The Hawaiian gazette., 1883-05-09
Daluatialt Gazettt.
WEDNESDAY, MAY ., 1883.
Supreme Court of the Hawaiian Islands
April Term, 1888
PAULo VS.. D. MALo.
Before Nh. Justice Austin

The plaintiff in ejectment established pre-
sumptive title as heir to the Patentee Kea.
The defence was claimed title by adverse
possession.
The plaintiff attacks first the character Of
the possession itself. lie says it not
continuous or complete and is for that reason
insufficient.
To determine this point the amount and
nature of the land are to be considered. 1t
consists of two and I5-l00ths acres mainly
taro patches. There is a small part of it not
adapted OF used for kalo culture. The land
was not fenced till lately. At one time a
grass house was built on the land which was
occupied by defendant and his father, and his
aunt, under whom he claims. This house was
pulled down, but the proof establishes think
substantial continuous cultivation of the
| tarO land and occasional cultivation OF the
other land for potatoes.
The whole land is small. Only scraps of it,
from time TO time, were left idle. j think 1t
may be found that the land was usually Guilt
waited or improved. This is sufficient as to
the kind of possession.
Sec Washburn on Real Property, Vol. 3.
l40-l-g-I5O.
The defendant and those under whom he
claims paid taxes on the land for over twenty
years. The character of their acts and pos
session may be taken as notice to the OwneTs
of claim of title. Express notice is not
necessary to be shown.
See authorities last cited.
The defendants aunt Kahawalu under
whom defendant claims, as her remote heir,
| through his father Kalama, died in 1871,
whatever rights she then had descended to
her brother Kalama. Her husband HoohOku
/ took no interest from her under the then stat
| ute Kaama retained the possession and
| transmitted it to the defendant privity is
shown by him with Kalama and with IA
hawaii.
/ therefore think that title by adverse
possession is made out by the defendant IN
less other facts shown to which l shall now
refer establish that the possession was not
/ adverse but in subserviency to the title of the
| plaintiff.
Kea, the patcntee died in 1919 in possess
sion of the land in dispute and having been in
possession since 500 1t was declared to have
been his land on February 3d. 1915.
| Kahawalu widow of Kea held possession
| after his death till some time in 1854. We
have held that she had no right to the posses
sion as widow. What was her intention in so
holding possession may be inferred by her
subsequent acts.
In 1854 she and her brother Kaama made
application before the Land Commission
| and the land was awarded to Kea by name
and his heirs. Subsequently, in 1856, Kaha-
walu obtained in the name Of Kea a Royal
Patent running TO Kea and his heirs. This
she received and kept. 1t remained in her
possession till her death and was transmitted
to her heir Kalama who held it till 1877 when
defendant claims it was taken away by some
| party in plaintiffs interest.
The plaintiffs counsel earnestly claims that
these facts show a subserviency to the title of
the heirs, and dispute all claims to hold the
land adversely.
Upon the first trial of this case was in
clined to SO decide But further examination
end reflection have led me 30 modify my opin-
ion.
In order to establish any valid title to the
land the statute of 1875 provides that it was
necessary that an award should be made: that
| otherwise the land would escheat
By applying for the award to Kea in 1851
| Kahawalu did not intend to acknowledge the
title Of the plaintiff or his ancestors. That
application was not made for their benefit, but
| for her own and to prevent the escheat of the
land Ii was in effect claim that she was
entitled to the property as heir, and that there
| were no other heirs, The heirs did not ap-
pear before the land commission, nor was any
| proof made before it Of their existence.
| btad the matter rested with them, the Stat
ute Sec. 5. p. loo, Laws Of 1915, declares
that all their claim to this land would have
been forever barred. The first time the heirs
of Kca under whom the plaintiff claims made
| known their claim was in 1872, twenty-four
years after the death of Kea KahawaIu it
would seem, though enormously, relied on the
| Royal Patent as a imminent of her title. Its
possession by her under the circumstances,
cannot be taken as an admission of the plaint-
| ifs title. But for the Statute of 1915 the
possession taken by Kahawalu in 1915 would
have ripened into a title before her death in
1871. By procuring the Award and the Roy
al Patent as stated she did not take away all
chance Of her maturing q title to the land.
The Statute IS peculiar to this country, and
no similar question could arise in England or
in the United States.
l hold that the defence Of the Statute Of
! Limitations is made out and direct that judg-