The Hawaiian gazette., 1888-06-12
In the S upreme Court of the Hawaiian
ISlands--In Equity.
THE UN wo SANG COMPANY VS.. t.
AUO AND All Wa
Decision.

planters on the Island of Kauai under
the name of the Tn Wo Sang Com
pany against T. Alo and All Wa.
The bill alleges in substance that
Tong Chan Pae kanah and the de-
PENDANT Alo as father and natural
guardian of the defendant All Wa
Tong Wa, a minor. demiSed certain
lands at Waipa, on the Island of
Kauai, 10 Kwai Hee and Gee Chan
ion behalf Of the plaintiff company
for a term of fifteen years from the
first iav of November, 1SS2, at an an
uual rental of $3.50, and that the
lessons, bv such lease, covenanted that
they would not buy or lease from the
owners OF kuleanas any kuleanas
lying or being within the premises
demised by said lease. That after
wards, to wit on the 9th November,
1852, the defendant AlO obtained from
one Chairman lease for the term of
fifteen wears from the nth November,
1882, at yearly rental Of SO OF GER
tain land living wholly or in part
within the premises demised under
the first mentioned lease, and AYERS
that the taking of the said lease from
Chairman was a violation of the said
covenant. That within the premises
demised by said lease from Chairman
j a valuable water-courSe whereby
the premises demised 10 plaintiffs
necessarily obtain water for irrigation,
and which said water-course, together
with the water-right belonging there
10. plaintiffs were at the time OF
taking their aforesaid Lessee informed
by their said lessons, was demlsed
unto them as appurtenant 10 the de
missed premises. That subsequently
plaintiffs aseertained that said water
right would be taken from them, ana
that they could enjoy the use thereof
only by taking from defendant Alo
an assignment thereof for an annual
rental of 500, and accordingly, and
in ignorance of their rights in the
PREMISES. plaintiffs, on the 18th No
yember. lSS2, took from said Alo a
lease of said water right for fifteen
Vesrs from the first of said month at
sn annual rental OF 500, which rent,
amounting 10 5000, had been paid
until the first of November, 1856.
That on the 24th February, 1857, Alo
brought suit in the District Court OF
Hanalei against plaintiffs for the sum
OF 500 for one years rent under SAID
aforementioned lease and obtained
Judgment therefor, which judgment
was affirmed on appeal, and that exc
cution thereon had been issued. That
plaintiffs have requested defendant to
accept 8 surrender and cancellation OF
said lease of said water right, and 10
repay TO the plaintiffs the sum OF
$500 less the rentals accrued in said
lease from Chairman, and to assign to
plaintiffs said lease, subject 10 their
covenant TO pay the rental and to do
. all things therein required OF the les
see, and TO cause said execution TO be
STAYED, and a retraNit of said judg-
ment 10 be entered, with all OF hlch
rl,e defendants have declined TO COM
ply.
me bill prays that defendant be or
dered 10 accept such surrender and
cancellation of said lease of said water
right, and TO repay TO plaintiffs said
$500 less the moneys paid To Char
man for rent, and 70 assign TO plain
titfs said lease from Chairman subject
as aforesaid. and in the meanwhile
that defendant be decreed TO be trus-
tees for the plaintiffs of said lease,
and and for an order on the Sheriff 10
stav execution, plaintiff paying into
Court the sum OF $50 as security
also for alternative relief and for an
Injunction restraining proceedings at
law, etc.
An interlocutory injunction was
granted in terms of the prayer.
The defendants by their answer,
sitter traversing several Of the allega-
tons in the bill, say that al the time
said lease Of October Goth, 1852, was
granted to plaintiffs the rent de-
manded was 81, 900 per annum, but
that it was subsequently agreed that
the rent should be reduced TO 81 $50,
and that the rent for the water right
belonging to defendant Alo should be
paid for separately. That, in cOnse-
duence OF said agreement, the lands
mentioned in the lease Of 22d October,
lss2. were rented for said sum oil
$3.50 per annum, and the lease en-
tered into between AlO, who was the
sole owner of the water right, and the
plaintiffs, whereby they agreed to pay
to said AlO 500 per annum for the
use Of the water right appurtenant to
the land of Chairman. That before
the lease was entered into THAT OF
18th October, 1882, TO wit: In No
Vember, 1851, the defendant Alo
was in the rightful and peace
able possession of the land of Char
man and its appurtenances under 8
lease executed by Chairman which
was, by accident, mutilated and
effaced, and for that reason only 8
new instrument Vas made out for the
remainder of the term created by said
lease, and that the covensnt relied
upon eouId not and did not relate tC
the lands so leased by the defendant
from Chairman.
At the hearing evidence was given
by the defendants in support Of theil
alleged agreement for the division o.
the rent into two sums; but this wa:
eontradicted by witnesses on behal
Of the plaintiffs, and the discrepancie:
between the two cannot be reconciled
but the evidence of Chairman proves
the allegations of the defendant as Il
the existence OF the prior lease of No
vember, ISL, and the reasons TO
making the second lease, which i
claimed TO be in violation Of til,
covenant.
This testimony of Chairman appear
TO be contrary TO the evidence givel
by him in a prior suit between tn
parties, but is explained by his state
ment that he was not examined as Z
this matter particularly; but it
.1ou fir11ed by the DrOducfiOu of q rom