The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-09-26

ing eSses sustain this view
Peek Us, Carpenter, : Gray, 2SS.
CrSne vs.. Wasgouer, % Ind, -,
Shepherd Is, Richards, : Gray,
woOlevey ct 81, Us, Knapp, is
BSrb,. rs.
Pieo v, Colnmbes, II Csl., IA,
Cook vs.. Webb, u Mum, 42S.
keSn rs. Connolly. % MIMI. III
HSuse vs., HsuSe, - MINI, 25a.
EvertS ", Beach, 81 Mich. 1S5.
Campan vs., CSmpSp. A Mich. 81.
Reynolds vs.. Wilmet. 45 lows, 6SS.
Sears vs.. Sellew, IS lows, sos.
Blood vs.. Blood, ITO Mass, SAT.
Osborn VS.. Osborn, g Tex. 495.
Greed vs.. People, 81 III, 565.
The following cases in our own
Court show that Sn ouster is essen
tial in the instances given;
NakusimSnu vs.. Halstead, 1 Hsw.,
u,
KaiS vs.. Ksmsiie, 1 Hsw., So.
We hold upon authority that to
charge tenant in common with
Whist profits he may make while in
possession of the common estate or
psrt thereof an custer of his Co
tenant or what is equivalent must
be shown. Mere occupation is not
sufficient Occupation is not neces-
sarily exclusion. Upon principle
also we consider this to be the best
view. II the mere fact OF occupation
by tenant IN occupation, who wishes
by his industry to obtain some profit
from land in which he has an inter
est, would render him liable to
tenant who does nothing but lie by
and see the land titled and improved,
it would be q 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
sn custer by the plaintiff of the de-
fendsnt We have seen that the
sexual occupation OF the Waikspu
Commons was Of separate portions
by each of the tenants in common.
Both Mr.. Mscfarlsne. the stakeholder,
and Mr. W H Cornwell, the mana
ger Of the Waikspu 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.. Spreckels
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 plaintiffs title to it,
nor asked to be let into possession
and make use Of the part so occupied.
In fact the Waikapu Sugar Company,
1t 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
tsinly 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 trespsss 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.. Mscfsrlsne to procure a settle
ment1 OF the matter from Mr..
Spreckels. 1t has been difficult for
us to ascertain what this request for
2 settlement" meant Mr. Mac
farlane explains it by saying that he
meant compensation for the use and
occupation Of the land by Mr..
company. And he dis
tiuctly says that he never really de-
sired q partition OF the estate. A
for q settlement could hardly
be considered z claim for oEeltg in
the face Of the a7oBal by Mscfarlane
that he did not desire partition But,
as We have seen, be would not be
entitled to such compensation under
our view Of the law, unless he lad
demanded 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 10 such formal request. excus
ing himself for the reason that his
other business relations would suffer
He was q debtor to Mr.. Spreekels or
bis sons in a very large amount,
and hostile attitude IN the
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