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

interest In the corporation, which
continued to the date Of this suit.
In April or May. 1882, the employees
OF the Hawaiian Commercial and
Sugar Company began TO fence In
| and cultivate In sugar cane some
land on the Waikapu Commons con-
| tIguous to its other cane fields in the
land OF Wailuku, and whether the
title to one half Of the Wal
kspu Commons was then in
Spreckels or his corporation
is unessential, as it seems to US,
since the corporation has adopted
his acts In this respect and reaped
the benefit of them and would not be
allowed to plead want Of title in it
at the time of the occupation. Year
by year the corporation took in more
land, blowing it up, fencing and
planting it field by field, until it had
brought under cultivation in sugar
cane, though not all at any one time,
| some forty-five hundred or FIVE thous
and acres of the common property.
Upon this it brought water to irri
gate the cane, bought from the Wal
bee Sugar Company and led from
| the Weihee river, and water from its
own ditch leading from the district
OF Hamakua, and transported the
cane when harvested to its own mills
by means of railways. The plaintiff
corporation fenced and maintained
in fence the land which it cultivated.
All that part OF the Waikapu Com
mons on the Waikapu side of the
sand hills and whatever was not I'M
der fence by the plaintiff corpora
ton, being uninclosed, was used for
grazing by the defendant corporation
for its own and other persons cattle,
and this company also enclosed aud
cultivated in sugar cane for a short
time three parcels of land on the
Waikapu side of the sand hills
amounting to 107 acres and also en-
closed, and has ever since used as q
grazing paddock some 80 acres of
land situated near Maalaea Bay. The
defendant corporation has received
some inconsiderable sums Of money
for pasturing animals on the unen-
closed portions of the common estate,
keeping an account thereof.
All this common produces a good
growth of grass from winter rains
which dries up in summer, but it Is
impossible TO produce crops Of sugar
cane upon it without the use Of
water for its irrigation. w. IL. Corn
we'll was manager of the Waikapu
plantation in 1876, and has continued
to be such manager up to the date of
this suit, covering period previous
to and ever since its incorpora-
ton. In 1882, when the plain
tiff began to plow, fence and
cultivate across the line and in the
the common property, it was noticed
by MIR. Cornwen, the manager of the
Waikapu plantation, who notified his
then partner, Mr.. Macfarlane. of the
fact. Mr.. Macfarlane then applied
to MIR. Spreckels for a " division or
settlement" AMI he and Mr..
Spreckels agreed to meet upon the
land with a surveyor and ascertain if
it could be divided. The parties met
in July, 1882, went over a portion Of
the land together, but came to no
agreement, Mr.. Spreckels not ex
pressly declining to divide, but dis
missing the subject when approached
by MIR. Macfarlane, saying it was
not an easy matter to divide the
land"
Both parties to this suit say that
they never at any time denied the
title of the other in this land. Both
Mr. Cornwell and Mr.. Macfarlane
testify that they never, at any time,
asked to be allowed to use any por-
ton Of the common estate included
within the fence of the plaintiff cor
poration and cultivated by it, and
also that the defendant corporations
occupation of such portion of the
land as it did occupy was never ex
pressly interfered with or objected
to by Mr.. Spreckels or the plaintiff
corporation.
There is no dispute as to the fact
that each party, plaintiff and de
PENDENT, has used and occupied sep
arate portions of the common estate
from 1882 to the date of this suit,
and each has used that portion of
the land contiguous to the rest OF
its property. Thus far the facts Of
this case as outlined above are not
disputed. We come now to the
question of law whether to entitle
tenant in common to an account
from his co-tenant an custer, or
what is equivalent, is essential to
be proved as is contended by plain
tiff or whether the tenant in pos
session is liable to be made to
account to his co-tenant, even though
no custer be shown. But before en-
tering upon this discussion it must
be remembered that this is not the
case Of one tenant in common occu-
plying the whole of the estate, for the
occupation of the plaintiff though
differing in character from the occu-
patton of the defendant was Of not
more than one-half OF the area of the
common estate. Nor is this case
where one tenant has rented out the
land to third parties taking all the
rents to his own use. But in the ca e
before us the Hawaiian Commercial
and Sugar Company has used its
own capital and labor in cultivating
sugar cane, having brought water
upon the land, upon not more than
one-half of the acreage of the COM
mon estate, and the Waikapu Sugar
Company has been in possession and
got what it could out of the remain
ing part.
An custer is the wrongful dispos-
session or exclusion from real prop
erty of party who is entitled to the
possession. As between tenants in
o,o -