The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-04-24

JUDD c.J u GULLY J., PRESTON J., BIcKEBToN j.
AND DoLEJ.
IN THE MATTER OF THE APPLICA-
TIoN OF ROBERT LIsHMAN FOR A
DIVISION FENCE BETWEEN KULI-
oUoU AND NIU.
Opinion of the Court per McC ULLYJ.
This is an appeal from the decis-
son of the Fence Commissioners Of
the district of Honolulu, Island of
Oahu. Upon the application of Mr.
Lishman the Commissioners made
the following award:
efThe undersigned, Commissioners
of Fences for the district of Kona,
Island of Oahu, Hawaiian Islands,
having examined the fence situated
between the land leased by Mrs.
Perry from c. Lucas, and the land
occupied by Rob't Lishman at Niu,
in said Island of Oahu, do hereby
decide that a wire fence of legal
height is required between said
lands: said fence to extend from end
Of stone wall NOW existing and built
by NJ Pico) to woodland.
"Each party to pay one-half %
the expenses necessary for the erect
ing said fence"
(Signed by the Commissioners
The said Mrs. Perry appeals upon
the ground that no "public notice"
was given by the Commissioners. 1t
is admitted that the only notice
given by the Commissioners was a
notification to Mrs. Perry and that
Mrs. Perry was represented by two
persons when the Commissioners and
the petitioner viewed the premises.
Public notice must mean a notice
TO the public, and is not made by
one or several notices to one or sew
eral individuals. The statute re-
Quires public notice to be given
without prescribing themethod.
Some methods of "public notice"
prescribed in other statutes are Sec
ton 237, page So, of Compiled Laws,
of the pound master, who is required
10 publish an account of estrays, in
some newspaper both in the Hawai-
ian and English languages, or to post
written notices weekly in both Ian
guages in three public places in his
district and also to make a UiUG Uoce
proclamation weekly in said Ian
guages.
Section 1888, p. $50, Comp. Laws,
requires a guardian selling real es-
tate, to give "public notice" of the
time and place of sale, by causing
notifications to be posted up in the
most public places on the island
where the estate to be sold is, and if
it be on the island of Oahu, notice is
10 be given in newspaper at least
fourteen days previous to the day of
sale.
The Act relating to the Commits
sioners of Private Ways and Water
Rights, p. 1874, Acts of 1886, does
not in terms require ''public notice."
but provides for personal summons
on all parties interested in the con-
troversy, and when such party can
not be found, for notice by posters
on the premises or by advertisement
in newspapers.
Notice given by the Commissioners
of Fences, in some of the forms
above prescribed as ''publice notice"
would satisfy this statute. 1t is not
for the Court to amend a statute by
q particular requirement.
We must hold that the Commits
sioners failed to execute q necessary
preliminary to their action, and that
the decree is void in consequence,
The appellant also claimed that
the decree was Intellectual in not
complying with the statute by "des-
ignating the time within which the
work shall be done" This is essen
tial, in order to enable the other
party, being aggrieved by the non
performance of the work, to do. it
and recover the expense thereof as
the same shall be assessed by the
Commissioners. This error of the
Commissioners might be corrected
by remanding the case to them, but
we have held that the whole pro-
ceeding is void.
The fault in the proceeding lying
with the Commissioners, we consider
that they are not entitled to their
fees for these proceedings.
c. Brown for appellant; w. o.
Smith for appellee.
Honolulu, April IS, 1888.
Supreme Court of the Hawaiian ISL
I'D In Rnnnn. mil Tenn, 1888