The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1893-01-09
FOR A MILLION.
Contest Between Corporations
Over the Waikapu
Commons,
The Supreme Court Sets Back the Dial
to the Old Judiciary System.
The Supreme Court Sets Back the Dial

commons this morning was to be the
first before the Supreme Court in its
capacity of a strictly appellate court
under tho Judiciary Act of 1892.
Owing to the concession of a point
by Col. Macfarlane, with the object
of saving time, the Court proceeded
with the hearing under the old firm
and style, as it were. How this hap
pened will appear. below, compre-
hensible or not as it may be to the
reader of average intelligence.
Judd, G. j., Bickerton and Dole,
j., occupied the bench. Mr.. F. M.
Hatch represented the plaintiff
Hawaiian Commercial e. Sugar Co.,
while ex-Judge A. S. Hartwell, Hon.
l.. a. Thurston and Mr.. G. l.. Carter
for the defendant-Wai-
llapu Sugar Company. There were
only few spectators. Besides Hon.
Geo. w. Macfarlane, President of
the Waikapu Sugar Co., there were
present: His Excellency Major
Wodehouse, British Minister Resi-
dent; Senior A. de S. Canavarro,
Portuguese Charge dAtfaires; Mr..
Pomeroy, a prominent member of
the San Francisco bar, and, part of
the time, Judge Frear of the Circuit
Court, Hons. Saml. Parker and II.
p. Baldwin.
When the Court opened Mr.. Car
ter for the defendant objected to
the Chief Justices sitting, on the
ground that under the new Judi
ciary Act he was disqualified, he
having rendered the decision in the
Supreme Court below, on the appeal
from which this hearing was APP
pointed. The Chief Justice claim
ing the right to sit the point was
about to be argued, but Mr.. Macfar-
lane instructed his counsel to waive
the point, and the Chief Justice sat
to assist in reviewing his own deci-
sion, according to the procedure
supposed to be abolished with the
repealed law.
The case as it now came up was a
suit in equity brought by the Ha-
waiian Commercial u Sugar Com
pany against the Waikapu Sugar
Company, to obtain partition of
the Waikapu commons by setting
apart to the II. &. u S. Co. the land
heretofore used and cultivated by it,
as alleged in the bill, under parole
agreement of partition made be-
tween Claus Spreckels and Henry
Cornwell, the respective grantors of
the parties, and ratified and con
firmed by the grantees.
The bill also asks for an injunc-
ton of the Waikapu Sugar Co.'S
action against the Hawaiian Com
mercial a. Sugar Co. for recovering
possession of an undivided half Of
the commons and for $1,0OO,OOO
damages for having been excluded
therefrom. The bill further asks
for an accounting.
The Chief Justice, before whom
the case was heard, made a decree to
the effect that the II. g. a. S. Co.
had used the common property by
the consent of the w. S. Co., there
fore was not liable to account to it
for profits. From this decree an APP
peal was taken to the full Court.
The main contentious in the case
may thus be stated, viz:
|. Was the exclusive occupancy O
the commons by the H. G. ~ S. Co
amicable and consented to by the
w. S. Co?
2. Whether such occupation wa:
or was not amicable-in either cast
is the III. G. IL S. Co. liable to account
to the w. S. Co. for a share of pro
fits?
The w. 8. Co., as represented by
Geo. w. Macfarlane, owning, when
the proceedings began, half the
shares, claims: Cd That the occu
paucy by the III. G. Il S. Go. was moi
consented to by the w. S. Co., ant
(2) that whether it was consented tt
or was not, the II. G. ~ S. Co. mus
in either case account to the W
S. Co. for profits made by it
exclusive occupancy of the common
property.
Mr. Carter read the pleadings Oh
behalf of the original plaintiff, Col
Macfarlane, and, when he concluded
submitted that his client had TIN
privilege OF opening and closing TIN
argument.
Mr.. Hatch held that according t.
the practice the plaintiff in equit
had the opening and closing.
Mr., Thurston maintained that tn
Waikapu Sugar Company having es
tablished certain position, the bun
den of proof to displace it reste
with the plaintiff company. In
case of such Importance, however, h
thought that an opportunity shout
be given either party to reply to an
statement of fact or law made b
the other
The Chief Justice gave the opinio
of the Court in accordance with NJ
Thurston's latter presumption.
Mr.. Hatch then began his argl
ment for the Hawaiian Commerce;
~ Sugar Company. This compan
, had raised sugar on the land held j
) common through having supply {
water for its irrigation, The Wa
! kapu Company had also raised suga
! but much smaller area than til
. other.
: In answer to the Court Mr. Hate
I made a statement of the dilIcrel
r areas cultivated.
7 Mr. Thurston interpolated tia
! the Waikapu Co, had cultivated ~
acres, the II, G. n $, Go, 1000 acre