The Hawaiian gazette., 1888-05-01

lions 10 the rulings Of the Chief JUS
tice at the January term, 1888.
The plaintiff claimed of the de-
fendant $500 damages, for obstruct-
ing and closing a right of way. At
the close Of plaintiffs case, defend
ants counsel moved that the Court
do instruct the jury to bring in a
verdict for the defendant, claiming
that the Commissioners Of Private
Ways and Water Rights had exclu-
sive Jurisdiction to determine con-
troversies rs to private ways and that
defendants denial Of the right Of
way claimed, ousted the Court of its
jurisdiction 10 determine said right
OF 70 assess damages for its obstruc-
tior. until the right had been first
established before said Commission
ers.
The Court declined to instruct the
Jury a. above requested, and in
structed the jury that If they found
? right Of way 70 exist, As claimed
OK plaintiffs, and that it was OBJ
structed by defendant, they might
find damages for the plaintiffs, to
which instruction and refusal to in
struct. defendant duly excepted.
After defendant had offered certain
evidence, tending to show that there
was no right OF way as claimed, and
the Court had charged the jury, the
Jury found Il verdict for plaintiffs
with eighteen dollars damages.
Ii appears by deed, dated 18th of
August, 1855. and recorded on the
same date. that one kaaahu Nv. sold
and conveyed TO defendant q certain
piece of land situated at kamakela.
Honolulu, described by metes and
bounds, and also q right of way eight
feet wide along and adjoining the
south side OF said premises. That
the same person, Kaaahu W. sold
and conveyed by deed. dated 18th
May, 1887, recorded 9th May, 1887,
10 defendant piece of land adjoin-
ing the said land of plaintiffs de-
scribed by metes and bounds, there
being condition in the deed that
defendant shall sell right Of way TO
the people living mauka of this land
If they desire it, and that said right
Of way shall not exceed eight feet
wide and shall run straight along
the side of plaintiffs lot, through to
the mauka side of this lot.
This certainly would seem to refer
70 the extension of the right of way
already granted to plaintiffs by their
deed. Both plaintiffs and defendant
are the grantees of the same grantor.
aud the plaintiffs deed being of rec
ord. the defendant had notice of the
sale Of this right Of way to plaintiffs
along the whole length of the south
line Of their lot: it was and is an es-
Gablished and vested right purchased
by them and set forth in their deed.
Eaaahu (w.l could not sell and con-
vey to defendant what she mad al
ready parted with. There was no
right for the Commissioners to estab-
lish. for it was already established,
and they. the Commissioners, could
not have assessed damages for the
obstruction Of this right of way which
was the only object of this action,
viz: 10 recover damages.
We do not consider that the stat
ute contemplated cases of this nature
being brought before the Commits
-;-,,,,,.. 20 Dr;x-ofa NUayS
The question as to the Commits
sioners of Private Ways having ex-
elusive jurisdiction over causes Of
this nature, is controlled by the case
Of Stone IS. W. F.. Allen, Hawn. 621
and authorities there cited. In that
ease the Court say q that another
tribunal provided for by statute has
merely concurrent jurisdiction, I'M
less there be express words or words
from which It may be implied that
Fl vas intended to be exclusive
Also. So if a statute gives rem
adv il the affirmative without
negative expressed or iInplied) for
matter which was actionable by the
common law, the party may sue at
common law" l Comyn's Digest
Stat. C.
In Chapter % Laws 1886, See.
i. we find the following: "Any per-
sons interested, or the Government
may apply for the settlement OF any
rights involved hereunder, etc.
The above quoted phrase is signiti-
can't Of the special function Of this
Board.
We have remarked that it is not a
tribunal for the recovery Of damages.
Its function Is TO determine and
award rights for the future. 1t may
award a right Of way from necessity
when there had been no breach OF
right.
Itmay determine the rights Of a
whole neighborhood. Here interest
viii qualify person to petition for