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

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on part of his shares, getting thus
nearer to the settlement which he
probably had In his mind He tried
to get hold of Mr.. Kinds shares.
What motive could he have in getting
hold of the stock OF Waikapu except
to suppress the claim which that
company had made against the Ha'
waiian Commercial Company? He
spoke very slurringly Of the value of
Waikapu stock As to the legal ma
ture of an custer, the intent OF the
possession was material. Stronger
proof was necessary In the case of a
co-tenant, but the nature Of the act
was the same as in any other case.
A hostile intent expressed in any way
would be sufficient. The law does
not say that the co tenant must pro
test. The evidence of Mr.. Marlin
was of the greatest weight, he being
disinterested party. He testified
that he took possession of the tri-
angle innocently enough, but after
wards feard that he had got his
company into trouble. Then MIR
Spreckels told him to 60 ahead and
take in all that he wanted. Ii the
defendant had demanded to be let
into possession 1t would not have
been granted. Protest of the party
wronged is not necessary any more
than it is in larceny or murder. The
possession of the plaintiff had been
adverse, so that it would have ripened
into good title after the statute OF
limitations had run. The defendant
in this case had not, as was pre-.
tended, made any claim of legal du
ress. Mr.. Macfarlane's financial
embarrassment and dependence on
Mr.. Spreckels were merely mentioned
as an explanation of his not bringing
an action. His emitting to do Sc
can not be construed as laches, or a
consent on his part to the occupation
of the Hawaiian Commercial Co. In
this case the plaintiff had constantly
put the defendant off with promises
thereby admitting that he had nc
right to go on and take the best part
of the land without compensation
Mr.. Macfariane in demanding set
Element was pushing for the rights
of the company. He wanted a rental
fixed for all lands used by each COM
pany. His action in the matter
showed that he never consented or
agreed to the use Of the land by the
plaintiff. He would not of course
consent to any division which would
not have given the Waikapu Sugar
Co. share in the 5000 acres of rich
bottom land owned in common. He
submitted that there was ample evil
dence of custer, that the plaintiff
was a trespasser from the start, and
that Mr.. Spreckels deliberately in
tended from the start to GUST the de,
PENDANT from those lands. He sub.
mitted further that there had been a
repeated protest on the part of the
defendant against this action. Mr..
Spreckels says that he never heard
of eny claim. Yet he testifies that he
went to the meeting in Cartwright's
Office, where the claim was discussed
If he was occupying this land under
an agreement, as he claimed at the
trial, why did he not mention that at
the meeting? If there has been an
custer, then the only question re-
naming to be considered is the ex.
tent of the liability. If there is no
liability in this matter, then this is a
case of corporate voracity going un-
punished. 1t was said that the grass
never grew where Attila and his
Huns had passed. The hearts over
whom this gentleman passed never
bloomed again. He did not need to
refer to the gentleman who had just
committed suicide in basement in
San Francisco.
Mr.. Hatch objected to the use oil
any such language.
Mr. Carter claimed that he was
using it by way of illustration
merely.
Mr.. Hatch did not know what il
illustrated.
Judge Hartwell suggested that il
was the voracity of corporations.
Mr.. Carter, concluding, claimed
that the gentleman who had the
courage to maintain his rights in thi:
instance should receive the faires
consideration of the Court.
Judge Hartwell said:
The plaintiff 3 bill is nominally
for partition of the common prop
erty, but the intention was to pre-
clude the defendant from getting s
jury trial of its action to be let into
possession of the common property
according to its title, with damages
for having been excluded therefrom
and to get the portion of the com
mons which the plaintiff had been
using set apart for itself.
There was one of three courses fol
the plaintiff to take in order to secure
its object of getting the land it hac
used, partitioned off to it in severalty
and also of excluding the defendant
from all chance to get damages OF
mesne profits for its prior use of thai
land, viz:
~ Deny the exclusion and claim
that the defendant had full opportu
nifty to use the common property if i
wished, but that it did not wish, OF
else did not have the means, to irri
gate and cultivate it.
~ Admit the exclusion and show
that it was expressly agreed to, or
~ Admit the exclusion and show
that it was acquiesced in, that is tt
say, that it was 'amicable."
But the plaintiff could not consist
emily adopt all three courses, ant
seek to avail itself of the three
claims.
It tried to sit on three seats at The
same time, and thus fer has been en-
abled to do so.
But the defendant is entitled t.