The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-09-21
OPINION OF THE COURT BY JUDD, c j.

OPINION OF THE COURT BY JUDD, CD.
This is bill for partition Of land
and for an account. Both parties
agree that partition may be made,
and the main question before us is
whether an account of issues
and profits shall be ordered The
bill is defended, by leave of the
Court, by George w. Macfarlane, a
shareholder In and owning one-half
of the stock of the defendant corpor-
alton, the other half of the stock
being held by Claus Spreckels, as
trustee for the plaintiff corporation.
Leave was given to MIR. Macfarlane
to defend the suit as a shareholder,
because it was impossible to procure
corporate action in the defendants
corporation, the stock being held IN
equal proportions by Mr.. Macfarlane
and MIR. Spreckels, and the by laws
requiring the assent of three-fourths
of the stock for corporate action,
there being no directors.
We find the substantial facts of the
case to be as follows: The plaintiff
corporation owns in fee simple one
undivided half of the land in ques-
"
Ahupuaas of Waikapu and of Pule-
hunui, known together as the ''Wai-
kapu Commons" situated on the
island of Mani. The area of the en-
tire tract is about $4,000 acres. 1t
consists mainly of the land on the
isthmus between East and West Maui
and has a chain OK sand hills running
through and dividing it. The land
wac formerly owned by one Henry
Cornwell, who conveyed one undi-
vided half thereof to Claus Spreckels
on the Goth June, 1873, and Claus
Spreckels conveyed the same interest
to the plaintiff corporation on the
9th February, 1885.
Henry Cornwell conveyed fifteen
sixteenths of one-half of this land
to George w. Macfarlane and VIM.
III. Cornwell on the 1st March, 1877,
and on the 9th June, 1879, he con-
veyed to the same parties the remain
ing one sixteenth.
On the 4th December, 1888, G. w.
Macfarlane and VIM. I'll. Cornwell
conveyed their one undivided half OF
this land, thus acquired, to the de-
PENDANT corporation, which had been
incorporated on the 18th July OF the
same year. Until the year 1889 the
shares of the defendant corporation
were owned one half by VIM. III.
Cornwell and the other half by Geo.
w. MRcfarlane, except eighteen
shares held by r. r. Hind, and which
became the property of MIR. Macfar-
lane in March, 1889, who has since
hell them. Claus Spreckels bought
in March, 1889, the shares of VIM
III. Cornwell and holds them for the
plaintiff corporation; and at the date
of the bill the stock of the defendant
corporation was owned as above
stated, one half 10y Mr.. Macfarlane
and one half by the plaintiff corpor-
alton.
The property in question, held as
tenants in common by the plaintiff
and defendant corporations In mole
ties. contains, as stated, about $4,000
acres of land, and it lies between the
land and sugar works of these res
pective corporations, there being
about 5000 acres capable of growing
sugar cane. if irrigated, on the side
of the intersecting sand hills
next to and adjoining the prop
erty and works of the plaintiff
corporation and about 1000 acres OF
similar character on the side OF the
sand hills adjoining the Waikapu
plantation defendant corporation).
No part of this land has water upon
il or water rights with which sugar
cane could be cultivated. As to the
relative quality and value OF the
land on each side of the sand hills
the testimony is conflicting, and 1t IS
not essential here to consider which
part Is the more valuable. when
MIR. Spreckels purchased from Henry
Cornwell he made written agree
ment by which MIR. Cornwell was
allowed to Craze his cattle on the
common property and on the Ahu-
puaa of Waikiki owned by MIR.
Spreckels, for three and half years
free of charge; and on the 18th
August. 1881, Mr.. Spreckels and MIR.
IL. Cornwell signed an agreement to
divide and partition the lands owned
by them in common on Maui and
more especially the tract of land one
undivided half of which was sold by
Corpwell to Spreckels the Walkapu
Commons). But as Mr.. ii. Cornwell
had, fouryears previous to this, sold
his interesSSn this land to Messrs. q.
w Macfarlane and w. II. Cornwell.
tbe agreement to divide was without
binding effect upon the moiety now
held by the defendant corporation.
The piaintiff, the Hawaiian CONNER
cial and Sugar Company, foreign
corporation, had begun operations as
sugar plantation in this country
nrevious to 1882, but the title to its
Po,ovt1 vvaa including the interest