The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-11-03

/ OPINION or THE COURT By BICKERToE, J.
This cause came on for hearing at
/ the February term. 1898, of the Cir
/ cult Court OF the First Circuit before
a mixed jury, and resulted in verdict
/ for the defendants, TO which the
/ plaintiff noted an exception on the
ground of its being contrary to law
! and the evidence, and gave notice OF
I motion for new trial, which motion
wes duly filed and argued, and the
/ trial Judge rendered and flied his
/ decision ordering that the verdict be
/ set aside and a new trial had. Where
/ upon defendants fled their exception
/ to said decision and order. The
matter now comes here on q duly
! allowed bill of exceptions.
| The decision of Judge Whiting,
! on the motion for a new trial and
now appealed from, Is as follows
! Trial of the above action was had
( at the February term, 1888, OF this
/ Court, and q verdict rendered by the
/ jury for the defendants. The plain
tiff claimed title by mesne convey
ance from the patentee; the defend
ants claimed by right of adverse
possession. The parcel of land in
dispute is situate at Eva, Oahu, called
''Kapuaikaula." being a portion of
the ahupuaa of Halawa. The record
title of the plaintiff was proved with
out dispute direct from the patentee
who claimed as lessee from the
/ &c ha 4of &c
| Kaleleonalani of one half of the
| ahupuaa of Halawa. The defense
being adverse possession, claim was
made of such possession for period
! even prior to the Land Commission.
I The jury found a verdict for the
defendants and the plaintiff moved
for q new trial on the ground that
the verdict is contrary to the law and
the evidence; and also that the Judge
erred in refusing to charge the jury
| chat q mere occupation of a portion
| of the ahapuaa without fencing the
same off, or positive acts of owner
ship, is not a sufficient notification of
| claim of title so that the statute of
| limitation may run in favor of the
occupier; the landlord must have
notice of the adverse claim before
! the statute commences"
I have carefully reviewed the evi
dence and charge to the jury, and L
am of the opinion that the verdict Is
| contrary to the law and the evidence
and that a new trial should be grant
| ed, as the jury neglected properly to
consider the facts and have over
| looked prominent and essential points
| in the evidence. There are many
such points in this. case, viz, that
| defendants ancestors and part of
| defendants were on the land of Ha-
lava and the place in dispute before
| the Land Commission, and remained
| there from that time, but no claim
! for kuleana nor any claim whatso.
| ever was made by them or any one on
| their behalf or for the ancestors be
| fore the Land Commission; and that
| the parcel of land in dispute, "Ka-
puaikaula," is not an iii, lele or ahu-
puaa of itself, nor a lele or kuleana
of the ahupuaa of Halawa, bat was
merely q portion of the ahupuaa as
| of whole land; 1t was not division
of land.
That this portion Of the ahupuaa of
| Halawa was occupied by the fisher
men and hoaainas OF the konohiki,
! and that neither the defendants nor
! their ancestors were kuleana men or
| konohikis.
That defendants and their ances
tors were living under the konohiki,
and were hoaainas and kahus of the
! ALI, and the defendants continued as
such under the different konohikis
! and their lunas OF the land until
| Queen Emma's death in 1885; and
! no claim of adverse title was made
! until after her death; and no notice
! given to any konohiki Or luna of the
| land that defendants were claiming
| this parcel of the land as their own
till after her death.
That the original holding Of de.
! PENDANTS was permissive and with the
consent of the konohiki.
| That Holokahiki, who died in 1872.
from whom the defendants claim,
was the luna of the konohiki, and he
was succeeded by others.
/ That defendants paid rent to Dow
sett, who had charge of the land
within twenty years last, and other
wise attorned to him.
That the premises were unfenced,
pot definite IN area Or boundaries, and
in continuous possession, and that
OF. 'o"ts' possession was not ex-
efenaDRH