The Hawaiian gazette., 1884-02-20

CHuLAS & Co. vs.. THE PREcEvrsLE PLANT
ATIoN Co.
.Ts5d L. J. Wecaily aud 4Hsfia J.J--Opiai9n Of tie
Court BY yr5d CD
The bill Of complaint AYERS that the defend
ant corporation made an agreement with the
plaintiffs dated March LIST, 1850 which is as
follows:
"Wbereas the Princeville Plantation, cor
poration only duly organized under and by
virtue Of the laws Of the Hawaiian Kingdom,
has agreed to rent to ChulaR &. Co.. merchants,
doing business in Honolulu, Oahu, certain
lands situate in Hanalei, Island Of Kauai, for
the purpose Of cultiyating rice, and the said
Princeville Plantation Company and the said
Chulan 6 Co. do hereby agree to sign, seal
and execute lease in duplicate to be hereafter
prepared upon the terms and conditions as are
hereafter named and expressed. The Prince
vile Plantation Company agree to lease from
three hundred TO seven hundred acres of land
to be used only in the cultivation Of rice at
said Hauslei, and put Chulan q Co., or their
agents, in possession of all lands over three
hundred acres as soon as the manager elects
TO do so, the three hundred acres 10 be taken
possession Of Immediately, for the term Of five
years, with a privilege of an extension Of the
said lease for a further period OF five years
upon the same terms and conditions Of the
present lease, at the yearly rental Of twenty
dollars per acre payable quarterly. Also that
the Plantation Company will not lease any
other land in Hanole Valley for the purpose
of cultivating rice, TO any person or persons,
without the consent OF Chulan * Co.; also to
allow said Chulan & Co to cut dead wood from
lands owned or controlled by the Plantation
Company for fencing, posts and household
purposes, but such cutting shall be done under
the management and control Of the Manager Of
the Plantation Company; also to furnish all the
water necessary for the cultivation Of said land
with rice. also pasturage upon the lands owned
or controlled by the Plantation Company for
the horses and cattle Of Chulau X Go. used in
working and cultivaiing the land; also that in
every one hundred acres Of land, two acres
shall he allowed rent free for erection Of houses
for Chulan * Co.'s laborers, that said Chulan
& Co. shall not subleI or assign the lands or
any part thereof without the consent in writ
ing Of said Plantation Co., nor in any manner
interfere with the Plantation labor, also that
the rent Of the three hundred acres shall COM
mencc on the first day Of April, lssO, and the
balance Of said land up 10 seven hundred and
from date Of possession being given In witness
Whereof etc.
That pursuant to this agreement, defendant
by its agent c. Koelling, about LIST April, de-
.ivered to plaintiffs, and plaintiffs took posses
sion Of all land marked on a map (ROwell's)
|, ?, ;, ), 6, :. and defendant stated to plain
tiffs it was of the area of 800 acres and de-
manded rent therefor. That defendant about
LIST July, 1850, delivered TO plaintiffs and plain
tiiis took possession Of lot !, on said map and
stated that the area was IS acres and also
that certain other pieces then delivered con
tanned SOS acres and demanded rent. That
plaintiff paid the rent, believing that the state
ments were true, to LIST April, 1882. That no
survey Of the premises was made at the time Of
agreement. That plaintiffs enclosed the land
with fence when II was delivered TO them and
the fence now encloses all the land at any time
in their possession. Plaintiffs suspected from
the low yield that the acreage under cultivation
was less than was stated by defendant and
caused a survey to be made by which it ap-
pears only 3O3.O6 acres were in their posses
sion. That then plaintiffs refused to pay rent
as claimed by defendant on 363.js acres, but
offered 10 pay on 303.06 acres and demanded
of defendant repayments Of the excess of rent
paid Defendant refused TO accept tue rent
offered or to pay back the excess and brought
action in the District Court to recover posses
sion Of the premises for non-payment Of rent.
