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

The Court assembled at 1:40,
and Mr. Carter continued his re-
marks:
Mr.. Carter claimed that the acts of
the plaintiff amounted to an custer.
On this point the conflict in the
testimony was not so great as on
others. An custer was wrongful
dispossession or exclusion Of party
who was entitled to possession. 1t
was necessary to review the history
of the past years in order to deter
mine whether the facts showed an
custer in this case or not. MIR. Mar
lin was the most competent witness
on this matter He took in small
triangle and fenced it. Mr.. Cornwell
and Mr.. Macfarlane wrote to Mr..
Spreckels about it, and the result
was that they came up to Maui to
effect some settlement. 1t has been
suggested that this conduct was not
a sufficient protest; yet it was enough
to bring Mr.. Spreckels to Maui. 1t
was very strong and decided OBJ
lection. 1t could not well have been
more emphatic because they were all
on amicable terms. The encroach-
ment of plaintiff was gradual, and it
was difficult to tell when to protest,
as Mr.. Cornwell testifies. An action
was not brought because they expec
ted an amicable adjustment. They
did not for moment suspect
that Mr.. Spreckels would go on for
years using the property of others
without claim arising against him.
The claim was made but put off.
In 1887, when the letter to John
Spreckels was written, the defendant
dissented very decidedly. Mr..
Spreckels promised that his father
would come down and settle the mat
ter. In 1889 he made the promised
visit to Honolulu and made settle
ment very satisfactory to himself, be-
cause he bought out Mr.. Cornwell.
He tried at that time to get major
ity of the stock, become a creditor of
Mr.. Macfarlare and hold mortgage
on part of his shares, getting thus
nearer to the settlement which he
probably had in his mind. He tried
to get hold of Mr.. Kinds shares.
What motive could he have in getting
hold of the stock of Waikapu except
to suppress the claim which that
company had made against the Ha-
waiian Commercial Company? He
spoke very slurringly of the value of
Waikapu stock. AS to the legal ma
ture of an custer, the intent of the
possession was material. Stronger
proof was necessary in the case of
co-tenant, but the nature of the act
was the same as in any other case.
A hostile intent expressed in any way
would be sufficient. The law does
not say that the co'tenant must pro
test. The evidence of Mr.. Marlin
was of the greatest weight, he being
a disinterested party. He testified
that he took possession of the tri-
angle innocently enough, but after
wards feard that he had got his
company into trouble. Then Mr.
Spreckels told him to go ahead and
take in all that he wanted If the
defendant had demanded TO be let
into possession 1t would not have
been granted. Protest Of the party
wronged is not necessary any more
thar it is in larceny or murder The
possession of the plaintiff had been |
adverse, so that it would have ripened |
into a good title after the statute of !
had run. The defendant |
in this case had not, as was pre-
tended, made any claim of legal du-
ress. Mr.. Macfarlane's financial |
embarrassment and dependence on
Mr.. Spreckels were merely mentioned |
as an explanation of his not bringing
an action. His emitting to do so
can not be construed as laehes, or a
on his part to the occupation
of the Hawaiian Commercial Co. In |
this case the plaintiff had constantly |
put the defendant off with promises
admitting that he had no
right to go on and take the best part
of the land without compensation.
Mr.. Macfarlane in demanding a set
Element was pushing for the rights
of the company. He wanted a rental
fixed for all lands used by each COM
pany. His action in the matter
showed that he never consented or
agreed to the use of the land by the
plaintiff. He would not of course
consent to any division which would
not have given the Waikapu Sugar
Go. share in the 5000 acres of rich
bottom land owned in common. He
that there was ample evil
1ence of custer, that the plaintiff
was trespasser from the start, and
hat Mr.. Spreckels deliberately in
ended from the start to GUST the de-
iendant from those lands. He sub
nitted further that there had been a
repeated protest on the part of the
defendant against this action. Mr..
J--ool-ole That he v,oxroY. hnar6