it. Sec
ton provides that the petition shall specify
the names Of adjoining owners ,rhere hHO'r1,
and Section 5 provides that the owners Of ad-
joining lands shall be notified. This means
such owners as are specified in Section J., that
is Lg,0trR OirR0s 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. Veto
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 Tecites that all the adjOin-
ing owners were notified. This is pTesump |
tive proof of it, and after being unquestioned |
for nearly ten years We must hold it conclu- |
sive.
In actions of ejectment, the Code, Section |
1929 says, at shall be sufficient to serve the |
party in actual possession or if nobody is in |
to post a 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 10 |
10 the owner Before the boundary decision /
was made Kamehameha died, and the de-
PENDANT AYERS that she then became LIS heir 10 |
one half the land she now claims Of the Plain
tiffs. For that one half she is certainly bound |
by the acts of Kamehameha V, from whom she
inherits it. The defendant 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 as settled. This was laches
on her part and we must hold her conclusiyely
bound by the decision Of which she complains.
We discriminate between matter for the
settlement of land boundaries and an ordinary
ease at law or in equity. The proceeding be-
iore the boundary Commissioner is in the ma
lure Of a proceeding ia rem He is to deter
nine certain geographical lines, that is, he is
10 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 COntgrminOus lands
rave been previously fixed by grant with
surveyed lines, or by judgment of bound
Try Commissioner, such lines cannot be va
led by subsequent determinations Of the Com
missioner If the boundaries Of any neighbor-
ne land have not been determined, then it is
made the duty Of the owner or owners thereof
o apply TO the Commissioner for settlement,
nd it was equally the duty of the owners Of
Vaialae-nui to have gone ON their petition be-
ore the Commissioner without notification on
be part of another party.
At the time of the passage Of the Act to es-
ablisn a boundary Commission, the boundaries
{ lands known and awarded by names by the
and Commission, were in great uncertainty.
he work of the boundary Commissions has
cen Of great utility to the country in the
roper settlement Of such boundaries In the
bsence of the appeal provided for by the Act,
e ought not to allow their decisions to be :
ghtly questioned. :
The decisions below must be affirmed with
lsts.
S. B. Dole for plaintiffs, A. 5. Hartwell for
ofendant.
UoDolulu March 18Th lisa