The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-09-21

from land IL which lie hiss an inter
est. would rsu2er him liable TO +;
tenant who does nothing bat lie bl
and see the land titled and improved
ii would be a serious encouragement
to agriculture and business enter
prise, and such lands would be very
apt TO lie idle. No one could safely
occupy and use such lands. Partition
would have to be resorted to In every
case of such joint ownership.
We come now to the question
whether the facts of this case show
an custer by the plaintiff Of the de
PENDANT. We have seen that the
actual occupation Of the Naikapu
Commons was of separate portions
by each OF the tenants ii common.
Both Mr.. Macfarlane, the stakeholder,
and Mr.. w. II. Coruwell, the mana
ger of the Waikapu Sugar Company,
knew of the occupation by plaintiff
from time to time as the land of the
common estate was occupied by
plaintiff for sugar culture. Both
these gentlemen say that they never
at any time nor in any manner con-
scented or agreed that Mr.. Sprechels
or the Hawaiian Commercial and
Sugar Company should fence IN and
take exclusive possession OF any
part of the Waikapu Commons. And
yet, while fully aware Of this occu-
patton, neither of them ever objected
to it or protested against this action,
nor denied the plaintiff s title to 1t,
nor asked to be let into possession
and make use of the part so occupied.
In fact the Waikapu Sugar Company,
it was admitted, with its limited wa
ter supply could not have used the
land for cane culture. We remark
here that all the facts of the case GER
tainly for long period OF time, are
consistent with an agreement for
separate occupation, although we do
not consider such an agreement to
be sufficiently and clearly proved.
The separate occupation was annie
able. The plaintiff corporation kept
its cane fields fenced, and if defend
ants cattle broke into them they
were returned to defendant without
charge for damage. A simple arrest
ing and impounding Of these animals
for trespass by the plaintiffs COM
pany would have been sufficient to
show an custer, and the breaking of
the fences by defendants company
and letting their animals into the
cane fields of plaintiff would show
that they objected to this use of
the land and claimed it. None Of
these things were done. All we have
in evidence are the mild efforts of
Mr. Macfarlane to procure ''settle-
ment" OF the matter from MIR.
Spreckels 1t has been difficult for
US to ascertain what this request for
q settlement" meant. Mr.. Mac
farlane explains it by saying that he
meant compensation for the use and
occupation of the land by Mr..
Spreckels' company. And he dis
tiuctly says that he never really de-
sired a partition of the estate. A
request for settlement could hardly
be considered claim for owelty in
the face of the avowal by Macfarlane
that he did not desire partition. But,
as we have seen, he would not be
entitled to such compensation under
our view of the law, unless he had
that his company be let
into the use Of that part of the estate
thus occupied and been refused, or
was able to show facts from which an
custer could be found. He says he
made no such formal request, excus-
ing himself for the reason that his
other business relations would suffer.
He was debtor to Mr.. Spreckels or
his sons in a very large amount,
and hostile attitude in the
matter Of the Waikapu Commons
would have made, in his opinion,
rupture Of those relations; payment
of his debts would be exacted, and
this would entail loss. and perhaps
ruin, to himself and his patrons.
While regrettipg this unfortunate
position, all we can say is that
the Court cannot vary the law TO
suit his circumstances, and what
ever be the reason for making no
explicit demand for possession-a re-
fusal to comply being an ouster-we
do not find any such proved. Mr..
MacfarIane weighed all his business
and if some outweighed
those under consideration and pre-
vented his taking the stand which the
law required of him in order to enable
him to have the redress he now seeks,
it cannot now be helped. Hostile
proceedings between these corpora
tons did not begin until June, 1891;
Mr.. Macfarlane says that in 1886 or
1887 he had become freed from all his
pecuniary obligations to MIR. q.
Spreckels or the Spreckels brothers.
Certainly there was nothing to pre-
vent his making a demand for pos
session Of the land occupied by
plaintiff IS corporation during this
interval.
We therefore hold that no custer
has been shown in this case and the
appeal is dismissed. The decree of
the Chief Justice. which orders par
tition of the estate, but without an
account from either party to the
other, is affirmed.
Z. NJ. Hatch for plaintiff; A. S.
Hartwell, @. l.. Carter, Thurston Il
Frear for defendant.
Honolulu, Sept. 18th, 1893.
M0OuF6ht Concert Toniohf.