The Hawaiian gazette., 1894-07-24

L-OllS -Gsh0 tlACNF 1AAA ~ A-N NNN~--
portion shout 5l0 acres, s. total Of ss4o
acres OF cane land Of varying quality.
The northern part Of 1855 acres is al
most entirely worthless s. cane lana,
also so acres close TO the foothillS,
being about half of the tract between
the road and the hills, also about 81
acres along the central portion OF the
Waikapu section, and Sl0 scres more
or less along the shores of Maalaea Bay
including kealis pond and adjacent
land, a total Of SS,65 acres OF poor land.
The mountain land contains approx
imately 27SO acres above the line OF
the foothills, and is practically OF no
value, except as p9stursge at certain
times OF the year.
The Hawaiian Commercial and Su-
gar Co. are 10 be allowed TO mature
and take off without let or hindrAnce
the cane now planted by them on the
land which by this partition falls to
the Waikapu Sugar Co. and situated
as follows: A small areS AZ the north
eastern corner, and also .5-scre
patch nesr the central portion.
The defendants excepted 20 the
Commissioner report as follows:
And now comes the said q. W.
Macfarlane on behalf OF the defendant
and excerpts 10 the partition recon-
mended by the Commissioners in
their report herein filed on the
grounds that and in that such
partition OF the common property
would not be either just or equl-
table. but would be unequal and un-
fair. inssmuch as il would fail to set
apart to the defendant just, fair and
equal portion of the common property,
and that the portion proposed TO oe
set apart TO the defendant Is not
equally advantageous for cane eui-
tivstion by the defendant or for
renting 70 Others for such culti-
vation, and that it is vastly lnfe-
rior ia actual value 10 the portion
proposed to be set apart 10 the plain
iii. Wherefore the defendant asks
that the said report may be altogether
set aside or modified in accordance
with the above exceptions"
AT the hearing on the confirmation
of this report. oral testimony and
affidavits were presented 10 the Chief
Justice who rendered the following
decision;
The report Of the three commits
sioners appointed 10 PARTITION the
land owned as tenants in common
between them in equal shares was
filed on the 5th December last. EN-
eepsion 10 il was taken by the respon-
dent. The report shows that the COM
missiouers carefully considered the
whole matter, visited the estate 10 be
divided and arrived at conclusions that
seemed 10 them 10 be Just and equit-
able 10 both (arties- Both parties
presented evidence before me in the
shape OF oral testimony and written
affidavits. Without reviewing the
report or the evidence submitted in
detail l am of opinion that the exeep-
ton 10 the report Is not sustained ana
that the report should be approved
and that the partition therein advised
should be made. Decree accord
ingly."
Upon which decree was signed as
follows:
The report Of the commissioners
appointed TO make partition having
come before the Court on motion to
confirm the same, and counsel for
complainant and respondent having
been heard, and the Court being of
opinion that the executions filed by
respondent should be overTuled and
the report confirmed: II is ordered,
sdiudged and deereed that the said
report of the commissioners appointed
herein TO make partition be and Is
hereby confirmed, and that the fees Of
said commissioners taxed az one hur-
dred dollars each and expenses Of all
the commissioners amounting 10
SI54 . be borne by the parties
equally; and that the parties make
to each in accordance
with said report
And thereupon defendant nled Its
notice Of appeal as follows:
And now comes George W. Mac
fsrIane on behalf OF the defendant IN
the above entitled suit, and appeals TO
the Supreme Court in Banco from the
decision and order of His Honor the
Chief Justice and Chancellor herein
fled January /, 1884, wherein and
whereby the report and nndlngs OF
the commissioners appointed to make
partition Of the property owned IN
common by the parties hereto was
and is confirmed, and the exceptions
thereto oyerTuled"
The exception 70 the Commissioners
Report Is based u upon the evidence
before the Court, and also upon aftida-
wits and evidence produced before the
Chief Justice at the hearing and I'D
upon points Of law 10 the effect that
the Commissioners have adopted in
correct and false principles in making
the partition.
I.
The evidence presented before the
Commissioners i not before Us, and