The Hawaiian gazette., 1888-09-18

JUDD. o.I.; M'oULLY, PRESTON, BIcKBBToN
AND DOLE, u.
Opinion of the Court by MeCUIiy, J
Counsel for the plaintiff moves the
Court to hear re-argument on the
bill.
In Kenway VS.. Motley. Haw 123,
on motion for re-argument, the
court cites and adopts the rules of
the n. Y Court of Appeals in Mount
VS.. Mitchell, 81 \. Y. 102, IN these
words: "Motions for re-argument
should be founded on papers show
ing clearly that some question de-
cisiye of the case, and duly submitted
by counsel, has been overlooked by
the court. or that the decision is in
conflict with an express statute. or
with q controlling decision, to which
the attention of the court was not
drawn, through the neglect or mad
vertence of counsel"
The counsel for plaintiff sets out
the grounds on which his melton is
based as follows:
l. The plaintiffs in taking their
rice plantation lease from the de-
PENDANTS and others, saw the prem
ises watered from water-course of
which these defendants held sepa-
rate lease. Whether the defendants
informed the plaintiffs that the wa
ter-course was appurtenant to and
passed with the demised premises,
as ayerred in the bill, or not, as
averred in the answer, the fact that
it was made sppurtenant by the act
of one of the lessons is enough to
make it pass under the lease as one
of the appurtenances.
2. The proofs do not suffice to sus-
tain the averment in the answer, that
the rental at first demanded for this
lease was reduced from $1,000 to
$3.50 upon the plaintiffs agreement
to take from these defendants the
lease of the water-course for $500:
on the contrary. it is shown that the
lease Of the Water-course was taken
by one of the plaintiffs at Kauai after
he had learned that otherwise Alo
would cut of the water, and that the
original lease for 1880 was made
without any prior or contemporaries
Gus agreement that the later 5000
lease should be taken.
3. The lessons covenant in the first
lease, that they would lease no kule-
anas within the leased premises, was
not broken by the existence, although
unknown to the plaintiffs, of the
prior lease from Chairman to the de-
PENDANT Alo. OF a kuleana with this
water-eourse within the demised
premises.
4. To lease land and all its appur-
tenances to another by lease which
contains no exception or reservation,
authorizes the lessee to infer that all
the actual existing appurtenanees
were meant to pass with the lease,
for such is the law. Consequently
the subsequent lease of an appurte-
nance which the first lease had al
ready demised gave nothing to the
lessee. and must be decreed to be
void as without consideration and
obtained by actual or constructive
fraud. The further relief appropri-
ate for the case Is the repayment Of
the rentals. $500 in all. which have
been made on the lease OF the water
course. and q decree that the defend
ant be trustee OF the Chairman lease
to the use OF the plaintiffs.
). The bill. II Is true. especially
asks Tor relief Oh the ayerment that
the subsequent taking Of the Char
man lease by Alo was a breach of the
covenant above mentioned. This
ground Is not sustained by the
proofs. But the other facts averred
in the bill. and above mentioned, en-
title the plaintiffs 70 the same relief.
6. The bill particularly ayerring
that the Yater-course was necessary
for irrigating the demised premises
that the lessons informed the plant
ifs that it was demised to them as
appurtenant; and that the plaintiffs
in ignorance OF their rights, and
upon ascertaining that otherwise the
water would be diverted. took the
lease Of the Hater-course which was
their own property, there Is no occa-
sion to dismiss the bill and leave the
plaintiffs to their remedy by third
bill.
By THE Court.
The substantial ground claimed Is
set forth in paragraph l. where it Is
stated that the fact that it. the leased
kuleana and water right, was made