The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-05-29

OPINION OF THE COURT PER JUDD, G. j.
The Commissioner awarded to De.
toner a right of way three feet
wide over the land of Pelani (w.) at
Kalaepohaku, Kapalama, Honolulu,
Oahu.
1t was located by the Commission
er to begin " at the north corner of
Pelani's land (sold by r. Keelikolani
to Kuhiana by deed recorded in Liber
80, p. 412) at stone wall and runs
along the northwest boundary of
Kuhiana, to i. G. Award 1926,
thence across portion of this award
to and across an auwai." The de
PENDANTS appealed. It appears from
the testimony that this lot called
Kuhianas was unfenced for many
years previous to the sale to Kuhi-
ana, and that the persons occupying
the land makai of it, now owned by
Mr.. Shaw, had access to the Govern
ment road through every part of the
kuhiana lot as it suited their conve-
nience. On the sale to Kuhiana in
1875 it was fenced and built upon
and afterwards divided to Kuhiana's
heirs, one of whom is Pelani (w.),
defendant. Mr.. Shaw's predecessors
in the title, and his tenants since his
purchase of the land below in 1886,
were accustomed to pass through
gate in Pelani's fence on the Gov
eminent road, over her land to
gate in fence which separated the
house lot from her cultivated land
below leased to All Ling, defendant,
and along a kuauna or bank to Mr..
Shaw's land. This last mentioned
gate was closed by All Ling. defend
ant, and caused this application.
1t is clear that the right of way
claimed by the petitioner, Mr.. Shaw,
has not been acquired by prescrip-
ton, for its uses only began in 1875,
when the fences were put up.
We think, however, that Mr.. Shaw
is entitled to right of way to his
land from the Government road
manka which leads to the stone
quarry and out to King street on the
easterly side of Kamehameha school
premises. He is entitled to 1t by
necessity. But the Commissioner
has located it very inconveniently
for Pelani ivy. Ii would cut through
the back part of stable that has
been apparently standing for many
years. We noticed on our visit to
the locus in quo that MIR. Shaw has
land adjoining the Pelani lot extend
ing to the Government road. Why
should not the right of way be award
ed to petitioner over his own land as
far as it extends? The statute re-
quires that the decision shall be
equitable" and we think it would
be inequitable to award one right
of way over another's land, causing
the removal of buildings, when it
can be avoided.
1t was stated in argument and adj
mitted by counsel on both sides that
this lot is under lease by Mr. Shaw
to All Ling, one of the defendants.
1t is cultivated in bananas. The
judgment of the Commissioner is
reversed, and we award right of
way three feet wide, beginning at the
stone wall On the Government road
in question, and running on the
Shaw land marked No. 2 on the map
filed) along its easterly side, where
it adjoins the Pelani lot. The right
of way is to run makai at right
angles, as near as may be, to the
Government road, and to continue on
through the Shaw lot marked No. 2,
to and through the L shaped part of
the Pelani lot marked "E " on the
map over the auwai to the Shaw
land marked No. 3 on the map. The
right of way is not to be fenced out.
The expense of opening the way is
to be borne by the petitioner.
Each party to pay his own costs.
w. o. Smith for petitioner; S. K.
Kane for defendants.
Honolulu, April Is, 1891.