The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-10-12

10 fence; and when tue defendants
cattle broke into it. defendant was
notified and took them ont. The
cattle were not treated as trespassers.
II the separate occupation was not
IN pursuance Of an agreement OF this
it Is difficult TO account
for these facts.
Consistent with this occupation
being by consent is the agreement in
writing made by Henry Cornwell and
Claus Spreckels to divide aud make
partition Of any lands owned by them
IL common on Maui-more especially |
the tract Of land, one undivided half /
of which was sold by Cornwell TO .
Spreckels. 1t is dated the 18th. of /
August, 1881, over four years after
Mr.. T. Cornwell had sold his interest |
in the lanl to Messrs Macfarlane and /
CornwelI, and no one can explain
how Mr.. H. Cornwell undertook TO ex
ercise ownership over this land. The
only explanation can suggest that
as mortgage he thought he lad this
right, and he was then in possession
Oft, grazing his cattle thereon, which
use continued till 1888 or 1884 But
the agreement has significance as
showing his Willingness to divide the
land, and it is not violent assump-
ton to find that, as the actual occu
patton thereafter Of Mr.. Spreckels
was of the same territory that Mr.W.
ii. COrnWell says would naturally
fall to him, adopting the sand hills
as the natural dividing line, it was in
pursuance OF All agreement or under
standing to that effect.
do not find it necessary to hold
in this case that there had been a
voluntary partition by parole, though
the facts are all consistent with it.
But do find that the separate occu-
patton by both parties was amicable
and by permission Of the other, and
without denial of title by either, and
without demand by either one to be
let into the part occupied by the
other. One part Of Mr. Macfarlane's
testimony is difficult TO reconcile
with the other. He says he wished
compensation for use and occupation,
and not partition, and he also says
that he wished owelty or compensa-
ton in partition for the excess of
value OF the part used by plaintiff
over the half. am led to the opin-
! ion, after careful consideration of
his evidence, that he never made,
until his suit was begun, any definite
claim upon the plaintiff. His Pc
cuniary obligations to the Spreckels'
prevented this, he says. Bnt though
this pressure would naturally influ-
ence one | cannot consider business
necessity such legal duress as would
deprive HIM Of the exercise of his
free will. See Am Ency, Law, vol.
6, p. 81.
Has the defendant corporation
shown an ouster2 An custer is a
wrongful dispossession or exclusion
of party from real property who is
entitled to the possession. The in
tent with which the possession is
taken is material In showing an
custer between tenants in common,
for stranger having no title may
enter land and exercise acts OF own
ership over it and leave little room
to doubt that he thereby intends &c
GUST the true owner. But a CO tenant
may enter the whole or any part Of
the common estate, as he has lega.
right to do, and the law presumes
that he intends to do nothing beyond
the assertion Of his right. Therefore
there must be stronger evidence tx
prove that one tenant has Ousted an
other than to prove that persoi
, having no right to the possession ha
ousted the owner. The proof ough
, to be Of the most satisfactory nature
, Freeman Co Ten. & Par, section 221
and cases there cited. The law vii
; deem the possession of one tenan
! in common to have continued ami
cable until the tenant out Of posses
, sion has in some method been mott
, fed that it has become hostile
! Miller VS.. Myers, 46 Cal, $780, TIL
! acts relied upon to prove custer mus
: be such as would constitute an ouste
: between landlord and tenant. Buck
q master VS.. Needham, % Vt, 623.
a To establish an adverse possessio
Q by one tenant in common such a
t will effect the custer of his co-tenan
+ notice in fact OF adverse claim is re
d CURED, or unequivocal acts, ope
r and public, making the possession S
L visible, hostile, exclusive and motor
y Gus that notice may be fairly PR
0 sumed. Culver VS.. Rhodes, 81 n. Y
n 349.
In the vast majority of cases CITED
Q and which [ have looked at, the po
Q session by one tenant has been of th
b entire premises, and here the leg;
t. presumption is that that the tenal
!; in possession of the whole holds NJ
q only for himself, but for his cotel
70 ants, according to their interests an
g the joint owners out of possesslC
u have right to SO understand unit
l. they have notice to the contrar
r. Roberts vs.. Morgan, 80 Vt, 324.
s And 1 have come to the conclusiC
that an exclusive possession Of pa
10 of the common property may be take
b by CO tenant with the intent to on
his co-tenant Of it. That may ext
e. when the act is inconsistent with tt
It common title and the right of tt
e other tenant to use and enjoy Il
g same. I find this in Carpenter
Ie Webster, q Cal, SIS. Here the plai
10 tiff and defendant owned land
L l.,