The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1893-01-10
FOR A MILLION.
Contest Between Corporations
Over the Waikapu
Commons.
Continuation Of Readings and PleadingS
in the Supreme Court.
Continuation Of Readings and PleadingS
MONDAY, Jan. 9, 1893.
Afternoon Session.

The sitting of the Court was re-
sumed at 1:3O.
The Court ruled that the deposit
ton of j. D. Spreckels could not be
admitted.
The reading of the evidence was
continued and lasted until 3 o'clock.
Mr.. Hatch raised the point that
the evidence read, being clipped
from the Advertiser, was not an Off
cial copy of the evidence, or part
of the record, so that it was nothing
upon which an appeal could be
based.
The counsel for the appellant con-
tended that the evidence being
printed from a transcript of the Off
cial stenographer's notes, was a pro-
per record of the evidence.
Mr.. Hatch for the defendant cor
poration contended that the appel
lants were bound to furnish a copy
of the evidence.
The Court did not hold that to be
the case in proceedings in equity.
The reading of evidence being
complete Mr.. Hatch opened the
argument for the plaintiff.
Mr.. Hatch stated that the relation
of the parties who were tenants in
common was very different from
that OF co-partners. One co-tenant
was not necessarily entitled to an
account. The policy of the law
should be to encourage cultivation.
There was no reason in law for say
ing that one party had occupied
more than his share, unless the other
party had desired and attempted to
occupy. Nothing of that kind was
shown here. There was no evidence
of wrongful occupation. A CO.
tenant is not damaged by the occu-
patton of the other. His legal rights
are not interfered with. He must
have been prevented from occupy
ing to base claim for an account.
The evidence in this case was just
the other way. The Waikapu Com
pany could not have proftably occu-
pied more than they did. Mr.. Corn
wells evidence shows that. He was
manager of the company. The pri-
vate wishes of Mr.. Macfarlane are
not evidence of the desires of the
corporation or its action. There is
no evidence that the Waikapu Sugar
Company or any officer of it, ever
gave the Hawaiian Commercial Com
pany notice that it's occupation was
objected to, or that the Waikapu
Sugar Company wished to occupy
any of the land occupied by the Ha-
waiian Commercial Company. An
custer must be shown upon clear and
positive evidence. An custer will not
be presumed. There is no construc-
tive custer between tenants in cons
mon. No case can be found where
such an custer has been held in a
short period like the present where
the statute of limitations has not
run. The case in 35 Penn. laid
down this doctrine very clearly. If a
trespasser took possession an custer
would be- presumed at once. But
that presumption did not exist in
the case of an owner, who in enter
ing and occupying was clearly with
in his rights. The legal presump-
ton was that tenant having title
entered in accordance with it, not
adversely, but to maintain the title
OF both co-owners against strangers.
Counsel cited number of cases in
support of this doctrine, in some
of which no presumption of custer
was held, although the statute of
limitations had rum. 1t was neces-
sary for the defendant in this case
to prove an custer, and the burden
of proof was upon the party setting
it up. Hostile intent was necessary
to an custer, and notice of hostile
intent in any tenant entering upon
property held in common must be
clearly given. A hostile intent
buried in the heart would not have
any legal effect. A co-tenant can
not bring ejectment unless the entry
OF his co-tenant is clearly adverse.
Counsel cited cases to show that
entry, cultivating, taking possession
OF rents, etc, was no evidence OF
ouster.) The entry of one tenant
was the entry of both, and this pre-
sumption would hold until set aside
by some notorious, unequivocal act
Vermont cases laid down the rule
that hostile acts OF tenant in com
mon must be as unambiguous as
those of lessee to establish pre-
sumption of custer. That was q
very far-reaching rule. Would it be
contended that the cultivation by
the Hawaiian Commercial Company
of its own crops would have that
character? The evidence shows that
the occupation was friendly. This
is the testimony Of Mr.. Cornwell
Mr.. Macfarlane's testimony shows
that his own relations to Mr.
Spreckels were, on some occasions
strained, and that he had strong
private reasons for not making any
claim on the Hawaiian Commercial
Company. This fact tends to show
that he did not make such claim
If he did not do SO for private rea
sons of his own, his action wa
voluntary.
After citation of large number
Of authorities for the plaintiffs con
tention, the Court adjourned unit