The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-01-17


Office. where the claim YVES discussed.
IL he was occupying this land under
an agreement, as he claimed at the
trial, why did he not mention that at
the meeting? IL there has been an
custer, then the only question re-
manning to be considered is the ex-
teut of the liability. If there is no
liability in this matter, then this is a
case of corporate voracity gong IN
punished. 1t was said that the grass
never grew where Attila and his
Huns had passed. The hearts over
whom this gentleman passed never
bloomed again. He did not need to
refer to the gentleman who had Just
committed suicide in a basement in
San Francisco.
MIR. Hatch objected to the use of
any such language.
Mr.. Carter claimed that he was
using it by way of illustration
merely.
Mr.. Hatch did not know what it
illustrated.
Judge Hartwell suggested that it
was the voracity of corporations.
Mr. Carter, concluding, claimed
that the gentleman who had the
courage to maintain his rights in this
instance should receive the fairest
consideration of the Court.
Judge Hartwell said:
The plaintiffs bill is nominally
for a partition of the common prop
erty, but the intention was to pre-
clude the defendant from getting a
jury trial of its action to be let into
possession of the common property
according to its title. with damages
for having been excluded therefrom,
and to get the portion of the com
mons 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 excluding the defendant
from all chance to get damages or
mesne profits for its prior use of that
land, viz:
~ Deny the exclusion and claim
that the defendant had full opportu-
nifty 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.
~ Admit the exclusion and show
that it was expressly agreed to, or
~ Admit the exclusion and show
that it was acquiesced in, that is to
say, that it was ''amicable."
But the plaintiff could not consist
emily adopt all three courses, and
seek to avail itself of the three
claims.
1t tried to sit on three seats at the
same time, and thus far has been en-
abled to do so.
But the defendant is entitled to
have an adjudication of this case ac-
cordiug to the we'll fixed rules eff
pleading, which require that a Bill in
Equity stand or fall on whether the
proofs do or do not sustain its
averments, and that the plaintiff and
not the defendant must sustain the
burden of proving these averments.
The plaintiff is estopped by its
pleading from claiming or show
ing that it has not occupied
the land exclusively, or that
it has so occupied it under
any other claim than a parole agree
ment for partition between Henry
Cornwell and G. SpreckeIs ratified
and confirmed by the parties to the
suit. That is the only issue pre-
sented by the bill The answer
denies under oath that any such
parole agreement was made, ratified
or confirmed, and the proofs fail to
show it.
The correct and logical result is
that the Court should find that the
justification offered by the plain
tiff for its admitted exclusive
use is not sustained by proof, and
thereupon should decree that the
plaintiff account to the defendant
for such exclusive use of the com
mon property.
The law of Hawaii is the same on
this subject as that of Vermont and
and Virginia, and is so decided in
cases cited in former briefs. Tt is
doctrine which is reasonable and just
and adapted to agricultural States.
According to that view the plaintiff
in the present case may be required
to account to the defendant Tor all
profits it has received from the com
mons from any source, irrespective Of
the question Of an custer or occupa-
ton by consent, the mere fact Of using
all Of the property or any part of it |
to a greater extent than denoted by |
the co-tenant's share, requiring hitn
to equalize by dividing the proceeds. /.
But whatever view is taken of the |
right of q co-tenant Iii cases of !
leasing where neither Is III posses
sion, or of profits made by one who |
eultivates but does not actually
or exclude the other, there
was never any doubt that cotenant
who excludes or prevents the other
from occupying or cultivating is
liable in tort for resulting damages,
1r, according to many Courts, at the
milton of the iniured marty. the tort |