The Hawaiian gazette., 1885-07-01


Appeal from the Commissioners of rights Of
way and water.
The plaintiff is the owner of lot Of land,
held by Royal Patent, based on land commits
sion award, in the district of Puukolo, Homo
| lulu. 1t is an interior lot, not lying on any
street. There is access to it now by passage
over defendants land, between buildings, o.
about three feet wide. The plaintiff claims 10
be entitled by prescnptive right to passage
AT this point, Of nine feet wide, when mas oeen
INSTRUCTED to this extent by small building
placed there by the defendant three or four
years ago.
The plaintiffs patent, No. 1923 is dated Au-
gust 30th, 1863, based on Land Commission
Award No. 2944 B dated December l4th, 1897
The defendants patent is dated April l.th'
1854, No. l645 based on Land commission
Award, No. go dated April 10th, 1872
So far as the relation of dominant and ser
v;ent Estates or easements established by user
depepds on paper title they must be held to
run from the date Of award in the case OF
grants made by award, and not from the date
Of roval patents subsequently issued based on
| the award. See the act 10 provide for the DIS
solution of the Board of Commissioners to Quiet
Land Titles, approved July goth; 1854, found
on mage AIS of the Civil Code, which 10 sec
ton enacts that any award Of the Land Com
| mission not appealed from within ninety days
shall be good and sufficient title 70
the person receiving such award, and shall
furnish as good and sufficient a ground on
which TO maintain an action for trespass, eject
ment or other real action as if the claimant
had received royal patent for the same.
See also Bruins VS.. Minister Of Interior, 3
Haw. 7s3. The defendants deyisor died in
1869. The defendant aud his co-devisee be-
Ing then minors OF the ages Of ten and seven
years respectively.
Assuming for the present that the kind Of
user which is sufficient TO establish an ease
ment of right of way existed from the year
1852 to 1869, seventeen years, and thereafter
during the minority Of the devisees, and after
thov arrived at majority, until three or four
years ago when this obstruction, a small build
ing, was placed in the way, we are asked TO
consider then, whether the progress OF the
user is suspended through the minority of the
heir or devisee, whether the time before such
suspension may be brought forward and added
to the time running after 1t, and finally
whether twenty years is required TO complete
right by user in this Kingdom.
In Rookie rs. Nicholson, Haw. 256 the Court
held that it would not be reasonable or neces-
sary to require twenty years continuous use to
create a prescriptive right of way in this
country, saying that to 60 back twenty years
would indeed carry us into the region Of
chaos. This case was heard in 1856. To
have gone back to the year 1886 would indeed
have been going 10 a time prior to establish
pent of rights as regulated by modern law.
And the Court held that proof of a user since
1876, the date Of the organization Of the Gov
eminent, ought to be regarded as good foun-
dation for right by prescription. So much
we quote in reply 10 the position taken by de-
PENDANTS counsel that the user could be
counted to rur only from the date of the pat
ent, or as we have already said from the
award. The plaintiff, Rookie, had only re-
ceived patent for his land in ls49, but the
Court considered that his user from 1889
when he obtained lease from the King and
Premier, was to be reckoned in the time he
was acquiring rights.
A grant of the land by the Government by
what is called kuleana award may well be
considered for the purpose Of determining APP
purtenant rights to be the confirmation of an
equitable right previously existing in the
grantee, and for this purpose therefore, proof
of user may run from a time antecedent 70
the granting Of the award. This was SO held
III IlOUhc w. NtltOtetH db luOldu hDONS.
Thereis satisfactory evidence before US that
there was user of way as claimed by the
plaintiff, since the year 1916. Over twenty
years would have elapsed prior to the death
Of Kalua Pakohana and the right Of way would
be established by prescription.
In this view il will not be necessary to con-
slider now the question whether the time Of
prescription was suspended during the minor
ity of the devisees or whether in that case the
time of previous user should be added to the
following period, or thewholv time must be
made after the minority of the heirs or devil
sees had passed, concerning all which ques-
lions we have found the authorities are con-
fiiCting.
The principal evidence relied on 10 rebut
the proof of user is that of gate set up and
maintained by Pakohana But there may be
a gate across private way without an asEer-
ton of right TO close the way; and such sp-
pears to be the state of facts in this case
for the purpose Of excluding wandering sailors
and drunken persons from the interior close
There is no satisfactory evidence that Pako-
hama attempted to exclude the tenants Of plain
lifts premises. There was a gate also il
Rookie VS.. Nicholson, but it was not consid-
cred to be claim TO bar lawful ingress tC
and egress from the premises entitled to the
enjoyment of the way.
We confirm the Judgment made by the Board
of Commissioners for the plaintiff.
W. R. Castle for plaintiff; A. S. Hartwell
for defendant
Honolulu, June Is, 1855.
Hu .4r