The bill prays that defendant be ordered to
execute lease for 3O3 .06 or such number of
acres as the Court may find to be in plaintiffs
possession and to order the defendant to pay
back the excess Of rent and TO accept the arrears
of rent due on the basis Of 3O3.O6 acres, for an
injunction against the suit and general relief.
The answer admits the agreement and alleges
in substance that defendant delivered, March,
I $50, to plaintiffs $3.50 acres OF rice land, but
plaintiffs being dissatisfied with 2 acres thereof
as unsuitable for rice, defendant took them
back, leaving 3l5l. acres in plaintiffs posses
sion; that July LIST, 1850, they delivered plain
tiffs another tract Of 50 acres, and thai then
plaintiffs had 3Tl acres, doduciing ? acres per
hundred as per agreement there would remain
| 363. IS acres, on which rent has been demanded
and paid to April lst, 1852.
| That a survey was made before any Of the
premises were delivered and that when pos
session was given, the boundaries were pointed
out by Monsarrat and KOelling, and that plain
| tiffE accepted Monsarrat's survey: and denies
that plaintiffs survey shows the area Of land
kept in possession by them, and AYERS that
/ large portion Of the land SO delivered suitable
| for rice culture has not been planted, that de-
| PENDANT has offered to take back certain por-
tions OF land left idle by plaintiffs, but they
refused TO surrender the same: and other forna
matters are denied.
The rights Of the parties hereto are IN he
determined by the agreement, and it seems Ia
us that it ought to be construed as a lease. II
| transfers the possession OF the land, stimulates
the annual rent payable per acre and contains
the covenants and conditions agreed upou
The rent Of the 800 acres was TO begin lst
April, lssO, and for the remainder up to 700
acres, from date OF possession given.
Taylor's Landlord and Tenant, See a reads.
From consideration Of the cases the rnlo
would appear to be, that if the instrument pro-
Tossing to be an agreement for a lease, is itself
transfer OF possession, whether immediate or
H. future, it is a lease, although it contains
stipulation for executing a subsequent lease
For the "three hudrcd acres to be taken pos
session Of Immediately" it seems to be admit
ted by the plaintiffs that the agreement was a
lease. The plaintiffs urge that there is
no tenancy between the parties established by
the agreement beyond this area Of land, and
that they arc only liable, for use and occupa-
ton, for the amount Of land over three hundred
acres actually occupied by them. The defend
ant claims, shat the plaintiffs should be holden
for rent of whatever land over the 800 acres
was delivered to the plaintiffs.
We think the plaintiffs are bound to pay rent
Tor whatever land was delivered by the de- |
PENDANT and accepted by the plaintiffs, without
reference as to whether the same was there |
after planted or not by plaintiffs. This must |
however, be qualified. The land must be such |
as is suitable for rice culture. The land was |
to be used only in the cultivation Of rice"
and this implies that it was to be rice land, |
capable, by an ordinary expenditure of money |
IN preparation, of growing rice. The plain |
tilis were not bound to take land which |
with an extraordinary expenditure Of labor
and money might possibly be made TO grow
nice, but land reasonably level so as to he
easily Land out IN patches and capable of being
put under water as required. That the agree
ment was so understood by the parties is evil
dent from the fact that the plaintiffs surren-
dered piece Of land of ~ acres (Lot "Y'' Of
MonsarFat's map) as being unsuitable for rice
and 1t was accepted by defendant 1t must
also lie land upon which water could be brought
IRON bitches or streams convenient and aces
sible. We do not think it necessary in this
case TO decide whether the words in the agree
ment binding the defendant 10 furnish an the
water necessary for the cultivation of said
land with rice, cOmpels them to cut and keen
IN repair the necessary canals TO lead water
10 the land cultivated in rice by plaintiffs, for
there is no allegation in the bill setting forth
any default Of this character by the defendant.
Ii might be said, however, that in default of a
particular covenant by the lessons to that effect
i is not TO be implied that they were to ex-
pend money and labor in the cutting Of bitches
o lead the water to the plaintiffs rice fields,