The Hawaiian gazette., 1884-08-20
Supreme Court OF the Hawaiian Islands,
In Bauco, July Term, 1884,
VIC. AcH AND H. n. CASTLE vs.. Pos1
AND AMI.
Judd, {. j., MeCaHy and Austin, J. J. Opinion
ConI-f BIZ Judd. q. j

Judd, C. j., MeCaHy aud Austin, J. }. Opinion Of
Court BY Jpdd, c. j.
This is an appeal from the Commission
ers of Private ways and Water Rights for
the District of Honolulu.
1t appears that the plaintiffs are owners,
by deed, dated February I'd, 1884, of
parcel of land bordering upon the Nuuanu
stream west of Maunakea street and be
tween Beretania and King streets. There
are two narrow lanes leading from Mau-
nakea street in towards the river The
lot in question is between these two lanes
but Is cut off from both of them by inter
vening lots
This neighborhood Is quite thickly popu-
lated by natives and Chinese. The lots
are small and of irregular shapes and ex-
ceedingly inconvenient of access.
The nearest lane to the lot owned by
plaintiffs, leading out to Maunakea street,
is called "Kaaiones" or Williams Lane
This lane passes by the lots owned by the
defendants POM and Ami and goes no
further
The Commissioners decided that the
plaintiff should have a right of way six
feet wide, cutting off three feet from each
of the lots where they adjoin each other.
1t appears that for some time previous
to the time when the plaintiffs bought,
the access to this lot was at another cor
ner by permission of the land owners over
which the way passed, and that this is
now closed up, so that there is now no
way open by which plaintiffs premises can
be reached except by boat by way of the
river which is impracticable. The plain
tifs ask the right of way from necessity.
1t seems that the lots owned by plaintiffs
and the two defendants were originally
parts of the same title Royal Patent 5657
and that j. kakina sold the whole piece
of land bordering on the lane to POM,
himself having egress to the street by per
mission of other land owners by an open
ing now closed.
Kakina did not reserve in the deed a
right of way to his land.
POM sold piece of this lot to Ami. 1t
is claimed that when j. Kakina sold to
POM the law presumed that he reserved a
right of way by which he could approach
his own land, and that his grantees are
entitled to the same privilege.
In 3 Kent's Com. S421, the author says
" If man hath several distinct parcels OF
|
surrounded by the others, and to which
he has no way or passage except over one
of the lots he has sold, it has been made a
| question, whether he be entitled to a
right of way against his own deed, when
he has been so improvident as to reserve
none
1T is said in Clark VS.. Cogge (Cro. JAG
100 that the law reserves to him right
of way from necessity" The law re
sumes a right of way reserved, or rather
gives a new way from the necessity of the
case, and the new right of way ceases with
the necessity for it. This principal Of
law has been for a long time recognized
In Buckley VS. Coles % Farmton 81
it was decided that if a person owned
close A., and passage of necessity to il
over close 3. and he purchased close B
and thereby united in himself the title tc
both closes, yet if he afterwards sold close
b. to one person without any reservation
and then close A. to another person, the
purchaser of close A. has right of way
over close b. This case says Kent
seems to put an end to all doubts as t.
the existence Of right of way from neces
sity even over the land which the claimant
of the way.previously sold"
Kent says further " that the right of the
grantor to right of way over the land hc
has sold to his remaining land must b,
founded upon an implied restriction Incl
dent to the grant, and that it cannot BIZ
supposed the grantor meant to deprive
himself of all use of remaining lands.
We think this principle is sound ant
eminently Just. And there is no reason
why it should not be held to apply in favol
of the plaintiffs, who are assignees o.
Points grantor, j. Kakina. When Kakini
sold to POM, Poni's whole lot was the1
charged with the right of way, in order tC
afford access to what remained of Kakina.
land. POM sells to Ami and makes nj
reservation of the right of way in the deed
1t musT be presumed that the right to
way to the Kakina lot was still existing
and it must be over the land remaining il
POM, for he stands to this extent in IA
xmas shoes.
Onlprinciple, therefore, this right of wal
must pass over Poni's land. Undoubtedly
the Commissioners thought that the los
sustained by the right of way should b,
equally borne by POM and Ami
The Commissioners are authorized by
statute to make such decision as may il
each particular case appear to them jus
and equitable, but not contrary to vel
settled principles of law
This court has the same jurisdiction OF
appeal.
Points house was nearly the whole length
of his lot, but there is space on the sid,
towards Maunakea street upon which Their,
are no substantial buildings Here W,
think the plaintiffs right of way should b,
located, and accordingly adjudge tina
plaintiffs have right of way from thei
land to Williams lane over the land O
POM, the way to be located across the enc
of the lot nearest to Maunakea street, anC
to be in width the space between the pres
ent fence and Points house as it now stands
The plaintiffs to build q suitable fence ad
joining Points house, but not touching it
w. r. Castle for plaintiffs, j. L. Kaulu
kou for defendants.
Honolulu, August Il, 1884
Supreme Court of the Hawaiian Islands. -
In Banco. July Term, 1884