The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-01-11
ONE MILLION.
THE BIG SUIT AGAIN BE
FORE THE COURTS.

The hearing in the suit of the
Hawaiian Commercial Co. vs.. the
Waikapu Sugar Co. was resumed
yesterday morning at 10 o'clock, in
the Supreme Court. Mr.. Hatch
continued his argument for the
plaintiff as follows:
The original entry into occupation
was with the consent of Henry Corn
well. w. H. Cornwell testifies his
father was given the use for pastur-
age of all the land outside of the
fences. This continued until the
Waikapu Company acquired all
Henry Cornwell's rights. 1t being
demonstrated that the occupation at
its inception was amicable, there is
the greater obligation on defendant
to show the termination of that state
of affairs. Henry Cornwell signed
the written memorandum with Claus
Spreckels, agreeing to divide the
land held in common. This also
shows conclusively that the relations
between the parties were not hostile.
The English rule, and that adopted
by the great majority of the States of
the American Union, is that one OF
two owners in common has the right
to cultivate the common land, and is
not liable to account for any profits
Of cultivation. Gases cited.
g. w. Macfarlane, as stakeholder,
admitted to defend in his own in
terest, has not the same rights as the
Waikapu corporation. A stakeholder
can only be heard when he can show
the directors of his own company
had acted beyond their powers, or
fraudulently, or have declined to take
action, which. in good faith, they
were bound to take. Gases cited.)
g. W. Macfarlane has not brought
himself within this rule. The di-
rectors of the Waikapu Company
have not been called upon to take
any action in this matter. He has
no shadow of ground to charge the
directors of his own company (of
whom he was one) with any fraudu-
lent action, or with doing any act
ultra wires. 1t was within their dis
erection to treat the mutual occupa-
tion as eminently fair and equitable,
and they have done so.
Counsel for the plaintiff proceed
ing discussed the law as to the right
of a stakeholder to bring an action,
held that the conditions necessary to
the exercise of this right were not
realized in this case. He referred to
case where corporation was fur.
nishing water to certain individuals
free, thus diminishing the profits of
the company. That was a much
stronger case than this, where the
Waikapu Company had not been
hindered from occupying any land
which they had ever had any idea
of occupying. The most that can
be said is that the officers of the
Waikapu Company have been negli,
gent in making their claim, failure
which does not give them any right
at law. They cannot be charged
with fraud. The rule was laid
down in MacDougal vs. Gardiner
vol. L. r.. Chan. Div. that nothing
which was, the subject matter of dis
pute between shareholders could
furnish ground for suit on behalf of
the company by one of them un-
less the officers of the com
pany could be charged with
fraudulent or oppressive action. The
defendant in this case had not set
the machinery of his own corpora
ton in motion. He trusted the
Court would take the view that
either of the two tenants in common
might occupy and cultivate freely,
as long as there was no custer, no
prevention Of occupation by the
the other CO tenant. The occupation
in this case had been friendly. 1t
would not be sound view to take to
adopt rule which would check
agriculture, which it was the policy
of the law to encourage. The defen.
dant could not possibly be injured
unless the co-tenant had done some
thing more than enter and occupy
and nothing OF the kind had been
shown.
Mr.. Carter opened the argument
for the defendant. He commented
upon the evidence and gave clear
sketch of the history of the proceed
ings from the start.
At noon the Court took a recess
until l 80 P. NJ.