The Hawaiian gazette., 1893-11-07
OPINION OF THE COURT BY B1CkERroN, ].

| OPINION OF THE COURT BY BICkERTON, j.
This cause came on for hearing at
the February term, 1898, of the Cir
cult Court of the First Circuit before
mixed jury, and resulted in a verdict
for the defendants, to which the
plaintiff noted an exception on the
ground of its being contrary to law
and the evidence, and gave notice of a
motion for new trial, which motion
was duly filed and argued, and the
trial Judge rendered and filed his
decision ordering that the verdict be
set aside and a new trial had. Where
upon defendants fled their exception
to said decision and order. The
matter now comes here on a duly
allowed bill of exceptions.
The decision of Judge Whiting,
on the motion for new trial and
now appealed from, is as follows
Trial of the above action was had
at the February term, 1898, of this
Court, and verdict rendered by the
jury for the defendants. The plain
tiff claimed title by mesne convey
ance from the patentee; the defend
ants claimed by right of adverse
possession. The parcel of land il
dispute is situate at Eva, Oahu, called
"Kapuaikaula," being portion of
the ahupuaa of Halawa. The record
title of the plaintiff was proved with
out dispute direct from the patentee
by mesne conveyance to himself
who claimed as lessee from the
trustee of the estate of Emma
Kaleleonalani of one half of the
ahupuaa of Halawa. The defense
being adverse possession, claim was
made of such possession for period
even prior to the Land Commission.
The jury found a verdict for the
defendants and the plaintiff moved
for new trial on the ground that
the verdict is contrary to the law and
the evidence; and also that the Judge
erred in refusing to charge the jury
shat mere occupation of portion
of the ahupuaa without fencing the
same off, or positive acts of owner
ship, is not sufficient notification of
claim of title SO that the statute of
limitation may run in favor of the
occupier; the landlord must have
notice of the adverse claim before
the statute commences"
1 have carefully reviewed the evil
dence and charge to the jury, and l
am of the opinion that the verdict is
contrary to the law and the evidence
and that new trial should be grant
ed, as the jury neglected properly to
consider the facts and have over
looked prominent and essential points
in the evidence. There are many
such points in this case, viz, that
defendants ancestors and a part OF
defendants were on the land of Ha-
lava and the place in dispute before
the Land Commission, and remained
there from that time, but no claim
for a kuleans nor any claim whatso-
ever was made by them or any one on
their behalf or for the ancestors be-
fore the Land Commission; and that
the parcel of land in dispute, Ka-
puaikaula," is not an iii, lele or ahu-
puaa of itself, nor a lele or kulesna
of the ahupuaa of Halawa, but was
merely a portion of the ahupuaa as
of whole land; it was not division
of land.
That this portion of the ahupuaa of
Halawa was occupied by the fisher
men and hoaainas of the konohiki,
and that neither the defendants nor
their ancestors were kuleana men or
konohikis.
That defendants and their ances-
tors were living under the konohiki,
and were hoaainas and kahus of the
ALI, and the defendants continued as
such under the different konohikis
and their lunas of the land until
Queen Emma's death in 1885; and
no claim of adverse title was made
until after her death; and no notice
given to any konohiki or luna of the
land that defendants were claiming
this parcel of the land as their own
till after her death.
That the original holding of de-
PENDANTS was permissiye and with the
consent of the konohiki.
That Holokahiki, who died in 1872,
from whom the defendants claim,
was the luna of the konohiki, and he
was succeeded by others
That defendants paid rent to Dow
sett, who had charge of the land
within twenty years last, and other
wise attorned to him.
That the premises were unfenced,
not definite in area or boundaries, and |
not in continuous possession, and that |
defendants possession was not ex-
elusive.
That defendants living on this
piece of land was consistent with the
owners rights, originally being per
until direct notice was
brought to the owner of an adverse
claim.
am of the opinion that the jury
did not properly consider the ques
ton of the time when the defendants
set up a claim adverse to the owner,
nor did they properly consider the !