The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-01-11

JldG tue court SUOuIU uuu luhb Tue
justification offered by the plain
tiff for its admitted exclusive
use is not sustained by proof, and
thereupon should decree that the
plaintiff account to the defendant
for such exclusive use of the com
mon property.
The law of Hawaii is the same on
this subject as that of Vermont and
and Virginia, and is so decided In
cases cited in former briefs. 1t is a
doctrine which is reasonable and just
and adapted to agricultural States.
According to that view the plaintiff
in the present case may be required
to account to the defendant for all
profits it has received from the com
mons from any source, irrespective of
the question of an custer or occupa-
ton by consent, the mere fact of using
all of the property or any part of it
to greater extent than denoted by
the co-tenant's share, requiring him
to equalize by dividing the proceeds.
But whatever view is taken of the
right of a co-tenant In cases OF
leasing where neither is in posses
sion, or of profits made by one who
cultivates but does not actually
dispossess or exclude the other. there
was never any doubt that a CO tenant
who excludes or prevents the other
from occupying or cultivating is
liable in tort for resulting damages,
or, according to many Courts, at the
option of the injured party, the tort
may be waived and the trespasser
held to account either for use and
occupation or for mesne profits.
In such cases the wrong doer
ought not to say whether the dam
ages caused by his wrong shall be
measured by the rental which he
would have had to pay for the land
if he had got it rightfully, nor yet
by the profits which he has made or
not made. Ii he has prevented his
co tenant from leasing or cultivating,
he should pay the full damages he
has caused, and the claimant should
be allowed to show such damages
either by evidence of what was made
or of what certainly might have been
made.
The excluded co tenant is entitled
by Hawaiian as we'll as English and
American law and precedent, to re
cover from the wrong doer such
damages as will reasonably compen-
safe for the wrong done and the loss
sustained. There is no other general
rule in such cases. 1t may be said
that il the tenant in possession be
lieved himself to be the sole owner,
he ought not to pay so much to the
injured party as when he knew he
was not the sole owner. But as the
injury is no less in one case than the
other, the law makes no such distinc
ton, unless express malice is shown
which authorizes exemplary dam.
ages.
What is the actual loss in such
cases q? Ii the tenant wrongfully in
possession has been fortunate in
getting good rent, the co tenant is
the loser of the half of the rent
money, no less and no more, than he
is the loser of half the money made
by utilizing the property by cultiva-
ton. The injured party had just as
much right to cultivate and make
profits, and he is entitled to share in
what the wrong doer has made. This
is the reasonable and just view.
There are several agreements which
may be made between CO tenants
For example, an agreement that one
tenant have all the use and take all
the profits for nothing. Such agree
ments are not very often made by
human beings. Perhaps Colonel
Macfarlane and Mr.. Cornwell were
differently constituted from other
human beings, and had intended to
make such an agreement. But he
believed very few people would think
these gentlemen intended to benevo
lently assist Mr.. Spreckels in his
great enterprises by giving him the
use of all this valuable land fol
nothing. That was not common
sense. There are cases when one
looks on and sees others making
valuable improvements, and thereby
consents to it f; but this is certainly
not such, and in all such cases the
presumption would be one of fact
As a matter of fact, the Waikapr
Company could have used this land
and got water of Waihee or from the
Hamakua ditch. Such being the
case, the Waikapu Company mig al
have made big profits by letting the
land to others if they had not wanted
to cultivate it themselves. They ought
to have had high rental from the
Hawaiian Commercial Company
The Waikapu Company was willing
to let the Hawaiian Commercial Co
have the land on a proper compen.
sation but the latter company was
ready to take the land, but not te
pay for it. 1t must now take the
consequences and pay what the Law
allows. There is not a particle oil
evidence that the Waikapu Company
ever admitted the right of the Ha
waiian Commercial Co. to use all the
valuable land without compensation
The Waikapu Co. made an effort tc
get settlement, or, in other words
to get its claim for compensation
satisfied. There was no principle Of
justice or rule Of law which would
allow one CO tenant to draw all the
use and profit from the common pro
perty without accounting for it tt
his co-tenant. The exclusion doe:
not mean taking one by the shoulder
and putting him out Exclusion
means such a use of the property a:
prevents the other tenant from using
it. The bitches and fences and steam
plows of the Hawaiian Commercial
Company made it impossible for the
| Waikanu Comnanv to make anv nsf