The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-01-17

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 If the tenant wrongfulIy 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 reseveral 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
menss 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 for
nothing. That was not common
sense. There are cases when one
looks on and sees others making
valuable improvements, and thereby
consents to it but this is certainly
not such, and in all such cases the
presumption would be one of fact.
As a matter of fact, the Wsikapu
Company could have used this land
and got water of Waihee or from the
Hamakua ditch. Such being the
case, the Waikapu Company might
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 proper compen-
sation but the latter company was
ready to take the land, but not to
pay for it. 1t must now take the
consequences and pay what the law
allows. There is not a particle of
evidence that the Waikapu Company
ever admitted the right of the Ha-
waiiau Commercial Co. to use all the
valuable land without compensation.
The Waikapu Co. made an effort to
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 to
his co-tenant. The exclusion does
not mean taking one by the shoulder
and putting him out. Exclusion
means such a use of the property as
prevents the other tenant from using
it. The bitches and fences and steam
plows of the Hawaiian Commercial
Company made it impossible for the
Waikapu Company to make any use
of the land. When one tenant is
getting more than his share, the
statute of Queen Anne allowed the
other owner to treat him as his
bailiff or tenant, and gave him the
right to an account. The law in Vir
ginia was sound. The statute of
Queen Anne was not in force in this
country, but our statutes and de-
cisions gave all the relief that was
necessary. Under the decisions of
the Courts here, the statute Of Anne
was not needed. The correct view
was as follows If the excluding
tenant had excluded his cotenant
without legal excuse, if the other
could not make q full use of
the property, then his posses
sion was adverse, and he was
liable in damages. He was bound to
make good the loss, which might be
Ia rents or profits. Counsel cited a
case to show that custer might be
from portion OF the common prop
erty, as well as from the whole There !
was no doubt about the law of that
case. The Waikapu Co WIS ever
ready to,account for every dollar it
had received, and it only asked the
Hawaiian Commercial Co. to try to
the Golden Rule
The Hon. Mr.. Thurston said the
ground had been gone over so fully |
that he would simply attempt to EN-
some of the salient points.
the fact that the plaintiff claimed
under an agreement, shifted the
burden Of proof on the custer. The
plaintiff admitted that he was hold
ing exclusively, SO that it was no
longer necessary to prove that he had
busted the defendant. The question
Tor the Court was whether the plain
Tiff had proved his agreement. If he
JAILED to prove that, then he was
holding Wrongfully on his own plead