The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1893-01-10
TUESDAY, Jan. 10, 1893.

for the plaintiff on the opening of
the Court at 10 o'clock. He quoted
American decisions on cases OF dis
pute between owners or tenants in
common. 1t was not attempted to
be shown, he argued, that the Wal
kapu Sugar Company had ever
manifested any desire to go beyond
the sand hills in occupation of the
commons. There was no evidence
of injury done to the w. S. Co., nor
of fraud on the part of the Hawai-
ian Commercial q Sugar Company.
He submitted that if their Honors
considered the eminent authorities
of the world they would decide that
one of two tenants in. common had
no right of action against another
unless damage or fraud could be
shown. Mr.. Hatch concluded at
10:4O.
Mr.. Carter addressed the Court
for the defendant, giving a history
of the controversy from the start.
He read from the testimony of Claus
Spreckels, where the witness said he
had renewed with VIM. H. Cornwell
the parole understanding that each
company should cultivate the side
of the commons next adjoining its
own land. On the other hand, he
read from the testimony of w. H.
Cornwell and Geo. W. Macfarlane,
wherein they denied having conced-
ed the privileges alleged by Spreck-
els. On the small point that cattle
crossing the middle line were not
arrested for trespass, he said the
Court below had decided against
the defendant on these momentous
issues. The arrest of cattle for tres
pass by friendly .neighbor was I'M
heard-of. w. HI. Cornwell had adj
mitted that the sand hills were
regarded as the natural division of
the commons, but he averred at the
same time that he always held that,
in case of partition, the Waikapu
Sugar Co. should receive compensa-
ton for the excess of acreage held
by the Hawaiian Commercial a.
Sugar Co. Counsel opposite had
pointed to places marked as rocky"
poor" etc, on the map. OF what
weight was this reference, however,
in face of the testimony of Claus
Spreckels that his company had 5000
acres under cultivation, and that
land of quality similar to that
had ranged up to value of $3.50 an
acre. He did not deny that there
had been an agreement between
Henry Cornwell and Spreckels, but
it had been lost sight of and was
only resurrected at the beginning
of these proceedings. With regard
to the parole agreement the deci-
sion of the Court would have ended
the litigation, but the Court went
into the question of an custer. 1t
defined an custer correctly and went
on to hold that the part Y alleging
an custer must establish the custer
1t held that there might be an
custer where co-tcnant took exclu-
sive possession, if his occupancy was
inimical to the interests of the other
co-tenants. 1t was found that the
defendant failed to establish an
custer because he had not shown
that technical and formal demand
had ever been made by him for adj
mission to the land Proceeding.
counsel pointed but a distinct issue
OF veracity between Spreckels and
Macfarlane on the question of an
amicable agreement.
The Chief Justice asked counsel
if he objected to the opinion below
because it did not find that the sand
hills formed the line Of demarca-
ton.
Mr.. Carter said he objected on
the contrary because the Chief JUS
tice did not follow up his reasoning
on other points by defining the
boundary line.
Mr.. Hatch interposed that the
Court would not define the boun-
Diary simply because he, on the part
OF plaintiff, expressly asked that the
Court should be saved from making
such definition.
Mr.. Carter, supported by Mr..
Thurston, contended that, as the de-
cision was based on The written
agreement between Henry Cornwell
and Claus Spreckels, and that agree
ment was one for "parttion," then
the Court should have followed up
its findings by declaring the boun-
Diary as it was mentioned in the
agreement.
Justice Bickerton asked how the
agreement precluded the idea of
amicable occupancy.
MIR. Carter replied that amicable
occupancy was not set up in connec-
ton with the agreement. On the
matter of adverse occupancy there
was distinct question Of veracity
between Mr.. Spreckels and Mr.. Mae
farlane, and in such IA contingency
the matter must be decided
Chief Justice Judd-By the acts
of the parties. That is precisely
what did, Mr.. Carter
Mr.. Carter, in further pursuing
his argument, maintained that the
adverse occupancy was sudden and
violent. Mr.. Marlin, an overseer on
Mr.. Spreckels' plantation, testified to
Mr.. Spreckels' saying to him, "They
say you have been taking other peo-
pies land" Mr.. Monsarrat had been
taken up there to make division of
the land when the parties were
friendly. Nothing was accomplish
ed, and why? Because it would have
cost the II. @. a. S. Co. Sl5O,OOO for
the excess of value ON its side. Mr..
Spreckels said it was not easy to
ma kn "a mart il ion n, "a ,,,. ~; "a,