The Hawaiian gazette., 1884-01-23


This Is an action On the czse claiming Sisoo
damages for the taxing and appropriating BY de
PENDANTS predecessors IN Office OF certain water
from plaintiffs lSnd In Aakik valley. his Is
deranrr-d 10 &C the ground thai IN Act OF the
Legislature. passed N l>to and amended IN ISIS
authorized certain land and wafer within certain
prescribed limits IN the r9rge o. mountains hack
Of hoacfaln 10 be condemned for the purposes Of
the Honclnlu Water Works and provided Tor the
appointment Of commissioners - ASSES The dam
aces % irGivitnals thus sustained, and that the
plaintiffs land Is situated within these limits but
that the cuupsAinf DOES not set forth that appi-
cation had been made to the commissioners set
tie the plaintiffs claim TIA; statutory steps
bad heSn TAKEN 10 >ecurc II The position o. the
defendant; On sryursent vas tsSi ne common
law remedy OF the plaintiff for the injury COM
planned Of IS srperoe1ed by the Statute referred
70. This Is. IN effect. plea 20 the jurisdiction.
/ for II the Court should hold that the statutory
| the complaint
The rule OF the law Is that when TIE reEnsdy
provided ey Statute : complete, the. common
law reEreiy IS s1perceded BY the Statute and the
person injured Iifst pursue the pointed
BY the Act. In such case the statutory remedy Is
not merely cumulative upon the common law ac
ton bat entire substitution for IL and mus, be
exclusively pursuedH Mills I'm. Domain. Sec -.
The cases sustaining this visw are HaSg vs.. Nor
eester, Is Gray, 6Ql; Stevens MiGdlssex letk.
| Mass. 4Sss; Calkin VS.. Baldwin. Mecd. 6S1. No
vsy vs.. Mayo. IS Ne. s., and many Others.
In Brewer vs. Chase 5, hAva. L. lS6. this CoGrt
held that at Is general rule where the common
law prevails that Statute remedy merely crru
ative. unless the common Law rernedy Is expressly
or iuplisdly repealed. But II a Ssatrfe confers
right, and adequate means Of protecting it, the
statutory renedy Is exclusive, and II the enforcing
tribunal is specified, that. alone, be rcsorsed
20. This principle WAS affirmed in Stone Aiken,
| Hsvn- L. 81
| Saws Cooley on Torts page 6S2. ~But the CON-
/ mon Law renedy may Be excluded by implication
| As well as by express negative words; and vhere
that which Constitutes the aetiouable wrong Is per
Il hrFa hns
compensation be made, and the St2tRte provides
| an adequate remedy, whereby the party injured
may obtain redress, the Inference that il was N
| tended 10 be the sole remedy must generally be
conclusive. II has been 50 held IN many cases
| WHERE land or other property has been taken for
| public under the eminent domain
As early as ISIS Parker, c. J. in Stevens ".
Mlddlesex Canal L Mass. t65l held that where
| the Legislature 1uthoriSes the making canal and
provides special mode Of redress foE those Who
are injured IA their property by the natural and
Necessary eject Of mAkir, the canal no action for
such injury lies at the common law The learned
Judge says The legislature has taken care to pro-
| vide 4 cheap, easy and Convenient mode Of ne
dress for all who might suter by the accomplish
ment Of great public object, and It must Be cUu-
sidered intended by It to deay the remedy Al
COMMON law
The same principle IS stated By HoAr, j., in City
| Of Worcester V. Commissioners Of Worcester.
the law IN regard 10 private property taken foz
public use Is undoubtedly this; that the estimate
| OF damages shall be made II the first place by or
under the authority Of some tribunal BY whom II
can b made more promptly and eheaply than BY
the intervention of jury
| The Act Of the Hawaiian Legislature, .. ~ Laws
Of 1850, "authorising the Minister of Interior 10
| take possession OF whatever land and water may
| Be required for the use Of the Honolulu Water
| Works. provides that compensation shall h.
made 10 those injured thereby, and an adequau
| remedy IS provided by which they eau obtain re
dress and By al the authorities the Inference that
this intended to be the sole remedy Is eoncll-
| sSve-
The exceptions are oveEEuled and demurrer sui-
| tanned.
W. A. Kinney and ;. B. Dole, for plaintiff; W. 4.
| Whiting, and c. W. Ashford, for defendant.
| Honolulu, January i2th, LIST