The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-07-25
OPINION OF THE COURT BY FnEAR, j

This is an appeal from the Com
missioner of Private Ways and Water
Rights for the District of Honolulu.
The question involved is the width
of private way claimed by the de-
fendant over land belonging to the
plaintiff. The way is a so.called way
of necessity, the lands covered by
Royal Patents 1887 and 2677) of the
plaintiff and defendant having for
merly belonged to the same person,
one Waiaha, who conveyed them at
different times to the grantors OF the
present owners, and the only way of
access to the defendants land being
over the plaintiff S land. 1t does not
appear, nor is it material, which land
was conveyed first. The plaintiff
admits the existence of a way, but
contends that, being way of neces-
sity, it is limited as to its width by
the necessity, which in this case it is
contended requires only foot and
horse way. The defendant claims q
carriage way. The Commissioner de
cided that the defendant was entitled
to carriage way at least eight feet
wide by prescription. We are Of
opinion that the conclusion Of the
Commissioner is correct, but for diff
ferent reasons from those upon which
it was based.
4 way can be acquired by prescrip
ton only by adverse user for not less
than twenty years. In the present
case the two lands in question We're
owned by the same person, Waiaha,
up to time less than twenty years
ago. And, although for many years
prior to his conveyances he used the
way now claimed, over one part CT
his land for the benefit Of the other
part, such user was not adverse, for
no one can hold adversely to him
self.
A way of necessity so called is,
strictly speaking, not created by ne
cessity. 1t is created by grant or
reservation. Ways are commonly
said to be created by grant, by pre-
scription or by necessity. But these
distinctions relate to the mode of
their proof rather than to the mode
of their creation. 1t would be more
correct to say that ways are created
by express grant, by presumed grant
and by implied grant-or reservation,
as the case may be. In every instance
the way is created by grant, or reser-
vation, the difference being merely
in the mode of proof The question
as to what is granted or reserved is
a question of intention to be shown
by competent evidence. In the case
of an express grant the intention is
proved generally by the terms of the
instrument alone. In the case of
presumed grant it is proved by an
adverse user for twenty years. In
the case of an implied grant it is
proved by all the circumstances of
the case, and especially by the con-
dition of the property at the time of
the conveyance.
a way of necessity is merely way
created by an implied grant or res
ervation, the necessity being only
evidence of the intention of the par
ties to make the grant or reservation.
If it is not in the power of the
grantor to create way, no necessity
however strict or absolute, can be
evidence Of an intention to do So
es where the only means of access to |
the land is over the land of
stranger. But if it is in the power
of the grantor, strict necessity alone
is sufficient evidence-as where the
only means of access is over the land |
conveyed or reserved by the grantor.
And even where there is not strict, |
but only a reasonable necessity, as
where some other way is possible |
though very difficult or expensive,
this, if coupled with additional eyi- |
dence of way actually used and |
which is apparent and of a continu-
GUS nature, has been held to be suffi- |
cient evidence of an intention to |
grant or reserve the way.
The same rules which apply to the |
existence of way apply equally to
its location, direction, width and the |
purposes for which it may be used.
The question is merely one of inten-
ton, to be proved by competent evi-
dence.
If the way is created by an express
grant, which defines its location, di-
rection, width and uses, the only evi-
dence is to be found in the grant
itself; but if the grant merely pro-
V1des for the existence of the way,
with no provision as to its location.
width and uses, these must be ascer-
tanned by other evidence, such as the
condition or character of the lands
and the uses made of them, or the
acts or scquiescence of the parties.
For instance, if particular way for
a long time prior to the conveyance
and with the knowledge of the par
ties has been in actual use in a GER
tain place, and of certain width
and for certain Durnosas and s1ob