The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-12-25

Opinion Of the Court Jy PRESTON J.
This is a suit for an Injunction tc
restrain the defendant from proceed
ing with the grading Of Halekauila
street in the city of Honolulu.
The bill states that the complain
ant Is seized in fee of certain lands.
tenements and hereditaments stu
ate on and along said street. That
complainant had at a cost of over $50
600 erected warehouses on said land.
for the use OF which he was in re-
ceipt Of over $1,000 as annual rental.
That prior TO the erection of said
warehouses, at the request Of the
complainant. 5. g. Wilder, then Min
lister Of the Interior, went to said
premises with complainant, and ex-
amined the height above the ground
as 1t then was. at which complainant
proposed to erect such warehouses,
and assured complainant that as far
as the grade Of said Halekauila
street was concerned. complainant
was safe IN erecting such warehouses
al such height rs so proposed by
him, and that complainant relying
on such assurance erected said ware
houses at the same height above the
ground according to said assurance
Of said Minister Of the Interior
That the defendant is altering said
street by raising its grade several feet
above the grade thereof as indicated
as aforesaid, to complainant by said
former Minister of the Interior so
that such new grade when estab-
ished and completed, will render
said warehouses unsafe and imprac-
ticable for use, and greatly deterior-
ate and injUre the value thereof. and
diminish the value Of all complain
ants said property. And complain
ant alleges that such altering and
grading Of said street is now being
made by defendant, and in a man
ner unnecessarily deteriorating and
diminishing the value of complain
ants property by making such grade
at the least one foot higher than is
reasonably required for the public
use. And that defendant although
requested by complainant to cause
such proceedings TO be taken in the
premises for assessing the damage
likely to be sustained by complain
ant, thereby or otherwise to compen-
safe complainant for such damage,
or else to desist from such altering
of said street, and such raising of
the grade thereof, refuses to accede
to such request and claims that he
Is authorized so to act by the proYis-
ions Of Chapter LXIV. of the Ses-
sion Laws of 1856. And complain
ant submits that his property is thus
taken and about to be taken for pub
lie use without due process of law or
Just compensation, and that a writ
of Injunction ought to issue enjoin-
ing, restraining and prohibiting the
defendant, or anyone acting under
his authority or direction, from such
altering of said street, or raising the
grade thereof, as aforesaid, without
first causing compensation to be
made to the complainant for the
damage thereby caused, and likely
to be caused to his property as
aforesaid. and such writ Is thereby
PRAYED for, and for such other and
alternative relief as the nature of
the case may require and to justice
shall appertaln.
An order wassissued calling upon
the defendant to show cause why an
interlocutory injunction should not
issue. and the Attorney General ap-
peared to show cause, and filed a
plea to the jurisdiction of the Court, |
on the ground that the suit was
suit against the Hawaiian Govern
ment. and was not brought in the |
manner required by Sections , and |
3 of An Act to provide for the
bringing of suits by and against the
Hawaiian Government"
The plea was overruled and the
defendant demurred to the bill Tor
want of equity.
The demurrer was argued before
Mr.. Justice Preston who sustained 1t
The complainant appealed.
The appeal was heard at the De
tober term when the following stat
utes were cited or referred to.
Civil Code, aSection 167. The
Minister of the Interior shall be, and
Is hereby charged with the superin-
tendence and management of the
internal improvements of the King
DOM
Civil Code Section lS4. Upon
the request of fifty or more taxpayers
of any district to the Minister of the
Interior, that new road, highway
or street be opened, or that an old
road. highway or street be shut up,
or widened or altered, or if it shall
be made to appear to the Minister of
the Interior in any other way, that
any road, highway or street should
be opened. widened or otherwise al
tered. the said Minister of the In
terror shall request any Judge OF a
Court of Record to select list OF
tventv-four names from among the
legal voters of the district in which
the Improvement or alteration IS
contemplated, from which such
Judge shall direct the Marshal Of
the kingdom or the Sheriff of the
Island in which the improvement Is
contemplated, to draw jury OF SIX