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


session OF exclusion from resi- prop
s-ty Of pSrty who Is entitled 10 the
possession. As between tenants in
common wbere al are entitled to the
possession, the intent With which
possession Is taken Is mSterial. Tor s
StrSoger having 70 title may enter
lsnd Snd exercise sets Of ownership
over 1t sni leSve little room to doubt
thss he thereby intends 10 Gust the
true owner. But s eo-tsnsns mSy
enter the whole or any part Of the
common eStSte As be hiss leSsl right
10 do, Snd the presumption Of law Is,
when nothing more Is done, thst he
intends 10 do nothing beyond the
assertion Of his right. There must be
stronger evidence TO prove thst one
tensnt hiss ouSted smother, than TO
prove thst 8 person having no right
to the possession hSs ousted the
owner. The proof OF custer between
tsnSnts in common ought to be of the
most satisfactory nSture. The law
viii deem the possession smieShle
until the terSnt out Of possession has
IN some method been notified thst it
hiss become hostile Freeman,
Cot. i Par, Sec 81. In Yer
mont 1t IS ssid that the sets relied
upon TO prove custer between ten
Snts IN common must be such as
would constitute custer between
landlord and tenant. BuckmSster
vs. Needhsm, - Vt, 623.
In New York 1t is held that to
establish sn adverse possession by
one tenant in common such as will
effect the custer OF his eo-tensnt,
notice IN fact Of the adverse claim is
required. or unequivOeaI acts, open
sud public. making the possession so
visible. hostile, exclusive and noto
rious that notice msy be fairly pre-
sumsd. Culver vs. Rhodes, 81 n. Y,
34S. Undoubtedly exclusive pos
session Of q part Of the common pro
perry may be taken with the intent
to Gust his eo-tensnt of it. Carpen-
ter vs. Webster, n Cal, 525. In this
Csliforris case there had been re-
fusSl by the tenant in possession
TO let the ont tenant IN and occupy
the sixty acres cultivated by the
tenant IN possession, which was only
8 small part Of the whole estate. The
case Of Bennett Is. Clemenee. 8
Allen, Is, Is not in point. for there
the tenant IN possession had erected
2 permanent structure which apprO
prieted exclusively the entire land.
snd this was held to be evidence Of
custer. Nothing Is better settled
than the rule that the mere Occups-
ton OF premises owned II common,
by one Of the tenants IN common.
does not en5itle his eo-tensnt to call
him TO account, or render him N any
way liable TO an action for the use
and occupation Of the estate. Each
Owls the estate per ri Ct PER tSi-t. If
6 CO tenant does not see III to come IN
and occupy, the other still has the
right 30 the enjoyment of the estate.
and In such case the sole occupation
of one Is not an exclusion of the
other Each tenant, being seized of
each and every part and parcel OF
the estate, has a right TO the use and
enjoyment Of If, and so long as he
does not hold his co-tensnt ont, or IN
any way deprive him OF the oceups-
ton Of the estate. he exercises only
legal right, and receives nothing for
which he Is bound to account to his
co-tenans" Badger IS Holmes. s
Gray, us
By the common law there was
no remedy by one tenant in com
mon against the other taking the
entire profits and By the Statute OF
Anne q and D Anne, Chsp- Is, See
"a an action Of account might be
maintained by one tenant IN common
against the other charging him, as
bsilif, for receiving more than his
share OF proportion and It was neces-
sary 20 show an actual receipt of
rents and profits over and shove his
shsre thereof The English courts
restrict the co-tengnt's liability for
accounting 10 money received from
third parties and q majority OF the
States Of the American Union ADOPT
ths same rule. We understand that
the opposite view obtains In Georgia,
Virginia, Ohio, Rhode Island and
possibly IN Vermont and New Jer-
sey. where 6 tenant in possession Is
held accountable for profits made by
his own labor out of the common
estate more than his proportion II
accordance with his title. See lard
Ys- Bodine On. j. reported IN 50 Am
Dec. 596; Early Ts- Friend, 16 Graf
Il Wal reported in 70 Am Dec. 649;
West V. Meyer, IS Ohio. II: Hayden
vs.. Merrill, 4 Vt, 336.
The view OF the majority Is thus
expressed BY Freeman IN COT &
Par. See. Z25: @Bat the decided pre-
ponderaucs OF the authorities both in
England and America, sfirms the
right Of each c0-teusnt to enter upon
and hold exclusive possession Of the
common property, and to make such
profit Is he can by proper cultivation
or by other usual means Of acquiring
benefit therefrom, and 70 retGiH The
rink Il ssL1h 5sagfts, provided that in
having such possession. and IN max