The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1893-01-11
FOR A MILLION.
Contest Between Corporations
Over the Waikapu
Commons.
Continuation Of Readings and Pl0adinSS
in the Supreme Court,
Continuation of Readings and PleadinsS
TUESDAY, Jan. 10, 1898.
Afternoon Session.

Mr.. Carter resumed his argument
for the defendant. He claimed that
the acts of the plaintiff amounted to
an custer, which was a wrongful dis
possession or exclusion of a party
who was entitled to possession. Mr..
Martins fencing of certain triangle
and Messrs. Macfarlane and Corn
wells protesting against it were in
stanced to show that the occupation
of the H. G. e. S. Co. was not amic-
able. An action was not brought
because they expected an amicable
adjustment John D. Spreckels pro-
missed that his father would come
down and settle the matter. The
way his father settled it was to buy
out Mr.. Cornwell, and he tried to
get a majority of the Waikapu Co.'S
stock. What motive could he have
in getting hold of the stock except
to suppress the claim that company
had made against the Hawaiian
Commercial Company? Mr.. Marlin
was afraid he had got the company
into trouble by fencing in the land,
but Mr.. Spreckels told him to go
ahead and take all that he pleased.
The possession of the plaintiff had
been adverse, so that it would have
ripened into a good title after the
statute of limitations had run. Mr..
Macfarlane's financial dependence
on Mr.. Spreckels were merely men
toned as an explanation of his not
bringing an action. His omission to
| n, 1>, -{r ,,nl
or consent on his part to the occu-
patton. Counsel went on to argue
that there was deliberate purpose
shown from the start to GUST the de-
PENDANT.
Mr.. Hartwell said the plaintiffs
bill is nominally for partition of
the common property, but the inten-
ton was to preclude the defendant
from getting a jury trial of its action
to be let into possession of the com
mon property according to its title,
with damages for having been ex-
cluded therefrom, and to get the
portion of the commons which the
plaintiff had been using set apart for
itself. There was one of three
courses for the plaintiff to take in
order to secure its object of getting
the land it had used, partitioned off
to it in severalty, and also of exclud-
ing the defendant from all chance
to get damages or mesne profits for
its prior use of that land, viz: CD
Deny the exclusion and claim that
the defendant had full opportunity
to use the common property if it
wished, but that it did not wish, or
else did not have the means, to irri-
gate and cultivate it. (2) Admit the
exclusion and show that it was ex-
pressly agreed to, or (3) Admit the
exclusion and show that it was
acquiesced in, that is to say, that it
was "amicable." But the plaintiff
could not consistently adopt all
three courses, and seek to avail it.
self of the three claims. But, coun-
sci proceeded to argue, the defend,
ant is entitled to have an adjudica,
ton of this case according to the
well fixed rules of pleading, which
require that Bill in Equity stand
or fall on whether the proofs do OF
do not sustain its averments, and
that the plaintiff and not the de,
PENDANT must sustain the burden OF
: proving these averments. The case
of the plaintiff rested entirely on
the alleged parole agreement be
tween Henry Cornwell and Claus
Spreckels ratified by the parties tC
the suit. The answer of the defend
ant denied that any such parole
agreement was made, ratified or con
E,,,,,I 10, al ip,nI a., 4 ia II
. find that the justification offered by
the plaintiff for its admitted exclusiv,
! use is not sustained by proof, ant
; thereupon should decree that tn,
plaintiff account to the defendant
for its exclusive use of the common
property. The law of Hawaii wa
the same on this subject as that o
Vermont and Virginia, and it's doc
trine was reasonable, just and adapt
ed TO agricultural states. Counse
: went on to argue that Hawaiian
r English and American law entitled
| the excluded co-tenant to recove
r from the wrong-doer such damage
5 as will reasonably compensate 70
/ the wrong done and the loss sustain
:. ed. He claimed there was not
particle of evidence that the Wa
t kapu Co. ever admitted the right G
D the Hawaiian Commercial Co. to Ms
!, all the valuable land without con
; pensation. A case was cited to sho'
; that custer might be from a porto
:, OF the common property, as well q
r from the whole. There was no doul
about the law of that case. TIL
Waikapu Co. was ever ready to az
: count for every dollar it had n
y ceived, and it only asked the Hawa
% ian Commercial Co. to try to remen
. member the Golden Rule.
If Mr.. Thurston argued further fc
IS the defendant, desiring mainly I
e emphasize the points made by h
# colleagues. So far as the rights {
It the person ousted are concerned,
I. was sufficient for him to show thu
: he was excluded simply, He did NJ
e, need to show that he made gre;
il fuss about it. Counsel related IL
# fable of the lions alliance with oth'
n wild beasts and the way his lionshI
h monopolized the deer, that is, pie,
IN by piece, aud said that was Il
course taken by the Spreckels col